The dismissal of public-school educators on the grounds of sexual abuse of children : an appraisal of section 188a of the Labour Relations Act 66 of 1995

Abstract

This doctor of laws (LLD) thesis examines the effectiveness of section 188A of the Labour Relations Act 1995 in handling dismissal disputes of educators charged with child sexual abuse in public schools in South Africa. The thesis acknowledges the development of labour dispute jurisprudence in the country which was galvanised by the constitutional dispensation in 1994. On attaining independence from a past riddled with apartheid policies and oppression, South Africa took a new direction and set itself a goal to develop democratic systems and institutions, including those related to labour dispute resolution. The Constitution of the Republic of South Africa recognised rights such as that of employees not to be subjected to unfair labour practices and the right to form and participate in trade unions. This development was bolstered by the enactment of several statutes, including the Basic Conditions of Employment Act, the Employment Equity Act, and the Labour Relations Act. Within the architecture of the LRA, the legislature provided specialised institutions and processes termed the “one-stop shop” for resolving labour disputes effectively. This provision included the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Courts, supported by bargaining councils. This thesis acknowledges the subtle prevalence of child sexual abuse in schools perpetrated by teachers as a besetting problem affecting children, parents, families and the community. There are international instruments applicable in South Africa that prohibit child sexual abuse against children such as the United Nations Convention on the Rights of the Child and the regional one called the African Charter on the Rights and Welfare of the Child as well as the domestic laws including the Constitution of the Republic of South Africa, 1996 which are explored in Chapter 2 of this thesis. These laws prohibit the sexual abuse and exploitation of children or anyone below the age of 18 years of age. The application of these laws has still not deterred errant educators from committing acts of child sexual abuse against children, which peaked during the global COVID-19 pandemic. South Africa also has various statutes applicable within the school sector such as the Children’s Act, the Schools Act, the Employment of Educators Act, the South African Council for Educators Act, and the Electronic Transactions and Communications Act that are all designed to both protect children from child sexual abuse, uphold the rights to dignity and basic education, and at the same time protect teachers against unfair labour practices and unfair dismissal. Implementing these statutes has neither stopped educators from sexually abusing schoolchildren nor protected some accused educators against unfair labour practices and unfair dismissals. As a result, the public schoolpublic-school sector decided to apply an innovative approach to dealing with child sexual abuse disputes against educators. This novel approach was inserted into the LRA as section 188A, termed a pre-dismissal arbitration, and renamed an inquiry by an arbitrator in 2014. For the sake of brevity, this thesis refers to section 188A of the Labour Relations Act 66 of 1995 simply as “section 188A”. The idea behind section 188A was to reduce the number of forums which prevailed until then, where children would have to endure the ordeal of testifying several times. This is a “one-stop shop” for conducting disciplinary proceedings against teachers charged with child sexual abuse. This dispensation eliminates a disciplinary hearing and possible appeal and adopts an arbitration proceeding under the auspices of the CCMA or an accredited bargaining council. In the public schoolpublic-school sector, this responsibility was placed on the Education Labour Relations Council (ELRC) through Collective Agreement No. 3 of 2018 (the “ELRC Collective Agreement”). Whether this move was a panacea for resolving the problem of child sexual abuse perpetrated by educators in SA is the main problem and the golden thread of this thesis. Though offering a promise of resolving the problem and presenting the public schoolpublic-school sector with many advances, this thesis ascertained that its reliance on section 188A is bedevilled by many problems that impede its success. Apart from the problems already facing the public schoolpublic-school sector, such as acute fragmentation because multiple authorities exercise concurrent jurisdiction over the management of educator discipline, further challenges related to the application of innovation undermine its effectiveness. The main advantages revealed by Chapter 6 of this thesis include reducing the multiplicity of forums that conduct disciplinary inquiries into teachers’ misconduct as well as the related reductions in cost. From a psychosocial standpoint, using section 188A also reduces the chances of secondary trauma that schoolchildren may have to suffer by testifying in multiple forums and facing their possible sexual abuser. At the same time, this thesis observes that the ELRC faces challenges such as the lack of appropriate venues with circuit television among other requirements and suitable for conducting arbitration proceedings. The ELRC relies on borrowed premises at the magistrates’ courts throughout South Africa which lack security of tenure and predictability. The other challenge relates to litigants’ using lawyers in the arbitration proceedings, turning them into pseudo-court proceedings often riddled with technicalities, costs in time and expenses, and multiple postponements. Some postponements are often counterproductive because they lead to the disappearance of child witnesses as they graduate from the school system at the end of their secondary school period, whether in Grade 11 or 12. The processes depend on evidence which much of the time is derived from testimonies of victims and witnesses of child sexual abuse. The ELRC is