Court finds Western Cape education dept liable for damages after rape of pupil

play article
Subscribers can listen to this article
The Western Cape education dept has been found liable for damages after the rape of a pupil.
The Western Cape education dept has been found liable for damages after the rape of a pupil.
Getty Images
  • The office of the Western Cape MEC for Education was found liable for damages to a former school pupil who was sexually assaulted.
  • The court found the department had a legal duty to vet all employees.
  • The perpetrator, an acting principal, covered up that he had a previous conviction for sexual assault.

The office of the Western Cape MEC for Education has been found liable to pay damages to a former school pupil who was sexually assaulted, aged 12, by her acting principal.

The acting principal already had a previous conviction for indecently assaulting a teenager.

His criminal record was never picked up. He lied on forms he submitted for various teaching posts he held.

But Western Cape High Court Judge Mark Sher has now ruled that the education department was negligent in not doing proper vetting.

He ruled that the MEC and the perpetrator are jointly liable to pay damages – still to be determined, either at a future trial or by agreement – to the former pupil.

READ | Walter Sisulu University student found guilty of stealing NSFAS money

While the sexual assault occurred 10 years ago, Judge Sher said evidence was that the perpetrator, Keith Swanepoel, was still employed as an educator "placing children in his care at continued risk".

"This is unacceptable and a copy of this judgment must be forwarded to the department, so that appropriate action can be taken against him.

"It is also unacceptable that he was not prosecuted criminally. He should be punished for it. I trust the matter will also be referred to the director of public prosecutions."

Read the judgment here.

The former pupil was attending Vleiplaas Primary School in September 2011 when, according to her evidence, Swanepoel instructed her to go with him to the staff toilet.

He locked the door and told her to remove her uniform. He then put on a condom and raped her.

Afterwards, she was in a state of "shock and anger".

Some days later, she told the school secretary what had happened. The education authorities were alerted and a charge was laid with the police.

Her evidence was backed up by two witnesses, who had seen her come out of the toilet "appearing dishevelled", followed moments later by Swanepoel who wiped his face with a rag.

READ | KwaZulu-Natal teacher allegedly rapes pupil, 14, on school premises

One witness - the secretary, Colleen Kees - said on that day she had gone looking for the young girl because she was supposed to be on kitchen duty.

She had noted that the staff toilet door was locked and Swanepoel indicated to her that he was inside.

She was suspicious. She waited a few metres away, joined by a local community member who happened to be at the school. They witnessed the learner and Swanepoel coming out.

Kees said she questioned the learner, but it was only some days later that she became "distressed and was crying", and said what had happened.

Swanepoel denied that he had raped or sexually molested her.

Judge Sher said, during cross examination, he was "repeatedly confronted" with numerous standardised department application forms he had completed over the years in which he was asked if he had ever been found guilty of a criminal offence.

He indicated that he had no convictions.

READ | KES pupil stabbed to death outside Sandton nightclub, 18-year-old arrested

Judge Sher said Swanepoel had conceded, however, that in 1992 he had been convicted of indecently assaulting a girl under the age of 16.

"He denied withholding his criminal record, saying it had been a mistake, but conceded that, if he had disclosed it, he would in all likelihood not have been appointed," Judge Sher said.

Judge Sher said the former pupil had proved her case "amply".

In contrast, Swanepoel had been a poor witness – "smug, opinionated and evasive".

He had gloated about the fact that he had not been found guilty at his disciplinary inquiry.

Judge Sher said the outcome of the inquiry had been "startling", "a travesty of justice".

"Had the presiding officer properly considered the evidence, he would have been found guilty and dismissed," the judge said.

Department liable

On the issue of the liability of the MEC, he said the department had attempted to shift the blame to the South African Council for Educators, which is responsible for the registration of educators, but this was not sustainable.

It also emerged during the hearing that, since 2018, following an outcry about teachers sexually assaulting learners, the department had begun doing its own vetting, which undermined its defence that this was not its responsibility.

The department had been unable to explain why it had never checked or verified the forms Swanepoel had filled in, and yet it had conceded that the issue of sexual attacks on learners was longstanding.

Judge Sher said: 

In my view, the department was under a legal duty to vet him before accepting him as its employee, in order to ensure that not only was he formally qualified to teach children, but also that he was a suitable and fit person.

"It failed to discharge that duty. It was negligent. A reasonable employer would have foreseen that children would be at risk by an educator who had a previous conviction of sexual assault of a minor, if it employed him."

Judge Sher dismissed a counter-claim lodged by Swanepoel against the former learner for "laying a false charge of rape against him". He said this was a "litigatory tactic" aimed at putting pressure on her and an "abuse of process".

Never miss a story. Choose from our range of newsletters to get the news you want delivered straight to your inbox.

We live in a world where facts and fiction get blurred
In times of uncertainty you need journalism you can trust. For 14 free days, you can have access to a world of in-depth analyses, investigative journalism, top opinions and a range of features. Journalism strengthens democracy. Invest in the future today. Thereafter you will be billed R75 per month. You can cancel anytime and if you cancel within 14 days you won't be billed. 
Subscribe to News24
Voting Booth
Are you going to keep wearing a mask following the announcement that it is no longer required under law?
Please select an option Oops! Something went wrong, please try again later.
No ways, I'm done
41% - 2721 votes
Yes, I still want to be cautious
21% - 1403 votes
Only certain circumstances
38% - 2481 votes
Rand - Dollar
Rand - Pound
Rand - Euro
Rand - Aus dollar
Rand - Yen
Brent Crude
Top 40
All Share
Resource 10
Industrial 25
Financial 15
All JSE data delayed by at least 15 minutes Iress logo
Editorial feedback and complaints

Contact the public editor with feedback for our journalists, complaints, queries or suggestions about articles on News24.