A landmark judgment has declared the Department of Social Development’s failure to maintain a crucial register designed to protect children from predators unconstitutional.

The Gauteng Division of the High Court in Pretoria handed down the ruling on 7 August, following an application by the Teddy Bear Foundation against the Department of Social Development and 16 other government entities. The case centred on the state’s obligation to ensure the National Child Protection Register works effectively to keep unsuitable people away from children.

The register requires all school employees to be vetted against an up-to-date list of people found unfit to work with children. However, the court found that the Department of Social Development had not proved it had fulfilled its obligations to maintain the register properly.

Department ordered to implement mechanisms

Justice Nyathi held that the Department of Social Development is responsible for maintaining and keeping the register. Despite the department’s arguments that there were no backlogs and it had complied with its legislative obligations, the court disagreed.

The judgment emphasised that children’s rights are paramount and the department has an obligation to ensure the register is maintained. Justice Nyathi noted that the register requires all departments to work together to ensure it functions properly.

“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 coordinated action between organs of state,” the judgment stated.

Quarterly reporting requirements imposed

The court granted relief against several parties who did not oppose the matter, including the Department of Justice and Constitutional Development and the South African Council of Educators.

The Department of Justice and Constitutional Development must now report quarterly to the Department of Social Development on all people deemed unsuitable to work with children. The South African Council of Educators must report on new entrants to the educators’ roll and whether they have been vetted, as well as educators found guilty of misconduct that makes them unsuitable to work with learners.

Fifteen years after legislation

The judgment comes more than 15 years after the promulgation of the Children’s Act 38 of 2005. It has taken court intervention to affirm and mandate these departments to comply with their legislative obligations regarding the register.

The case also involved the Department of Basic Education, provincial education departments and the Educators Labour Relations Council as respondents. A settlement agreement between the Teddy Bear Foundation and the Department of Basic Education, made an order of court on 28 July, supported the importance of the Department of Social Development’s role in the register’s vetting and reporting mechanisms.

SECTION27 and the Teddy Bear Foundation welcomed the judgment and said they will monitor the implementation of the court order. The structural orders against the departments will help address failures in implementing the register and bind them to comply with their constitutional obligations.

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.

• SECTION27 is a human rights organisation that seeks to achieve substantive equality and social justice in South Africa. Guided by the principles and values in the Constitution, SECTION27 uses law, advocacy, legal literacy, research and community mobilisation to advance socio-economic rights, in particular the right to access health care services and the right to basic education as guaranteed in section 27 and section 29 of the Constitution of the Republic of South Africa respectively. SECTION27 aims to achieve systemic change and accountability to ensure the dignity and equality of everyone. 

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