ELRC329-20/21GP
ELRC329-20/21GP
Award Date:
18 March 2021
Case Number: ELRC329-20/21GP
Province: Gauteng
Applicant: SBUSISO SIQALABA
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: ELRC offices in Centurion
Award Date: 11 December 2021
Arbitrator: Themba Manganyi
Panellist: Themba Manganyi
Case No.: ELRC329-20/21GP
Dates of Hearing: 30 November 2020
Date of Arguments: 30 November 2020
Date of Award: 11 December 2020
In the arbitration between
GAUTENG DEPARTMENT OF EDUCATION EMPLOYER
and
SBUSISO SIQALABA
EMPLOYEE
Employer’s representative:
Ms Emily Magadla
Tel: 074 145 7146
E-Mail Address: Emily.Magadla@gauteng.gov.za
Employee’s representative: Not in attendance
Telephone:
E-Mail Address:
Details of hearing and representation
1. This is an arbitration award in terms of section 138(7) of the Labour Relations Act 66 of 1995 (“the LRAA”), as amended. The arbitration proceedings were conducted in term of section 188A of the LRAA (Inquiry by Arbitrator) on 30 November 2020 at the Council’s National Offices in Centurion.
2. Ms Emily Magadla (“Magadla”), the Labour Relations Officer, represented the Employer, the Gauteng Department of Education. Mr Sbusiso Siqalaba (“Siqalaba”), the Employee, did not attend despite being properly notified of these proceedings. The Employer submitted the only bundle of documents in these proceedings to substantiate the oral evidence that would be led.
3. Siqalaba was placed on a precautionary suspension and it was a condition of his suspension that he must notify the Employer of his changed contact details and / or address. Since his suspension, the Employer only contacted him via his known cellphone number (065 883 5296). Magadla submitted that the notice of set-down was hand delivered at his last known physical address and a WhatsApp message was sent to his known cellphone number. The message indicated that it was read, but Siqalaba did not reply. I personally contacted Siqalaba on his cellphone (065 883 5296) before the commencement of the proceedings, but he did not answer his cellphone. I satisfied myself that Siqalaba was properly notified of these proceedings. It was also stated in the notification to attend a disciplinary hearing that if he failed to attend the hearing without a valid reason, the hearing would proceed in his absence. Therefore, I proceeded in his absence.
4. I must state herein that the charge was amended insofar as the name of the school is concerned. The name of the school was amended to read “Cosmo City West Primary School” instead of “Cosmo City West Secondary School”. I must also state that the names of the learners who testified in these proceedings and were under the mental or biological age of 18 years would not be disclosed in this award to protect their identities in terms of the provisions of clause 5.3 of Collective Agreement 3 of 2018.
Issue/s to be decided
5. I am required to determine whether Siqalaba is guilty of the allegations that are leveled against him. In the event that I find that he is guilty, I will be required to determine the appropriate sanction.
Charges
6. The Employer preferred the following charges against Siqalaba:
Allegation 1
It is alleged that during the period September 2019, you had a sexual relationship with a Grade 7 learner TV from Cosmo City West Secondary School where you are currently working.
In view of your actions, you are thus charged with misconduct in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998, as amended.
Alternative to Allegation 1
It is alleged that during September 2019, you had an intimate relationship with a Grade 7 learner TV from Cosmo City West Secondary School where you are currently working.
In view of your actions, you are thus charged with misconduct in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998, as amended.
Allegation 2
It is alleged that during the period November 2019 you conducted yourself in an improper, disgraceful or unacceptable manner in that you told a Grade 7 learner AD from Cosmo City West Secondary School that you are good in bed and that you are addicted to sex.
In view of your actions, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.
Allegation 3
It is alleged that during the period November 2019 you sexually assaulted a learner AD who is a learner at Cosmo City West Secondary School where you are currently working in that you touched her breast.
In view of your actions, you are thus charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.
Allegation 4
It is alleged that during the period 2019 you conducted yourself in an improper, disgraceful or unacceptable manner in that you told a Grade 6 learner NT from Cosmo City West Secondary School that you love her.
In view of your actions, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.
Allegation 5
It is alleged that during the period 2019 you sexually assaulted a Grade 6 learner NYT in that you kissed her on the lips while touching her breast.
In view of your actions, you are thus charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.
Allegation 6
It is alleged that during the period October 2019 you conducted yourself in an improper, disgraceful or unacceptable manner in that you told a Grade 6 learner MS that she is a perfect girl for you to have.
In view of your actions, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.
