PSES263-11/12GP
PSES263-11/12GP
Award Date:
20 February 2014
Case Number: PSES263-11/12GP
Province: Gauteng
Applicant: SS Mathebula
Respondent: Department of Education: Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Wonderboom South
Award Date: 20 February 2014
Arbitrator: R de Wet
ARBITRATION
AWARD
Commissioner: R de Wet
Case No.: PSES263-11/12GP Date of Award: 20 February 2014
In the ARBITRATION between:
SS MATHEBULA
(Union / Applicant)
and
DEPARTMENT OF EDUCATION GAUTENG
(Respondent)
Union/Applicant’s representative: Mr Ramarumo
Telefax:
Respondent’s representative: Ms Mabethe
Telefax:
DETAILS OF HEARING AND REPRESENTATION:
[1]. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on the 4th of June 2012, 11th of March 2013, 18th of March 2013, 22nd of May 2013, 8th of July 2013, 9th of September 2013 and finalized on the 27th of January 2014. The parties were thereafter afforded the opportunity to present written heads of argument to be submitted by no later than the 10th of February 2014. At the time of this award, heads of argument was only received from the Applicant on the 14th of February 2014 and from the Respondent on the 19th of February 2014. The hearing was initially held at the Department of Education at 111 Commissioner Street, Johannesburg, where after the venue was changed to the Wonderboom Junction in Wonderboom South in Pretoria and or the Pretoria North Magistrates Court respectively. The process was digitally recorded.
[2]. Mr SS Mathebula, the Applicant (hereinafter referred to as “Mathebula”), was present and was represented by Mr Ramarumo, a legal representative whilst Ms Mabethe from the Labour Relations Division represented the Respondent, the Department of Education.
[3]. In accordance with Section 28(2) of the Constitution, the child’s best’s interest are of paramount importance in every matter concerning that child. Section 28(3) refers to a child as a person under the age of 18 years. Whereas reference was made to minors throughout this award, it would be done by initials only.
[4]. An application was made by the Respondent in terms of Section 170A (1) read with subsection (7), Section 153(3) and subsection (5) and Section 158(5) of the Criminal Procedures Act, No. 51 of 1997 (hereinafter referred to as “The CPA”), that provides for amongst others, the appointment of an intermediary, and evidence to be given in a venue suitable for this purpose. Although the complainant was no longer considered a minor taking her chronological age into account, it was argued due to the fact that she is deaf and with special consideration to her cognitive ability, that it would be in the best interest of the witness to testify with the assistance of an intermediary. The application was unopposed.
[5]. Mr Blessed Mokotja Moloi, a teacher by profession with some 16 years’ experience in a deaf school, duly took the affirmation to assist with interpretation services. The parties agreed since Mr Moloi is an also a teacher from another neighboring school with no prior knowledge of the matter, that he should also assist to put to questions to the witness in such a manner that it is understandable to her. Mr Mathebula indicated that he understands sign language and will object if he is not satisfied with the interpretation. No objection was received in this regard. Both parties agreed and we proceeded on this basis and in accordance with Section 138(1) of The Act that stipulates matters of this nature must be disposed of with the minimum of legal formalities.
[6]. Mr Moloi stated that he holds a diploma in Senior Primary and a BTech, with a further diploma in hearing impairment.
ISSUE TO BE DECIDED:
[7]. Whether the dismissal of the Applicant was substantively fair as envisaged by Section 185 read with Section 188 of The Act.
[8]. In the event that I find in the negative, I must decide upon an appropriate remedy.
BACKGROUND:
[9]. The Applicant commenced his employment with the Respondent on the 1st of July 1998. On the 1st of March 2007 he was transferred to Philadelphia Secondary School. At the time of the dispute he was employed as an Educator level 1 and earned an annual remuneration package of R 129 000-00.
[10]. On the 1st of April 2010 he was served with a notice to attend a disciplinary hearing. The allegations proffered against him read as follows:
“It is alleged that between the period 2008 /2009 you had a sexual relationship with a girl “Learner PM” of the school where you are employed that is Philadelphia Secondary School in that you had sexual intercourse with the learner.
You are hereby charged with misconduct in terms of Section 17(1)© of the Employment of Educators Act No 76 of 1998 as amended”.
[11]. During this period 2008 / 2009 he thought computer applications technology to grade 11 and 12 learners. He knew the said learner from school but from the Applicant’s view there was no relationship between them whether personal or any other. Although conflicting versions were raised during the arbitration, the pre-arb minute stated that “Learner PM” was never a learner in one of Mr Mathebula’s classes.
[12]. The hearing was scheduled for the 30th of April 2010 and after various postponements the matter was
finalized on the 24th of June 2010. His last salary was paid on the 30th of August 2010. As a result of the disciplinary hearing he was found guilty of having misconducted himself in the workplace and the sanction of dismissal was imposed. His dismissal was with effect from the 8th of July 2011.
SURVEY OF EVIDENCE AND ARGUMENT:
[13]. For purposes of this award, it is not my intention to record verbatim the evidence led, submissions made and or arguments raised by either or both of the parties. Only the salient points raised during evidence that have a bearing on the issue in dispute to be decided, are recorder hereunder.
RESPONDENT’S VERSION:
[14]. The Respondent lead the evidence of six (6) witnesses.
[15]. Charity Magdeline Zabane (A teacher at Philadelphia Secondary School) testified that:-
[16]. She is teaching hairdressing to students, and most of the students in her class are either deaf or have a physical disability. “Learner PM” was a learner in her class.
[17]. She learned of the allegations against the Applicant during 2009. She became concerned when “Learner PM” did not return to school after the second term holiday. She made attempts calling the learner to enquire into her whereabouts but to no avail. Subsequently she got hold of the learner’s mother who informed her according to her knowledge the learner must be at school. She then reported the matter to the Deputy Principal who also made several attempts at locating the learner.
[18]. It was only during or about September 2009 that she saw the learner back at school. During this period she attend disciplinary hearings in relation to her absence from school, and she noticed as the learner was constantly crying. She then approached her to enquire into the problem that she seemed to be facing. However she was very disturbed and could not speak. She then reported her concerns and observations to the Deputy Principal.
[19]. Subsequently after the Deputy Principal called her in, she was called to assist with the interpretation during a discussion with “Learner PM”. At first she only referred to the hearings, and appeared very withdrawn and reserved. Consequently the Deputy Principal took the learner into an office. She was not present so she would not know what transpired in that private meeting. Later the Deputy Principal reemerged and asked her to interpret a letter that was apparently authored by the learner. In that letter, “Learner PM” explained that she was abused by various personnel members and she also identified the Applicant as one of the abusers.
[20]. During further interactions with the learner reference was again made to the problem she experienced with the abuse, but she was not the same afterwards. She was very disturbed, withdrawn and reserved.
[21]. Victoria Mazibuko Msiza (Deputy Principal) testified that:-
[22]. During September 2009 she was approached by two educators who were facing allegations of sexual abuse of learners, who then accused her of having favorites. When she asked what they meant by favorites, they informed her that some teachers, including the Applicant was having sexual relationships with learners and accused of doing nothing about that. They also mentioned “Learner PM” by name saying if she would to speak to her she would be able to give a lot of information on this issue.
