PSES 687-11/12LP
PSES 687-11/12LP
Award Date:
16 July 2013
Case Number: PSES 687-11/12LP
Province: Limpopo
Applicant: Hlomani Michael Mabunda
Respondent: Department of Education: Limpopo
Issue: Unfair Dismissal - Misconduct
Venue: Polokwane
Award Date: 16 July 2013
Arbitrator: Ravi Naidoo
ARBITRATION AWARD
Commissioner:
Ravi Naidoo
Case No:
PSES 687-11/12
Date of Ruling:
16 July 2013
IN THE MATTER BETWEEN:
Hlomani Michael Mabunda
Union / Applicant / Employee party
And
Limpopo Department of Education
Respondent / Employer party
Union/Employee’s representative:
SG Maake (Attorney)
Union/Employee’s address:
Telephone:
015 291 1696
Fax:
015 291 5951
Employer’s representative:
T Netshitungulu
Employer’s Address:
Telephone:
015 290 9406
Fax:
086 611 8194
1.DETAILS OF HEARING AND REPRESENTATION:
The arbitration hearing commenced on the 01 November 2012 and remained part heard. The matter convened again in February 2013 and was further scheduled to sit May 2013. The matter did not proceed in May 2013 and the written closing arguments of the parties were accepted. The applicant was represented by S G Maake, an attorney. The respondent was represented by Ms T Netshitungulu. There was no objection to the applicant being legally represented. Given the complexity of the matter legal representation was permitted. The issue of whether an intermediary was required was raised by the ELRC and the respondent had indicated to the ELRC as well to the commissioner that an intermediary would not be required in this matter. It was advised by the respondent that the Learner who was to testify was 18 years of age and was capable of testifying without the assistance of an intermediary. Apart from the respondent’s submission that an intermediary was not required an observation was made by the commissioner when the Learner in question was called to testify, the Learner was not intimidated by the environment and proceeded to testify without any signs of discomfort being visible.
2.Issues to be decided:
Whether the dismissal of the applicant was procedurally and substantively fair.
The applicant was dismissed for allegedly sexually assaulting a learner.
The applicant challenged the substance of his dismissal and denied the allegation.
On procedure the applicant alleged that he was denied a fair opportunity to present his case when he was denied a postponement of the disciplinary enquiry in order to seek documentation from the respondent which was crucial to his case.
3.Background to the issues:
The applicant assumed employment with the respondent on 06 January 1992. The applicant was dismissed on 15 February 2012. The applicant occupied the position of Senior Teacher at Vungela Primary School at the time of his dismissal. The applicant earned a salary of R19217-00 per month at the time of his dismissal. The applicant sought retrospective reinstatement.
4. Survey of the evidence and argument:
4.1 Evidence of the Respondent
4.1.1 Witness 1: Mthavini Makhubela testified as follows:
The witness is the granny of Learner X (the affected learner in this matter).
On the morning of 07 April 2009 the witness proceeded to the applicant’s house to fetch her grandson, Learner X.
The witness alleged that she was told by some small boy that Learner X was the applicants place.
The witness proceeded to the applicant’s house and called Learner X and asked him what he was doing at the applicant’s house. Learner X indicated that the applicant had asked him to assist with washing the blankets. The witness indicated that she asked Learner X if he was the applicant’s wife, that he could wash the applicant’s blankets.
The witness indicated to Learner X that he should bring his school bag and empty it. Contained in the bag was a shirt, tie and a cassette.
On the way back home the witness threatened Learner X and indicated that he would be beaten and even killed if he did not tell her what had happened at the applicant’s place. Learner X indicated that the applicant had given him R40-00 and then had grabbed him on the bed and raped him.
The witness proceeded home and Learner X went to sleep. The witness indicated that Learner X complained about pain in his anal passage.
Learner X then indicated that he was going to the police and the witness accompanied him. The police officer spoke to the learner and took him away. After a while the police officer returned with Learner X and indicated that they had returned from the Health centre.
The witness then instructed Learner X to take out the money which was given to him by the applicant. The police officer took the money as evidence.
The police took Learner X to the hospital. On her arrival at the hospital, the witness saw Learner X sleeping on the hospital bed and the doctor was present.
After this incident Learner X became withdrawn and his results at school diminished. Learner X did not get any counselling.
4.1.2 Cross Examination
The witness confirmed that Learner X was her grandson.
The witness indicated that on the Friday she sent Learner X to Manganye’s(a relatives place) after school. The witness could not recall the date.
The witness conceded that Learner X left home on 27 March 2009 to visit Nwamavhaza, a relative who was married in Manganye’s family.
The witness agreed that from 27 March 2009 to 8 April 2009 that the applicant was to have stayed at Nwamavhaza’s place.
The witness confirmed that when she arrived at Manganye’s place she was informed by a small girl at Manganye’s that Learner X was at the applicant’s place.
At no time did Nwamavhavaza ever indicate to the witness that Learner X wanted to study computers at the applicant’s place.
It was put to the applicant that Learner X spent 27 , 29 March 2009 and 7 April 2009 at the applicant’s place to learn computers. The witness was unable to respond.
On the day that the witness proceeded to the applicant’s house. She saw Learner X emerging from the toilet on her arrival.
It was put to the witness that if the applicant had allegedly raped Learner X, why then did Learner X continue to stay at the applicant’s place. The witness was unable to answer.
The witness indicated that she asked Learner X what he was doing at the applicant’s place and Learner X indicated that the applicant had requested him to help wash the blankets.
The witness agreed that she went to the applicant’s house on 8 April 2009.
It was put to the witness that the applicant had washed the blankets and clothes on 6 April 2009.
It was put to the witness that Learner X only returned to the applicant on 7 April 2009, a day after the blankets and clothes had been washed.
Learner X had indicated that the shirt, tie and cassette were given to him by the applicant. It was put to the witness that the applicant gave Learner X the shirt and tie because Learner X had accompanied the applicant to a church conference on 29 March 2009.
It was put to the witness that Learner X had asked the applicant for R40-00 in order to purchase airtime so that he could contact him when he was at the conference at Thabanchu on 8 April 2009.
It was put to the witness that because she had threatened Learner X by saying that she would “beat him and kill him”, that Learner X was untruthful about the alleged incident.
It was put to the witness that the applicant was physically disabled and that he did not have the power and strength to overpower Learner X. (the applicant’s right hand and left foot does not have full functionality). The witness was unable to respond.
The witness confirmed that Learner X was taken for a medical examination. The witness was not aware of the outcome of the medical examination.
Learner X did proceed to file a complaint at the SAPS. The criminal case did not proceed. The witness was only informed that the matter was closed. The witness confirmed that the criminal courts did not find the applicant guilty of any criminal offence.
4.1.3 Re-Examination:
On arrival at the applicant’s place, the witness met the applicant’s mother and the mother’s sister.
At no time did Learner X ever request permission to attend a conference with the applicant.
4.1.4 Witness 2: Learner X testified as follows
On Friday 27 March 2009, the witness proceeded to visit his great granny.
The witness met the applicant at the “Spaza Shop” at Manganyi Village.
The applicant asked the witness to help him wash the blankets at the applicant’s house.
After assisting the applicant to wash the blankets, the applicant requested that the witness bring his wallet which was kept at the computer.
