Africa-Press – South-Africa. A Cape Town teacher accused of sexually assaulting a then 14-year-old special needs pupil has been acquitted on all charges by the Education Labour Relations Council.
Edgar Dean Fortuin was accused of sexually assaulting a Grade 4 pupil at Robin Hill Special School in 2021. The child, who has severe intellectual disabilities, has an IQ below 50. She is unable to read and write and does not know her date of birth.
Fortuin denied the allegations and disputed that he ever touched her in any manner.
The teenage girl testified that while she was in class, Fortuin took her to another teacher for drawing a flower on her hand.
She said that upon leaving that teacher’s classroom, she went to the toilet, and Fortuin followed her inside. She testified that he touched her vagina, and she started bleeding heavily from there.
When asked if she had been getting her periods before that day, she gave conflicting versions and said she didn’t know.
The ELRC’s advocate DP van Tonder, who penned the ruling, said the pupil was also asked whether the teacher took out his penis.
“She replied that he did and that he inserted it into her vagina. That is the first time during her evidence that we heard this version,” Van Tonder said.
The pupil’s guardian took her to a doctor a month after the alleged incident. However, the doctor testified that because he examined her a month later, he could not determine if she had been raped.
The doctor also said that a child couldn’t start menstruating because of penetration. He further said there wouldn’t be heavy bleeding from the vagina merely because a penis was inserted into the vagina. Still, he added that he couldn’t make any factual findings.
In assessing the evidence, Van Tonder said:
“That in itself generally does not have an effect on their credibility and reliability. But when the inconsistencies relate to the core details of the allegations, that becomes more problematic, especially in the light of the cautionary rules I have referred to.”
Van Tonder added that of all the allegations against Fortuin, the claim that he penetrated the pupil with his penis was the most serious.
“But yet one finds that during her evidence in chief, the complainant never alleged that Mr Fortuin had inserted his penis into her vagina. She only testified about Mr Fortuin touching her vagina.”
Van Tonder found the pupil’s evidence “problematic and unreliable”.
“Her evidence cannot be said to be clear and satisfactory in every material aspect.
“The evidence of the medical doctor was further that the version of the complainant’s guardian that the complainant was bleeding heavily from her vagina and that this was indicative of sexual assault was not plausible. According to the doctor, rape would neither cause heavy bleeding from the vagina nor cause a girl who did not previously menstruate to start menstruating.
“The evidence of the guardian on these aspects of the bleeding from the complainant’s vagina can therefore also not be seen as corroboration for an allegation that the complainant must have been raped or sexually assaulted in another manner.”
Van Tonder also said it was not plausible that a guardian would wait a month before taking a child to the doctor if she was informed immediately that the child had been molested.
“Hence the fact that the guardian only took the complainant to the doctor one month after the alleged incident further underscores the improbability of the version of the complainant and her guardian.
“In relation to the allegation that Mr Fortuin had allegedly touched the complainant’s breasts and buttocks, the evidence presented by the employer is also problematic. Although the complainant’s guardian testified the complainant told her that Mr Fortuin had touched her buttocks and breasts, [the] complainant never once mentioned during the arbitration proceedings that Mr Fortuin had touched her buttocks or breasts.”
He said he could not find the pupil’s evidence reliable and trustworthy.
“It was simply too problematic and unsafe to rely on. I am making all these findings mindful of all the aspects that I must take into account in favour of the complainant when evaluating her evidence given the fact that she is a child with severe intellectual disabilities,” Van Tonder said.
“…my finding is that the employer has not succeeded to prove the guilt of Mr Fortuin on any of these allegations as contained in the charge sheet on a balance of probabilities. Mr Fortuin is therefore acquitted on all charges.”
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