[23]. It was approximately the same time when this learner was called to a disciplinary hearing for being absent from school. She immediately recognize the name of the learner and decided to call the learner in to enquire into the allegations.
[24]. Subsequently she had a private meeting with “Learner PM” wherein she asked her to reduce her experience to writing. She was crying a lot whilst she was giving an account of the abuse suffered. In her version of events she identified the Applicant as one of the abusers. Due to the sensitive nature of the contents of the letter, she decided it might be best to ask someone to interpret the contents for her and more particularly the identification of the abusers, just to confirm her understanding and eliminate any misunderstandings. Ms Zabane was called for this reasons. She further explained she can do basic signing, but she wanted to ensure she understood the witness clearly. In her version of events “Learner PM” also said that the Applicant had demanded sex from her without using a condom.
[25]. Due to the fact that “Learner PM” had misconducted herself for failing to return to school in time and for being under the influence of alcohol, she was taken to a disciplinary hearing. The outcome of the hearing was that she was suspended from school for a certain period of time. It was arranged that her parents would fetch her from school on the following Friday. The Applicant must have learned of the outcome of the hearing and acted thereupon by demanding to have sex with her one last time before she would leave. She was terrified and expressed the view that it was not safe for her at school any longer. She was visibly traumatized when she related the version of events. Her demeanor can be described as being hysterical. She then decided to refer the learner to the social worker employed at the school. She did not inform the social worker what the learner had said to her but just asked her to assist the learner who was clearly in desperate need of assistance. She then relayed the very same version to the social worker but disclosed the names of even more names abusers. It may be as a result of the way the social worker was able to speak to her having more experience with these sorts of issues.
[26]. Under cross-examination she explained that she learned of “Learner PM’s” absence from Ms Zabane who made attempts to get hold of her but to no avail. Before “Learner PM” even returned to school two educators approached her and reported to her that the Applicant, amongst others, was having sexual relationships with learners. By the time this allegation was made the learner was in Botswana and the educators could therefore not have communicated or influence her in any way, and that lent credence to their version, leading her to the conclusion that their version was in all probabilities factually correct. When the learner returned she gave the exact same version as what was reported to her by the two educators. The learner explained to her, apart from the abuse in the office of the computer room she was also approached by whosoever was on duty in the hostel, who would then also demand sex from her.
[27]. Consequently a decision was taken to refer the learner to a psychologist from Teddy Bear Clinic as they suspected her dissolute behavior might be related to what had happened to her, and it ultimately proved their suspicions were correct.
[28]. In response to a question put to her she explained that the sex appeared to have been consensual as the transgressors would offer the learner money in return for sex. In her view they were basically turning the learner into a prostitute. “Learner PM” explained that she was traumatized, as she felt pressurized into having sex and the fact is these men were not supposed to have sex with her in the first place or even put this learner in the position they did. This learner did not have the capacity to appreciate what she was doing was wrong, to her she was doing the right thing. Apart from being deaf she operated at a cognitive level equal to a child of 10 years of age.
[29]. When the version was put to her that she was the one who influenced the learner to make these allegations against the Applicant, she responded that it is ridiculous to think she would go through all the trouble to get the learner back from Botswana only to use her to make such allegations.
[30]. She also explained that according to “Learner PM” some of the incidents occurred in the office of his classroom. In his class, or the computer room, there was a camera but she was not sure whether recordings have been made of the days in question or even if they are still available. She further explained when serious allegations of this nature surfaced, they, at school level, are obliged to escalate the matter immediately, they may not influence the evidence in any manner whatsoever.
[31]. She reiterated the fact that she had a good relationship with the Applicant before these allegations surfaced and would therefore not have any reason to influence the learner to make these allegations against the Applicant.
[32]. “Learner PM” (Learner at Filedelfia) testified that:-
[33]. She attended this school since 2004. During her stay there she had sex with several educators and other staff members. The Applicant was one of the educators who had sex with her. The majority of these incidents happened in a room inside the computer room.
[34]. Although she could not recall how many times they had sex, she was clear that it was on numerous occasions. She never disclosed to anyone that she had sex with the Applicant, for he had made it very clear that sex is something between two people. He emphasized the fact that it was a secret between the two of them. However to her disgust she learned that he had told others about the sexual relationship he shared with her. This person approached her and was clearly well informed about the relationship she shared with the Applicant.
[35]. After the news surfaced of her having sex with the Applicant, everyone started talking about her and it got to a stage where she just could not face having to go back to school any longer. She only returned to school later during 2009. Upon her return she was called to a disciplinary hearing. The Deputy Principal then called her aside. On her way to the office she saw the Applicant who asked her where she was going and then impressed on her to keep quite. The Deputy Principal then asked her what troubled her and gave her a pen and paper to write down everything that bothered her. Ms Mazibuko then left her alone in the room and by virtue of the heartbroken feelings she experienced at the time she decided to write everything down everything as she remembered it. She referred in the letter to the relationship she had with the Applicant, that he asked her to be his girlfriend and that they were having sex. No one told her what to write, but she placed everything on record as it pressed on her heart at that stage.
[36]. Under cross-examination she testified that the sexual relationship between her and the Applicant started in 2008. At the time they were in a relationship the Applicant did not teach her any classes, but before that she attended one of his classes for a brief period of time. The Applicant as a teacher was a likable person and at the time she attended his classes she was not given any tests or any exams. Therefore she cannot say she failed or passed the subject offered by the Applicant.
[37]. She vehemently denied the notion put to her that she is the one who initiated the relationship. She elucidated that he would always look and ask for her. At times he would give her the key to his class room and ask her to go and fetch chest pieces for him. When she would then turn around he would be standing right behind her in the class. Other times he would sent someone to come and call her to come to his class. This happened any time after 14:30, after she had her lunch that, was served between 14:00 to 15:00 in the afternoons.
[38]. When she was called to Mazibuko’s office, no one else was present when she made the statement and she communicated with Mazibuko in sign language as she (Mazibuko) could also sign and understood when she was signing.
[39]. She confirmed during her stay at Filedelphia she was involved in several sexual relationships. She identified four educators, three security guards and one cook. They would pester her until she would give in, and more so she was afraid to say no as they were all adults and as a child you cannot say no to an adult. She also identified the Applicant as one of the perpetrators that gave her alcohol to drink.
[40]. In closing she stated that she would not travel all the way from Botswana only to lie about the Applicant. What she had testified to during this arbitration is the truth as it actually transpired.
[41]. Matidiso Susan Welhelmina Ramutloa (School Nurse at Filedelfia) testified that :-
[42]. The learner was referred to her as she was experiencing lower abdominal pain. Her attention was
drawn to the fact that the learner has disclosed having sex with several educators. She immediately thought it would be best to refer the learner to a doctor. Subsequently a report was issued by the doctor detailing that the learner had pelvic inflammatory disease. One of the courses for this desease is having sexual intercourse. Although she has seen the report she does not have the report with her.
