03/2000 0447GDE
Award  Date:
14 January 2001
Case Number: 03/2000 0447GDE
Province: Gauteng
Applicant: MR JOHN DE BEER
Respondent: Department of Education
Issue: Unfair Dismissal - Misconduct
Venue: Johannesburg
Award Date: 14 January 2001

CASE NUMBER : 03/2000 0447GDE

In the arbitration between:






1.1 The arbitration was heard on 12th December 2000. The Applicant who is a member of a registered trade union chose to represent himself. The Respondent was represented by Mr Jeff Thipe. Their collective efforts and energies made my task as an arbitrator undemanding. I think them both for this most valuable assistance. Their approach, attitude and conduct during the arbitration was most commendable.

1.2 The facts in this matter are common cause. No evidence was led. Both the Applicant and the Respondent were intent on merely presenting a bundle of documents and argument. The contents of the bundle of documents were accepted by both parties.

1.3 The Applicant was the principal of Edith Hinds Secondary School (the school). He was charged by his employer, the Respondent, for committing an act of misconduct. The charge was brought in terms of s 17(1)(1) of the Employment of Educators Act, No 76 of 1998 (the Act). A disciplinary hearing was held to determine the veracity of the charges. The disciplinary hearing was chaired by a Labour Relations Officer of another Region of the Respondent. She was assisted by two persons - one representing the Respondent and the other representing the union to which the Applicant belonged. The three persons constituted the disciplinary committee.

1.4 At the disciplinary hearing the Applicant initially pleaded not guilty to the charge but later changed his plea to guilty. The disciplinary committee unanimously decided to recommend to the Superintendent-General of the Respondent, who in terms of the Act is deemed to be the employer of the Applicant, that the Applicant be dismissed. The Superintendent-General accepted the recommendation. The Applicant appealed against the recommendation of the disciplinary committee as well as the decision of the Superintendent-General to accept the recommendation. The appeal was considered by the Member of the Executive Council responsible for Education in the Government of the Gauteng Province (the MEC). The MEC, after carefully Considering the appeal, decided to dismiss it. The Applicant sought to exercise his rights in terms the Labour Relations Act, 1995 (the LRA) by declaring a dispute with the Respondent and registering his dispute with the ELRC which is the bargaining council for the education sector established in terms of the LRA. His dispute was properly processed by the ELRC and culminated in the present arbitration.

1.5 The charge raised against the Applicant at the disciplinary hearing reads:

"That on or about 1 April 1999, you were found guilty of a criminal offence and/or sentenced in the case RC391/97, in the Regional Court for the Region of Southern Transvaal, held, at Randburg."

1.6 To make sense of this charge it is necessary to have regard to the criminal charges raised against the Applicant in the Randburg Regional Court. The Applicant was charged with six counts of indecent assault. He was convicted on the following three counts:

“Count 1: During the period 1995 to 1997 and at or near Randburg and/or various places in the regional division of the Southern Transvaal the accused unlawfully and intentionally and indecently assaulted (MR X) by touching his private parts and/or kissing him and/or sucking his private parts and/or masturbating him and/or penetrating his anus.

Count 2: On or about the year 1996 and at or near Kareekloof and/or Houghton in the regional division of the Southern Transvaal the accused unlawfully and intentionally and indecently assaulted (Mr Y) by touching his private parts.

Count 3: On or about the year 1996 and at or near Randburg in the regional division of the Southern Transvaal the accused unlawfully and intentionally and indecently assaulted (Mr Z) by touching his private parts and/or kissing him.

1.7 After convicting him on all three counts the criminal court sentenced him to six years imprisonment suspended for five years and imposed a fine of eight thousand rand upon him. The fine was to be paid in two installments. The Applicant has accepted the conviction and the sentence.

1.8 The charge before the disciplinary committee essentially concerns the unlawful and intentional indecent assault of three persons. The three persons were all students at the school. They were under the command and control of the Applicant who, as mentioned earlier, was the principal of the school.


2.1 At the arbitration the Applicant presented the following two arguments:

2.1.1 his appeal against the decision of the Superintendent-General was not properly considered by the MEC;

2.1.2 the sanction of dismissal was too harsh.