Survey of evidence and arguments
There were no opening statements that were submitted in these proceedings.
The Employer’s case
The Employer called four (4) witnesses who testified through an intermediary. All the witnesses testified under oath and in summary, their evidence was as follows:
7. TV testified she attended Grade 7 in 2019 when she was thirteen years old at Cosmo City West Primary School and that Siqalaba was an Educator at the school, but he did not teach her. She stated that Siqalaba had a class in spiritual lessons and he invited her to attend these lessons. She testified that her interactions with Siqalaba started when she met his niece and her and the niece exchanged telephone numbers. She stated that she only communicated once with the niece and after that she got a WhatsApp message from Siqalaba saying that he loved her. Then Siqalaba told her that his ancestors wanted to connect with her and that can only happen if she had a relationship with him. She testified that Siqalaba wanted to sleep with her. Siqalaba sent her a WhatsApp message telling her that she had a spiritual gift and that they should meet at U-Save. Siqalaba collected her at U-Save in his car and they drove to a bush next to Honeydew. When they got there, Siqalaba gave her alcoholic beverages and told her that he loved her. Siqalaba unzipped his trouser and told her to suck his private parts. He then undressed her and sucked her private parts. She told to stop what he was doing. She dressed up and told him to take her home. He went to drop her off at U-Save. When she got home, she got a message from Siqalaba telling her that she should tell her mom that she was from her friend’s place.
8. She testified that Siqalaba on this other day he told her that they should meet at U-Save. He came to collect her from U-Save and he took her to his home. When they got to his home, he offered her chips and chocolates and told her that they should seat on his mattress. He played a movie and he started kissing her. He made her sleep on the mattress face up. He undressed her and he also got undressed. He told her that she should not be afraid as he would not penetrate her. He then inserted his private parts inside her private parts. He then started doing the up and down movements. At that moment, she was uncomfortable and she told him to stop, but he did not stop. She then forcefully stood up and told him that she wanted to go home. He took her to U-Save and gave her R100, 00.
9. She stated that they (Siqalaba and herself) always communicated via WhatsApp. She testified that her mom sent her to buy some stuff at PnP and she met Siqalaba at PnP. Siqalaba offer to drop her off at U-Save, but instead he took her to a bush next to Honeydew. When they got there, he offered her alcohol. She refused to take the alcohol, but he insisted that she drink and she eventually drank the alcohol. He then took out his private parts and told her to suck it. He tried having sex with her, but he could not as she wearing tight pants. He took her to U-Save and gave her R100, 00. When she got home, her mom asked her why she took so long and she lied that she was from her friend’s place. Her mom took her cellphone and she saw her WhatsApp chats with Siqalaba. Her mom then showed her father the WhatsApp chats. They then went to Siqalaba’s place and they went to the Police Station.
10. AD testified that she was currently attending school at Cosmo City West Primary School and that she was in Grade 7. She stated that in 2019 she was in Grade 6 and that she was eleven years old. She stated that Siqalaba was her English teacher and he was also giving them spiritual advices. She stated that Siqalaba would tell them how he broke up with his wife, that he was Scorpio (horoscope sign) and that he was good in bed. She testified that late in November 2019, Siqalaba told her that every time when she get to school and when she leave school for home, she must go to see him. She stated that Siqalaba touched one of her breasts twice and he would compare her breasts with NT’s breasts. She testified that Siqalaba told her and NT that he wished he could put them in a bottle and take them very far away from this corrupt world to marry them.
11. NT testified that she was thirteen years old and that she attended school at Cosmo City West Primary School doing Grade 7. She stated that Siqalaba told her that her ancestors were connected with his ancestors. She stated some other time when she was walking home from her friend’s place, she saw Siqalaba’s car. He offered her a lift home, but he drove with her to a certain high school and he told her that he loved her more than a teacher – learner bond. He told her that he wanted to marry her and give her kids. He tried to kiss her, but she looked away. He tried for the second time, but she refused. He gave her R50, 00 and told her that she must not tell anyone. One Saturday, Siqalaba sent her friend to call her from her home. When she went to him, he took her to the shopping center and bought her stuff. He kissed her and touched her breasts and gave her R20, 00. He wanted her phone number, but she refused to give it to him.
12. MS testified that she was thirteen years old and doing Grade 7 at Cosmo City West Primary School. She stated that Siqalaba was her English teacher. She testified that Siqalaba used to tell her that he was her spiritual father and that he needed to be in her life. She stated that Siqalaba told her that he wanted her to be his wife.