[43]. Mosibode Frieda Modise (Social Worker at Filedelfia) testified that:-
[44]. She was approached by Ms Mazibuko who asked her to speak to “Learner PM” who had allegedly
been abused. Since she was new at the school and she could not sign yet she asked Ms Zabane to accompany her and assist with interpretation. She imposed the sensitive and confidential nature of the interview on Ms Zabane where after they proceeded. As they commenced with the interview the learner started to cry and continued crying until it became evident that they would not be able to continue with the interview. She then ended the interview and asked for permission for the learner to return to the hostel.
[45]. Consequently she made another attempt at interviewing the learner. This time the learner was able to explain that she was abused by 8 individuals, 4 of whom educators, 3 security guards and 1 cook. She also specifically identified the Applicant as one of her abusers. See even asked the learner to identify the Applicant from the all-in-one” system, a system at school that also display photos of each f the educators. Although she thoroughly questioned the learner as to why she said the Applicant was one of the abusers, her answers remained the same. In conveying the events as it unfolded, she explained the sexual intercourse between her and the Applicant happened in the office inside the computer class room.
[46]. Throughout the interview process the learner was very emotional. She even explained that she was stressed out, and had trouble sleeping because of this issue and that she could not focus on her school work. The interview had to be conducted over several days to get all the information from the learner.
[47]. She immediately referred the learner to a psychologist. The learner disclosed to her that she had sexual intercourse with the Applicant and that it was not a once of event. She further stated that she could not refuse the request to have sex with him as the Applicant was an educator and she could not refuse a request from an elder.
[48]. Shaheda Bibi Omar (Expert witness – Social worker and Director at Teddy Bear Clinic for abused children) testified that:-
[49]. She has 25 years’ experience as a clinical social worker, and apart from the running of the clinic she also does forensic assessment for the court. She holds an Honours degree in social work, a Masters degree in mental health and a Doctorate in child abuse. She also completed various other courses such as a diploma in forensic sexual evaluation.
[50]. During 2010 the Department of Education sourced her expertize to investigate allegations of sexual abuse. She then interviewed and evaluated a number of learners, amongst them “Learner PM”. By virtue of the fact that “Learner PM” had special needs in that she was deaf, the interview was done with the assistance of a person who specializes in signing.
[51]. Through the numerous questions asked to “Learner PM” she learned that the Applicant was one of the abusers, that numerous incidents of abuse happened, and that it happened in a small office in the computer room. She then went into detail and described the abuse as “dog style”, and said that the Applicant told her or instructed her not to tell anyone else. Once, according to her, she requested the Applicant use a condom, but he refused saying that he will not ejaculate in her. Despite the undertaking, he still ejaculated on her pubic hair. In yet another instance she expressed her discomfort when she was menstruating, but he nevertheless insisted and had sexual intercourse with her without a condom.
[51]. She went on to explain he once gave her R50 and on another occasion R150. He had also invited her to his home, explaining that his wife was not there, but she refused. It became apparent from her explanation that the abuse transpired over a period of time and happened on several occasions.
[52]. During the interview the learner was quiet, weeping, not in control of her emotions, and she felt sad displaying the typical symptoms of the damaged syndrome. It was abundantly clear that it was difficult for her to share the information and she was visibly embarrassed to explain what had happened to her. She was notoriously egocentric and felt she should not have allowed this abuse to happen. At the same time she was afraid, that can be describe as almost excessively fearful, because of his request to her not to tell anyone. It took quite some time for her to disclose everything that had happened. She displayed the classical trauma genic symptoms, which include feelings of helpless, and fearfulness. In her evaluation she noticed the learner was able to focus very clearly on central issues which is common with victims of abuse. She was very graphic on how her clothes were forcefully removed and when she refused his advances. She explained that this behavior is very characteristic with these victims. She went on to testify that these feelings of guilt, lead to post traumatic stress and explained these feelings are quite intrusive.
[53]. Central to the interview was to identify indicators of reliability in what the learner was sharing. A typical indicator is consistency and whether there is a golden threat going through everything that was said. In search of these indicators, she asked numerous open ended questions, and from that she found was consistency in her explanation of what transpired. The technique used was to ask forward questions going through the events but also asking questions backwards again.
[54]. Another important factor of the interview was to ascertain whether any indicators were present that would be indicative of an impairment on rationality. From her observations she was comfortable that the learner was compos mentis. Then she also explored her cognitive capacity or ability to distinguish between the truth and a lie and between fact and fantasy. She explained these are tangible objects and her observations clearly pointed to the fact that the learner was able to distinguish between the truth and a lie.
[55]. Just as important was the principle of fragmentation. Initially the learner gave an account of what transpired that can be described as an “empty sandwich’. This is typical with victims of abuse. She would give an account of the central events and on the peripheral issues there would be gabs in her version.
[56]. Lastly she also looked at her motive and it was abundantly clear that she did not have the capacity to be devious. Her language was not that of adult and it was not evident that she was coached by someone. From her observation there was no act of vengeance present with the learner, and further no evidence was present that could suggest that she was told to tell a lie or to make a false accusations.
[57]. She also said she was afraid all the time and was not comfortable with what was happening to her, but she was too afraid to come forth, hence the delayed disclosure.
APPLICANT’S VERSION:
[58]. The Applicant testified in his own defense.
[59]. Simon Solane Mathebula (The Applicant) testified that:-
[60]. He denied having a sexual relationship with any learner, let alone “Learner PM”. Before the allegations surfaced the learner was not familiar to him, but he did however know her by name only. He only got to know who the learner on a more personal level after the allegations surfaced. He explained he had never offered any classes to this learner.
[61]. In order to get to his class you have to pass two cameras and in the classroom there was a further camera. The cameras were in working order at the time when the learner alleged the incidents to have taken place. He made several attempts to raise the issue of the cameras and even asked for footage once the allegations were made but it would appear the Respondent made no attempt at locating the evidence. These cameras were working 24 hours of every day and 365 days a year (this version was never put to the witnesses of the Respondent).
[62]. He explained that the school would close at 14:00 on Mondays to Thursdays and at 13:00 on Fridays. He further explained that he granted grade 12 learners access to his class in order for them to do homework or research. Normally the computer center would be locked at 16:00 and the alarm would be activated.
[63]. At any given time during school hours there would be teachers at school and the security would also do patrols to ensure all is in order. He agreed that he would sometimes be asked to do duty at the boy’s hostel. However only male teachers and house fathers were allowed at the boys hostel and female teachers or house mothers were allowed at the girls hostel.
[64]. As for the learner she was a trouble maker at school and since 2006 she appeared in several hearings in relation to either her absence from school or for being under the influence of alcohol. As for Ms Mazibulo she is the driving force behind “Learner PM’s” return to school as she turned against him for his role as shop steward when he was to represent Mr Chikovela, the very same teacher that Mazibuko accused of having originally reporting the allegations of abuse against him.