2.2 It is necessary to deal with both arguments in detail.


3.1 The Applicant attacked the Respondent for advertising the post of principal of the school while his appeal against the decision of the Superintendent-General was still pending. This, he argued, proved that his appeal was not properly considered by the MEC. The Respondent countered his argument with the submission that the MEC was not involved in, nor aware of, the advertisement and, therefore, the Applicant's contention that his appeal was not properly considered lacks merit.

3.2 I agree with the Respondent that the Applicant's claim that his appeal was not properly considered by the MEC is devoid of any merit. Even if I accept the Applicant’s factual contention, which contention was denied by the respondent, that the post of principal of the school was advertised with the knowledge and collusion of the MEC while his appeal was pending, I am, nevertheless, not convinced that, this fact establishes the further fact that the MEC failed to correctly consider his appeal.

3.3 I am fully cognisant of the fact that the arbitration is not reviewing the decision of the MEC. However, I believe that the approach adopted by the Courts when reviewing decisions of administrative bodies is instructive when considering the argument of the Applicant that his appeal was not properly considered.

3.4 Applying that approach 1 must say that there is no evidence that the MEC:

"failed to apply his mind to the relevant issues in accordance with the 'behests of the statute and the tenets of natural justice', or (that the decision of the MEC was) "arrived at arbitrarily or capriciously or mala fide or as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper purpose; or that (the MEC) ... misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or that the decision of the (MEC) was so grossly unreasonable as to warrant the inference that he had failed to apply his mind to the matter in the manner aforestated" (Johannesburg Stock Exchange & Ano. v Witwatersrand Nigel Ltd & Ano 1988 (3) SA 132 (A) at 1152A-E)

3.5 The Applicant, essentially asks that this arbitration accept the fact that the advertisement preceded the conclusion of the appeal and then infer from this that the MEC failed to properly apply his mind to the appeal. The drawing of such an inference would be wholly incorrect. It is necessary to bear in mind the trite rule that:

"(o)ne does not lightly infer dereliction of duty and untruthfulness from a responsible body." (Johannesburg Local Transportation Board & Others v David Morton Transport (Pty) Ltd 1976 (1) SA 887 (A) at 89513-G).

3.6 On the contrary, there is clear evidence that the MEC properly applied his mind to the issues raised in the appeal of the Applicant and duly exercised his powers in terms of the Act. The MEC- Wrote to the Applicant:

"After studying the relevant court documents, charge sheets and recommendation of the departmental disciplinary tribunal, I regret to inform you that in terms of section 25(3)(a)(1) of the Employment of Educators Act (76 of 1998) I cannot concede to your request of appeal. The charges against Mr de Beer is of a serious nature. I, therefore have no other alternative but to uphold the findings of the departmental disciplinary tribunal...”

3.7 There is no evidence that the above statement of the MEC is untrue. It may be brief and succinct but it is true. The MEC had considered the appeal. He is not required to provide detailed reasons for his decision. To expect him to do so for every appeal that is placed before him would, in my view, be unrealistic especially when regard is had of the fact that there are more than thirty thousand educators under his jurisdiction, and each year a large number of these educators face disciplinary action. He also has to perform a multitude of other duties apart from considering appeals of all educators dismissed for misconduct. Thus, the Applicant's contention that his appeal was not properly considered must fail.


4.1 The Applicant argued that the decision to dismiss him was harsh. While he does not deny that he is guilty of intentionally committing unlawful indecent assaults on three students put under his care, he maintained:

4.1.1 that the misconduct is a minor one; and,

4.1.2 that the existence of mitigatory facts direct that a lesser punishment be imposed upon him.

4.2 The misconduct is a minor one. The Applicant presented a written submission to the arbitration. The submission was written by a labour consultant, one Eugenie Richardson (Ricardson). He writes:

"It should be noted the Mr De Beer was found guilty on 3 of the 6 counts and when one analyses the incidents concerned they are of a minor nature and do not constitute serious misconduct."

4.3 Richardson then provides the following details to support this contention that the acts of misconduct were minor:

“Count 1: Indecent Assault - (Mr X). The Court found that there was no "intentional assault", and that "(Mr X) was a willing and consenting sexual partner". Further, (Mr X) was a single witness and "court is aware of the inherent dangers of uncorroborated evidence of a single witness.