The witness alleged that when he entered the house to fetch the wallet, the applicant followed him and closed the door behind him. The applicant told the witness that they are relatives and that the witness should stay overnight.
The witness told the applicant that he would not stay overnight at the applicant because he was visiting at Manganyi Village.
The applicant then allegedly chased the witness around the house. The applicant then undressed the witness and allegedly raped him.
The owner of the house came to knock at the door and the applicant did not open the door.
The following day, in the morning, the applicant was proceeding to a conference in Bloemfontein. The witness went to the toilet and on his return found his granny and sister outside. The granny called the witness and indicated that they were there to fetch him.
The granny asked the witness whether he and the applicant were relatives. The witness indicated that he was friends with the applicant and that the applicant was also his teacher.
The granny instructed the witness to retrieve his bag from inside the house. The granny opened the bag and found lotion, a shirt and tie, T-shirts and some DVD disks in the bag.
The witness then proceeded home with his granny.
The granny asked the witness what he was doing at the applicant’s place. The witness then related to his granny what the applicant had done to him.
The witness then indicated to his granny that he wanted to open a police case.
After opening the case, the police took the witness for a medical examination to Elim Hospital.
After the being medically examined, the doctor had indicated that he could find no evidence of any penetration of the anus.
The following day the witness was taken to the psychologist at Elim Hospital. A blood test was also conducted on the witness. The witness then returned home.
The witness indicated that he agreed to accompany the applicant to his house because the applicant was his teacher.
The witness indicated that when he arrived at the applicant’s house on the day in question the applicant’s brother and mother were present. The witness indicated that the applicant’s brother, however, did not assist with the washing of the blankets.
The witness alleged that the applicant took his penis and penetrated the witness’s anus. The witness alleged that he screamed and the applicant’s mother came to the door to investigate.
4.1.5 Cross-Examination
The witness alleged that the incident occurred on 27 March. The witness was unable to recall the year.
It was put to the witness that it was initially alleged that the incident occurred on 7 April 2009. The witness was unable to respond.
The witness indicated that he first proceeded to his granny at Manganye’s and told them that he was going to the applicant to help him wash the blankets.
The witness indicated that he was confused about the date of the alleged incident because it happened a long time ago.
It was put to the witness that on the 27 March 2009 he arrived at the applicant’s house at 8pm. The witness indicated that he arrived at 6pm.
The witness agreed that he did request the applicant to teach him how to use a computer.
The witness denied sleeping at the applicants place on three occasions. The witness indicated that he only slept at the applicants place once.
The witness denied that he told his granny that he was going to stay at the applicant in order to learn computers.
The witness agreed that he testified that the applicant left for Bloemfontein to attend the conference. The witness agreed that the conference was held on 28 March 2009. It was put to the witness that the conference was not held in Bloemfontein but in Noblehoek, Giyani. The witness agreed.
The witness denied that he requested to accompany the applicant to the conference. The witness indicated that the applicant requested him to come with to the conference and the witness agreed to do so.
The witness confirmed that he did attend the conference with the applicant on 28 March 2009. The witness confirmed that he accompanied the applicant to the conference after the alleged sodomisation.
The witness indicated that he did not accept to take the clothing, which applicant gave him, home with him. He merely took it to use for the conference which he attended with the applicant.
The witness agreed that the applicant was disabled and did not have proper use of his right hand and left foot. The witness indicated that the applicant is able to run with a limp.
The witness indicated that he accompanied the applicant to the conference after the alleged incident because he accepted the incident and kept it in his heart as his secret.
The witness indicated that he told his granny that he visited the applicant because the applicant was his teacher and his friend and that he had assisted him to wash the blankets.
The witness agreed that his family and the applicant were not on good terms for a long time. The witness denied that his granny forced him to charge the applicant because their families were not on good terms.
The witness indicated that he only slept at the applicant’s place on 27 March 2009.
The witness indicated that he was confused when it was put to him that he was changing his version
The witness indicated that he did not explain anything to his granny, she witnessed it on her own because many people knew about the applicant being a rapist. The witness indicated that that is why his granny asked if the applicant was family.
The witness then indicated that the granny did not see the applicant raping the witness, but assumed that was the case because the applicant was a rapist.
The witness denied that his granny threatened to “beat and kill” him. The witness then indicated that when his granny threatened him, she wanted to know whether a rape had taken place or not.
The witness indicated that he knew Thomas Ngoveni because he stayed at the same village. The witness denied that Ngoveni was his grandfather.
It was put to the witness that he told Ngoveni that he was forced to lay charges against the applicant, by his granny. The witness indicated that this was not correct.
4.1.6 Re-Examination
The witness was 14 years old at the time of the incident.
The witness was a student of the applicant at the time of the incident.
The witness indicated that he did receive counselling on two occasions after the alleged incident.
The witness indicated that it was the first time that he had accompanied the applicant to a conference.
The witness indicated that the applicant makes use of his left hand due to his right arm being disabled.
On seeking clarity the witness indicated the following
The witness visited the applicant on two occasions.
The alleged incident occurred when the witness visited the applicant for a second time.
The applicant, his two children, applicant’s brother and applicant’s parents reside on the property.
Only the applicant’s mother was present at the time of the incident. The witness was unable to answer why he did not alert the applicant’s mother to the incident that he had allegedly been raped.
The witness indicated that he still viewed Mabundla (the applicant) as his friend and therefore he accompanied him to the conference the day after the alleged incident.
The witness confirmed that after the incident he stayed over at the applicant and that they slept in the same bed.
It was put to the witness that at the time of the alleged incident, the witness was already in secondary school and that the applicant could not have been his teacher as the applicant taught in a primary school. The witness confirmed that he was in secondary school at that time.
The witness confirmed that the applicant’s homestead consists of three rondawels and a separate zinc structure. The witness alleged that the incident occurred in one of the rondawels.
4.2 Evidence of the Applicant
4.2.1 The applicant, Hlomani Michael Mabunda testified as follows
The applicant id familiar with Learner X. The applicant taught Learner X from Grade 5 to Grade 7.
Learner X was a slow learner and repeated grade twice or thrice.
On 27 March 2009 the applicant was at home busy on his computer. The applicant son, aged 10, was present. Learner X arrived at 8pm and indicated that he was going to visit his granny.
Leaner X took an interest in the computer and asked the applicant to teach him how to use the computer, which the applicant did for approximately 30minutes.
The applicant then indicated to Learner X that he was going to a night vigil because his granny had passed on. Learner X insisted that he wanted to accompany the applicant to the vigil. The vigil went on until midnight.
Due to it being so late, Learner X decided to stay over at the applicants place and indicated that he would proceed to his grandmother the following day.
After the funeral of his granny on 28 March 2009, the applicant had to proceed to a church conference. Leaner X requested to accompany the applicant to the conference. The applicant told the learner that he should seek the permission of his granny to do so. Learner X proceeded to his granny and returned 30minutes later.
Before proceeding to the conference the applicant gave Learner X a shirt and tie which he could wear to the conference. The applicant and Learner X returned from the conference at approximately 16h30 and Learner X proceeded straight to his granny.
After an hour Learner X returned to the applicant’s place and indicated that he had been granted permission to return to the applicant’s place and continue with his computer lessons. Learner X then stayed over at the applicant’s place and slept with the applicant’s son on the floor.
