An education official's suggestion that an 11-year-old boy's alleged rape of a 10-year-old girl at school may have been "consensual sex between minors" has alarmed and outraged children's rights groups.
The education department has failed to act three weeks after the girl was raped at her school by the 11-year-old, saying it is still investigating whether the incident was rape.
The official's comment sparked anger from children's rights activist and researcher Lisa Vetten, who says she doubts there could be consensual sex by minor children.
The incident also shines a harsh light on a rising tide of violence in SA's schools, where kids are often abused by teachers or fellow pupils, and teachers are known to demand sex in return for marks.
The incident has traumatised the girl's mother, who may not be named to protect the identity of the child. It occurred at Mkhwezo Junior Secondary School in Xhwili village, about 25km west of Mthatha in the Eastern Cape.
The mother was alerted to the rape after a video of a teacher interrogating the two children went viral. She received the video from a relative.
The incident has exposed glaring failures by authorities. The school did not report the rape to the police or the education department, and the department has taken no action against the school, the principal, the teacher or the boy.
And while police say they have investigated and are sending the matter to the National Prosecuting Authority (NPA) next week for a decision on whether or not to prosecute, the girl's mother told the Sunday Times this week that police had not contacted her to ask for her daughter's version of events.
In the 30-second video clip, which the Sunday Times has seen, a teacher asks the two children in Xhosa what happened. When the girl begins to cry, the teacher shouts and shakes her finger at her.
The visibly shaken girl then explains, saying: "He said I must kneel down and I did that, then he raped me." When questioned, the boy responds: "I raped her at the back and then in front."
The rape occurred on school premises during school hours.
The grade 4 girl had been staying with her grandmother because her mother works in Mossel Bay in the Western Cape. Her mother has pulled her out of the school and they are now both in Mossel Bay.
Her mother told the Sunday Times she learnt of the rape when the video was sent to her via WhatsApp.
"I could not believe this was my little girl, explaining to the teacher how she was raped by this boy. You could see that she was shaken and wanted to cry, yet the teacher was raising her voice. My girl painfully tried to explain the incident, that episode was so traumatic."
The woman said she sent her sister from Mossel Bay to the Eastern Cape to talk to the education department and the police.
"All I wanted was for my child to be moved out of that school and to be safe because I was worried that she would be threatened. She was not safe."
The victim's aunt said they were worried about how many children at the school had seen the video, and how this was affecting the girl.
"This is not right, teachers should know better," she said.
She said she had opened a case of rape against the boy and of crimen injuria against the teacher at the Bityi police station. "She needs to explain why she can allow that to be done to her children."
She also alerted a local NGO, the Khula Community Development Project, which alerted the Eastern Cape education department. The organisation's leader, Petros Majola, said he was shocked by the incident.
"This is humiliation of the worst kind as these kids, mostly the girl victim, will live with this forever," he said.
Majola said it was clear the department did not know its own policies. "There's nothing consensual here. The department must not even look at that. It seems that they don't understand their policies on children's safety at school.
"Children aged 10 and 11, what do they know about sex? A crime has been committed here."
Eastern Cape education department spokesperson Mali Mtima said that after Majola contacted them, they immediately sent a legal team to the school, "but the team was told the family was going to take legal action".
He said: "We as the department are doing our own investigation into the matter.
"Remember, we are dealing with minor children, the matter is very sensitive. We can't really go for one teacher until we know who was there, who took the video, whose phone was that and how it ended up outside the school premises."
He confirmed the school had not reported the incident to the department.
National education department spokesperson Elijah Mhlanga said the Eastern Cape department had a rapid-response system for reporting such incidents.
"The system works very well. Unfortunately in this case the principal did not report the matter on the reporting system. Action will be taken against the principal."
When department officials asked to interview the teacher, she "produced a letter from her attorney indicating that she will not participate in the process", he said.
"Disciplinary steps will be taken against the educator, [but] it is so close to the end of the year it will unfortunately have to stand over until the new year.
"We cannot comment on the issue of rape. Our investigation shall determine whether it was rape or consensual sex between minors.
"On completion of the investigation and disciplinary process the matter shall be reported to South African Council for Educators."
Vetten, who has worked in the field of gender-based violence for over 20 years, said the department should not have made such a comment about consensual sex between minors.
"This is bad. What about the victim's rights, why are they exposing her, a victim of alleged rape, to this? This is going to affect her for the best part of her life unless proper counselling is received."
Education expert Mary Metcalfe, a former Gauteng MEC of education, said children under the age of 12 were not considered capable of "consent" to sexual activity because they did not have the socio-emotional maturity to make this decision.
"All adults, and educators in particular, have a responsibility of care in relation to children. The teachers involved should immediately have acted to protect the children concerned by ensuring that professional support was brought in; that each child was able to recount their experience in a safe and unthreatening space; that the identity of the children was rigorously protected; that the families were informed; and that appropriate counselling and support was provided," she said.
"Both children now need support, and criminalisation is not legally appropriate. This is a systemic problem and the incident should be the impetus for improving our systems of support for teachers who have to respond to such incidents. Teachers need clear frameworks for protecting victims and clear systems for reporting and seeking support as they, too often, are on their own."
The Eastern Cape representative for the Commission for Gender Equality, Nomsisi Bata, said: "The department of education should do their investigation but know that young children cannot consent [to] sex, no way. Teachers should protect children during school hours, not take videos and share them, as is alleged here … But most of all, we call for psychological support of these two children."
Eastern Cape social development MEC Phumza Dyantyi said the department would ensure the girl received counselling, and pointed out that failure to report a case of child abuse is a crime.
The school's governing body chair, Stanley Cama, declined to comment, saying he was waiting for guidance from the principal.
Police spokesperson Capt Dineo Koena confirmed police were investigating and that the girl would be interviewed if the NPA decided to prosecute...