The Employee’s case
13. As stated in par. 3 herein, Siqalaba did not attend these proceedings. Therefore, I do not have his version.
Analysis of evidence and argument
14. What follows hereunder, is a summary of my findings. It is not the intention of this award to rehearse all that was stated during these proceedings. I am only stating the salient points that I deem important to assist me in making a fair determination in this matter. This is also in keeping with the provisions of section 138(7) of the LRAA.
15. I was presented with only one version in these proceedings – the Employer’s version. All the witnesses who testified in these proceedings were impressive. Their evidence was authentic and did not seem to be rehearsed. All these witnesses submitted written statements sometime in January 2020 and their testimony corroborated with their written statements. I must also state herein now that Siqalaba was privy to the learners statements prior the arbitration. Thus, he was afforded an opportunity to challenge these statements if they were not true.
16. The uncontested evidence of all the witnesses directly incriminated Siqalaba of contravening the prescripts of section 17(1)(b) & (c) and section 18(1)(q) of the Employment of Educators Act 76 of 1998. Siqalaba did not attend these proceedings despite being properly notified to rebut the allegations against him. The only logical inference that I could draw from his non-attendance was that he knew that he could not succeed in rebutting such overwhelming evidence. I therefore find Siqalaba guilty on all the allegations that were leveled against him.
17. I will now turn to determine the appropriate sanction. Section 17(1) of the Employment of Educators Act provides that an educator must be dismissed if he or she is found guilty of misconduct stipulated under subsection (1)(a) – (f). Siqalaba was found guilty for committing misconduct under Subsection (1)(b) and (c) of section 17. Section 17(1) reads as follows:
An educator must be dismissed if he or she is found guilty of -
(b) committing an act of sexual assault on a learner, student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
18. It is clear from the provisions of the above-stated statute that dismissal is the only appropriate sanction under the circumstances. Siqalaba was also found guilty of contravening the provisions of section 18(q) of the Employment of Educators Act. It cannot be denied that these misconducts (section 18(q)) are also serious and they would have attracted a dismissal sanction. Subsequently, I award as follows:
Award
19. I find Mr Sbusiso Siqalaba guilty in all the allegations that were leveled against him.
20. Mr Sbusiso Siqalaba’s employment contract with the Gauteng Department of Education is summarily terminated.
Arbitrator: Themba Manganyi
Province: Gauteng
Applicant: SBUSISO SIQALABA
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: ELRC offices in Centurion
Award Date: 11 December 2021
Arbitrator: Themba Manganyi
Panellist: Themba Manganyi
Case No.: ELRC329-20/21GP
Dates of Hearing: 30 November 2020
Date of Arguments: 30 November 2020
Date of Award: 11 December 2020
In the arbitration between
GAUTENG DEPARTMENT OF EDUCATION EMPLOYER
and
SBUSISO SIQALABA
EMPLOYEE
Employer’s representative:
Ms Emily Magadla
Tel: 074 145 7146
E-Mail Address: Emily.Magadla@gauteng.gov.za
Employee’s representative: Not in attendance
Telephone:
E-Mail Address:
Details of hearing and representation
1. This is an arbitration award in terms of section 138(7) of the Labour Relations Act 66 of 1995 (“the LRAA”), as amended. The arbitration proceedings were conducted in term of section 188A of the LRAA (Inquiry by Arbitrator) on 30 November 2020 at the Council’s National Offices in Centurion.
2. Ms Emily Magadla (“Magadla”), the Labour Relations Officer, represented the Employer, the Gauteng Department of Education. Mr Sbusiso Siqalaba (“Siqalaba”), the Employee, did not attend despite being properly notified of these proceedings. The Employer submitted the only bundle of documents in these proceedings to substantiate the oral evidence that would be led.
3. Siqalaba was placed on a precautionary suspension and it was a condition of his suspension that he must notify the Employer of his changed contact details and / or address. Since his suspension, the Employer only contacted him via his known cellphone number (065 883 5296). Magadla submitted that the notice of set-down was hand delivered at his last known physical address and a WhatsApp message was sent to his known cellphone number. The message indicated that it was read, but Siqalaba did not reply. I personally contacted Siqalaba on his cellphone (065 883 5296) before the commencement of the proceedings, but he did not answer his cellphone. I satisfied myself that Siqalaba was properly notified of these proceedings. It was also stated in the notification to attend a disciplinary hearing that if he failed to attend the hearing without a valid reason, the hearing would proceed in his absence. Therefore, I proceeded in his absence.
