26 May 2021
Equal Education National Council (board) statement: Update on independent investigation into the tragic drowning of Eastern Cape Equaliser Avethandwa Nokhangela
The fact-finding process undertaken by the Equal Education Law Centre (EELC) will be concluded on Friday, 28 May 2021.
The National Council, Equal Education’s highest governance structure, has appointed an independent panel to review the fact finding process undertaken by the EELC, and to make findings on the circumstances surrounding the tragic passing of Equal Education Equaliser (learner member) Avethwandwa Nokhangela, at our Eastern Cape leadership camp held at Palm Springs, East London.
We want to express again how very sorry we are for the horrible pain that Avethandwa’s family is in. Supporting her family has been and continues to be our priority, and our deep care for her family and for our members, and our commitment to accountability, have guided all our efforts at this very painful time.
It has not been easy to respond to some criticism in the media around the immediate disclosure of what happened on 29 April. We believe that the compassionate approach – which was to prioritise support to the grieving family, learners and our staff – was the correct one in the circumstances. We also chose to respect Avethandwa’s family’s request for space after laying her to rest. Not only would divulging details in these circumstances have been insensitive and uncaring; it would prejudice the EELC’s fact finding inquiry and the work of the independent panel.
The panel conducting the independent investigation will consist of highly experienced advocates: Tembeka Ngcukaitobi SC, Frances Hobden and Lunga Siyo. The independent investigation will be conducted as swiftly as possible. While we do not wish to be prescriptive to the independent process, it is our sincere hope that the panel can complete their investigation within eight weeks. The reason for that period of time is due to the unavailability of Advocate Ngcukaitobi SC in June, while he completes acting as a judge in the Eastern Cape High Court. Although Advocates Hobden and Siyo will immediately start their work upon receipt of the EELC’s fact-finding report, Advocate Ngcukaitobi will join them in July with the aim of completing their process by the end of that month. The National Council has appointed Odette Geldenhuys and Moray Hathorn of Webber Wentzel to support the panel, adding a further layer of independence to its process.
The panel will:
- Review the information collected through the fact-finding process conducted by the Equal Education Law Centre, including the final report and all statements;
- Conduct any interviews, where necessary;
- Make findings to understand as best as possible exactly what took place in the moment of the tragic accident;
- Make recommendations on possible restorative justice processes between Equal Education and Avethandwa’s family; and
- Make findings and recommendations related to Equal Education, and the accountability or remedial measures that may need to be taken.
The independent investigation report will be handed to the National Council (board) of Equal Education to consider what action should be taken. At this stage, Equal Education cannot commit to publishing the outcome of the independent investigation because the subject matter concerns minors, the contents are privileged and may be relevant to the official processes being undertaken by the police. This will be revisited once the independent investigation process has been concluded and there is greater clarity regarding the police inquest.
The National Council wishes to extend its gratitude to the members of the panel.
We want to take this opportunity to address some of the concerning misconceptions that have developed in some media over the last three weeks, related to the duration of the fact-finding process, and our efforts to support Avethandwa’s family.
The timeframes of the fact-finding process:
- The fact-finding process that concludes this week, began within 48 hours of the accident. It has had to respect the memorial service and funeral preparations, and to take into account the availability of all the people participating, and the travel to and within the Eastern Cape.
- Learners who were at the camp were interviewed as part of the fact-finding process, and this required special sensitivity taking into account their school timetables, their parents’ schedules, and the arranging of psychosocial support. As a result, the process has required patience and a constant recognition of the trauma that the learners have experienced.
- This past weekend (21 May to 23 May) the final interviews were conducted as part of the fact-finding process.
- As a movement grounded on accountability, our intention has always been to share the names of the independent reviewers, and their mandate, once the fact-finding report was ready to be handed over to that panel for independent investigation. We are in a position today to share details of legal counsel.
- The purpose of the fact-finding process that the Law Centre was appointed to undertake, has been to as quickly as possible get statements from the learners and the staff who were present when this tragic accident happened. We must emphasise that the Law Centre is a separate independent organisation, governed by an independent and separate board, and its members are bound by their professional obligations as lawyers.
- The intention with structuring the investigation processes in this way was to prevent it from dragging on for too long, to give the family answers especially in this period of deep loss and grief for the Nokhangelas, while also ensuring that there is the independence, care, sensitivity and the thoroughness needed to ensure accountability.
Our relationship with the Nokhangela family:
- The first time we reached out to Avethandwa’s family was when Avethandwa got into distress while swimming and the efforts to rescue her were ongoing – we phoned her family to alert them, and to ask if we could fetch her mother or if she was able to travel to the resort. Her mother was not home at that time. We later left the beach to travel to Avethandwa’s home to explain to her mother that it was likely that Avethandwa had drowned and to explain what happened.
- We visited Avethandwa’s home every day, except one, before her funeral and also kept in contact with her family on the phone.
- We immediately arranged counselling for the family and supported the funeral expenses. Equal Education staff and members attended and spoke at a memorial organised by the school as well as at the funeral.
- Avethandwa’s family asked that we give them some space after the funeral. We respected this request. We did however need to make contact with them again about 10 days after the funeral, to confirm that they were still wanting to participate in the fact-finding process. The family let us know this past Sunday, 30 May, that they have decided not to provide statements for the fact-finding process, but will participate in the independent investigation.
We are strongly committed to principles of accountability, which is why there are dedicated processes underway. We appeal to the public to let these processes run their course. There is also a judicial process already underway, namely the police inquest, which we do not want to compromise or influence. We remain willing to participate in processes that the Eastern Cape Education Department establishes.
We are committed to supporting the Nokhangela family in this time of deep grief and sadness, and to ensuring a safe place for nurturing young activists.
Issued by the National Council (board) of Equal Education