An arbitrator, who found a teacher guilty on six counts of sexual misconduct and ruled that he be dismissed, failed to indicate that his name should be included in the department of social development’s child protection register.
The panellist, who presided over an arbitration hearing on behalf of the Education Labour Relations Council (ELRC), last month found the teacher from Erika Primary School in Western Cape guilty of, among other things, lifting up a girl’s dress, insisting a pupil undress in class and touching a girl’s vagina.
In a separate arbitration hearing, despite finding a teacher guilty of sexually assaulting three pupils at Avoca Secondary School in Durban, an ELRC commissioner said he did not have “sufficient” evidence to consider declaring the teacher unfit to work with children.
He ruled in September that the teacher be dismissed after finding him guilty of touching a girl’s thigh and two girls’ breasts.
But social development spokesperson Lumka Oliphant said the names of all teachers found guilty of sexual misconduct must be forwarded to them for inclusion in the child protection register.
The department of social development, the custodian of the register, records the names of those found guilty by the courts and forums such as the South African Council for Educators (SACE) and the ELRC, of sex-related crimes.
Oliphant confirmed that the names of 10,088 people, including teachers, who have been declared unsuitable to work with children, are listed in the register.
A total of 642,880 enquiries from employers requesting to screen potential employees against the register were made from April 2012 to March 2022.
She said that between January last year and last month, 53 names of teachers found guilty of sexual misconduct were submitted by the ELRC for inclusion in the register.
“The Children’s Act mandates the registrar of the relevant administrative forum, including the ELRC, to notify the director-general in writing of any finding that a person is unsuitable to work with children.”
She said that only the department of basic education and not SACE nor the ELRC have access to the register.
“The register is a protection measure ensuring that reported cases of child abuse are recorded and interventions provided to children while also keeping a register of people unsuitable to work with children.”
Where pupils are involved as victims of sexual misconduct by educators, such awards must reflect that names of educators must be included in the register.
— Cindy Foca, ELRC general secretary
Commenting on the arbitrator’s ruling in the case concerning Erika Primary, which was brought to the ELRC’s attention by TimesLIVE Premium, general secretary Cindy Foca agreed that the arbitrator did not specifically indicate that the perpetrator’s name must be included in the register.
“The pattern has been observed that only two commissioners do not indicate in their awards that the name of the educator must be included in the register. All other commissioners found the educator unsuitable to work with children.”
She said the issue has been addressed with the two commissioners “as the council, in all its training sessions with the commissioners, re-emphasises the importance of them taking into account the best interests of the child in all these types of matters”.
“Where pupils are involved as victims of sexual misconduct by educators, such awards must reflect that names of educators must be included in the register.”
Foca said in the case involving Avoca Secondary, they have come across awards in which commissioners use the pupil’s age to determine whether a teacher’s name should be submitted to social development.
“Social development has confirmed that all educators found guilty of sexual misconduct against pupils, irrespective of their age, are included in the register.”
The arbitrator in the case of Avoca Secondary stated in his award that at the start of the hearing, the parties were invited to submit evidence and make submissions to the Children’s Act inquiry to determine whether the teacher was unsuitable to work with children.
He stated that the employer did not make any submissions to the Children’s Act inquiry and he therefore did not believe he had sufficient evidence to consider declaring the employee unfit to work with children. Foca said the department also confirmed that they do not limit the age to 18 years.
“The council ensures that every award in which the educator has been found guilty of sexual misconduct is submitted to social development whether the commissioner has instructed the council to submit it or not.”
She said they did not have a list of teachers whose names appear in the register as they do not have access to it.
SACE CEO Ella Mokgalane said they could not confirm the number of names they submitted for inclusion in the register from January last year until June this year because their annual report has not yet been audited.
She said they vetted all prospective teachers seeking employment who are screened against the register.
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