A child is defined in the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) as a person under the age of 18 years. As soon as a person reaches the age of 18 years
he or she is regarded as an adult and is treated as such in the criminal justice system.
in relation to a child, means any form of harm or ill-treatment deliberately inflicted on a child, and includes-
(a) assaulting a child or inflicting any other form of deliberate injury to a child;
(b) sexually abusing a child or allowing a child to be sexually abused;
(c) bullying by another child;
(d) a labour practice that exploits a child; or
(e) exposing or subjecting a child to behaviour that may harm the child psychologically or emotionally;
THE CONSTITUTION
Chapter 2 of the Constitution, Act 108 of 1996 contains the Bill of Rights which vests all South Africans with fundamental human rights which must be respected, protected, promoted and fulfilled by the state and individuals. The Constitution is supreme law which means that it is the highest law in South Africa.
Any law that is inconsistent with the Constitution is invalid.
The South African Constitution explicitly addresses the rights of children and affords them specific protection. Section 28(1)(d) holds that “every child has the right to be protected from maltreatment, neglect, abuse and/or degradation”.
CHILDREN’S ACT 38 OF 2005
The Children’s Act and its amendment 41 of 2007 (promulgated in 2010) addresses children’s rights in its entirety. Section 110 specifically deals with the protection
of children and resonates with the UN Convention and the AU Charter on the protection of children’s rights.
THE SEXUAL OFFENCES ACT 32 OF 2007
The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 came into operation at the end of 2007 (“The Act”). The Act recognises the fact that the occurrence of sexual violence in South Africa is very high and that women and children are particularly vulnerable to sexual violence. The purpose of this Act is to provide survivors of sexual violence with better legal rights and protection than
the rights and protection that was afforded to them prior to the coming into operation of the Act. Ultimately, the Act aims to do away with sexual violence in South Africa.

The new Act has made various changes to the laws on sexual violence and has also created new laws. The state must act in accordance with these changes.
THE CHILD JUSTICE ACT 75 OF 2008
The Child Justice Act came into effect on 1 April 2010. The Act creates a separate criminal justice system for children, and any child who commits a criminal offence will be dealt with in terms of the Act, including those who commit acts of cyber
bullying which fall within the ambit of the definition of a specific crime, and those engaged in sexting which is classified as child pornography.
FILMS AND PUBLICATONS ACT 65 OF 1996
Deals with child pornography issues such as texting of material with pornographic content containing children.
ABUSE, in relation to a child, means any form of harm or ill-treatment deliberately inflicted on a child, and includes,
(a) assaulting a child or inflicting any other form of deliberate injury to a child;

(b) sexually abusing a child or allowing a child to be sexually abused;

(c) bullying by another child;
(d) labour practice that exploits a child; or

(e) exposing or subjecting a child to behaviour that may harm the child psychologically or emotionally.

Legal definitions of “Abuse” reaches further also legally include bullying, sexting and pornographic material.
Section 110 of the Children’s Amendment Act mandates “any correctional official, dentist, homeopath, immigration official, labour inspector, legal practitioner, medical practitioner, midwife, minister of religion, nurse, occupational therapist, physiotherapist, psychologist, religious leader, social service professional, social worker, speech therapist, teacher, traditional health practitioner, traditional leader or member of staff or volunteer worker at a partial care facility, drop-in centre or child and youth care centre” to report when they suspect that a child has been abused “in a manner causing physical injury, sexually abused or deliberately neglected”.

(Ordinary citizens are given the discretion to report abuse but are not compelled to do so in terms of section 110.)

Section 54(b) of the Sexual Offences and Related Matters Act, clearly states that failure to report sexual abuse or exploitation
of children and mentally handicapped persons is deemed an offence and is punishable with a fine or imprisonment of up to 5 years, or both, if the person is found guilty.

It even relates to sexting in that: a person who has knowledge that a sexual offence has been committed against a child (such as exposure to or displaying of genital organs, anus or female breasts to a child, or exposure or display of child pornography to a child) must report such knowledge immediately to a police official. Failure to report such information is an offence, and if convicted the person can be sentenced to a fine or imprisonment for a period not exceeding five years, or to both a fine and such imprisonment.

