Case Number: PSES 432-13/14 KZN
Applicant: D.P. Makhanya
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education, Durban Teachers Centre
Award Date: 15 December 2015
Arbitrator: J.D. Vedan
Arbitrator: J.D. Vedan
Case Reference No.: PSES 432-13/14 KZN
Date of award: 15 December 2015
In the arbitration between:
D.P. Makhanya Applicant/Employee party
Department of Education – KwaZulu-Natal Respondent/Employer party
Applicant’s representative: A. Nepaul
Fax: 031-327 4613
Respondent’s representative: J. Dumisa
Fax: 086 579 2154 – 086 515 2159
DETAILS OF HEARING AND REPRESENTATION:
1. The matter was held at the Department of Education, Durban Teachers Centre, College Road on 1 October 2015, 2 November 2015, 3 November 2015 and concluded at Dokkies – KZN, 321 ZK Matthews Road, Glenwood on 27 November 2015.
2. The Applicant was represented by Mr A. Nepaul, an Attorney.
3. The Respondent was represented by Ms J. Dumisa, its representative.
BACKGROUND TO THE DISPUTE:
4. In a notice dated 2 November 2012, the Applicant was given notice to attend a disciplinary hearing at Umzinto Prison, on 19 November 2012 at 10h00. He faced charges of misconduct as follows:-
4.1. Charge 1
During the period 2010 to 2012 and at or near Njabulo School he committed an act of sexual assault on a learner by the name of Ntokozo Nzama thus contravening Section 17(1)(b) of the Employment of Educators Act No. 76 of 1998.
4.2. Charge 2
During the period 2012 and at or near Njabulo School, he behaved in an improper, disgraceful and unbecoming manner in that he expelled Ntokozo Nzama from school without following proper procedure, thereby contravening Section 18(1)(q) of the Act.
4.3. Charge 3
In that during the period 2011 at or near Njabulo Primary he committed an Act of sexual assault on a learner Snegugu Mhlongo when he hugged and kissed her on the mouth or when he also asked her to have sex with him, thereby contravening Section 17(1)(b) of the Act.
4.4. Charge 4
In that during the period 2012 at or near Njabulo Primary School, he committed an act of sexual assault on a learner Nokulunga Bhengu in that he touched her breasts and caressed her thighs and told her that he loved her thereby contravening Section 17(1)(b) of the Act.
5. The Applicant at the time of the alleged offences was employed as a Primary School Principal at Njabulo Primary School, and had been employed as a Principal by the Respondent for a number of years.
6. It is common cause that he was arrested on allegations of different sexual offences on different learners at the school, was arrested for same, and was incarcerated at the Umzinto Prison. He failed to attend the disciplinary hearing convened by the Respondent at the prison, and was found guilty of the offences in absentia, and was dismissed, as a consequence of this. The Applicant faced criminal charges in the Scottsburgh Regional Court, and at the end of a lengthy trial, was found not guilty of the charges, and was discharged. It is trite law that the test for assessing guilt in criminal law is that of “beyond reasonable doubt”, and the standard used in arbitrations in these cases is that the Respondent has the onus of proving guilt on the part of the Applicant “on a balance of probabilities.”
7. The Applicant only challenged the substantive fairness of the dismissal, and not the procedural aspect, thereby accepting procedural fairness on the part of the Respondent in conducting the enquiry.
ISSUE TO BE DECIDED:
8. Whether the dismissal of the Applicant was substantively fair?
9. The Respondent only called three witnesses, Thembisile M. Shazi who was employed in 2012 at Mahlongwa Junior Primary as a Principal by the Respondent, Ms Mbutho, the school Administration Clerk at the relevant time, and a learner Ntombifuthi Girlagain Gumede.
10. Ms Shazi testified that she had retired since the incident. Her school was a neighbouring school to Njabulo, and catered for grade R to grade 4 learners, while Njabulo catered for grade 5 to grade 7 learners. Most of the learners of her school went to Njabulo, after completing their grade 4.
11. She was acquainted closely with the learner Ntokozo Nzama, to whom the first charge relates. Ntokozo came to her for help, and she formed a close relationship with her, as she was allegedly raped by her father, and her grandmother had passed on. When she asked Ntokozo about rumours circulating about “bad things” happening at the school to her in 2011, Ntokozo replied that there were funny things said to her by the Principal. She elaborated by stating that the Applicant had instructed her to stand on a table, while he was seated, and that she must open the window. She did not elaborate further.
12. In 2012, noting that Ntokozo was not attending school, and stood to lose her grant allocation, she spoke to Ntokozo who informed her that she was expelled by the Applicant from school in 2012, because she had a fight with another learner by the named of Snegugu caused by an argument regarding intimate relationships with the Principal. Ntokozo had informed Snegugu that the Principal, “cannot say those words to you, as ugly as you are.”