4. I must state herein that the charge was amended insofar as the name of the school is concerned. The name of the school was amended to read “Cosmo City West Primary School” instead of “Cosmo City West Secondary School”. I must also state that the names of the learners who testified in these proceedings and were under the mental or biological age of 18 years would not be disclosed in this award to protect their identities in terms of the provisions of clause 5.3 of Collective Agreement 3 of 2018.
Issue/s to be decided
5. I am required to determine whether Siqalaba is guilty of the allegations that are leveled against him. In the event that I find that he is guilty, I will be required to determine the appropriate sanction.
Charges
6. The Employer preferred the following charges against Siqalaba:
Allegation 1
It is alleged that during the period September 2019, you had a sexual relationship with a Grade 7 learner TV from Cosmo City West Secondary School where you are currently working.
In view of your actions, you are thus charged with misconduct in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998, as amended.
Alternative to Allegation 1
It is alleged that during September 2019, you had an intimate relationship with a Grade 7 learner TV from Cosmo City West Secondary School where you are currently working.
In view of your actions, you are thus charged with misconduct in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998, as amended.
Allegation 2
It is alleged that during the period November 2019 you conducted yourself in an improper, disgraceful or unacceptable manner in that you told a Grade 7 learner AD from Cosmo City West Secondary School that you are good in bed and that you are addicted to sex.
In view of your actions, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.
Allegation 3
It is alleged that during the period November 2019 you sexually assaulted a learner AD who is a learner at Cosmo City West Secondary School where you are currently working in that you touched her breast.
In view of your actions, you are thus charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.
Allegation 4
It is alleged that during the period 2019 you conducted yourself in an improper, disgraceful or unacceptable manner in that you told a Grade 6 learner NT from Cosmo City West Secondary School that you love her.
In view of your actions, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.
Allegation 5
It is alleged that during the period 2019 you sexually assaulted a Grade 6 learner NYT in that you kissed her on the lips while touching her breast.
In view of your actions, you are thus charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.
Allegation 6
It is alleged that during the period October 2019 you conducted yourself in an improper, disgraceful or unacceptable manner in that you told a Grade 6 learner MS that she is a perfect girl for you to have.
In view of your actions, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.
Survey of evidence and arguments
There were no opening statements that were submitted in these proceedings.
The Employer’s case
The Employer called four (4) witnesses who testified through an intermediary. All the witnesses testified under oath and in summary, their evidence was as follows:
7. TV testified she attended Grade 7 in 2019 when she was thirteen years old at Cosmo City West Primary School and that Siqalaba was an Educator at the school, but he did not teach her. She stated that Siqalaba had a class in spiritual lessons and he invited her to attend these lessons. She testified that her interactions with Siqalaba started when she met his niece and her and the niece exchanged telephone numbers. She stated that she only communicated once with the niece and after that she got a WhatsApp message from Siqalaba saying that he loved her. Then Siqalaba told her that his ancestors wanted to connect with her and that can only happen if she had a relationship with him. She testified that Siqalaba wanted to sleep with her. Siqalaba sent her a WhatsApp message telling her that she had a spiritual gift and that they should meet at U-Save. Siqalaba collected her at U-Save in his car and they drove to a bush next to Honeydew. When they got there, Siqalaba gave her alcoholic beverages and told her that he loved her. Siqalaba unzipped his trouser and told her to suck his private parts. He then undressed her and sucked her private parts. She told to stop what he was doing. She dressed up and told him to take her home. He went to drop her off at U-Save. When she got home, she got a message from Siqalaba telling her that she should tell her mom that she was from her friend’s place.
8. She testified that Siqalaba on this other day he told her that they should meet at U-Save. He came to collect her from U-Save and he took her to his home. When they got to his home, he offered her chips and chocolates and told her that they should seat on his mattress. He played a movie and he started kissing her. He made her sleep on the mattress face up. He undressed her and he also got undressed. He told her that she should not be afraid as he would not penetrate her. He then inserted his private parts inside her private parts. He then started doing the up and down movements. At that moment, she was uncomfortable and she told him to stop, but he did not stop. She then forcefully stood up and told him that she wanted to go home. He took her to U-Save and gave her R100, 00.