[65]. In 2007 to 2009 he was not fluent in sign language. By the time these allegations surfaced in 2010 he could have a meaningful discussion with a deaf person (this version was not put to the witnesses of the Respondent). He denied ever calling “Learner PM” to his class, or having any sort of a relationship with her.
[66]. Under cross-examination he admitted that he does not know for how long the footage was saved as it was controller by the Principal. He has however seen examples where pictures were saved on the hard drive such as when there was a burglary. Once saved on the hard drive, it will stay there for as long as there is available space on the hard drive or until someone erase the footage.
[67]. When asked why the learner would make these false allegations, he replied “I do not know”.
ANALYSIS OF EVIDENCE AND ARGUMENT:
Legal considerations:
[68] The onus in any proceedings concerning a dismissal, is first and foremost on the Applicant to establish the existence of a dismissal. Once that onus had been discharged, the Respondent will be burdened with the onus of having to prove the fairness of the dismissal (see Section 192 of The Act).
[69]. In the present matter, the existence of the dismissal is not in dispute, and therefore the Respondent must show, on a balance of probabilities, that a valid reason exists that warrants the dismissal of the Applicant. In terms of Section 188(2) of The Act, the Commissioner is to give cognizance to any relevant Code of Good Practice, when considering the fairness of a dispute.
[70]. According to the Respondent, the Applicant is guilty of misconduct in that he had a sexual relationship with a learner from the same school where he was teaching.
The dispute before me:-
[71]. I have to determine, on a balance of probabilities, whether the Respondent dismissed the Applicant, fairly, and more specifically, whether he is guilty of having a sexual relationship with “Learner PM”, as contemplated in the notice to attend the disciplinary hearing. Should I find in the affirmative, the appropriateness of the sanction will not be challenged, as dismissal is mandatory in terms of offences committed in terms of Section 17 of the EEA.
[71]. The crux of the Applicant’s defense is that he did not even know the learner before these allegations surfaced, that she never attended any of his classes, that it would not have been possible to have sex in the computer room as there are at least three cameras serving the computer room, in toto, the allegation is denied in its totality. It would appear from the Applicant’s evidence that he was accusing Ms Mazibuko of being the driving force behind the allegations and that she orgastrated the whole plot against him, yet under cross-examination he appeared to have changed his version stating that he does not know why the learner would fabricate this version and in the process cause him to be dismissed.
Substantive fairness:-
[72]. The Respondent’s version was presented via the testimony of six witnesses. According to these
Witnesses the Applicant made himself guilty of misconduct in terms of Sections 17(1)(c), of the Employment of Educators Act No 76 of 1998 (hereinafter referred to as “The EEA”), and more specifically that he is guilty of having a sexual relationship with a learner from the same school where he was teaching.
The charge before me:-
[73]. “Learner PM” testified that the Applicant would pester her to such extent that she felt she had no alternative but to give in to his advances of having sex with him. She then also testified to several instances where she had sexual intercourse with the Applicant. It was therefore not a once of incident. Her testimony was corroborated by several witnesses who gave an almost identical account of what transpired. I find her testimony to be very convincing in as far as the central issue in dispute is concerned. She was consistent in her answers despite vigorous cross examination. What lent further credence to her testimony is the fact that it stayed the same over this rather long period of time. All the witnesses of the Respondent gave an account of what she had said to them when the relationship came to the fore, and on the central issues I could find no change in her version of events.
[74]. I am all but convinced by the Applicant’s contention that she was somehow influenced to make these allegations. Firstly he did not give an account of how the influence occurred, and secondly I fail to see why any person would persist some 4 years later having to travel great distances for no incentive and also to subject yourself to this vigorous cross-examination.
[75]. From a full conspectus of the evidence before me, I could not find any evidence of deceit on the part of this witness. There was no indication that she was told what to say. The question why would she make these allegations if there was not truth to it, therefore remains unanswered.
[76]. As for the Applicant, despite being represented by a very competent legal practitioner and being cautioned as to the effect of not putting a version to the witnesses of the Respondent, he nevertheless failed dismally to put several important issues to the witnesses of the Respondent. One instance is where the Applicant failed to put to the Deputy Principal the notion that all footage is saved on the hard drive and that the hard drive is big enough to save all these footages for a period of 5 years or longer. Another instance is where he failed to put the version to the learner that he was not good in sign language at the time these incidents apparently happened.
[77]. In ABSA Brokers (Pty) Ltd v Moshoana NO & others (2005) 10 BLLR 939 (LAC) the Labour Appeal Court noted that “A failure to cross-examine may, in general, imply an acceptance of the witness’s testimony.” By failing to cross-examine the witness on this specific aspect implies that the Applicant cannot rely on this point.
[78]. I would be the first to admit there were several minor inconsistencies on the peripheral issues. However the main issue, that being the Applicant had a sexual relationship with the learner over a period of approximately 2 years , remained steadfast with all the witnesses.
[79]. A further yet important issue to take cognizance of is the psychological effect these types of events have on a victim, as well as the disclosure process that occurs in victims of abuse. It is trite that it is quite normal for victims of abuse to make certain initial disclosures, only later to recant on these disclosures, and or to make full disclosures at a later stage. The fact that the learner disclosed the names of only certain perpetrators to one person and later make a full disclosure is therefore in my view of no consequence.
[80]. Turning to the evidence from the Applicant and his demeanor as a witness, it must be noted that he did not impress me as a witness. There was several inconsistencies in his version, and furthermore he failed dismally to prove some of the allegations he made. To demonstrate this point I will mention but a few instances. One, he stated that he does not know for how long the footage is kept as it falls under the scope of work of the Principal. However he subsequently argued the footage can be kept for years as the capacity of the hard drive is big enough and he knew this footage would have been saved as he had seen in the past footage that was saved when there was a burglary. I cannot see the relevance of this comparison as footage would immediately be secured in the case of a burglary however in this instance it has not come to the attention of the school that footage is required until years have gone by. I fail to understand why the Applicant had not called the Principal had this indeed been the case.
[81]. More so I am not convinced the absence of such footage would imply the incidents never happened. I do agree the footage could have assisted a great deal if it was available, but in the absence of such footage, the likelihood that the incidents indeed occurred cannot be excluded.
[82]. In relation to the argument that Ms Mazibuko is the leading force behind the allegations, the Applicant was all but clear. Initially he stated that Ms Mazibuko turned against him due to the fact that he represented another educator in a disciplinary hearing who stood accused of having committed the same or a similar offence. Yet later he indicated that he cannot provide any explanation why the learner would make these allegations if they were not true.
[83]. Lastly the evidence of the Applicant was extremely contradicting. Although he stated that he only knew the learner by name before the allegations surfaced, he was able to give a great deal of detail as to her disciplinary record, and he even knew to the date when she returned to school.
[84]. In the circumstances I find the Respondent succeeded in showing a valid reason existed for the dismissal of the Applicant.
AWARD:
[85]. In the light of the above, I find that the dismissal of the Applicant was substantively fair.
[86]. The Respondent, The Department of Education Gauteng is not ordered to reinstate or compensate the Applicant.
[87]. I make no order as to costs.
