ANALYSIS | Sheena Swemmer: David Mackenzie – what it reveals about the complexities disciplining teachers | News24

Until the loopholes in South African law and policy around teachers resigning without facing disciplinary action has been attended to, cases such as that of David Mackenzie and many others will permeate our schools and continue to place our children in physical, emotional and psychological danger, writes the head of gender justice at the Centre for Applied Legal Studies at the University of the Witwatersrand, Sheena Swemmer. 

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On 23 September 2021, News24 reported that a teacher, David Mackenzie, has been precautionary suspended from Reddam House Bedfordview amid reports of his resignation from St Andrew’s College.

This resignation occurred before he could face a disciplinary hearing regarding charges of acting without authorisation to sign a male child out of the school’s sanatorium.

The reports emerged from the investigative podcast, My Only Story: Back to School, where writer Deon Wiggett exposed the incident.

The problem is this modus operandi of resignation before disciplinary hearings can take place is not isolated to Mackenzie’s case, and is an issue that has plagued both the Department of Basic Education and SA Council for Educators (SACE) for years.

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The Centre for Applied Legal Studies identified this issue as early as 2014 when it published its report, called Sexual Violence by Educators in South Africa: Gaps in Accountability, into sexual violence committed by teachers in schools.

The report focused solely only on cases of sexual violence against pupils and the findings around the practice of teachers resigning before disciplinary hearings commence.

On this manipulation of loopholes, both the department and SACE officials reported “some educators resign as soon as they receive the charge sheet”. 

What happens after this resignation is even more problematic, as unscrupulous teachers then move unnoticed to other schools, as was the alleged case with Mackenzie.

There is no policy or legal mandate for schools to report these cases, and the department and SACE do not advise other schools about this. 

If disciplinary hearings do take place 

A similarly problematic situation occurs where teachers do stay and go through the disciplinary process.

The report noted two avenues should take place in disciplining a teacher. This is through the department and SACE.

However, the type of remedies available to each is different and can cause the situation where teachers can move freely from one school to another without being detected.

The department can order that a teacher be dismissed due to their misconduct, the SACE, on the other hand, can order that a teacher’s name be removed from the teachers’ register. Neither body has the power to override the other’s decision.

So, if the department decides to dismiss a teacher, and the SACE disagrees, the teacher will have to leave that particular school but can freely move to another one, as their name will remain on the SACE’s teachers’ register.

In 2019, the department launched the Protocol for the Management and Reporting of Sexual Abuse and Harassment in Schools. The procedure remains the same around separate disciplinary processes being undertaken by it and the SACE.

However, there is a duty on both to share information about successful misconduct hearings. Glaringly missing from the protocol is any mention of dealing with cases of teachers who avoid misconduct hearings by resigning. 

There may be hope concerning teachers who resign before a disciplinary hearing, in the form of the Labour Appeal Court’s decision of Standard Bank of South Africa Limited v Nombulelo Cynthia Chiloane.

The court, in this case, held where an employee resigns with immediate effect, in breach of their notice period, then the employer can reject this, enforce the notice period and potentially continue with the disciplinary hearing during this period. The case was handed down on 10 December 2020. It can now be applied by schools that face teachers attempting to resign with immediate effect and thus avoid a disciplinary hearing. 

Another solution 

Although the above may be one avenue for holding these teachers accountable, there may be issues around disciplining a teacher within the notice period, such as a lack of evidence or unavailability of witnesses due to short notice.

In light of this, South Africa can potentially look at the law in Ontario, Canada, which was amended in 2002 to include a duty on employers of teachers who resign before disciplinary action can take place to report this to the state’s teacher licencing body. The body then investigates the alleged misconduct. If the individual is found guilty of the charges, they inform the employee’s current employer so that action can be taken. 

Until the loopholes in South African law and policy around teachers resigning without facing disciplinary action has been attended to, cases such as that of Mackenzie and many other teachers will permeate our schools and continue to place our children in physical, emotional and psychological danger.

– Sheena Swemmer is the head of gender justice at the Centre for Applied Legal Studies at the University of the Witwatersrand.

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