On the morning of 30 March 2009, the Learner left and returned during the course of the week to take additional lessons on the computer.
On 04 April 2009 the applicant was supposed to go and collect his dry cleaning in town. Due to an urgent family meeting, the applicant was unable to do so. Learner X volunteered to do so and proceeded to collect the dry cleaning for the applicant. On his return Learner X continued with his computer lessons for approximately 2 hours and then left.
Learner X indicated that he would return on 05 April 2009 and would attend church with the applicant. Learner X never arrived.
On Monday, 06 April 2009, the applicant washed his blankets and was assisted by his brother Given Mabunda. Learner X was not present at that time.
At approximately 6pm as the applicant was about to accompany his brother to the taxi rank, Learner X arrived. Learner X accompanied the applicant and the applicant’s brother to the taxi rank and then returned to his home.
On 07 April 2009 the applicant was preparing to attend an Easter conference in Thabanchu, in Bloemfontein, which was to take place from 8 to 12 April 2009.
At approximately 8pm, Learner X arrived carrying his school bag. Learner X indicated that he had his grandmother’s permission to stay over.
On 08 April 2009 the applicant was preparing to leave to Bloemfontein. At about 9am Learner X informed the applicant that there were people there that were looking for the applicant. The applicant proceeded outside and found Learner X’s granny and sister there. They started shouting at the applicant and accused him of sleeping with Learner X and indicated that they would destroy his career.
The granny then took Learner X’s bag and emptied the contents (shirt, ties, lotion & disks) which the applicant had given to Learner X.
The applicant indicated that he proceeded to Thabanchu. Whilst at Thabanchu the applicant received a phone call from his mother who informed him that the police were looking for him.
On his return from Bloemfontein on 13 April 2009 the applicant proceeded to the police station with his uncle.
The investigating officer advised the applicant that Learner X had opened up a case of rape against the applicant. The applicant was arrested and appeared in court and granted bail on 14 April 2009.
The applicant indicated that Learner X granny only came to his premises on 8 April 2009 and not on 28 March 2009 as alleged.
The applicant indicated that his family was not in good terms with Learner X’s family.
On procedure the applicant alleged that he was unfairly denied a postponement in order to acquire some documentary evidence from the police. The applicant indicated that he was only charged by the respondent after he had been acquitted of all charges in the criminal court.
4.2.2 Cross Examination
The applicant had befriended Learner X after he started teaching Learner X and assisting him because Learner X was a slow learner.
The applicant indicated that he was not related to Learner X and his family.
Learner X’s granny had said to the applicant that he (the applicant) had taken Learner X to be his wife and that he should come and pay labola. The applicant indicated that Learner X’s granny was very insulting to him.
The applicant could not confirm whether Learner X did in fact obtain his grandmothers permission to stay over.
The applicant denied that Learner X helped him to wash the blankets.
4.2.3 Re- Examination
Learner X had indicated to the applicant that he had obtained permission to visit the applicant.
4.2.4 Witness: Hlangani Thomas Ngoveni testified as follows
The witness is employed at Vungela Primary School as a gardener and security.
The witness indicated that Learner X was like a grandson to him in terms of their clan relationship and that they were related through clan bloodline and not that he was Learner X’s biological grandfather.
On 15 April 2009 the witness saw Learner X and asked him if it was true that the applicant had raped him. Learner X indicated that it was not true and that his grandmother insisted that he open a case against the applicant. Learner X indicated that his granny forced him to open the case against the applicant.
4.2.5 Cross Examination
Learner X used to school at Vungela Primary School
When the alleged incident occurred Learner X was schooling at another school.
4.2.6 Witness: Forisa Khoza testified as follows:
The witness stays at Tiyani Village
The witness resides in the same area as the applicant.
The witness is the applicant’s sister.
On 6 April 2009 the witness went to her mother’s house to greet her.
On arrival the witness found the applicant and his brother Given Mabunda washing blankets. They were trying to squeeze the water out of the blanket. The witness told them that they should not squeeze the blanket and that they should place it on the crates to drain before hanging it up.
The witness indicated that she departed from her mother’s house at approximately 6pm and there was no other person present assisting the applicant to wash the blanket except for Given Mabunda, the applicant’s brother.
4.2.7 Cross Examination
The witness indicated that she cannot read and write or tell the time.
The witness indicated that she knew that she left at approximately 6pm because she had asked Vusi for the time.
On her way out the witness did meet another boy. The witness indicated that it was late and she could not see who it was.
The witness indicated that she did not visit the applicants homestead the following day.
5. Analysis of evidence and argument :
The applicant in this matter challenged both the procedure and substance of his dismissal. On the issue of procedure the applicant alleged that the presiding officer at the disciplinary enquiry denied his request for a postponement in order for the applicant to seek documentation, which was relevant to his case, from the respondent. The applicant was of the view that this prejudiced the presentation of his case.
On the issue of substance the applicant denied that he had sexually assaulted Learner X.
In terms of the scope of this arbitration I must determine on the balance of probabilities whether the applicant committed a sexual assault on Learner X by sodomising him.
At the time of the alleged transgression, the learner was aged 14. At the time of the arbitration Learner X was approximately 18 years of age and did not require the services of an intermediary.
It was the testimony of Learner X that he had gone to the applicant’s house because the applicant had requested him to assist him with the washing of blankets. It was Learners X submission that after washing the blankets, the applicant told him to go and get his (the applicants wallet) inside of the house and that it was at this point that the applicant followed Learner X into the house and closed the door behind him. Learner X indicated that the applicant then told him to stay the night which the learner refused because he indicated that he was going to stay at Manganye Village. Learner X indicated that the applicant then proceeded to chase him around in the house and then caught him, undressed him and then sodomised (raped) him. At a point Learner X indicated that the applicant’s mother did come and knock on the door.
It was Learner X’s version that at no time was he threatened by his granny to reveal what had happened at the applicant’s house. In his testimony Learner X indicated that his granny asked him what he was doing at the applicant’s house and Learner X then volunteered the information that he had been sodomised. Learner X’s granny, however, indicated that on the way back home she threatened Learner X and told him that he would be “beaten and even killed” if he did not tell her what had happened. Learner X denied that this was the case. The version of Learner X and his granny conflicted in this regard.
Learner X admitted under cross examination that his family was not on good terms for a very long time with the applicant. Thus there was some tension between the Learner X’s family and the applicant. Learner X further went on to testify that he did not have to explain what had happened between him and the applicant, because his granny and many people knew that the applicant was a rapist. Initially Learner X testified that his granny did not threaten to “beat and kill” him. Learner X then changed his version and indicated that “when his granny threatened him, she wanted to know whether the applicant had raped him or not. Thus it would seem that Learner X was not being entirely truthful when he initially submitted that he was never threatened by his granny to reveal what had allegedly happened at the applicant’s house. One can understand that Learner X’s granny could have probably been angry that Learner X had visited the applicant and stayed there, given that Learner X’s family were not on good terms with applicant. And there would have been nothing untoward with the granny expressing her anger at Learner X and threatening him to reveal why he had gone to the applicant’s place. What is questionable, however, is why Learner X chose very deliberately to initially be untruthful about his later admission that he was indeed threatened by his granny, specifically relating to whether he had been raped or not. Learner X’s granny, Mthavini Makhubela’s, version was that she threatened him on the way back home. Learner X in his testimony alluded that his granny already had a preconceived notion that the applicant was a rapist. This the learner testified to whilst under cross examination when he indicated “that he did not explain anything to his granny, she witnessed it on her own because many people knew about the applicant being a rapist. The witness then indicated that the granny did not see the applicant raping the witness, but assumed that was the case because the applicant was a rapist.”