Films and Publications Act 65 of 1996failure to report receipt of “sexted” child pornography to the police will amount to a section 27(2) offence.
Reasonable grounds for suspicion/reasonable belief of suspicion of abuse or ill treatment of a child should be reported.

‘Grounds’ must be based on the facts obtained from objectively exploring (with one’s five senses) a particular situation or set of evidence. Once the facts are established by looking, hearing, smelling and sometimes tasting, the facts are usually evaluated. The test is the subjective interpretation of the facts contemplated.

The reasonable person should be deemed similarly situated to
report the matter. ‘Reasonable grounds’ are said to exist if this reasonable person would come to the same conclusion under these similar circumstances.

In terms of the Sexual Offences Act, reporting can also be based on the ‘disclosure’ of the victim and evidence obtained from a secondary source (eye witness) likewise gives rise to the legal obligation to report to the relevant authorities.

Child Protection Services refers to the protection of a child up to the age of 18 ‘in need of care and protection’.
Any child who - under 18 years old -

- has no parent, e.g. children orphaned by HIV/AIDS;
- has a parent or guardian who cannot be traced;
- has been abandoned or is without means of support;
- displays behaviour that cannot be controlled by his or her parents or by the person in whose custody he or she is;
- lives in circumstances likely to cause or to be conducive to
his or her seduction, abduction or sexual exploitation;
- lives in or is exposed to circumstances that may seriously harm the physical, mental or social well-being of the child;
- is in a state of physical or mental neglect;
- has been physically, emotionally or sexually abused or ill-treated by his or her parents, guardian or the person in whose custody he or she is or being maintained; or
- is suffering from a nutritional deficiency.
Mandatory reporting which requires reporting by law, when supported by a set of facts and done without any malicious intent, will not give rise to any claims of liability.
The person reporting will not be held liable for damages under these conditions, even if it is ascertained that there is no abuse or neglect of any kind.
Educators are in contact with children on a daily basis. As such they are bound to be confronted with a child abuse case at some point. They will need to learn how to recognise when a child is being abused, how to manage that child, the procedures for reporting abuse as well as how best to deal with disclosure of abuse.

Dealing with this abuse in the correct manner could make the difference between the perpetrator being convicted or acquitted. In addition, a child who has just disclosed is vulnerable and requires special care.

Sometimes children make disclosures of abuse to educators. Sometimes educators observe the behaviour and well-being of children and may suspect that the child is being abused. All schools should have child protection policies and educators do need to familiarize themselves with these.

However it is important to remember that no matter what the policy of the school, or what another educator may tell you, educators have a statutory responsibility to report child abuse and the failure to do so is a crime.

It is not easy having such a responsibility but see your role as educator as being a guardian.If you inform yourself you will be better equipped to assist

children in your care as well as educate fellow educators and caregivers.

At the time of disclosure, whether it is accidental or purposeful by the child, it is important to react carefully and to show as much empathy as possible. Try not to react with anger about the incident and put your feelings aside until the child has been assisted.

The role of the educator and/or parent is one of reporting the abuse, supporting the child and not the case. For example, it is not the educator’s role or responsibility to insist on seeing physical evidence of abuse, or to question the child about the abuse.

Under no circumstances should an educator take it upon him/herself to examine the child for signs of sexual abuse, e.g. removing underwear and touching or examining the child’s private parts or to cross examine the child on the details of the child’s disclosure.