13. Ntokozo had stated that she had sexual intercourse with the Principal on the school premises, and this happened while a sports event was taking place at school. Ms Shazi informed Ntokozo’s aunt, and advised her aunt to report the matter to the police. Ms Shazi gave evidence at the disciplinary enquiry in 2013, and made a police statement. She stated that Ntokozo had informed her that the sexual intercourse had happened in the Principal’s office on the table, when there was no-one else there, and that he had used a condom.
14. Ms Shazi did state under cross-examination that there would be marks on a woman’s genitals if she was touched. It was put to her that the medical report on Ntokozo, which she was shown at the hearing did not show any marks.
15. It transpired that although Ntokozoá father was charged with her rape, he was found not guilty in Court.
16. Ms Mbutho did not testify to any sexual impropriety on the part of the Principal, but described the outlay of his office, the fact that it had two windows, and a strong room inside. Female learners used to make tea for the Principal, and male learners, and cleaned the windows of the office every Friday. Her office was adjacent to the Principal’s office. Snegugu made tea for the Principal, and cleaned his office. The Principal’s door to his office was always closed, even when the cleaners were busy in his office doing chores, except when they are sweeping or mopping. No-one complained to her about any activities of the Principal. She had not seen Snegugu clean the Principal’s office. Most times when the Applicant’s office was being cleaned, at about 7h15, he was outside. The height of the windows were about seven hundred to eight hundred centimetres, and the width one thousand four hundred centimetres. Although the playground was outside the windows of the office, it was not possible to see into the office from the outside.
17. Ntombifuthi Gumede, a witness whose smallish stature belied her age of eighteen years when testifying, testified that she was not attending school at present, as she was ill. She is an orphan, and stays with her grandmother.
18. She testified that the Applicant interfered with her sexually by pulling her skirt up, moving her underwear and touching her private part with his fingers. This is after she made him tea, as instructed to do so and had placed the cup next to him, as he sat at his desk. After he had interfered with her, the Principal gave her fifty rand. She said under cross-examination that the Principal had inserted his finger in her vagina. She gave the money to her friend Mbali. Mbali advised her to inform adults about the incident, but she did not do so, as she feared she would be disbelieved, as a result of the Principal’s stature. She kept quiet when the Principal told her that he loved her, although she felt bad after the incident. She made a statement when the organisation “Bobbi Bear” came to the school, and also made a statement to the police. There are several discrepancies in her police statement, and her evidence to the ELRC, namely that she stated that the police statement was made in Umkomaas, when the inscription of the statement shows that it was made in Amanzimtoti. Similarly she denied signing the statement at Amanzimtoti, although the statement shows that it was taken at Amanzimtoti. There were other discrepancies with regard to the statement, as whether it was made in 2013, which she denied, whereas the statement was dated 2013. She further stated that the statement was made in the absence of her grandmother, whereas it bears the signature of herself and her grandmother.
19. There were learners milling around the vicinity of the office when the offence took place, and the Principal’s door was ajar. She stated in cross-examination that the Applicant rubbed her for a long time, whereas in examination-in-chief she stated that the offence was concluded in about one minute, “not a long time”. The Principal’s door was ajar, and anyone could walk into the office at that time. She had stated that the Principal’s actions could not be seen from the Clerk’s office, because the Principal’s desk is covered in the front, and blocked the view. However she showed that she stood to the left of the Principal at an angle.
20. She was highly descriptive of what had occurred to her, saying that the Principal had put his hands on top of her panty, and touched her skin under her panty. He had moved her panty to one side, and touched her private part. He used his fingers and circled her private part with his finger. He inserted his finger in her private part, and removed it once. He also rubbed her vagina. She would not have forgotten his inserting of his finger in her vagina, although she did not tell this to the police.
21. She could not provide a reason why she gave the fifty rand to Mbali, and although a white thing emerged from her private part, while she was at home in the afternoon, a pimple also emerged, but she did not complain about this to anyone. It has to be noted that Ntombifuthi was accompanied by a comforter during the giving of her evidence.
22. The Applicant testified that he did not know Ntombifuthi. The first time he saw her was in Court. However Ntombifuthi never gave evidence in Court. He however knew Thembisile Shazi, and Ms Mbutho. Ms Mbutho’s office had to be bypassed for anyone to enter his office. He testified that his door is closed most of the time, as this was the policy applied at his school. The windows of his office were normally opened for fresh air. He started as an Educator in 1994, and was in Njabulo as Principal since 2005.
23. He did not know all the learners in his school, who totalled two hundred and seventy two at that time. He conceded that he fulfilled the role of a parent to the children, while they were at the school. He had initiated programmes at the school, such as Red Cross and Soul Buddies. He stated that the community trusted him.