Mr De Beer paid a fine of R3000.00 as he admitted to having sexual relations with (Mr X) and in terms of the law at that time he was considered a minor. It has been proposed that the law regarding the age of consent for a male should be the same as a female i.e. that of 16 years old (see National Coalition for Gay and Lesbian equality versus Minister of Justice and others 1999(1) SA 6). In terms of this (Mr X) would not have been considered a minor when the incidences occurred. Mr De Beer would therefore not have been guilty in this regard. He was only found guilty because the law considered (Mr X) a minor at that point in time. Further it should be noted that sodomy was never proven by the court. It should be noted that the events with (Mr X) occurred in April 1997 and were only reported in August 1998.

Count 2: Indecent Assault - (Mr Y). The Court on page 46 refers to two judgements regarding the indecent assault, in particular S v A 1993 1 SA 600, a decision of the Appellate Division as it then was; "A mere touching of another's private parts is sufficient to constitute a crime of indecent assault. Force in this regard is not a requirement.

The incident that caused the State (sic) to find him guilty on this charge is minor. The incident in question occurred in a teacher's flat where it was alleged (sic) the Mr De Beer got into bed with (Mr Y) and placed his hand inside the boy's (sic) underpants and on his private parts. Mr De Beer was drinking and was inebriated at the time of this alleged (sic) incident. It should be noted that other people ware present at the time of this incident viz Mr Potgieter who was sleeping at the boys' (sic) feet. It is highly unlikely that one would knowingly attempt sexual contact with someone with other people present.

Further (Mr Y) denied that Mr De Beer had no underwear on, in fact he was unable to dispute that Mr De Beer-was fully clothed. (Mr Y) is 20 years of age and is a father of a small boy it is unlikely that he would be intimidated by Mr De Beer. It is also interesting to note that Mr Potgieter was never called as a witness during the trial.

Count 3: Indecent Assault - (Mr Z), the complainant was questioned by the state and the defence. Important was the fact that he was again a single witness and although there was another student present viz (Mr XX) he was never called by the state to support (Mr Z's) evidence or accusations. see page 28, where the accused (Mr de Beer) confirmed that the two boys shared a bed that night.

He alleged (sic) that Mr De Beer touched his private parts and thighs for 15 minutes without him resisting and whilst (Mr XX) was sleeping next to him in the same bed, this was denied by Mr De Beer. We are of the opinion that (Mr Z) was seeking attention and wished to be in the 'limelight' with the other children. His claims were not supported by anyone. On appeal we believe this evidence would be questioned.”

4.4 It must be said that much of the allegations in the above submission are either untrue, or are based on statements taken completely out of context. The following examples regarding each of the assaults, 1 believe, bear this out.

4.5 The unlawful intentional indecent assault on Mr X.

4.6 His evidence, as related by the court, reads:

"(Mr X) told the court that he had been born on 24 August 1979 and matriculated at the Edith Hinds High School at the end of 1997 after starting at the school in 1994. Late in 1995 he and some of his school mates slept over at the (Applicant's) flat so that they could prepare food for a function early the next day. While he and the others sat watching television in the lounge the (Applicant) sat on a couch behind him. (Mr X) was sitting on the floor. The (Applicant) then massaged his back. Later the (Applicant) sat down next to (Mr X) and placed his hands under his pyjamas and touched his private parts. At the time they were covered by a blanket. Later (Mr X) and the (Applicant) returned to bed in the (Applicant's) bedroom. The others slept in the lounge while the maid slept in one of the other bedrooms. In the bedroom (Applicant) put off the light and then took of his clothes. He then kissed (Mr X) on the neck an touched his private parts. Thereafter (Applicant) undressed (Mr X) and masturbated him until 1 he ejaculated. He-also sucked his penis. The (Applicant) then placed the hand of (Mr X) onto his own penis and (Mr X) then. began to masturbate' the (Applicant), thinking that was what the (Applicant) wanted him to do. The (Applicant) eventuality Masturbate d himself and also ejaculated. They then slept.

In 1997 (Mr X) was asked to help with a catering for a wedding. The (Applicant) had actually telephoned his parents to ask if (Mr X) could assist him. He then met the (Applicant) in Bree Str and on route to the (Applicant’s) and in the (Applicant’s) car the (Applicant) masturbated him and he masturbated the (Applicant).

