Provincial education departments have been stripped of their powers to conduct disciplinary hearings against teachers charged with sexual misconduct.
City Press has learnt that a deal was brokered by basic education director-general Mathanzima Mweli and SA Democratic Teachers’ Union general secretary Mugwena Maluleke at the Education Labour Relations Council (ELRC) in September last year.
The ELRC is a bargaining council serving the public education sector to maintain labour peace.
This will put an end to the situation in which pupils, who were sexually assaulted by their teachers, have to relive their trauma by testifying multiple times.
Initially, pupils were required to testify first at the departments’ disciplinary hearings and later at the ELRC whenever a teacher appealed their dismissal.
ELRC general secretary Cindy Foca said this would also put paid to instances in which provincial education departments arrive at different outcomes for sexual misconduct cases.
While one province would dismiss a teacher as per the law, another would hand him or her a mere suspension.
Foca said there were also unproved allegations that offending teachers or their union representatives would bribe presiding officers and experts – whom the provincial education departments hired – to find in the teacher’s favour.
Another problem was that teachers’ appeals to their provincial MECs took more than three years to be finalised.
And, by the time the case was closed, many victims would have left school or others would refuse to testify for fear of reliving their trauma.
Foca said sometimes when the appeal reached the ELRC, parents would refuse to let their children testify as it would be too painful for them.
Another concern was that offending teachers would be reinstated and could move to other provinces to find jobs because they had not been struck off the roll by teachers’ regulator, the SA Council for Educators (Sace).
Also, dismissed teachers could appeal being struck off the roll and Sace would investigate from scratch and find in favour the teacher.
“We’ve had discussions with Sace to see how we can find synergy in the system. In the past the ELRC arbitrator would state in the ruling that ‘please submit the award to Sace’ to ensure that the teacher is struck off the roll, but Sace would write back saying they’ve investigated and found no [not enough] evidence against the teacher and he or she wouldn’t be struck off the roll,” Foca said.
Under the new deal, the ELRC will conduct disciplinary hearings after the provincial education department investigated the allegations.
Foca said to protect victims from secondary victimisation, the ELRC would appoint an intermediary, recruited from the justice department, through whom the victim could testify.
The ELRC, Foca said, appointed trained arbitrators accredited by the Commission for Conciliation, Mediation and Arbitration in all provinces to preside over such cases.
The ELRC was also looking at having offices in each education district. But, for now, they were using their provincial chambers and Children’s Courts for hearings.
Foca said dismissed teachers, disgruntled by their ruling, would have to approach the labour court to challenge it.
They would have to approach the high court to appeal their placement on the offenders’ register by the social development department.
In addition, education officials investigating sexual misconduct allegations would be trained to avoid cases being botched.
Foca urged parents to report allegations not only to their provincial education departments but also to the ELRC. She said the ELRC would conduct advocacy campaigns to encourage communities to report cases so they would not feel they were being brushed off.
How alleged offenders walked free
In a case heard at the ELRC in KwaZulu-Natal last year, a teacher walked free after facing three charges of sexual misconduct.
The teacher, who worked as a maths and accounting teacher at a school in Umlazi was found guilty by the provincial education department on all charges against him and was dismissed in 2016.
But, on appeal before the ELRC, the teacher was reinstated.
On the first charge of having a sexual relationship with a pupil, the pupil refused to attend the hearing and did not provide a compelling reason for this.
On another charge, that he allegedly sexually groomed another pupil, the ELRC found that witnesses contradicted one another.
In the final charge, the teacher was alleged to have asked the pupil to be his lover. On this charge the ELRC ruled in favour of the teacher because of material contradictions in evidence provided by witnesses.
In Gauteng a life skills teacher at a primary school in Ekurhuleni was dismissed in 2017 by the department for two counts of sexual misconduct in which he allegedly touched schoolgirls’ breasts.
It was alleged that the incidents would happen when the teacher would put the girls’ chewing gum in the pockets of their shirts.
However, the teacher deposed that he believed the principal and deputy principal used one of the children’s dislike of him to drum up support for false allegations of sexual misconduct.
The teacher asked that the charges against him be dismissed and for him to be reinstated.
The presiding officer was not convinced that the teacher had a case to answer because there was a contradiction in evidence from the schoolgirls on both charges. The teacher was reinstated.
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