ELRC Commissioner: R de Wet
Date: 20 February 2014
Province: Gauteng
Applicant: SS Mathebula
Respondent: Department of Education: Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Wonderboom South
Award Date: 20 February 2014
Arbitrator: R de Wet
ARBITRATION
AWARD
Commissioner: R de Wet
Case No.: PSES263-11/12GP Date of Award: 20 February 2014
In the ARBITRATION between:
SS MATHEBULA
(Union / Applicant)
and
DEPARTMENT OF EDUCATION GAUTENG
(Respondent)
Union/Applicant’s representative: Mr Ramarumo
Telefax:
Respondent’s representative: Ms Mabethe
Telefax:
DETAILS OF HEARING AND REPRESENTATION:
[1]. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on the 4th of June 2012, 11th of March 2013, 18th of March 2013, 22nd of May 2013, 8th of July 2013, 9th of September 2013 and finalized on the 27th of January 2014. The parties were thereafter afforded the opportunity to present written heads of argument to be submitted by no later than the 10th of February 2014. At the time of this award, heads of argument was only received from the Applicant on the 14th of February 2014 and from the Respondent on the 19th of February 2014. The hearing was initially held at the Department of Education at 111 Commissioner Street, Johannesburg, where after the venue was changed to the Wonderboom Junction in Wonderboom South in Pretoria and or the Pretoria North Magistrates Court respectively. The process was digitally recorded.
[2]. Mr SS Mathebula, the Applicant (hereinafter referred to as “Mathebula”), was present and was represented by Mr Ramarumo, a legal representative whilst Ms Mabethe from the Labour Relations Division represented the Respondent, the Department of Education.
[3]. In accordance with Section 28(2) of the Constitution, the child’s best’s interest are of paramount importance in every matter concerning that child. Section 28(3) refers to a child as a person under the age of 18 years. Whereas reference was made to minors throughout this award, it would be done by initials only.
[4]. An application was made by the Respondent in terms of Section 170A (1) read with subsection (7), Section 153(3) and subsection (5) and Section 158(5) of the Criminal Procedures Act, No. 51 of 1997 (hereinafter referred to as “The CPA”), that provides for amongst others, the appointment of an intermediary, and evidence to be given in a venue suitable for this purpose. Although the complainant was no longer considered a minor taking her chronological age into account, it was argued due to the fact that she is deaf and with special consideration to her cognitive ability, that it would be in the best interest of the witness to testify with the assistance of an intermediary. The application was unopposed.
[5]. Mr Blessed Mokotja Moloi, a teacher by profession with some 16 years’ experience in a deaf school, duly took the affirmation to assist with interpretation services. The parties agreed since Mr Moloi is an also a teacher from another neighboring school with no prior knowledge of the matter, that he should also assist to put to questions to the witness in such a manner that it is understandable to her. Mr Mathebula indicated that he understands sign language and will object if he is not satisfied with the interpretation. No objection was received in this regard. Both parties agreed and we proceeded on this basis and in accordance with Section 138(1) of The Act that stipulates matters of this nature must be disposed of with the minimum of legal formalities.
[6]. Mr Moloi stated that he holds a diploma in Senior Primary and a BTech, with a further diploma in hearing impairment.
ISSUE TO BE DECIDED:
[7]. Whether the dismissal of the Applicant was substantively fair as envisaged by Section 185 read with Section 188 of The Act.
[8]. In the event that I find in the negative, I must decide upon an appropriate remedy.
BACKGROUND:
[9]. The Applicant commenced his employment with the Respondent on the 1st of July 1998. On the 1st of March 2007 he was transferred to Philadelphia Secondary School. At the time of the dispute he was employed as an Educator level 1 and earned an annual remuneration package of R 129 000-00.
[10]. On the 1st of April 2010 he was served with a notice to attend a disciplinary hearing. The allegations proffered against him read as follows:
“It is alleged that between the period 2008 /2009 you had a sexual relationship with a girl “Learner PM” of the school where you are employed that is Philadelphia Secondary School in that you had sexual intercourse with the learner.
You are hereby charged with misconduct in terms of Section 17(1)© of the Employment of Educators Act No 76 of 1998 as amended”.
[11]. During this period 2008 / 2009 he thought computer applications technology to grade 11 and 12 learners. He knew the said learner from school but from the Applicant’s view there was no relationship between them whether personal or any other. Although conflicting versions were raised during the arbitration, the pre-arb minute stated that “Learner PM” was never a learner in one of Mr Mathebula’s classes.
[12]. The hearing was scheduled for the 30th of April 2010 and after various postponements the matter was
finalized on the 24th of June 2010. His last salary was paid on the 30th of August 2010. As a result of the disciplinary hearing he was found guilty of having misconducted himself in the workplace and the sanction of dismissal was imposed. His dismissal was with effect from the 8th of July 2011.
SURVEY OF EVIDENCE AND ARGUMENT:
[13]. For purposes of this award, it is not my intention to record verbatim the evidence led, submissions made and or arguments raised by either or both of the parties. Only the salient points raised during evidence that have a bearing on the issue in dispute to be decided, are recorder hereunder.
RESPONDENT’S VERSION:
[14]. The Respondent lead the evidence of six (6) witnesses.
[15]. Charity Magdeline Zabane (A teacher at Philadelphia Secondary School) testified that:-
[16]. She is teaching hairdressing to students, and most of the students in her class are either deaf or have a physical disability. “Learner PM” was a learner in her class.
[17]. She learned of the allegations against the Applicant during 2009. She became concerned when “Learner PM” did not return to school after the second term holiday. She made attempts calling the learner to enquire into her whereabouts but to no avail. Subsequently she got hold of the learner’s mother who informed her according to her knowledge the learner must be at school. She then reported the matter to the Deputy Principal who also made several attempts at locating the learner.
[18]. It was only during or about September 2009 that she saw the learner back at school. During this period she attend disciplinary hearings in relation to her absence from school, and she noticed as the learner was constantly crying. She then approached her to enquire into the problem that she seemed to be facing. However she was very disturbed and could not speak. She then reported her concerns and observations to the Deputy Principal.
[19]. Subsequently after the Deputy Principal called her in, she was called to assist with the interpretation during a discussion with “Learner PM”. At first she only referred to the hearings, and appeared very withdrawn and reserved. Consequently the Deputy Principal took the learner into an office. She was not present so she would not know what transpired in that private meeting. Later the Deputy Principal reemerged and asked her to interpret a letter that was apparently authored by the learner. In that letter, “Learner PM” explained that she was abused by various personnel members and she also identified the Applicant as one of the abusers.
[20]. During further interactions with the learner reference was again made to the problem she experienced with the abuse, but she was not the same afterwards. She was very disturbed, withdrawn and reserved.
[21]. Victoria Mazibuko Msiza (Deputy Principal) testified that:-
[22]. During September 2009 she was approached by two educators who were facing allegations of sexual abuse of learners, who then accused her of having favorites. When she asked what they meant by favorites, they informed her that some teachers, including the Applicant was having sexual relationships with learners and accused of doing nothing about that. They also mentioned “Learner PM” by name saying if she would to speak to her she would be able to give a lot of information on this issue.