Thus if Mthavini Makhubela had specifically threatened Learner X to establish whether he was raped, as was alluded to by Learner X, then it could not have been that Learner X of his own accord volunteered the information as was initially testified to by Learner X. Learner X was not being truthful in this regard.
This brings us to the testimony of the applicant’s witness, Hlangani Thomas Ngoveni, who testified that he was not the biological grandfather of Learner X, but was considered a grandfather to Learner X in terms of their clan affiliation and bloodline from a cultural point of view. Ngoveni testified that he had an interaction with Learner X and had asked him whether the applicant had indeed raped Learner X. Ngoveni testified that Learner X had indicated to him that it was not true that the applicant had raped him and that his(Learner X) granny had forced him to open a case against the applicant. Learner X testified that Ngoveni stayed at the same village as him. Ngoveni had no reason to be untruthful in his testimony. Given that Ngoveni stayed in the same village as Learner X, surely Ngoveni stood the risk of having a stigma attached to him if he was untruthful about such a sensitive issue. Surely the community would frown upon him for protecting a person who had committed such an unacceptable act. Ngoveni had nothing to gain by being untruthful. Neither does he have any reason to specifically protect the interests of the applicant. Further, Ngoveni’s testimony is supported by Learner X’s granny’s testimony that she did indeed threaten Learner X and also Learner X’s own admission (which he initially denied) that he was threatened by his granny. I therefore do not view the testimony of Ngoveni as being a fabrication.
Learner X also testified that he only stayed overnight at the applicant’s place on one occasion, that being the time when the alleged incident occurred. It was the applicant’s version that Learner X had stayed at his place on 3 occasions. It was the testimony of Learner X that the alleged incident occurred on 27 March 2009 and that the following day he accompanied the applicant to a religious conference. Thus according to Learner X’s version he had stayed at the applicants place on the night of 27 March 2009. If we, however, look at the testimony of Learner X’s granny, she testified that she proceeded to the applicant’s house on 8 April 2009 to go and fetch Learner X. The applicant testified that Learner X had indicated to him on 7 April 2009 that he had permission to stay over at the applicant’s place. This would then support the version that the Learner had stayed over at the applicant’s place on more than one occasion and not just on a single occasion as alluded to by Learner X. Furthermore, it was the applicant’s contention that Learner X had frequented his place because he requested the applicant to give him computer lessons. Whilst it was the Learner X’s initial submission that he went to the applicant’s place because the applicant requested him to help wash the blankets, Learner X under cross examination admitted that he did request the applicant to give him lessons on the computer. If one gives consideration to the chain of events, the Learner alleged that he was sexually assaulted by the applicant on 27 March 2009. The learner than stayed at the applicant’s place over night and proceeded to accompany the applicant to a church conference on 28 March 2009. Learner X thereafter returned to Manganye Village to his great granny and must have at least returned on 7 April 2009 to the applicant’s house and again stayed overnight. Thus after the alleged incident, Learner X returned more than a week later to the applicant’s place. Thus it would follow that from the date of the alleged assault on 27 March 2009 up until 7 April 2009, Learner X did not have any intention to report the incident to the police. It was only after Learner X’s granny came to the applicant’s house on 8 April 2009 looking for Learner X, that Learner X then allegedly indicated of his own free will that he wanted to charge the applicant. Furthermore it was also Learner X’s testimony that on 27 March 2009, when the applicant allegedly followed him into the room and locked the door, the applicant had asked him to stay the night, which Learner X indicated he refused to do because he had to stay at Manganye Village. If this be the case, one wonders why Leaner X did not return to Manganye Village after the allege incident, but instead stayed the night at the applicant’s place. The Learner at the time of the alleged incident was 14 years of age and attended a mainstream school. At age 14 the Learner is very capable of distinguishing right from wrong. A learner at this age is also has the maturity to know that action needs to be taken to evade danger. The Learner at this age surely has the cognitive ability to understand that to be sodomised is unacceptable and if such an incident did occur, that one would not continue to subject oneself to remaining in the company of the aggressor, but rather leave if the opportunity presented it. It is not a scenario where the Learner was dependent on the applicant for shelter, food and all his basic needs and had nowhere to go and thus this could have presented itself as a reason as to why the Learner would not leave. In this instance there is no evidence to suggest that the learner was under any duress to stay. The Learner could have freely left. In fact Learner X does leave after 28 March 2009 and then returned to the applicant’s place of his own free will on the 7 April 2009. One must than question why would a 14 year old return of his own volition to spend time with somebody who had violated him in such a vile manner. At no time is the Learner threatened in any way by the applicant to silence him or to prevent him from reporting the incident, yet the Learner chooses not to do so for a period of over a week. Instead the Learner chose to return to the applicant’s place on 7 April 2009. Any reasonable 14 year old would not have returned.
Further, Learner X confirmed and it was never disputed that the applicant has a disability in that his right arm and left foot are not fully functional. Whilst Learner X indicated that the applicant was still mobile and ran with a limp, one questions how the applicant who has a disabled arm and only has full use of one of his arms, was able to chase the Learner X and pin him down and undress him, given the applicant’s disability.
The applicant’s testimony was that Learner X had frequented his house because he requested the applicant to give him lessons on the computer. This version was corroborated by Learner X under cross examination where he indicated that he did request the applicant to give him lessons on the computer.
If one has to take all the aforementioned into account and on a balance of probabilities decide whether the applicant did in fact sodomise Learner X, the evidence weighs in favour of the applicant that such an act was not committed. Learner X’s granny had motive to discredit the applicant because the families were not on good terms with each other.
On the issue of procedure the applicant indicated that he was denied a postponement of the disciplinary enquiry in order to obtain relevant documentation which was crucial to his case. The applicant failed to deal with this point and provide any evidence as to the nature of the documentation that was required and how the absence of such documentation had prejudiced him at the hearing.
The dismissal of the applicant is deemed to be substantively unfair.
The applicant sought retrospective reinstatement. The applicant has been unemployed for the past 17 months. As a result of the retrospective reinstatement, the respondent is to make an arrear salary payment equivalent to 17 months which would amount to (17 X R19 217-00) R288 266-00.
6. Award
The dismissal of the applicant, Hlomani Michael Mabunda, is deemed to be substantively unfair.
The respondent, Limpopo Department of Education is hereby ordered to reinstate the applicant, Hlomani Michael Mabunda, retrospectively into the same or similar post without the loss of benefits within 2 working days of receipt of this award.
As a result of the retrospective reinstatement, Limpopo Department of Education is hereby ordered to make an arrear salary payment to the applicant amounting to R 288 266-00 (two hundred and eighty eight thousand two hundred and sixty six rand) by 31 August 2013.
The applicant, Hlomani Michael Mabunda, is to report for duty within 2 working days of receiving the award, at the district office of the school at which the applicant was employed.