9. She stated that they (Siqalaba and herself) always communicated via WhatsApp. She testified that her mom sent her to buy some stuff at PnP and she met Siqalaba at PnP. Siqalaba offer to drop her off at U-Save, but instead he took her to a bush next to Honeydew. When they got there, he offered her alcohol. She refused to take the alcohol, but he insisted that she drink and she eventually drank the alcohol. He then took out his private parts and told her to suck it. He tried having sex with her, but he could not as she wearing tight pants. He took her to U-Save and gave her R100, 00. When she got home, her mom asked her why she took so long and she lied that she was from her friend’s place. Her mom took her cellphone and she saw her WhatsApp chats with Siqalaba. Her mom then showed her father the WhatsApp chats. They then went to Siqalaba’s place and they went to the Police Station.
10. AD testified that she was currently attending school at Cosmo City West Primary School and that she was in Grade 7. She stated that in 2019 she was in Grade 6 and that she was eleven years old. She stated that Siqalaba was her English teacher and he was also giving them spiritual advices. She stated that Siqalaba would tell them how he broke up with his wife, that he was Scorpio (horoscope sign) and that he was good in bed. She testified that late in November 2019, Siqalaba told her that every time when she get to school and when she leave school for home, she must go to see him. She stated that Siqalaba touched one of her breasts twice and he would compare her breasts with NT’s breasts. She testified that Siqalaba told her and NT that he wished he could put them in a bottle and take them very far away from this corrupt world to marry them.
11. NT testified that she was thirteen years old and that she attended school at Cosmo City West Primary School doing Grade 7. She stated that Siqalaba told her that her ancestors were connected with his ancestors. She stated some other time when she was walking home from her friend’s place, she saw Siqalaba’s car. He offered her a lift home, but he drove with her to a certain high school and he told her that he loved her more than a teacher – learner bond. He told her that he wanted to marry her and give her kids. He tried to kiss her, but she looked away. He tried for the second time, but she refused. He gave her R50, 00 and told her that she must not tell anyone. One Saturday, Siqalaba sent her friend to call her from her home. When she went to him, he took her to the shopping center and bought her stuff. He kissed her and touched her breasts and gave her R20, 00. He wanted her phone number, but she refused to give it to him.
12. MS testified that she was thirteen years old and doing Grade 7 at Cosmo City West Primary School. She stated that Siqalaba was her English teacher. She testified that Siqalaba used to tell her that he was her spiritual father and that he needed to be in her life. She stated that Siqalaba told her that he wanted her to be his wife.
The Employee’s case
13. As stated in par. 3 herein, Siqalaba did not attend these proceedings. Therefore, I do not have his version.
Analysis of evidence and argument
14. What follows hereunder, is a summary of my findings. It is not the intention of this award to rehearse all that was stated during these proceedings. I am only stating the salient points that I deem important to assist me in making a fair determination in this matter. This is also in keeping with the provisions of section 138(7) of the LRAA.
15. I was presented with only one version in these proceedings – the Employer’s version. All the witnesses who testified in these proceedings were impressive. Their evidence was authentic and did not seem to be rehearsed. All these witnesses submitted written statements sometime in January 2020 and their testimony corroborated with their written statements. I must also state herein now that Siqalaba was privy to the learners statements prior the arbitration. Thus, he was afforded an opportunity to challenge these statements if they were not true.
16. The uncontested evidence of all the witnesses directly incriminated Siqalaba of contravening the prescripts of section 17(1)(b) & (c) and section 18(1)(q) of the Employment of Educators Act 76 of 1998. Siqalaba did not attend these proceedings despite being properly notified to rebut the allegations against him. The only logical inference that I could draw from his non-attendance was that he knew that he could not succeed in rebutting such overwhelming evidence. I therefore find Siqalaba guilty on all the allegations that were leveled against him.
17. I will now turn to determine the appropriate sanction. Section 17(1) of the Employment of Educators Act provides that an educator must be dismissed if he or she is found guilty of misconduct stipulated under subsection (1)(a) – (f). Siqalaba was found guilty for committing misconduct under Subsection (1)(b) and (c) of section 17. Section 17(1) reads as follows:
An educator must be dismissed if he or she is found guilty of -
(b) committing an act of sexual assault on a learner, student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
18. It is clear from the provisions of the above-stated statute that dismissal is the only appropriate sanction under the circumstances. Siqalaba was also found guilty of contravening the provisions of section 18(q) of the Employment of Educators Act. It cannot be denied that these misconducts (section 18(q)) are also serious and they would have attracted a dismissal sanction. Subsequently, I award as follows:
Award
19. I find Mr Sbusiso Siqalaba guilty in all the allegations that were leveled against him.
20. Mr Sbusiso Siqalaba’s employment contract with the Gauteng Department of Education is summarily terminated.
Arbitrator: Themba Manganyi