If the child wants to show his/her injuries say; “I do believe that this has happened to you. It is a nurse or doctor’s job to make a report on the physical signs of what happened to you. Will you allow me to talk to the school sister/nurse. I am not qualified to write a report on your injuries.”
To help educators report abuse or suspected abuse in such a way that the child can be helped, the following Protocol to should be adhered to when:
1. You either suspect abuse by any person or neglect by primary care givers, on reasonable grounds; or
2. A child discloses abuse by any person or neglect by primary caregivers.
STEP 1 – IDENTIFY THE NATURE OF ABUSE AND/OR NEGLECT:
- SERIOUS AND LIFE THREATENING OF NATURE
Abuse and neglect of a serious, and life threatening nature, i.e.: physical and sexual abuse, exposure to drug abuse.
SERIOUS BUT NOT NECESSARILY LIFE THEATENING OF NATURE
Abuse and neglect of a serious nature but not necessarily life threatening, i.e.: emotional abuse, conflict in home.
STEP 2 - COMMUNICATION WITH CHILD
Explain to the learner that you will treat all the information in a confidential way, but in order to help her or him, you are legally obliged to report the case to other role-players such as the
social worker and/or the SAPS. Explain the roles that they will play as well as the procedures that will be followed.
STEP 3 – SAFETY FIRST
Ensure the safety of the learner, in collaboration with the SAPS and the social worker, ensure that the learner will not
have direct contact with the alleged offender.
STEP 4 – ENSURE THE IMMEDIATE MANDATORY REPORTING OF THE ABUSE
Immediately Inform the designated person at the school in writing as reporting of abuse and neglect is mandated by law and this law and supersedes contrary school policy by noting the following information:
- Child’s name, date of birth, addresses and telephone number.
- Care Giver’s, Parent’s or guardian’s name, address and telephone numbers.
- Reasons for concern, any documentation of indicators and any relevant statements made by the child.

No investigation should be carried out by the school personnel at this stage or any other time.

The person who suspects the abuse or the designated person should complete the attached Form 22 immediately and should contact a Social Worker from the designated Child protection organization for the area in which the child resides such as a Child Welfare Society or the Department of Social Development and the Child Protection Officer of the South African Police Services. The following should be noted:
- the name of the person making the call;
- the name of the intake worker receiving the call;
- the date and time of the call; and
- the action proposed by the person to whom the abuse has been reported.

The Form 22 should then be faxed, e-mailed or delivered to the designated Social Worker and Child Protection Unit and proof of sending of the form should be properly filed to ensure proof of legal compliance.

The social worker and the police must interview the child as soon as possible.

The Social Worker and/or the Police will interview the alleged
abuser and sometimes family members as well.
A decision concerning the child’s safety will be made by the Social Worker at this time.

In this case in which the child is disclosing that he/she is being sexually abused or has been sexually abused by one of his caregivers, the social worker will determine whether the other parent or caregivers knows about this and also evaluate the ability/capacity of this non-offending parent to protect the child by moving out. If the non-offending parent seems incapable of protecting the child, the designated social worker must immediately take the following action:

In cases of child sexual abuse it is critical that reporting be done in writing, after the removal of a child in such a case the child concerned must be taken to the local GP for the completion of a J88. This evidence must be presented in court the following day (along with forensic report and affidavits).

The absence of medical evidence does not imply that no sexual abuse has taken place. In a children’s court, affidavits and forensic assessments are completely adequate to safeguard the child and start proceedings and investigations.

When a child was sexually abused within the family, it is crucial to evaluate the situation: mostly all contact between the child concerned and the family (which includes the alleged perpetrator) must be suspended until the case has been finalized.

If response up is slow and particularly if the child remains at risk, the referring person should follow up until the child is safe.
STEP 5 – INFORM OTHER ROLE PLAYERS
- The school psychologist;
- Labour Relations, when employees are the alleged offenders;
- The complainant’s parent(s) (with the consent of the complainant,
if she or he is over 14), provided that they are not the alleged offenders;
- The Department of Health and the Department of Social Services;
- The school board
STEPS 6 – FOLLOW UP
The school principal will follow up with all the role-players, document the process and inform relevant role player of progress. He or she will also pass information on to the Child Protection Unit.

Keep the learner and her or his parent(s) informed of the steps
taken by the role-players and the outcome of the investigation.

At the end of the investigation the school personnel, the family or the parents and the Social Worker should meet to discuss the steps the school could take to assist the child.
STEP 7 – MONITOR CHILD
The next step is monitoring the learner’s emotional, mental and physical health, discuss it with his or her parents, and refer the learner for further professional help if necessary.
- Managing an Abused Learner
Since educators spend a great deal of time with abused children who are their learners, it is important that they know how to manage them in the classroom.
Try to give them extra attention but not so obviously that other learners feel that the child is being favoured.

Adopt a child-centered approach and assure them that you are available should they need to discuss a problem.

Communicate in a sensitive way.