[23]. It was approximately the same time when this learner was called to a disciplinary hearing for being absent from school. She immediately recognize the name of the learner and decided to call the learner in to enquire into the allegations.
[24]. Subsequently she had a private meeting with “Learner PM” wherein she asked her to reduce her experience to writing. She was crying a lot whilst she was giving an account of the abuse suffered. In her version of events she identified the Applicant as one of the abusers. Due to the sensitive nature of the contents of the letter, she decided it might be best to ask someone to interpret the contents for her and more particularly the identification of the abusers, just to confirm her understanding and eliminate any misunderstandings. Ms Zabane was called for this reasons. She further explained she can do basic signing, but she wanted to ensure she understood the witness clearly. In her version of events “Learner PM” also said that the Applicant had demanded sex from her without using a condom.
[25]. Due to the fact that “Learner PM” had misconducted herself for failing to return to school in time and for being under the influence of alcohol, she was taken to a disciplinary hearing. The outcome of the hearing was that she was suspended from school for a certain period of time. It was arranged that her parents would fetch her from school on the following Friday. The Applicant must have learned of the outcome of the hearing and acted thereupon by demanding to have sex with her one last time before she would leave. She was terrified and expressed the view that it was not safe for her at school any longer. She was visibly traumatized when she related the version of events. Her demeanor can be described as being hysterical. She then decided to refer the learner to the social worker employed at the school. She did not inform the social worker what the learner had said to her but just asked her to assist the learner who was clearly in desperate need of assistance. She then relayed the very same version to the social worker but disclosed the names of even more names abusers. It may be as a result of the way the social worker was able to speak to her having more experience with these sorts of issues.
[26]. Under cross-examination she explained that she learned of “Learner PM’s” absence from Ms Zabane who made attempts to get hold of her but to no avail. Before “Learner PM” even returned to school two educators approached her and reported to her that the Applicant, amongst others, was having sexual relationships with learners. By the time this allegation was made the learner was in Botswana and the educators could therefore not have communicated or influence her in any way, and that lent credence to their version, leading her to the conclusion that their version was in all probabilities factually correct. When the learner returned she gave the exact same version as what was reported to her by the two educators. The learner explained to her, apart from the abuse in the office of the computer room she was also approached by whosoever was on duty in the hostel, who would then also demand sex from her.
[27]. Consequently a decision was taken to refer the learner to a psychologist from Teddy Bear Clinic as they suspected her dissolute behavior might be related to what had happened to her, and it ultimately proved their suspicions were correct.
[28]. In response to a question put to her she explained that the sex appeared to have been consensual as the transgressors would offer the learner money in return for sex. In her view they were basically turning the learner into a prostitute. “Learner PM” explained that she was traumatized, as she felt pressurized into having sex and the fact is these men were not supposed to have sex with her in the first place or even put this learner in the position they did. This learner did not have the capacity to appreciate what she was doing was wrong, to her she was doing the right thing. Apart from being deaf she operated at a cognitive level equal to a child of 10 years of age.
[29]. When the version was put to her that she was the one who influenced the learner to make these allegations against the Applicant, she responded that it is ridiculous to think she would go through all the trouble to get the learner back from Botswana only to use her to make such allegations.
[30]. She also explained that according to “Learner PM” some of the incidents occurred in the office of his classroom. In his class, or the computer room, there was a camera but she was not sure whether recordings have been made of the days in question or even if they are still available. She further explained when serious allegations of this nature surfaced, they, at school level, are obliged to escalate the matter immediately, they may not influence the evidence in any manner whatsoever.
[31]. She reiterated the fact that she had a good relationship with the Applicant before these allegations surfaced and would therefore not have any reason to influence the learner to make these allegations against the Applicant.
[32]. “Learner PM” (Learner at Filedelfia) testified that:-
[33]. She attended this school since 2004. During her stay there she had sex with several educators and other staff members. The Applicant was one of the educators who had sex with her. The majority of these incidents happened in a room inside the computer room.
[34]. Although she could not recall how many times they had sex, she was clear that it was on numerous occasions. She never disclosed to anyone that she had sex with the Applicant, for he had made it very clear that sex is something between two people. He emphasized the fact that it was a secret between the two of them. However to her disgust she learned that he had told others about the sexual relationship he shared with her. This person approached her and was clearly well informed about the relationship she shared with the Applicant.
[35]. After the news surfaced of her having sex with the Applicant, everyone started talking about her and it got to a stage where she just could not face having to go back to school any longer. She only returned to school later during 2009. Upon her return she was called to a disciplinary hearing. The Deputy Principal then called her aside. On her way to the office she saw the Applicant who asked her where she was going and then impressed on her to keep quite. The Deputy Principal then asked her what troubled her and gave her a pen and paper to write down everything that bothered her. Ms Mazibuko then left her alone in the room and by virtue of the heartbroken feelings she experienced at the time she decided to write everything down everything as she remembered it. She referred in the letter to the relationship she had with the Applicant, that he asked her to be his girlfriend and that they were having sex. No one told her what to write, but she placed everything on record as it pressed on her heart at that stage.
[36]. Under cross-examination she testified that the sexual relationship between her and the Applicant started in 2008. At the time they were in a relationship the Applicant did not teach her any classes, but before that she attended one of his classes for a brief period of time. The Applicant as a teacher was a likable person and at the time she attended his classes she was not given any tests or any exams. Therefore she cannot say she failed or passed the subject offered by the Applicant.
[37]. She vehemently denied the notion put to her that she is the one who initiated the relationship. She elucidated that he would always look and ask for her. At times he would give her the key to his class room and ask her to go and fetch chest pieces for him. When she would then turn around he would be standing right behind her in the class. Other times he would sent someone to come and call her to come to his class. This happened any time after 14:30, after she had her lunch that, was served between 14:00 to 15:00 in the afternoons.
[38]. When she was called to Mazibuko’s office, no one else was present when she made the statement and she communicated with Mazibuko in sign language as she (Mazibuko) could also sign and understood when she was signing.
[39]. She confirmed during her stay at Filedelphia she was involved in several sexual relationships. She identified four educators, three security guards and one cook. They would pester her until she would give in, and more so she was afraid to say no as they were all adults and as a child you cannot say no to an adult. She also identified the Applicant as one of the perpetrators that gave her alcohol to drink.
[40]. In closing she stated that she would not travel all the way from Botswana only to lie about the Applicant. What she had testified to during this arbitration is the truth as it actually transpired.
[41]. Matidiso Susan Welhelmina Ramutloa (School Nurse at Filedelfia) testified that :-
[42]. The learner was referred to her as she was experiencing lower abdominal pain. Her attention was
drawn to the fact that the learner has disclosed having sex with several educators. She immediately thought it would be best to refer the learner to a doctor. Subsequently a report was issued by the doctor detailing that the learner had pelvic inflammatory disease. One of the courses for this desease is having sexual intercourse. Although she has seen the report she does not have the report with her.
