Savage AJA in GAG v Education Labour Relations Council (CA12/2014) [2015] ZALAC 50 (23 October 2015) at paras [1] and [2] with some footnotes omitted.

[1]     Our Constitution provides that ‘(e)very child has the right to …be protected from maltreatment, neglect, abuse or degradation’.  In Centre for Child Law v Minister of Justice and Constitutional Development and Others, 2009 (6) SA 632 (CC); 2009 (11) BCLR 1105 (CC) it was stated:

‘The Constitution draws this sharp distinction between children and adults not out of sentimental considerations, but for practical reasons relating to children’s greater physical and psychological vulnerability. Children’s bodies are generally frailer, and their ability to make choices generally more constricted, than those of adults. They are less able to protect themselves, more needful of protection, and less resourceful in self-maintenance than adults.’

[2]     Section 17(1)(c) of the Employment of Educators Act 76 of 1998 (EEA) requires that an educator found guilty of having had a s exual relationship with a learner of the school where he or she is employed “must be dismissed” from his or her employment.  With a high prevalence of educator-on-learner s exual misconduct in South Africa, our law reflects that s exual misconduct with a learner constitutes an abuse, not only of the authority and responsibility vested in an educator, but of the rights of the child given that “…no child has equal power to say ‘no’ to a parental figure or to anticipate the consequences of s exual involvement with a caretaker.  In such an unequal relationship the adult (educator) bears sole responsibility for…s exual activity with a minor”.