Signed and dated on this the 16 day of July 2013
Ravi Naidoo
ELRC Commissioner
Province: Limpopo
Applicant: Hlomani Michael Mabunda
Respondent: Department of Education: Limpopo
Issue: Unfair Dismissal - Misconduct
Venue: Polokwane
Award Date: 16 July 2013
Arbitrator: Ravi Naidoo
ARBITRATION AWARD
Commissioner:
Ravi Naidoo
Case No:
PSES 687-11/12
Date of Ruling:
16 July 2013
IN THE MATTER BETWEEN:
Hlomani Michael Mabunda
Union / Applicant / Employee party
And
Limpopo Department of Education
Respondent / Employer party
Union/Employee’s representative:
SG Maake (Attorney)
Union/Employee’s address:
Telephone:
015 291 1696
Fax:
015 291 5951
Employer’s representative:
T Netshitungulu
Employer’s Address:
Telephone:
015 290 9406
Fax:
086 611 8194
1.DETAILS OF HEARING AND REPRESENTATION:
The arbitration hearing commenced on the 01 November 2012 and remained part heard. The matter convened again in February 2013 and was further scheduled to sit May 2013. The matter did not proceed in May 2013 and the written closing arguments of the parties were accepted. The applicant was represented by S G Maake, an attorney. The respondent was represented by Ms T Netshitungulu. There was no objection to the applicant being legally represented. Given the complexity of the matter legal representation was permitted. The issue of whether an intermediary was required was raised by the ELRC and the respondent had indicated to the ELRC as well to the commissioner that an intermediary would not be required in this matter. It was advised by the respondent that the Learner who was to testify was 18 years of age and was capable of testifying without the assistance of an intermediary. Apart from the respondent’s submission that an intermediary was not required an observation was made by the commissioner when the Learner in question was called to testify, the Learner was not intimidated by the environment and proceeded to testify without any signs of discomfort being visible.
2.Issues to be decided:
Whether the dismissal of the applicant was procedurally and substantively fair.
The applicant was dismissed for allegedly sexually assaulting a learner.
The applicant challenged the substance of his dismissal and denied the allegation.
On procedure the applicant alleged that he was denied a fair opportunity to present his case when he was denied a postponement of the disciplinary enquiry in order to seek documentation from the respondent which was crucial to his case.
3.Background to the issues:
The applicant assumed employment with the respondent on 06 January 1992. The applicant was dismissed on 15 February 2012. The applicant occupied the position of Senior Teacher at Vungela Primary School at the time of his dismissal. The applicant earned a salary of R19217-00 per month at the time of his dismissal. The applicant sought retrospective reinstatement.
4. Survey of the evidence and argument:
4.1 Evidence of the Respondent
4.1.1 Witness 1: Mthavini Makhubela testified as follows:
The witness is the granny of Learner X (the affected learner in this matter).
On the morning of 07 April 2009 the witness proceeded to the applicant’s house to fetch her grandson, Learner X.
The witness alleged that she was told by some small boy that Learner X was the applicants place.
The witness proceeded to the applicant’s house and called Learner X and asked him what he was doing at the applicant’s house. Learner X indicated that the applicant had asked him to assist with washing the blankets. The witness indicated that she asked Learner X if he was the applicant’s wife, that he could wash the applicant’s blankets.
The witness indicated to Learner X that he should bring his school bag and empty it. Contained in the bag was a shirt, tie and a cassette.
On the way back home the witness threatened Learner X and indicated that he would be beaten and even killed if he did not tell her what had happened at the applicant’s place. Learner X indicated that the applicant had given him R40-00 and then had grabbed him on the bed and raped him.
The witness proceeded home and Learner X went to sleep. The witness indicated that Learner X complained about pain in his anal passage.
Learner X then indicated that he was going to the police and the witness accompanied him. The police officer spoke to the learner and took him away. After a while the police officer returned with Learner X and indicated that they had returned from the Health centre.
The witness then instructed Learner X to take out the money which was given to him by the applicant. The police officer took the money as evidence.
The police took Learner X to the hospital. On her arrival at the hospital, the witness saw Learner X sleeping on the hospital bed and the doctor was present.
After this incident Learner X became withdrawn and his results at school diminished. Learner X did not get any counselling.
4.1.2 Cross Examination
The witness confirmed that Learner X was her grandson.
The witness indicated that on the Friday she sent Learner X to Manganye’s(a relatives place) after school. The witness could not recall the date.
The witness conceded that Learner X left home on 27 March 2009 to visit Nwamavhaza, a relative who was married in Manganye’s family.
The witness agreed that from 27 March 2009 to 8 April 2009 that the applicant was to have stayed at Nwamavhaza’s place.
The witness confirmed that when she arrived at Manganye’s place she was informed by a small girl at Manganye’s that Learner X was at the applicant’s place.
At no time did Nwamavhavaza ever indicate to the witness that Learner X wanted to study computers at the applicant’s place.
It was put to the applicant that Learner X spent 27 , 29 March 2009 and 7 April 2009 at the applicant’s place to learn computers. The witness was unable to respond.
On the day that the witness proceeded to the applicant’s house. She saw Learner X emerging from the toilet on her arrival.
It was put to the witness that if the applicant had allegedly raped Learner X, why then did Learner X continue to stay at the applicant’s place. The witness was unable to answer.
The witness indicated that she asked Learner X what he was doing at the applicant’s place and Learner X indicated that the applicant had requested him to help wash the blankets.
The witness agreed that she went to the applicant’s house on 8 April 2009.
It was put to the witness that the applicant had washed the blankets and clothes on 6 April 2009.
It was put to the witness that Learner X only returned to the applicant on 7 April 2009, a day after the blankets and clothes had been washed.
Learner X had indicated that the shirt, tie and cassette were given to him by the applicant. It was put to the witness that the applicant gave Learner X the shirt and tie because Learner X had accompanied the applicant to a church conference on 29 March 2009.
It was put to the witness that Learner X had asked the applicant for R40-00 in order to purchase airtime so that he could contact him when he was at the conference at Thabanchu on 8 April 2009.
It was put to the witness that because she had threatened Learner X by saying that she would “beat him and kill him”, that Learner X was untruthful about the alleged incident.
It was put to the witness that the applicant was physically disabled and that he did not have the power and strength to overpower Learner X. (the applicant’s right hand and left foot does not have full functionality). The witness was unable to respond.
The witness confirmed that Learner X was taken for a medical examination. The witness was not aware of the outcome of the medical examination.
Learner X did proceed to file a complaint at the SAPS. The criminal case did not proceed. The witness was only informed that the matter was closed. The witness confirmed that the criminal courts did not find the applicant guilty of any criminal offence.
4.1.3 Re-Examination:
On arrival at the applicant’s place, the witness met the applicant’s mother and the mother’s sister.
At no time did Learner X ever request permission to attend a conference with the applicant.
4.1.4 Witness 2: Learner X testified as follows
On Friday 27 March 2009, the witness proceeded to visit his great granny.
The witness met the applicant at the “Spaza Shop” at Manganyi Village.
The applicant asked the witness to help him wash the blankets at the applicant’s house.
After assisting the applicant to wash the blankets, the applicant requested that the witness bring his wallet which was kept at the computer.
