High court orders action to strengthen child protection register

Section27 and the Teddy Bear Foundation (TBF) have welcomed the judgment handed down by the Gauteng High Court (Pretoria) concerning the state’s obligation under the Children’s Act to ensure the effective functioning of the National Child Protection Register.

The register protects children from predators by requiring that school employees are vetted against an up-to-date register of people found unsuitable to work with children.

The case was against the department of social development (DSD) and 16 other respondents, including the department of justice & constitutional development (DOJ&CD), the department of basic education (DBE) and provincial education departments, the Education Labour Relations Council and the South African Council of Educators.

Judge Jabulani Nyathi, in a judgment passed on Friday, held that DSD is responsible for maintaining and keeping the register.

DSD had opposed the application and argued that there were no backlogs in relation to the maintenance of the register, and that it has complied with its legislative obligations.

The court instead held that DSD had not proved a case to show that it had fulfilled its obligations to maintain the register. The court emphasised that the rights of children were paramount, and DSD had an obligation to ensure that the NCPR was maintained.

The court found that TBF and DBE’s settlement agreement, which was made an order of court on July 28, supported the importance of DSD’s role in the NCPR’s vetting and reporting mechanisms. The court said that the NCPR required all departments to work together to ensure its efficacy.

TBF submitted that the DSD had adopted an unduly narrow conception of its statutory obligations.

TBF said the duty to “keep and maintain” the register extended beyond the passive capture of information received from other institutions.

The DSD submitted it had discharged its obligations. It pointed to the digitisation of the register, staffing allocations, audit controls, identity verification mechanisms, training initiatives and the absence of any backlog in relation to compliant referrals.

“The words ‘keep and maintain’ cannot be interpreted in isolation. They must be construed in the context of a statute whose dominant purpose is the protection of children and whose implementation is expressly required to occur through co-ordinated action between organs of state,” Nyathi said.

Nyathi said he was unable to accept the proposition that DSD’s obligation was exhausted once information reached its offices in a technically compliant form.

“The statutory purpose would be frustrated if the custodian of the register were entitled simply to await information while remaining indifferent to systemic deficiencies that prevent qualifying findings from reaching the register in the first place.”

Nyathi said the evidence demonstrated that critical reporting failures had persisted for years.

“The incident that ultimately catalysed this litigation revealed that a perpetrator was entered into a register only after prolonged delay and repeated intervention.”

Nyathi said further concerns arose when specific perpetrators identified by TBF had not appeared in the register despite the existence of qualifying findings.

“In my view (TBF) has established that the DSD’s understanding of its statutory obligations is unduly narrow and that further measures directed at ensuring the efficacy of the register are constitutionally required.”

Nyathi declared DSD’s failure to maintain the register unconstitutional and ordered it to put mechanisms in place to ensure the NCPR is implemented.

The DOJ&CD and SACE did not oppose the matter, and the court granted TBF’s requested relief in respect of these parties.

It found that DOJ&CD must report quarterly to DSD on all people deemed unsuitable to work with children. SACE must report on the number of new entrants on the educators’ roll and whether they have been vetted. It must also report on educators found guilty of misconduct that makes them unsuitable to work with learners, and whether they have been reported to DSD for inclusion on the NCPR.

In addition, SACE must report the number of cases received by it over 12 months, and the number finalised during the same period.

“The judgment affirms the importance of children’s rights, particularly the right to basic education, by recognising that schools must be safe spaces for children.

“The structural orders against the departments will help address failures in implementing the NCPR and bind them addressed to comply with their constitutional obligations,” TBF and Section27 said in a statement on Tuesday.

They said it has been over 15 years since the promulgation of the Children’s Act, and it has taken a court to affirm and mandate these departments to comply with the legislative obligations as it relates to the register.

“Section27 and TBF welcome this judgment and will be monitoring the implementation of the order.”

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