Friday, May 20 2022

South Africa: Child abduction is on the rise

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The year 2021 appears to be ending negatively for South Africa, as kidnappings of school children escalate. This number is rightly worrying for all relevant stakeholders – parents; teachers; government officials; and society in general. While these incidents seem to be happening in schools / near schools, they can happen in any other facility – private or public. Since incidents occur in schools, it is therefore relevant to pay particular attention to the school context. The aforementioned stakeholders have a duty to prevent such incidents from happening, and when they have failed to guard against an abduction incident, families may have legal recourse, depending on the various circumstances surrounding. the occurrence of this particular incident. Some parents may think that entering into a lengthy litigation process is a futile exercise; “Open wounds”; obscure the healing process (where a child ends up transmitting or is never found). While it is true that legal proceedings will not help bring back a kidnapped child, they play a vital role including, but not limited to: court decisions in such cases usually send a strong message to the parties. reckless stakeholders, which means they aim to deter such incidents from recurring; it raises awareness of such incidents; it causes closure if necessary – which means it is an integral part of the healing process; it takes into account those responsible for the deaths. From a legal point of view, there are various legal instruments which aim to protect the life and well-being of children, including, among others, Constitution of the Republic of South Africa, 1996; the Schools Act; common law (eg Komape case); internal constitutions of schools, etc.

Importantly, not all school kidnapping incidents will result in legal liability. Thus, in some cases, parents may not have legal recourse. Several questions should be asked in order to determine if there is legal liability in a particular case – where the incident occurred; how did it happen; Was there some kind of agreement / consent and if so what did it involve? was there a breach of homework; etc. The same questions will also indicate who is possibly responsible and should be held responsible. The circumstances surrounding each incident will determine whether or not there is a claim, and if there is, against whom a parent / guardian should file a claim. For example, when a child is kidnapped inside school premises and school security guards disappeared during the incident or were not fully equipped to deal with the kidnappers where they should have been adequately – then there is a greater chance of success with a claim against the school and / or MEC for Education. If, however, the incident occurred outside of school, a few hours after school hours and the parents have not communicated with the school regarding the child’s pickup times, then it may be relatively difficult to succeed. Thus, it is always necessary to look at the circumstances prevailing in each case to determine if there is a complaint and, if so, to whom to complain.

What to claim and from whom?

As to what a parent / guardian can claim, it will all be based on the facts and circumstances of each individual case. In the event that a child is later found but has suffered serious bodily injury, there may be a claim for the following: prior medical expenses; future medical expenses; general damages; loss of earning capacity. Arguably, there is a case to be made for serious emotional trauma for a parent. If a child is found dead, families can claim funeral costs, depending on the circumstances of each case (unless the school / educational service has paid for them); constitutional damages; general damages; severe trauma and bereavement (eg, Komape case). As to who to complain to, if the school is private, legal action should be taken against the school, and when the school is public, it should be brought against the MEC for Education. That said, there needs to be a thorough research and investigation into the nature and layout of the school, to ensure that a suitable wrongdoer is cited in court documents, as failure to do so may have horrible ramifications.

While the primary focus should be prevention rather than redress and ensuring the safety of children in schools, in the event of misfortune it is vital that families take the necessary steps to ensure justice prevails; initiate litigation (if necessary) as part of the healing process and ultimately find closure. In addition, it helps develop the law and sends a strong message to those who tend to disobey the law to the detriment of children. It is important to note that the fact that in some cases families cannot claim should not be misinterpreted to mean that some lives are less valued and do not deserve legal protection – the facts of the case and the circumstances surrounding the incident resulting in death will always determine whether there is any claim; to whom to claim; what to claim; etc. Finally, the monetary aspect should not discourage families from asserting their rights, with justice being the ultimate objective.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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