The witness alleged that when he entered the house to fetch the wallet, the applicant followed him and closed the door behind him. The applicant told the witness that they are relatives and that the witness should stay overnight.
The witness told the applicant that he would not stay overnight at the applicant because he was visiting at Manganyi Village.
The applicant then allegedly chased the witness around the house. The applicant then undressed the witness and allegedly raped him.
The owner of the house came to knock at the door and the applicant did not open the door.
The following day, in the morning, the applicant was proceeding to a conference in Bloemfontein. The witness went to the toilet and on his return found his granny and sister outside. The granny called the witness and indicated that they were there to fetch him.
The granny asked the witness whether he and the applicant were relatives. The witness indicated that he was friends with the applicant and that the applicant was also his teacher.
The granny instructed the witness to retrieve his bag from inside the house. The granny opened the bag and found lotion, a shirt and tie, T-shirts and some DVD disks in the bag.
The witness then proceeded home with his granny.
The granny asked the witness what he was doing at the applicant’s place. The witness then related to his granny what the applicant had done to him.
The witness then indicated to his granny that he wanted to open a police case.
After opening the case, the police took the witness for a medical examination to Elim Hospital.
After the being medically examined, the doctor had indicated that he could find no evidence of any penetration of the anus.
The following day the witness was taken to the psychologist at Elim Hospital. A blood test was also conducted on the witness. The witness then returned home.
The witness indicated that he agreed to accompany the applicant to his house because the applicant was his teacher.
The witness indicated that when he arrived at the applicant’s house on the day in question the applicant’s brother and mother were present. The witness indicated that the applicant’s brother, however, did not assist with the washing of the blankets.
The witness alleged that the applicant took his penis and penetrated the witness’s anus. The witness alleged that he screamed and the applicant’s mother came to the door to investigate.
4.1.5 Cross-Examination
The witness alleged that the incident occurred on 27 March. The witness was unable to recall the year.
It was put to the witness that it was initially alleged that the incident occurred on 7 April 2009. The witness was unable to respond.
The witness indicated that he first proceeded to his granny at Manganye’s and told them that he was going to the applicant to help him wash the blankets.
The witness indicated that he was confused about the date of the alleged incident because it happened a long time ago.
It was put to the witness that on the 27 March 2009 he arrived at the applicant’s house at 8pm. The witness indicated that he arrived at 6pm.
The witness agreed that he did request the applicant to teach him how to use a computer.
The witness denied sleeping at the applicants place on three occasions. The witness indicated that he only slept at the applicants place once.
The witness denied that he told his granny that he was going to stay at the applicant in order to learn computers.
The witness agreed that he testified that the applicant left for Bloemfontein to attend the conference. The witness agreed that the conference was held on 28 March 2009. It was put to the witness that the conference was not held in Bloemfontein but in Noblehoek, Giyani. The witness agreed.
The witness denied that he requested to accompany the applicant to the conference. The witness indicated that the applicant requested him to come with to the conference and the witness agreed to do so.
The witness confirmed that he did attend the conference with the applicant on 28 March 2009. The witness confirmed that he accompanied the applicant to the conference after the alleged sodomisation.
The witness indicated that he did not accept to take the clothing, which applicant gave him, home with him. He merely took it to use for the conference which he attended with the applicant.
The witness agreed that the applicant was disabled and did not have proper use of his right hand and left foot. The witness indicated that the applicant is able to run with a limp.
The witness indicated that he accompanied the applicant to the conference after the alleged incident because he accepted the incident and kept it in his heart as his secret.
The witness indicated that he told his granny that he visited the applicant because the applicant was his teacher and his friend and that he had assisted him to wash the blankets.
The witness agreed that his family and the applicant were not on good terms for a long time. The witness denied that his granny forced him to charge the applicant because their families were not on good terms.
The witness indicated that he only slept at the applicant’s place on 27 March 2009.
The witness indicated that he was confused when it was put to him that he was changing his version
The witness indicated that he did not explain anything to his granny, she witnessed it on her own because many people knew about the applicant being a rapist. The witness indicated that that is why his granny asked if the applicant was family.
The witness then indicated that the granny did not see the applicant raping the witness, but assumed that was the case because the applicant was a rapist.
The witness denied that his granny threatened to “beat and kill” him. The witness then indicated that when his granny threatened him, she wanted to know whether a rape had taken place or not.
The witness indicated that he knew Thomas Ngoveni because he stayed at the same village. The witness denied that Ngoveni was his grandfather.
It was put to the witness that he told Ngoveni that he was forced to lay charges against the applicant, by his granny. The witness indicated that this was not correct.
4.1.6 Re-Examination
The witness was 14 years old at the time of the incident.
The witness was a student of the applicant at the time of the incident.
The witness indicated that he did receive counselling on two occasions after the alleged incident.
The witness indicated that it was the first time that he had accompanied the applicant to a conference.
The witness indicated that the applicant makes use of his left hand due to his right arm being disabled.
On seeking clarity the witness indicated the following
The witness visited the applicant on two occasions.
The alleged incident occurred when the witness visited the applicant for a second time.
The applicant, his two children, applicant’s brother and applicant’s parents reside on the property.
Only the applicant’s mother was present at the time of the incident. The witness was unable to answer why he did not alert the applicant’s mother to the incident that he had allegedly been raped.
The witness indicated that he still viewed Mabundla (the applicant) as his friend and therefore he accompanied him to the conference the day after the alleged incident.
The witness confirmed that after the incident he stayed over at the applicant and that they slept in the same bed.
It was put to the witness that at the time of the alleged incident, the witness was already in secondary school and that the applicant could not have been his teacher as the applicant taught in a primary school. The witness confirmed that he was in secondary school at that time.
The witness confirmed that the applicant’s homestead consists of three rondawels and a separate zinc structure. The witness alleged that the incident occurred in one of the rondawels.
4.2 Evidence of the Applicant
4.2.1 The applicant, Hlomani Michael Mabunda testified as follows
The applicant id familiar with Learner X. The applicant taught Learner X from Grade 5 to Grade 7.
Learner X was a slow learner and repeated grade twice or thrice.
On 27 March 2009 the applicant was at home busy on his computer. The applicant son, aged 10, was present. Learner X arrived at 8pm and indicated that he was going to visit his granny.
Leaner X took an interest in the computer and asked the applicant to teach him how to use the computer, which the applicant did for approximately 30minutes.
The applicant then indicated to Learner X that he was going to a night vigil because his granny had passed on. Learner X insisted that he wanted to accompany the applicant to the vigil. The vigil went on until midnight.
Due to it being so late, Learner X decided to stay over at the applicants place and indicated that he would proceed to his grandmother the following day.
After the funeral of his granny on 28 March 2009, the applicant had to proceed to a church conference. Leaner X requested to accompany the applicant to the conference. The applicant told the learner that he should seek the permission of his granny to do so. Learner X proceeded to his granny and returned 30minutes later.
Before proceeding to the conference the applicant gave Learner X a shirt and tie which he could wear to the conference. The applicant and Learner X returned from the conference at approximately 16h30 and Learner X proceeded straight to his granny.
After an hour Learner X returned to the applicant’s place and indicated that he had been granted permission to return to the applicant’s place and continue with his computer lessons. Learner X then stayed over at the applicant’s place and slept with the applicant’s son on the floor.