At the flat they kissed and undressed each other. Thereafter they masturbated each other, kissed and once again sucked each other's penises. Later they went to dinner where the (Applicant) bought him a rose to thank him for visiting him. Later they returned to the (Applicant's) flat where (Mr X) watched television. He later joined the (Applicant) in the bedroom where they once again kissed and masturbated each other. The (Applicant) then said (in his testimony) that (Mr X) wanted the (Applicant) to penetrate him but the (Applicant) would not do so because he respected (Mr X). However the (Applicant) later inserted his penis in the anus of (Mr X) and made sexual movements. (Mr X) felt uncomfortable and described this experience as painful." (Emphasis added)

4.7 The misconducts related to above are not minor. Furthermore, Mr X certainly did not voluntarily consent to the conduct of the Applicant referred to above. He testified that he:

"... allowed (the Applicant) to (unlawfully assault him) because (the Applicant) was his headmaster and because he was afraid that he might be expelled if he displeased (the Applicant). He did not tell anybody of this incident (the unlawful assault) because he was afraid and also afraid that people would laugh at him."


5.1 Mr Y testified that in 1996 during a leadership camp in Karee Kloof while he was:

“... playing in the swimming pool the (Applicant) grabbed him and it seemed to him that the (Applicant) wanted to push him under the water. In doing so the (Applicant) held him by his penis."

5.2 Furthermore, later that same year Mr Y and another student were travelling with the Applicant in the Applicant's vehicle. He sat in the front passenger seat while the Applicant drove the vehicle:

“Whilst driving the (Applicant) put his hand on his thigh when he changed gears. He told the (Applicant) not to do so and to concentrate on his driving instead. The (Applicant) was quite drunk at the time.”

5.3 The Applicant admits that he drove the vehicle whilst being drunk.

5.4 That same night the Applicant tried to sleep next to Mr Y and another student who were sleeping on the floor of the lounge of the flat of another educator. The Applicant was very drunk and had exposed his buttocks to Mr Y and the other student.

5.5 Again, I fail to understand how the above conduct of the Applicant can be described as a "minor" misdemeanour. The Applicant was correctly found guilty of committing an indecent assault upon Mr Y. Apart from indecently assaulting Mr Y, the Applicant drove his vehicle whilst under the influence of alcohol. Mr Y and the other students were being transported by him at the time. This is hardly the conduct to be expected of a principal of a school. He served as a poor role-model. I am of the view, that even if he had not assaulted Mr Y, it would have been appropriated for the Respondent to charge the Applicant for "disgraceful and negligent conduct” for driving a vehicle whilst being drunk and endangering the lives to two students under his care. He could have been dismissed for this alone had he been so charged and found guilty.


6.1 In 1996 Mr Z who was 17 years old was asked by the Applicant to assist the Applicant to prepare for a function at the school. He and another student were asked to assist in preparing meals for the function. The Applicant suggested that he and the other student sleep in the Applicant's home in Cresta after preparing the meal. Mr Z and the other student spent the night at the Applicant's home. Mr Z relates his experience at the home of the Applicant that night:

"That night (Mr Z), the (other student) and the (Applicant) slept in one bed. It was actually two beds pushed together.

The (Applicant) had said that they should sleep there. (Mr Z) slept in the middle. During the night he felt the (Applicant) touching his face and kissing him. He got up and went to the toilet. When he returned to bed the (Applicant) touched his thighs and his penis and continued doing so for approximately 15 minutes. Thereafter the (Applicant) went back to sleep. (Mr Z) could not sleep after this because he was too upset by what happened. He told (the other student) about this incident the next morning. He was positive it was the (Applicant) who had done this because the (Applicant) had a beard, a moustache and because his hand was much bigger than that of (the other student). He did not do or say anything when the (Applicant) did this because he was surprised and afraid. He was afraid that the (Applicant) might expel him from school if he said anything and he was also afraid to tell his parents."

6.2 Richardson says that Mr Z "was seeking attention and wished to be in the 'limelight' with the other children," There is no basis for this submission. It is a mere assertion that is pure thumb-suck on the part of Richardson.