Build a trusting relationship and positive self-esteem.

Make opportunities for the abused child to draw and do creative activities, e.g. draw your family or a person. This will help them to express their inner feelings and act as a release.

Initiate group activities e.g. play, or peer group counseling. Abused children often isolate themselves.

Never tell the class what the child may have told you as they will lose their trust in you.

Set aside some time in the afternoon for the child to come and talk to you. It is not advisable to become too involved or to take the child to your home. Rather call the appropriate referral team (CPU, Welfare etc).
Follow up calling the relevant authorities or discussing the progress with the mother or primary caregiver.

The abused child may be a restless sleeper who tosses and maybe has nightmares. As a result they are often tired and lethargic in class.

Sometimes abused children lack concentration and their marks may deteriorate, especially after disclosure when the consequences of “telling” may heighten anxiety. The educator may need to gently re-focus the child if day dreaming is noted and offer extra assistance to the child in order for performance to return to earlier levels.

Be sensitive to the child’s needs. Allow the class to have a “quiet time”, reading, listening to a story, etc.

If the child’s behaviour warrants checking, do so and do not ignore it because you feel sympathetic. Reprimand immediately and deal with the problem on a one-to-one basis later. Sometimes anxiety and trauma may prompt a child to test boundaries.SEVEN
Rule 1: Your body belongs to you. You have the right not to be abused.
Rule 2: Sexual abuse is never your fault. Nothing a child does or doesn’t do excuses an older person who uses a child for sexual pleasures.
Rule 3: Sexual abuse is harmful. The deepest hurt is the way the sexual abuse makes certain children feel about themselves.
Rule 4: Good people can do bad things. Abusers may be good
people in other ways, but the abuse is very wrong and must be stopped.
Rule 5: Usually sexual abuse does not stop by itself. Tell an adult who will listen and do something about it.
Rule 6: Keep telling people you trust about sexual abuse until someone listens.
Rule 7: What happens to a sexual abuser is never you fault.
A child who has been sexually abused may need professional therapy. You can help by being aware of the kind of things they need to work on and the goals of treatment.
GENERAL TREATMENT GOALS
- Form a positive self-image.
- Establish appropriate trust in other people.
- Acknowledge emotions.
- Vent aggression; receive support in dealing with their anger.
- Experience positive adult and peer interaction.
- Learn how to communicate needs and feelings verbally.
- Develop alternate and more acceptable means of coping behaviour.
THERAPISTS HELP CHILDREN TO COPE AND HEAL
It is important that children who have been abused receive assistance from appropriate care givers and therapists. Children who do not receive assistance may find it very hard to cope with the trauma of the abuse. The psychological effects of child abuse can also lead to social and emotional problems in adulthood.

The following are some of the problems children need help with in order to cope and heal:

- Damaged-goods syndrome: A feeling that they have been permanently dirtied; in the case of sexual abuse, a sense that sex is the only value they have to other people. In addition, sometimes children have been treated like damaged-goods by other adults after the abuse have been made known.

- Guilt: A belief that they are to blame for the abuse and for the family disruptions and changes.

- Fear: There is a fear of events they cannot predict.
- Depression: The child needs help with feelings of sadness, hopelessness, and suicidal tendencies.

- Low self-esteem: The child feels ‘small’, helpless and worthless.

- Repressed anger: The child feels very hurt and wants to lash out; further anger because the hurt has not been given expression.

- Poor social skills: The child feels inadequate when dealing with their own peers; a belief that they don’t have importance to other people.

- Impaired ability to trust: Since an important bond has been violated, children may respond by trusting no-one or by inappropriately trusting people who may hurt them further.