24. A teacher had been appointed to deal with abuse cases involving girls at his school, namely Ms Majola. He claimed that there was a vendetta against him by teachers at the school and members of the community, and that his job was coveted.
25. He did not attend the disciplinary hearing as he was in jail at the time. Lieutenant V. Moodley had inscribed on the notice of the disciplinary hearing dated 2 November 2012 that, “attorney of accused Mr S.I. Mbhele advised accused not to sign this document. Accused will attend to this matter after the bail application on 22 November 2012”. The inscription was dated 12 November 2012. The disciplinary hearing was set down for 19 November 2012. The Applicant stated that he wanted to be mentally sound before attending the hearing as being in prison was a shock to him. If he knew that his reason was not acceptable to the Chairperson, he would have attended the hearing.
26. He stated that his desk was not direct in front of the door. Someone standing next to him cannot see outside, nor can someone standing outside see inside. He testified that Ms Majola was in charge of delegating learners to make tea, and that no particular learner was sent to do that duty. He never asked anyone to close the door when they brought tea to him.
27. He acted on his Attorney’s advice not to attend the hearing. There had been no complaints about him, prior to the complaints leading to his arrest. He testified that there is now a Principal at Njabulo School, who has replaced him.
28. He does not know Ntombifuthi, and does not know why she would testify against him. He believed that she was concluding the conspiracy against him. He believed that a programme by people at his school, others who have moved away and members of his community have been devised to oust him.
29. Importantly, he testified that since 2005, he had never had peace at the school. Those against him had done so many things to get him out. He re-iterated that someone was coveting his job. He added that the School Governing Body had been involved in the plotting. He stated that he sought re-instatement. His reputation is destroyed, but he is still “standing”. He wanted the Department to allocate him another school, and will never go back to Njabulo Higher Primary School.
30. Even when he was appointed to the post in 2005, it was disputed. He was supposed to start in November 2004, but only started in February 2005. Dr Naidoo, the Ward S.E.M. was aware of his problems. He had sent a letter to Dr Naidoo. Teachers wanted his post. They wanted him to fail.
31. The Respondent allowed the Actuary expert notice to be admitted on record, but she reserved her right to argue about whether it is payable or not.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
32. The onus rested on the Respondent to prove that the dismissal for misconduct is substantively fair on a balance of probabilities.
33. Although the Applicant did not challenge the procedural fairness of the dismissal thereby acknowledging that the Respondent had conducted the hearing fairly, and in accordance with set procedures, I am of the view that the Applicant should have attended the enquiry, as he would have been able to face his accusers, and answer the case against him. It was stated on the disciplinary notice that if he did not attend, and could not give reasonable grounds for failing to attend, the hearing will be held in his absence. The Respondent also stated in the notice that the medical certificate will only be considered for purpose of postponement if accompanied by an Affidavit issued by the Doctor who examined him. He was also given the various rights required for an enquiry, and the Respondent even gave him the right to be represented by a legal representative, if the Presiding Officer so directs. One must consider the Respondent was faced with a serious crisis given the nature of the allegations against the Applicant, the incarceration of the Applicant, and the need to restore stability to the school. However the Applicant through his then Attorney adopted the attitude that only after the conclusion of his bail application will he attend the disciplinary enquiry. In other words, he sought to dictate the terms of his own disciplinary enquiry, even though he was the employee. Expenses had been incurred by the Respondent, and witnesses had been called with the enquiry being held at the prison premises, but the Applicant failed to attend the disciplinary enquiry.
34. However Ntokozo Nzama, Snegugu and Nokulunga Bhengu although they may have testified at the enquiry for various reasons, about which one can only speculate, have failed to testify at the arbitration. The charges involving the three learners were the charges he was found guilty of at the disciplinary enquiry, and was dismissed for, and I am called upon to decide whether the reasons for dismissal were fair. The Applicant was faced with three charges under Section 17(1)(b) of the Employment of Educators Act, which have the effect that if the Chairperson finds a person guilty of an act of sexual assault on a learner, student or other employee he/she has no discretion to consider mitigating or aggravating circumstances. The mandatory sanction is dismissal.
35. Ms Mbutho’s evidence was purely of a descriptive nature of the lay-out of the office, and the visibility and non-visibility of events taking place there. She was not able to add to the matter except that no-one complained to her about sexual abuse, nor did she observe same.