On the morning of 30 March 2009, the Learner left and returned during the course of the week to take additional lessons on the computer.
On 04 April 2009 the applicant was supposed to go and collect his dry cleaning in town. Due to an urgent family meeting, the applicant was unable to do so. Learner X volunteered to do so and proceeded to collect the dry cleaning for the applicant. On his return Learner X continued with his computer lessons for approximately 2 hours and then left.
Learner X indicated that he would return on 05 April 2009 and would attend church with the applicant. Learner X never arrived.
On Monday, 06 April 2009, the applicant washed his blankets and was assisted by his brother Given Mabunda. Learner X was not present at that time.
At approximately 6pm as the applicant was about to accompany his brother to the taxi rank, Learner X arrived. Learner X accompanied the applicant and the applicant’s brother to the taxi rank and then returned to his home.
On 07 April 2009 the applicant was preparing to attend an Easter conference in Thabanchu, in Bloemfontein, which was to take place from 8 to 12 April 2009.
At approximately 8pm, Learner X arrived carrying his school bag. Learner X indicated that he had his grandmother’s permission to stay over.
On 08 April 2009 the applicant was preparing to leave to Bloemfontein. At about 9am Learner X informed the applicant that there were people there that were looking for the applicant. The applicant proceeded outside and found Learner X’s granny and sister there. They started shouting at the applicant and accused him of sleeping with Learner X and indicated that they would destroy his career.
The granny then took Learner X’s bag and emptied the contents (shirt, ties, lotion & disks) which the applicant had given to Learner X.
The applicant indicated that he proceeded to Thabanchu. Whilst at Thabanchu the applicant received a phone call from his mother who informed him that the police were looking for him.
On his return from Bloemfontein on 13 April 2009 the applicant proceeded to the police station with his uncle.
The investigating officer advised the applicant that Learner X had opened up a case of rape against the applicant. The applicant was arrested and appeared in court and granted bail on 14 April 2009.
The applicant indicated that Learner X granny only came to his premises on 8 April 2009 and not on 28 March 2009 as alleged.
The applicant indicated that his family was not in good terms with Learner X’s family.
On procedure the applicant alleged that he was unfairly denied a postponement in order to acquire some documentary evidence from the police. The applicant indicated that he was only charged by the respondent after he had been acquitted of all charges in the criminal court.
4.2.2 Cross Examination
The applicant had befriended Learner X after he started teaching Learner X and assisting him because Learner X was a slow learner.
The applicant indicated that he was not related to Learner X and his family.
Learner X’s granny had said to the applicant that he (the applicant) had taken Learner X to be his wife and that he should come and pay labola. The applicant indicated that Learner X’s granny was very insulting to him.
The applicant could not confirm whether Learner X did in fact obtain his grandmothers permission to stay over.
The applicant denied that Learner X helped him to wash the blankets.
4.2.3 Re- Examination
Learner X had indicated to the applicant that he had obtained permission to visit the applicant.
4.2.4 Witness: Hlangani Thomas Ngoveni testified as follows
The witness is employed at Vungela Primary School as a gardener and security.
The witness indicated that Learner X was like a grandson to him in terms of their clan relationship and that they were related through clan bloodline and not that he was Learner X’s biological grandfather.
On 15 April 2009 the witness saw Learner X and asked him if it was true that the applicant had raped him. Learner X indicated that it was not true and that his grandmother insisted that he open a case against the applicant. Learner X indicated that his granny forced him to open the case against the applicant.
4.2.5 Cross Examination
Learner X used to school at Vungela Primary School
When the alleged incident occurred Learner X was schooling at another school.
4.2.6 Witness: Forisa Khoza testified as follows:
The witness stays at Tiyani Village
The witness resides in the same area as the applicant.
The witness is the applicant’s sister.
On 6 April 2009 the witness went to her mother’s house to greet her.
On arrival the witness found the applicant and his brother Given Mabunda washing blankets. They were trying to squeeze the water out of the blanket. The witness told them that they should not squeeze the blanket and that they should place it on the crates to drain before hanging it up.
The witness indicated that she departed from her mother’s house at approximately 6pm and there was no other person present assisting the applicant to wash the blanket except for Given Mabunda, the applicant’s brother.
4.2.7 Cross Examination
The witness indicated that she cannot read and write or tell the time.
The witness indicated that she knew that she left at approximately 6pm because she had asked Vusi for the time.
On her way out the witness did meet another boy. The witness indicated that it was late and she could not see who it was.
The witness indicated that she did not visit the applicants homestead the following day.
5. Analysis of evidence and argument :
The applicant in this matter challenged both the procedure and substance of his dismissal. On the issue of procedure the applicant alleged that the presiding officer at the disciplinary enquiry denied his request for a postponement in order for the applicant to seek documentation, which was relevant to his case, from the respondent. The applicant was of the view that this prejudiced the presentation of his case.
On the issue of substance the applicant denied that he had sexually assaulted Learner X.
In terms of the scope of this arbitration I must determine on the balance of probabilities whether the applicant committed a sexual assault on Learner X by sodomising him.
At the time of the alleged transgression, the learner was aged 14. At the time of the arbitration Learner X was approximately 18 years of age and did not require the services of an intermediary.
It was the testimony of Learner X that he had gone to the applicant’s house because the applicant had requested him to assist him with the washing of blankets. It was Learners X submission that after washing the blankets, the applicant told him to go and get his (the applicants wallet) inside of the house and that it was at this point that the applicant followed Learner X into the house and closed the door behind him. Learner X indicated that the applicant then told him to stay the night which the learner refused because he indicated that he was going to stay at Manganye Village. Learner X indicated that the applicant then proceeded to chase him around in the house and then caught him, undressed him and then sodomised (raped) him. At a point Learner X indicated that the applicant’s mother did come and knock on the door.
It was Learner X’s version that at no time was he threatened by his granny to reveal what had happened at the applicant’s house. In his testimony Learner X indicated that his granny asked him what he was doing at the applicant’s house and Learner X then volunteered the information that he had been sodomised. Learner X’s granny, however, indicated that on the way back home she threatened Learner X and told him that he would be “beaten and even killed” if he did not tell her what had happened. Learner X denied that this was the case. The version of Learner X and his granny conflicted in this regard.
Learner X admitted under cross examination that his family was not on good terms for a very long time with the applicant. Thus there was some tension between the Learner X’s family and the applicant. Learner X further went on to testify that he did not have to explain what had happened between him and the applicant, because his granny and many people knew that the applicant was a rapist. Initially Learner X testified that his granny did not threaten to “beat and kill” him. Learner X then changed his version and indicated that “when his granny threatened him, she wanted to know whether the applicant had raped him or not. Thus it would seem that Learner X was not being entirely truthful when he initially submitted that he was never threatened by his granny to reveal what had allegedly happened at the applicant’s house. One can understand that Learner X’s granny could have probably been angry that Learner X had visited the applicant and stayed there, given that Learner X’s family were not on good terms with applicant. And there would have been nothing untoward with the granny expressing her anger at Learner X and threatening him to reveal why he had gone to the applicant’s place. What is questionable, however, is why Learner X chose very deliberately to initially be untruthful about his later admission that he was indeed threatened by his granny, specifically relating to whether he had been raped or not. Learner X’s granny, Mthavini Makhubela’s, version was that she threatened him on the way back home. Learner X in his testimony alluded that his granny already had a preconceived notion that the applicant was a rapist. This the learner testified to whilst under cross examination when he indicated “that he did not explain anything to his granny, she witnessed it on her own because many people knew about the applicant being a rapist. The witness then indicated that the granny did not see the applicant raping the witness, but assumed that was the case because the applicant was a rapist.”