- Blurred role boundaries: Children have often assumed roles they are not developmentally ready for such as acting as emotional partner, mother, or even mistress.
REPORTING OF A SEXUAL OFFENCE
- In terms of the law of criminal procedure a sexual offence must be reported to the police or a health care professional, preferably as soon as possible after the act of sexual violence was committed against a victim. When reporting the sexual violence, it will be required that a statement be made including details on your identity, if possible, details on the identity of the perpetrator of the sexual violence and details of the actual criminal offence.
- This statement will be used by the court if the case goes to court. All the information in your statement is exactly what you experienced and is true and correct.
- See the section on the police and Department of Health’s duties in terms of the National Policy Guidelines and Instructions above in this regard.
THE MEDICAL EXAMINATION
- The victim must go for a medical examination with a healthcare professional. The results of the medical examination are very important as it will be used as evidence during the court proceedings that may take place at a later stage.
- It is also preferable that the victim does not bath or wash
after the sexual offence as that will remove important physical evidence of the sexual offence from the body that could be picked up in the medical examination and can be used during the court proceedings in support of the case. See the section on the Department of Health’s duties in terms of the National Policy Guidelines and Instructions above in this regard.
THE POLICE INVESTIGATION
After reporting the sexual offence the following process should be followed:
- The police will open a docket containing your statement and all other important information and documentation relevant to the case
- The police will appoint an investigating officer to investigate the case. The investigating officer will try to obtain statements from witnesses and the perpetrator and will collect other evidence.
PRELIMINARY COURT PROCEDURES
- Once the case has been investigated sufficiently, the docket will be sent to the National Prosecuting authority (“the NPA”) to decide whether or not the state will prosecute the alleged perpetrator.
- The NPA may decide not to prosecute because it is of the view that it appears that an act of sexual violence was not committed against you from its assessment of your allegations and the
information, evidence and witness statements on the docket. The NPA may also make this decision if it thinks that there is a lack of evidence and that more evidence cannot be obtained.
- If the NPA decides to prosecute the case, the case will be presented to the court to decide whether or not the alleged perpetrator should be convicted of the sexual offence.
THE BAIL APPLICATION
The perpetrator will appear in court a few times before the actual hearing or trial. This is to apply for bail, get legal representation and for the prosecution and the perpetrator’s legal representative to prepare their cases.

The alleged perpetrator has the right to apply for bail and the complainant has the right to attend the bail hearing. The prosecutor can argue against the court granting the bail application and must raise aggravating factors and circumstances in doing so. For example, the prosecutor must raise the fact that the alleged perpetrator is facing other charges of sexual offences and the seriousness and extent of the sexual offence. The presiding officer must make the decision on whether the alleged perpetrator should be granted bail.

The presiding officer will not grant a bail application if she or he believes that granting the application will not be in the interests of justice :

- because the alleged perpetrator is likely to pose a danger to the public or will commit a serious criminal offence, or
- that the alleged offender will try to evade the trial, or
- that the alleged perpetrator will interfere with witnesses or destroy evidence, or
- if the release of the alleged perpetrator on bail would undermine the purpose of the criminal justice system.

Bail will also be refused if the release of the alleged perpetrator on bail will disturb public order, peace or security.
Bail is granted on condition of the payment of a certain amount of money.

The prosecutor can ask that bail be granted only on certain conditions. The court can attach conditions such as that the accused must not interfere with witnesses must reside somewhere or with someone specific etc.

If the alleged perpetrator fails to comply with the bail conditions bail can be terminated.

Failure to comply with bail conditions can result in the alleged perpetrator being fined or imprisoned for a period up to 1 year. If you are aware of the alleged perpetrator contravening the bail conditions it should be reported to the investigating officer immediately.
THE PLEA
- The accused can admit to committing the sexual offence, in which case he or she would plead guilty. The presiding officer will ask the accused “How do you plead?” If the accused admits to committing the crime, then he will tell the court that he is guilty. If the accused has legal representation, then the legal representative can hand in a statement to the court which tells the presiding officer that the accused admits to the sexual offence.
- The presiding officer will ask questions to make sure this is done voluntarily and that the accused is guilty in law (i.e. admits all the required elements of that particular offence). If the plea is accepted then the proceedings move to sentencing stage.
- If the accused pleads “not guilty” or the presiding officer is not convinced that the accused has admitted to committing the offence, the case will then go to a full hearing of all the evidence (a trial).
THE TRIAL
Because the state brings the case against the perpetrator, the victim and/or person who reported the abuse are a witness for the prosecutor. Such person will be required to testify in court as a witness for the state.

The prosecutor will start by leading evidence that the perpetrator did commit the sexual offence. Witnesses will be called tol tell the court what happened. The Doctor (health care professional) who examined the victim will also testify.