36. Ms Shazi’s evidence was hearsay, and the general rule is that hearsay evidence is inadmissible because the Court can’t observe the demeanour of the person who gave the original evidence. It is secondary evidence, and places constraints on cross-examination. In terms of Section 3(1)(c) of the Law of Evidence Amendment Act, I may exercise my discretion to admit hearsay evidence if the admission of the evidence would be in the interests of justice. I must consider the nature of the proceedings, the nature of the evidence, the purpose for which the evidence is tendered, the probative value of the evidence, the reason why the evidence is not given by the person who originally gave the evidence, prejudice to the opponent, and any other factor. It would seem that the Respondent could not secure Ntokozo Nzama’s attendance at the arbitration to give evidence. Although no motive could be established by the Applicant for Ms Shazi to fabricate a convoluted story against the Applicant, nonetheless it would be extremely prejudicial to the Applicant were I to admit the hearsay portions of Ms Shazi’s evidence, while the Applicant has not had opportunity to cross-examine Ntokozo Nzama on her serious allegations. It would appear that the witness was subjected to criticism at the criminal proceeding, and it could well be that fear of being a poor witness could have resulted in Ntokozo Nzama not attending the hearing. I therefore do not accept the hearsay evidence herein, in view of the totality of the Respondent’s evidence before me.
37. Turning to Ntombifuthi’s evidence, as the Applicant never faced a charge relating to Ntombifuthi at the disciplinary hearing, the only relevance of her evidence before the Commission is perhaps to prove that the Applicant has a propensity to commit acts of sexual abuse against children. However the charges against the Applicant were not generalised in nature, but specific. The Applicant should have been faced with a disciplinary enquiry and a charge concerning Ntombifuthi, and in the absence of any evidence concerning the four charges brought against the Applicant, her evidence cannot be added as an afterthought in order to justify the sanction against the Applicant.
38. In view of the lack of evidence against the Respondent, I find that his dismissal was substantively unfair.
39. I now have to consider the remedies for unfair dismissal available to me as a Commissioner. Section 193 (1) of the LRA states that if a Labour Court or an Arbitrator appointed in terms of the Act finds that a dismissal is unfair, the Court or the Arbitrator may:-
(a) Order the employer to re-instate the employee from any date not earlier than the date of dismissal; or
(b) Order the employer to re-employ the employee either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or
(c) Order the employer to pay compensation to the employee.
Section (2) of the LRA states that the Labour Court or the Arbitrator must require the employer to re-instate or re-employ the employee unless:-
(a) The employee does not wish to be re-instated or re-employed ; and
(b) The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
(c) It is not reasonably practical for the employer to re-instate or re-employ the employee; or
(d) The dismissal is unfair only because the employer did not follow a fair procedure.
40. The Applicant has stated that he will never return to his former school because of the opprobrium of the community. This rules out the possibility of me re-instating him to his former position. In terms of the powers invested in me as a Commissioner, I cannot order that he be appointed or transferred to another school as Principal, as any appointment, promotion or transfer to any post on the educator establishment of a public school, may only be made on the recommendation of the Governing Body of the public school according to Section 6(3)(a) of the Educators Act. In Kimberley Junior Primary School v The Head of Northern Cape Education Department  4 All SA 135 (SCA), it was held that a recommendation by a School Governing Body is an essential prerequisite for the appointment of an educator in a departmental position, without such a recommendation the Head of Department acts ultra vires and unlawfully. The only remedy available to me therefore is to order the employer to pay compensation to the employee in terms of Section 193(1)(c) of the LRA.
41. In terms of Section 194 of the LRA, compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both must be just and equitable in all the circumstances, but may not be more than the equivalent of twelve months renumeration calculated at the employees rate of renumeration on the date of dismissal. The Applicant was in the employment of the Department of Education as a primary school Principal (notch 142) at the time of his dismissal. His basic pay at that date was R27 086-25. I however am not awarding the Applicant the maximum compensation in terms of the Act, as I am of the view that he should have presented himself at the disciplinary enquiry held at the prison. The witnesses were present at that time, and the proceedings could have commenced. He cannot rely on the fact that he took the advice of his Attorney to absolve himself of blameworthiness, in this respect. I therefore order that the Respondent must pay the Applicant eleven months salary which amounts to R297 948-75 (R27 086-25 x 11).
42. The Respondent has failed to discharge the onus of proving on a balance of probabilities that the dismissal of the Applicant was substantively fair.
43. The Applicant is awarded compensation in the amount of eleven months salary.
44. The dismissal of the Applicant D.P. Makhanya is declared to be substantively unfair;
45. The Applicant is awarded compensation in the amount of R297 948-75 (two hundred and ninety seven thousand, nine hundred and forty eight rand and seventy five cents);
46. The Respondent, Department of Education – KwaZulu-Natal is directed to pay the Applicant the sum of R297 948-75 (two hundred and ninety seven thousand, nine hundred and forty eight rand and seventy five cents) within twenty-one days of being notified of this award.
47. There is not order as to costs.