also faced with the prospect of appointing sub-par commissioners to preside over cases, leading to new proceedings from the beginning under a different commissioner or to further court litigation. Nor has the employer of educators helped the section 188 proceedings. Problematically, the employer has sometimes misclassified cases, with sexual assault being classified as assault and vice versa. The employer has also been reluctant to use the section 188A process although party to a collective agreement requiring all child sexual abuse cases against teachers in public schools to be processed according to section 188A. Several cases have been processed through internal hearings since the ELRC Collective Agreement No. 3 of 2018 consenting to the use of the section 188A process was signed on 25 September 2018. This is an indictment of the legislative provision intended to safeguard the best interests of schoolchildren and the labour rights of teachers. Further problems critical to the process include the employer’s failure to conduct proper investigations to ensure that cases are ripe for prosecution when they appear before the ELRC arbitrator, the failure to present closing arguments at such proceedings, the failure to prove cases, and the failure to secure witnesses. The South African legislature has also exacerbated the problem by enacting parallel legislation providing for the employment of educators by the employer in terms of the Educators Act and then other educators employed by school governing bodies in terms of the Schools Act. The SGB educators are not covered by the ELRC Collective Agreement, so the ELRC lacks jurisdiction to preside over their cases when they commit child sexual abuse. This situation creates unnecessary confusion and disparities requiring a remedy to provide a single unified system for employing educators. Despite the promise of ending multiple forums through the section 188A process, the presence of the South African Council for Educators adds another layer of complexity to the whole system, which negates its importance. Employers’ decisions to dismiss educators for child sexual abuse are supposed to be reported to the regulator of teachers who may remove their licence to teach. The architecture of the South African Council for Educators Act requires the Council to note the report from the employer but not rely on it to charge a teacher for a breach of professional ethics. The Council for Educators must conduct its independent investigation, hearings and appeals on these educators reported to them by the employer because of dismissal for child sexual abuse. Section 15(2) of the Employment of Educators Act considers a teacher whose licence to teach has been withdrawn by the Council for Educators to have resigned, which has the effect of closing his access to the LRA dispute resolution processes. This step forces teachers to pursue civil litigation in the High Courts and Supreme Court of Appeal to insist upon their rights. The parallel educator disciplinary processes by the employer and the Council for Educators still pose the risk of subjecting children to multiple forums and attendant susceptibility to secondary trauma through multiple testimonies. This thesis also conducts a comparative examination of the systems in Nigeria and England for dealing with educator dismissal disputes for child sexual abuse cases. This examination revealed several lessons which might be useful for successfully dealing with child sexual abuse in South Africa. Chiefly, both countries suffer the scourge of child sexual abuse by teachers but have a unified system for dealing with child sexual abuse cases and safeguarding the labour rights of teachers. England, in particular, took drastic measures to create a unified system by dissolving the General Teaching Council for England in 2012, as its commission of inquiry revealed that the GTCE created unnecessary problems of bureaucratic inefficiencies, duplication, and a financial burden on teachers through subscriptions to fund its existence. Now England has a united system and process for dealing with child sexual abuse cases against educators. Nigeria has a Teacher Registration Council of Nigeria with a diverse council running its affairs, unlike South Africa, whose council is dominated by teacher unions. The South African position is problematic, because it is dominated by teacher unions constituting 18 members out of 30 council members whose vote is determined by the ELRC. This position places the risk of union goals dominating the agenda over professional regulatory goals, leading to polarisation. The teachers and students do not also help with the effectiveness of the section 188A process in child sexual abuse cases. Errant educators use bribes, invoking the African cultural practice of offering to pay damages when they have impregnated schoolchildren to evade prosecution. In worst-case scenarios, they bribe parents and guardians from poor backgrounds, who then withhold the consent of children to testify in proceedings against them. Some children both in England and South Africa also frame educators with false accusations or become untruthful in disciplinary proceedings, and potential child sexual abusers thus go unpunished and are retained in the school system. This thesis concluded that the section 188A process in South Africa offers several benefits but is hampered by the negligence of the employer of educators in prosecuting cases and managing educators. The thesis also makes several recommendations for legislative reforms. For example, taking a cue from England, South Africa should abolish multiple authorities over educators. Moreover, prompt prosecution requires Parliament to exercise oversight over entities such as the employer of educators and the South African Council for Educators. These measures, among others set out in Chapter 8 of this thesis, require urgent attention to safeguard children’s rights to protection from sexual abuse, protection of their dignity and their unqualified right to basic education, while also safeguarding teachers’ rights.