[43]. Mosibode Frieda Modise (Social Worker at Filedelfia) testified that:-
[44]. She was approached by Ms Mazibuko who asked her to speak to “Learner PM” who had allegedly
been abused. Since she was new at the school and she could not sign yet she asked Ms Zabane to accompany her and assist with interpretation. She imposed the sensitive and confidential nature of the interview on Ms Zabane where after they proceeded. As they commenced with the interview the learner started to cry and continued crying until it became evident that they would not be able to continue with the interview. She then ended the interview and asked for permission for the learner to return to the hostel.
[45]. Consequently she made another attempt at interviewing the learner. This time the learner was able to explain that she was abused by 8 individuals, 4 of whom educators, 3 security guards and 1 cook. She also specifically identified the Applicant as one of her abusers. See even asked the learner to identify the Applicant from the all-in-one” system, a system at school that also display photos of each f the educators. Although she thoroughly questioned the learner as to why she said the Applicant was one of the abusers, her answers remained the same. In conveying the events as it unfolded, she explained the sexual intercourse between her and the Applicant happened in the office inside the computer class room.
[46]. Throughout the interview process the learner was very emotional. She even explained that she was stressed out, and had trouble sleeping because of this issue and that she could not focus on her school work. The interview had to be conducted over several days to get all the information from the learner.
[47]. She immediately referred the learner to a psychologist. The learner disclosed to her that she had sexual intercourse with the Applicant and that it was not a once of event. She further stated that she could not refuse the request to have sex with him as the Applicant was an educator and she could not refuse a request from an elder.
[48]. Shaheda Bibi Omar (Expert witness – Social worker and Director at Teddy Bear Clinic for abused children) testified that:-
[49]. She has 25 years’ experience as a clinical social worker, and apart from the running of the clinic she also does forensic assessment for the court. She holds an Honours degree in social work, a Masters degree in mental health and a Doctorate in child abuse. She also completed various other courses such as a diploma in forensic sexual evaluation.
[50]. During 2010 the Department of Education sourced her expertize to investigate allegations of sexual abuse. She then interviewed and evaluated a number of learners, amongst them “Learner PM”. By virtue of the fact that “Learner PM” had special needs in that she was deaf, the interview was done with the assistance of a person who specializes in signing.
[51]. Through the numerous questions asked to “Learner PM” she learned that the Applicant was one of the abusers, that numerous incidents of abuse happened, and that it happened in a small office in the computer room. She then went into detail and described the abuse as “dog style”, and said that the Applicant told her or instructed her not to tell anyone else. Once, according to her, she requested the Applicant use a condom, but he refused saying that he will not ejaculate in her. Despite the undertaking, he still ejaculated on her pubic hair. In yet another instance she expressed her discomfort when she was menstruating, but he nevertheless insisted and had sexual intercourse with her without a condom.
[51]. She went on to explain he once gave her R50 and on another occasion R150. He had also invited her to his home, explaining that his wife was not there, but she refused. It became apparent from her explanation that the abuse transpired over a period of time and happened on several occasions.
[52]. During the interview the learner was quiet, weeping, not in control of her emotions, and she felt sad displaying the typical symptoms of the damaged syndrome. It was abundantly clear that it was difficult for her to share the information and she was visibly embarrassed to explain what had happened to her. She was notoriously egocentric and felt she should not have allowed this abuse to happen. At the same time she was afraid, that can be describe as almost excessively fearful, because of his request to her not to tell anyone. It took quite some time for her to disclose everything that had happened. She displayed the classical trauma genic symptoms, which include feelings of helpless, and fearfulness. In her evaluation she noticed the learner was able to focus very clearly on central issues which is common with victims of abuse. She was very graphic on how her clothes were forcefully removed and when she refused his advances. She explained that this behavior is very characteristic with these victims. She went on to testify that these feelings of guilt, lead to post traumatic stress and explained these feelings are quite intrusive.
[53]. Central to the interview was to identify indicators of reliability in what the learner was sharing. A typical indicator is consistency and whether there is a golden threat going through everything that was said. In search of these indicators, she asked numerous open ended questions, and from that she found was consistency in her explanation of what transpired. The technique used was to ask forward questions going through the events but also asking questions backwards again.
[54]. Another important factor of the interview was to ascertain whether any indicators were present that would be indicative of an impairment on rationality. From her observations she was comfortable that the learner was compos mentis. Then she also explored her cognitive capacity or ability to distinguish between the truth and a lie and between fact and fantasy. She explained these are tangible objects and her observations clearly pointed to the fact that the learner was able to distinguish between the truth and a lie.
[55]. Just as important was the principle of fragmentation. Initially the learner gave an account of what transpired that can be described as an “empty sandwich’. This is typical with victims of abuse. She would give an account of the central events and on the peripheral issues there would be gabs in her version.
[56]. Lastly she also looked at her motive and it was abundantly clear that she did not have the capacity to be devious. Her language was not that of adult and it was not evident that she was coached by someone. From her observation there was no act of vengeance present with the learner, and further no evidence was present that could suggest that she was told to tell a lie or to make a false accusations.
[57]. She also said she was afraid all the time and was not comfortable with what was happening to her, but she was too afraid to come forth, hence the delayed disclosure.
APPLICANT’S VERSION:
[58]. The Applicant testified in his own defense.
[59]. Simon Solane Mathebula (The Applicant) testified that:-
[60]. He denied having a sexual relationship with any learner, let alone “Learner PM”. Before the allegations surfaced the learner was not familiar to him, but he did however know her by name only. He only got to know who the learner on a more personal level after the allegations surfaced. He explained he had never offered any classes to this learner.
[61]. In order to get to his class you have to pass two cameras and in the classroom there was a further camera. The cameras were in working order at the time when the learner alleged the incidents to have taken place. He made several attempts to raise the issue of the cameras and even asked for footage once the allegations were made but it would appear the Respondent made no attempt at locating the evidence. These cameras were working 24 hours of every day and 365 days a year (this version was never put to the witnesses of the Respondent).
[62]. He explained that the school would close at 14:00 on Mondays to Thursdays and at 13:00 on Fridays. He further explained that he granted grade 12 learners access to his class in order for them to do homework or research. Normally the computer center would be locked at 16:00 and the alarm would be activated.
[63]. At any given time during school hours there would be teachers at school and the security would also do patrols to ensure all is in order. He agreed that he would sometimes be asked to do duty at the boy’s hostel. However only male teachers and house fathers were allowed at the boys hostel and female teachers or house mothers were allowed at the girls hostel.
[64]. As for the learner she was a trouble maker at school and since 2006 she appeared in several hearings in relation to either her absence from school or for being under the influence of alcohol. As for Ms Mazibulo she is the driving force behind “Learner PM’s” return to school as she turned against him for his role as shop steward when he was to represent Mr Chikovela, the very same teacher that Mazibuko accused of having originally reporting the allegations of abuse against him.
[65]. In 2007 to 2009 he was not fluent in sign language. By the time these allegations surfaced in 2010 he could have a meaningful discussion with a deaf person (this version was not put to the witnesses of the Respondent). He denied ever calling “Learner PM” to his class, or having any sort of a relationship with her.