7.1 Richardson criticises the factual findings in the judgement, but fails to acknowledge that the Applicant has not appealed against the judgement.

7.2 Richardson criticises the evidence presented against the Applicant as being unreliable because it was presented by "a single witness". This criticism does not bear scrutiny as much of what the "single witness" said in each case was actually agreed to by the Applicant in his own testimony. In any case, the fact, that the evidence was presented by a "single witness" does not detract from the fact that the evidence was true and accepted as being true by the criminal court. It is, revealing to note that Richardson avoids acknowledging that:

"The (Applicant) refused to grant the state a further postponement in order to secure the presence of other witnesses."


8.1 The Applicant argued that the following "mitigatory" factors point towards the imposition of a lesser sanction:

8.1 he demonstrated a "selfless devotion to the" school;

8.2 he became severely depressed and "abused alcohol" as a result of losing his mother;

8.3 he has been an educator since 1967; and

8.4 he is not a healthy person.

8.2 When pressed to provide details of any lesser punishment befitting the misconducts he admits to, the Applicant coyly avoided the issue. The Applicant asks that he be reinstated to his position and that the Respondent grant his application for medical boarding. He is fully aware that once he is reinstated, granting his wish for medical boarding is not within the gift of the Respondent. Such a decision rests with bodies not under the command and control of the Respondent. Even if the granting of his wish were within the grasp of the Respondent, it must be mentioned that should it be granted the Respondent would essentially be rewarding and not punishing the Applicant for his misdeeds. By being medically boarded the Applicant would be assured of his salary for the rest of his life without having to earn it by providing a service to the Respondent. It, is furthermore, not within the powers of this arbitration to grant his wish for Medical boarding.


9.1 The Applicant has failed to convince me that the decision to dismiss his was harsh and should be overturned. On the contrary, I am of the view that the only penalty to be imposed upon the Applicant for his misdeeds is summary dismissal. The Applicant's conduct is reprehensible. It must be condemned in the strongest possible terms. The Applicant abused the power he held over the three students. He asks that he be reinstated and be placed in a position of power over other students. That the Applicant was in a position of power over the students is beyond doubt. In fact at the criminal trial of the Applicant one of the students, Mr X, testified that he only failed to report the assaults on himself:

"... because he was afraid that he might be expelled if he displeased (the Applicant). He did not tell anybody of this incident (the unlawful assault) because he was afraid and also afraid that people would laugh at him."

9.2 Another student's testimony was that he saw Applicant "as an elderly and fatherly person". The Applicant was aware of the power he held over the students and over the other educators in the school. One of the educators at the school, Mr van Vuuren, testified at the criminal hearing that:

"On previous occasions, (he) and Mr Erasmus (the deputy principal) had told the (Applicant) that they did not think it was a good idea that he allowed school boys to spend nights at his home."

9.3 The Applicant admitted to receiving this advice from Mr Erasmus and Mr van Vuuren, but refused to heed it because, according to him it is:

"not the place for a junior teacher to dictate to a head master whom he may have as visitors at his home."

9.4 The Applicant was, thus, fully aware of the power he held over the other educators and over the students under his care.

9.5 The effect of reinstating the Applicant would be to place him, once again, in a position of power over the other educators and over the students at the school. I am definitely not prepared to do this. To place him a position of power over students would be wholly inappropriate. He has demonstrated a complete inability to treat the students under his care with the respect and dignity they deserve. He, instead, took advantage of them and abused them.

9.6 A most disturbing aspect of this arbitration is that the Applicant fails to comprehend the gravity of his misdeeds. He persistently argued that his misdeeds were of a minor nature. This view of his beggars belief. His conduct is so serious that many in the community would remain perplexed by the fact that he escaped imprisonment for the harm he caused the students and the community. With regard to Mr X, the Applicant is, in my view, extremely fortunate to escape a conviction of rape.

9.7 In Toyota S A Motors (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 (LAC), a case concerning dishonest conduct on the part of an employee, Zondo, AJP (as he then was) approaches the question of an appropriate sanction for misconduct in the following way:

“[4] A proper analysis of the commissioner's award in this case reveals, in my view, that the main, if not the only, reason why the commissioner made (by implication) the finding that the dismissal, was unfair was the commissioner’s belief that dismissal was not the only sanction available to the appellant. The questions which arise out of this approach of the commissioner are: What does it mean to say dismissal was not the only sanction available to the appellant? Can it ever be said that dismissal is the only sanction available to an employer in any given case? If yes, when can this be said to be the case?"