During the court proceedings the alleged perpetrator’s legal representative will present her or his case to the court in an attempt to have the alleged perpetrator acquitted of the sexual offence. In doing so, the alleged perpetrator’s legal representative will lead evidence and call witnesses to testify in favour of the alleged perpetrator. The alleged perpetrator’s legal representative will question the witness. Her or his job is to prove that the alleged perpetrator did not commit the sexual offence or to provide a good reason for why the sexual offence was committed.

The legal representative of the accused (the name for the perpetrator once charged) can ask the witness questions about what happened (cross examine) If the accused has no legal representative then he may ask some questions.
The presiding officer (also called the court) hears the evidence for and against the accused.

The presiding officer can request that more information be obtained for the prosecution of the case like further statements from witnesses or other evidence such as clothing items or objects used in the omission of the sexual offence. The proceedings can be postponed for this purpose.

After the court has heard evidence from the prosecution and the accused (also called the defense), the presiding officer will decide whether or not the accused is guilty of committing the sexual offence.

The test that the presiding officer will use is whether the accused has committed the sexual offence “beyond a reasonable doubt”. This means that it is not reasonably possible that the accused’s version that he is innocent is true and the accused is guilty of the offence.

It is also possible that the court will convict the offender of a lesser offence if the court is not satisfied that sufficient evidence was presented to prove that the alleged perpetrator committed the sexual offence. For example, the perpetrator could be convicted of sexual assault rather than rape.
SENTENCING
If the court decides that the accused is guilty of committing a sexual offence, the court must punish the offender (the accused).

Punishment can include a sentence to imprisonment, the payment of a fine or compelling the offender to attend a sexual offenders’ treatment programme.

The sentence that is given to the offender depends on the nature and seriousness of the sexual offence as well as the personal circumstances of the offender (such as his age, or whether she has previously committed other criminal offences etc.) and the interests of the community or society.

There are prescribed minimum sentences for certain sexual offences such as rape. The minimum sentence for rape is 10 years imprisonment. The minimum sentence for a first time offender is 10 years imprisonment, 15 years imprisonment for second time offenders and 20 years imprisonment for third time offenders. Life imprisonment, which is 25 years imprisonment, can be given to offenders who committed rape in certain circumstances.

This sentence can be given to offenders who raped a child under 16 years of age or a mentally disabled person, who committed rape more than once or who committed rape knowing that he is HIV positive and that he could infect a victim with HIV.

The prosecutor must raise aggravating circumstances in order to influence the court to give the perpetrator a harsher sentence. These circumstances include the fact the perpetrator is not a first time offender and the nature and extent of the sexual offence that he committed. Witnesses should bring the prosecutor’s attention to any circumstances that should be used to give the offender a harsher sentence (aggravating circumstances) such as the traumatic effect of the sexual offence on the victim, what medical costs we incurred, etc.
The minimum sentences can only be deviated from in substantial and compelling circumstances.

This means that there must be a good reason for deviating from the minimum sentence. The offender cannot be given a sentence that is less than the prescribed minimum sentence:

- because of the victims previous sexual history (for example, if the victim being a sex worker or in the event of the victim having sexual intercourse with many men),
- if the victim was not physically injured during the rape (for example, the vagina does not show evidence of forced entry or if the victim were not beaten while being raped),
- if the alleged perpetrator’s cultural or religious beliefs permitted his actions of rape(for example, certain religions and cultures say that a wife can never refuse to have sex with her husband) or
- an intimate relationship with the alleged perpetrator at some time before the rape

The presiding officer can give the alleged offender a lesser sentence than the prescribed minimum sentence if she is of the view that sufficient substantial and compelling circumstances exist that justify the lesser sentence. The presiding officer should be satisfied that the prescribed minimum sentence does not fit the crime or that it is too harsh for the crime or would be unfair towards the offender and the needs of society.

It is important to note that sentencing is not the end of the road for the victim and the after effects of abuse, can have devastating and long lasting emotional repercussions.

Protection of children and women should be dealt with collaboratively to ensure that prevention and accountability principles are enforced to the extent that a positive impact in our communities can be made.

 

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