[66]. Under cross-examination he admitted that he does not know for how long the footage was saved as it was controller by the Principal. He has however seen examples where pictures were saved on the hard drive such as when there was a burglary. Once saved on the hard drive, it will stay there for as long as there is available space on the hard drive or until someone erase the footage.
[67]. When asked why the learner would make these false allegations, he replied “I do not know”.
ANALYSIS OF EVIDENCE AND ARGUMENT:
Legal considerations:
[68] The onus in any proceedings concerning a dismissal, is first and foremost on the Applicant to establish the existence of a dismissal. Once that onus had been discharged, the Respondent will be burdened with the onus of having to prove the fairness of the dismissal (see Section 192 of The Act).
[69]. In the present matter, the existence of the dismissal is not in dispute, and therefore the Respondent must show, on a balance of probabilities, that a valid reason exists that warrants the dismissal of the Applicant. In terms of Section 188(2) of The Act, the Commissioner is to give cognizance to any relevant Code of Good Practice, when considering the fairness of a dispute.
[70]. According to the Respondent, the Applicant is guilty of misconduct in that he had a sexual relationship with a learner from the same school where he was teaching.
The dispute before me:-
[71]. I have to determine, on a balance of probabilities, whether the Respondent dismissed the Applicant, fairly, and more specifically, whether he is guilty of having a sexual relationship with “Learner PM”, as contemplated in the notice to attend the disciplinary hearing. Should I find in the affirmative, the appropriateness of the sanction will not be challenged, as dismissal is mandatory in terms of offences committed in terms of Section 17 of the EEA.
[71]. The crux of the Applicant’s defense is that he did not even know the learner before these allegations surfaced, that she never attended any of his classes, that it would not have been possible to have sex in the computer room as there are at least three cameras serving the computer room, in toto, the allegation is denied in its totality. It would appear from the Applicant’s evidence that he was accusing Ms Mazibuko of being the driving force behind the allegations and that she orgastrated the whole plot against him, yet under cross-examination he appeared to have changed his version stating that he does not know why the learner would fabricate this version and in the process cause him to be dismissed.
Substantive fairness:-
[72]. The Respondent’s version was presented via the testimony of six witnesses. According to these
Witnesses the Applicant made himself guilty of misconduct in terms of Sections 17(1)(c), of the Employment of Educators Act No 76 of 1998 (hereinafter referred to as “The EEA”), and more specifically that he is guilty of having a sexual relationship with a learner from the same school where he was teaching.
The charge before me:-
[73]. “Learner PM” testified that the Applicant would pester her to such extent that she felt she had no alternative but to give in to his advances of having sex with him. She then also testified to several instances where she had sexual intercourse with the Applicant. It was therefore not a once of incident. Her testimony was corroborated by several witnesses who gave an almost identical account of what transpired. I find her testimony to be very convincing in as far as the central issue in dispute is concerned. She was consistent in her answers despite vigorous cross examination. What lent further credence to her testimony is the fact that it stayed the same over this rather long period of time. All the witnesses of the Respondent gave an account of what she had said to them when the relationship came to the fore, and on the central issues I could find no change in her version of events.
[74]. I am all but convinced by the Applicant’s contention that she was somehow influenced to make these allegations. Firstly he did not give an account of how the influence occurred, and secondly I fail to see why any person would persist some 4 years later having to travel great distances for no incentive and also to subject yourself to this vigorous cross-examination.
[75]. From a full conspectus of the evidence before me, I could not find any evidence of deceit on the part of this witness. There was no indication that she was told what to say. The question why would she make these allegations if there was not truth to it, therefore remains unanswered.
[76]. As for the Applicant, despite being represented by a very competent legal practitioner and being cautioned as to the effect of not putting a version to the witnesses of the Respondent, he nevertheless failed dismally to put several important issues to the witnesses of the Respondent. One instance is where the Applicant failed to put to the Deputy Principal the notion that all footage is saved on the hard drive and that the hard drive is big enough to save all these footages for a period of 5 years or longer. Another instance is where he failed to put the version to the learner that he was not good in sign language at the time these incidents apparently happened.
[77]. In ABSA Brokers (Pty) Ltd v Moshoana NO & others (2005) 10 BLLR 939 (LAC) the Labour Appeal Court noted that “A failure to cross-examine may, in general, imply an acceptance of the witness’s testimony.” By failing to cross-examine the witness on this specific aspect implies that the Applicant cannot rely on this point.
[78]. I would be the first to admit there were several minor inconsistencies on the peripheral issues. However the main issue, that being the Applicant had a sexual relationship with the learner over a period of approximately 2 years , remained steadfast with all the witnesses.
[79]. A further yet important issue to take cognizance of is the psychological effect these types of events have on a victim, as well as the disclosure process that occurs in victims of abuse. It is trite that it is quite normal for victims of abuse to make certain initial disclosures, only later to recant on these disclosures, and or to make full disclosures at a later stage. The fact that the learner disclosed the names of only certain perpetrators to one person and later make a full disclosure is therefore in my view of no consequence.
[80]. Turning to the evidence from the Applicant and his demeanor as a witness, it must be noted that he did not impress me as a witness. There was several inconsistencies in his version, and furthermore he failed dismally to prove some of the allegations he made. To demonstrate this point I will mention but a few instances. One, he stated that he does not know for how long the footage is kept as it falls under the scope of work of the Principal. However he subsequently argued the footage can be kept for years as the capacity of the hard drive is big enough and he knew this footage would have been saved as he had seen in the past footage that was saved when there was a burglary. I cannot see the relevance of this comparison as footage would immediately be secured in the case of a burglary however in this instance it has not come to the attention of the school that footage is required until years have gone by. I fail to understand why the Applicant had not called the Principal had this indeed been the case.
[81]. More so I am not convinced the absence of such footage would imply the incidents never happened. I do agree the footage could have assisted a great deal if it was available, but in the absence of such footage, the likelihood that the incidents indeed occurred cannot be excluded.
[82]. In relation to the argument that Ms Mazibuko is the leading force behind the allegations, the Applicant was all but clear. Initially he stated that Ms Mazibuko turned against him due to the fact that he represented another educator in a disciplinary hearing who stood accused of having committed the same or a similar offence. Yet later he indicated that he cannot provide any explanation why the learner would make these allegations if they were not true.
[83]. Lastly the evidence of the Applicant was extremely contradicting. Although he stated that he only knew the learner by name before the allegations surfaced, he was able to give a great deal of detail as to her disciplinary record, and he even knew to the date when she returned to school.
[84]. In the circumstances I find the Respondent succeeded in showing a valid reason existed for the dismissal of the Applicant.
AWARD:
[85]. In the light of the above, I find that the dismissal of the Applicant was substantively fair.
[86]. The Respondent, The Department of Education Gauteng is not ordered to reinstate or compensate the Applicant.
[87]. I make no order as to costs.
ELRC Commissioner: R de Wet
Date: 20 February 2014