9.8 Zondo AJP then deals with the issue by pertinently raising the following rhetorical questions:

"[7] Let us imagine a case where an employee rapes a female co-employee on the employer’s premises (during a night shift) and the employer dismisses the culprit. Would the commissioner find the dismissal unfair because dismissal was not the only sanction available to the employer? To take this one step further, let us imagine that the female employee who is the victim of such a rape happens to be the daughter of the managing director of the employer company. The employee has 13 years of service and has a clean record. If the employer dismissed that employee, would the commissioner find the dismissal unfair because dismissal was not the only sanction available to the employer?

[8] Another example may still be warranted. An employee commits fraud involving an amount of R50 000,00 against his employer. The employee has 13 years of service and has a clean record. Would the commissioner find the dismissal of that employee unfair on the basis that dismissal is not the only sanction available to the employer? Let us take a case where an employee is guilty of murdering one of the managers in a company in circumstances where he has service of 13 years with a clean record but in this case he murdered the manager for absolutely no reason. He has no defence or acceptable explanation for his misconduct. Would the commissioner find his dismissal unfair because dismissal was not the only sanction available to the employer?

[9] I am well aware that the examples I have given are extreme cases. However, I have done this deliberately because not only do I regard the case which the commissioner in this case had to deal with as an extreme one but the commissioner also regarded it as an extreme one. I say this because, in his award, he also said the first respondent’s dishonesty was gross, wilful and premeditated.”

9.9 In my view, the answer to the question, ‘is dismissal appropriate?’, in each of the examples provided by Zondo AJP is, a definitive 'yes'.

9.10 There is no doubt that in the case of the species of misconduct categorised as serious, such as assault (sexual or otherwise), theft, certain types of verbal abuse, racial and gender abuse, etc (the list, for obvious reasons, is not, exhaustive), the mitigating factors such as length of service of the employee, the personal circumstances of employee and the nature of the employee’s employment record bear little weight. These mitigating factors rarely displace the employer's interest to ensure that its operations are conducted in a manner that is efficient, respectable and dignified. In the case of public institutions, such as schools, this interest of the employer is paramount.

9.11 I am of the view that had the Respondent not dismissed the Applicant for his misdeeds, it would be guilty of a serious dereliction of duty. Failing to dismiss the Applicant would be denying the three students who suffered the unlawful assaults and their parents any justice. It would also be failing to protect other students from possible assaults by any educator for it would be sending the message to all educators it employs that it tolerates assaults on the students by these educators. Furthermore, it would be failing in its duty to all parents who place their children under its care by not protecting these children from unlawful assaults. Lastly, it would be failing in its duty to the community at large if it allowed a person convicted of intentionally indecently assaulting students from continuing as an educator at a school. I have no doubt that public confidence in public schools would be seriously depleted if the Applicant was not dismissed.

9.12 It must be said that the facts of this case revealed that apart form unlawfully and intentionally indecently assaulting the three students, the Applicant had conducted himself in the most appalling way with (and in some cases in front of) other students. He had, inter alia, allowed himself to get highly intoxicated in front of students and exposed the bottom half of his body to students. He correctly accepted during his criminal trial that "the duty of the principal was to lead and to give guidance." The Applicant failed dismally in this regard. His behaviour set a very poor example for the students and the educators under command to follow.

9.13 The Applicant was not only in a position of power, which position he abused, but was also in a position of trust. He was trusted by the Respondent, by the students under his care, by the parents of the students under his care, by the educators under his control and command and by the community at large. He breached that trust. His violation of that trust calls for the severest reprimand.

9.14 The Respondent, in my view, had no choice but to dismiss the Applicant. The Applicant's call for a lesser sanction must be rejected.

9.15 For the reasons stated above, I find that the dismissal of the Applicant was procedurally and substantively fair.



CASE NUMBER 03/2000 0447GDE



I find that the dismissal of the Applicant was procedurally and substantively fair.
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