Thus if Mthavini Makhubela had specifically threatened Learner X to establish whether he was raped, as was alluded to by Learner X, then it could not have been that Learner X of his own accord volunteered the information as was initially testified to by Learner X. Learner X was not being truthful in this regard.
This brings us to the testimony of the applicant’s witness, Hlangani Thomas Ngoveni, who testified that he was not the biological grandfather of Learner X, but was considered a grandfather to Learner X in terms of their clan affiliation and bloodline from a cultural point of view. Ngoveni testified that he had an interaction with Learner X and had asked him whether the applicant had indeed raped Learner X. Ngoveni testified that Learner X had indicated to him that it was not true that the applicant had raped him and that his(Learner X) granny had forced him to open a case against the applicant. Learner X testified that Ngoveni stayed at the same village as him. Ngoveni had no reason to be untruthful in his testimony. Given that Ngoveni stayed in the same village as Learner X, surely Ngoveni stood the risk of having a stigma attached to him if he was untruthful about such a sensitive issue. Surely the community would frown upon him for protecting a person who had committed such an unacceptable act. Ngoveni had nothing to gain by being untruthful. Neither does he have any reason to specifically protect the interests of the applicant. Further, Ngoveni’s testimony is supported by Learner X’s granny’s testimony that she did indeed threaten Learner X and also Learner X’s own admission (which he initially denied) that he was threatened by his granny. I therefore do not view the testimony of Ngoveni as being a fabrication.
Learner X also testified that he only stayed overnight at the applicant’s place on one occasion, that being the time when the alleged incident occurred. It was the applicant’s version that Learner X had stayed at his place on 3 occasions. It was the testimony of Learner X that the alleged incident occurred on 27 March 2009 and that the following day he accompanied the applicant to a religious conference. Thus according to Learner X’s version he had stayed at the applicants place on the night of 27 March 2009. If we, however, look at the testimony of Learner X’s granny, she testified that she proceeded to the applicant’s house on 8 April 2009 to go and fetch Learner X. The applicant testified that Learner X had indicated to him on 7 April 2009 that he had permission to stay over at the applicant’s place. This would then support the version that the Learner had stayed over at the applicant’s place on more than one occasion and not just on a single occasion as alluded to by Learner X. Furthermore, it was the applicant’s contention that Learner X had frequented his place because he requested the applicant to give him computer lessons. Whilst it was the Learner X’s initial submission that he went to the applicant’s place because the applicant requested him to help wash the blankets, Learner X under cross examination admitted that he did request the applicant to give him lessons on the computer. If one gives consideration to the chain of events, the Learner alleged that he was sexually assaulted by the applicant on 27 March 2009. The learner than stayed at the applicant’s place over night and proceeded to accompany the applicant to a church conference on 28 March 2009. Learner X thereafter returned to Manganye Village to his great granny and must have at least returned on 7 April 2009 to the applicant’s house and again stayed overnight. Thus after the alleged incident, Learner X returned more than a week later to the applicant’s place. Thus it would follow that from the date of the alleged assault on 27 March 2009 up until 7 April 2009, Learner X did not have any intention to report the incident to the police. It was only after Learner X’s granny came to the applicant’s house on 8 April 2009 looking for Learner X, that Learner X then allegedly indicated of his own free will that he wanted to charge the applicant. Furthermore it was also Learner X’s testimony that on 27 March 2009, when the applicant allegedly followed him into the room and locked the door, the applicant had asked him to stay the night, which Learner X indicated he refused to do because he had to stay at Manganye Village. If this be the case, one wonders why Leaner X did not return to Manganye Village after the allege incident, but instead stayed the night at the applicant’s place. The Learner at the time of the alleged incident was 14 years of age and attended a mainstream school. At age 14 the Learner is very capable of distinguishing right from wrong. A learner at this age is also has the maturity to know that action needs to be taken to evade danger. The Learner at this age surely has the cognitive ability to understand that to be sodomised is unacceptable and if such an incident did occur, that one would not continue to subject oneself to remaining in the company of the aggressor, but rather leave if the opportunity presented it. It is not a scenario where the Learner was dependent on the applicant for shelter, food and all his basic needs and had nowhere to go and thus this could have presented itself as a reason as to why the Learner would not leave. In this instance there is no evidence to suggest that the learner was under any duress to stay. The Learner could have freely left. In fact Learner X does leave after 28 March 2009 and then returned to the applicant’s place of his own free will on the 7 April 2009. One must than question why would a 14 year old return of his own volition to spend time with somebody who had violated him in such a vile manner. At no time is the Learner threatened in any way by the applicant to silence him or to prevent him from reporting the incident, yet the Learner chooses not to do so for a period of over a week. Instead the Learner chose to return to the applicant’s place on 7 April 2009. Any reasonable 14 year old would not have returned.
Further, Learner X confirmed and it was never disputed that the applicant has a disability in that his right arm and left foot are not fully functional. Whilst Learner X indicated that the applicant was still mobile and ran with a limp, one questions how the applicant who has a disabled arm and only has full use of one of his arms, was able to chase the Learner X and pin him down and undress him, given the applicant’s disability.
The applicant’s testimony was that Learner X had frequented his house because he requested the applicant to give him lessons on the computer. This version was corroborated by Learner X under cross examination where he indicated that he did request the applicant to give him lessons on the computer.
If one has to take all the aforementioned into account and on a balance of probabilities decide whether the applicant did in fact sodomise Learner X, the evidence weighs in favour of the applicant that such an act was not committed. Learner X’s granny had motive to discredit the applicant because the families were not on good terms with each other.
On the issue of procedure the applicant indicated that he was denied a postponement of the disciplinary enquiry in order to obtain relevant documentation which was crucial to his case. The applicant failed to deal with this point and provide any evidence as to the nature of the documentation that was required and how the absence of such documentation had prejudiced him at the hearing.
The dismissal of the applicant is deemed to be substantively unfair.
The applicant sought retrospective reinstatement. The applicant has been unemployed for the past 17 months. As a result of the retrospective reinstatement, the respondent is to make an arrear salary payment equivalent to 17 months which would amount to (17 X R19 217-00) R288 266-00.
6. Award
The dismissal of the applicant, Hlomani Michael Mabunda, is deemed to be substantively unfair.
The respondent, Limpopo Department of Education is hereby ordered to reinstate the applicant, Hlomani Michael Mabunda, retrospectively into the same or similar post without the loss of benefits within 2 working days of receipt of this award.
As a result of the retrospective reinstatement, Limpopo Department of Education is hereby ordered to make an arrear salary payment to the applicant amounting to R 288 266-00 (two hundred and eighty eight thousand two hundred and sixty six rand) by 31 August 2013.
The applicant, Hlomani Michael Mabunda, is to report for duty within 2 working days of receiving the award, at the district office of the school at which the applicant was employed.
Signed and dated on this the 16 day of July 2013
Ravi Naidoo
ELRC Commissioner