Holding the state directly liable for educator-on-learner sexual abuse

Abstract

Despite legislative interventions aimed at improving the protection of children, educator-on-learner sexual abuse persists, and is even on the increase. Focussing on prosecuting educator offenders and holding the state vicariously liable clearly does not have the desired effect. The author considered the prospect of holding the state directly liable when it fails to prevent and respond to educator-on-learner abuse, by basing liability for certain cases not only on the wrongful conduct of educators as employees, but also on the state’s own omission of its constitutional or statutory duties. In this article, the author investigates the feasibility of such a strategy within the South African legal framework.