PSES 508-16/17WC

Award  Date:

28 October 2017

Case Number: PSES 508-16/17WC
Province: Western Cape
Applicant: RL van Wyk
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: Western Cape in Rensburg Hof, 42 Courtney Street, George.
Award Date: 28 October 2017
Arbitrator: A C E Reynolds
Panelist : A C E Reynolds

Case Number : PSES 508-16/17WC

Date of Award : 28 October 2017

In the ARBITRATION between:

R L van Wyk
(Union/Applicant)

and

Department of Education – Western Cape
(Respondent)

Union/Applicant’s representative : Adv S Lourens

Union/Applicant’s address : 29 Mountain View Crescent
Lavalia
GEORGE
6529

Union/Applicant’s Telephone No’s : 0721485813 / 0725840933 / (044) 2793180

Union/Applicant’s Fax No’s : (044) 2793185

Respondent’s representative : Mr R Jansen

Respondent’s address : Private Bag X6510
GEORGE
6530

Respondent’s Telephone No’s : 0730757411/ (044) 8038300

Respondent’s Fax No’s : 0865959754 / (044) 8733428

DETAILS OF HEARING AND REPRESENTATION

1. The matter was referred for arbitration to the Education Labour Relations Council (ELRC) for a dispute relating to an alleged unfair dismissal for misconduct (alleged sexual assault of a female learner) referred in terms of section 191(5)(a)(iii) of the Labour Relations Act 66 of 1995 as amended (the LRA) and was completed over nine sittings on 27 February 2017, 16 May 2017, 11 July 2017, 12 July 2017, 13 July 2017, 10 August 2017, 11 August 2017, 4 October 2017 and 5 October 2017 at the premises of the Department of Education – Western Cape in Rensburg Hof, 42 Courtney Street, George.

2. The applicant, Mr R L van Wyk, was represented by Adv S Lourens of Stephan Lourens Attorneys and the respondent, Department of Education – Western Cape (WCED), by Mr R F Jansen, Senior Labour Relations Officer. Mr D Kova was present to assist with interpretation in and from Afrikaans on 27 February 2017 and 16 May 2017. His services were not required again. Mr S Joseph, Labour Relations Officer, WCED George was present as observer for the respondent on 27 February 2017 and Ms A Booysen, Labour Relations Officer WCED George was present as observer for the respondent on 16 May 2017, 11 July 2017, 12 July 2017 and 13 July 2017. Ms G Wentzel was present as Intermediary on 11 July 2017, 12 July 2017 and 13 July 2017 when the former learner witnesses testified.

3. It is noted for the record that the arbitration was to continue on 11, 12 and 13 April 2017 and subsequently postponed administratively by the ELRC on 29 March 2017 on application by the respondent and rescheduled to 16 May 2017. It is noted further that a request for postponement by the applicant party was refused by the ELRC on 9 May 2017, who informed the parties that the application for postponement may be argued by the applicant before the arbitrator on 16 May 2017, which did not take place.

4. The proceedings were conducted in Afrikaans with digital and electronic recordings made and my electronic record serving as the English translation. A full explanation of the arbitration proceedings were provided for the benefit of the applicant at the first sitting of the arbitration, which included the onus of proof and the basic rules of evidence. It was noted that the dispute was not conciliated and that as a result a pre-arbitration minute was not available.

5. A preliminary issue was raised by the applicant at the commencement of the first sitting of the arbitration on 27 February 2017 relating to an application for legal representation. It was noted that the application for legal representation had not been made prior to the day of the arbitration. Adv Lourens informed that they had approached the ELRC prior to the hearing regarding legal representation and had been advised by the ELRC to make their submissions at the hearing. Legal representation of the applicant was opposed by the respondent. The arbitration was accordingly suspended to deal with the applicant’s application for legal representation. After hearing the parties’ submissions, the details of which are not repeated here, a verbal ruling was issued granting legal representation, which would be confirmed in writing in the subsequent arbitration award, as is now being done, with the following finding and ruling provided to the parties, to quote:

“I will refer to the factors that require to be addressed in finding whether it will be unreasonable for the applicant to deal with the dispute without legal representation.

Firstly regarding the nature of questions of law which will be raised by the dispute and the complexity of the dispute:

It would appear that the case will revolve around whether the applicant was not guilty, on the balance of probabilities, of the charges brought against him since it is legislated that if he is found guilty that it will be an automatically dismissible offence. The dispute would therefore focus on the findings on guilt and not the appropriateness of the sanction. The experience is that in determining sexual harassment/assault cases the quality of the evidence and the credibility of the witnesses is of prime importance. These are by nature also very sensitive issues, which must be approached as such. Where learners are involved there are furthermore other principles which apply such as the best interests of the child and how child witnesses should be dealt with in arbitration proceedings, as well as the assessment of the evidence of a child witness. Such a dispute would in my view therefore be more complex in nature and could attract more questions of law.

With respect to the public interest, such a dispute would be in the domain of the public interest since these charges are viewed as very serious, if guilt is found, when it relates to an educator who is responsible for the physical and emotional safety, well-being and education of learners who have been entrusted to him. Children have become particularly vulnerable to abuse and exploitation in South African society, hence it is in my view in the public interest that such a dispute is dealt with as sensitively and fairly as possible.

With respect to the comparative ability of the applicant to deal with this matter, given the foregoing I believe he will not be able to represent himself in these proceedings, but will require representation. The respondent argued that the applicant is entitled to be represented by his Union NAPTOSA and should continue with the representative who assisted him at his disciplinary hearing. The applicant party contended that this official was no longer available to represent members at arbitration hearings. The question is whether the applicant should be compelled to only utilise the services of his Union in these proceedings? It would appear that the Union official was unable to prevent the applicant’s dismissal at the disciplinary hearing and that he therefore doubted that representative’s ability to produce a different outcome at arbitration, which as pointed out, is a de novo hearing. In my view the applicant has the right to obtain other representation if he lacks confidence in his former representative. Whether this should be legal representation, is then the key question.

Given the foregoing observations, I conclude that legal representation is permissible in these circumstances, and that the respondent would also have the right to legal representation if they so wish, to arrive at a just and fair determination of the dispute, but with the proviso that the proceedings should not be unnecessarily drawn out due to the presence of legal practitioners.”

6. Mr Jansen for the respondent confirmed that they would not also avail themselves of legal representation and that he would continue as the respondent’s representative in these proceedings.

7. At the commencement of the sitting on 11 July 2017, when Ms Wentzel the Intermediary appointed by the ELRC was present, Adv Lourens for the applicant queried why she was present since the witness Learner A, who had already completed her evidence in chief, was no longer a minor, that there was no need for an intermediary and neither party, nor the arbitrator, had requested the services of an intermediary. Mr Jansen confirmed that the respondent did not request an intermediary for their learner witnesses but did not object to the presence of an intermediary due to the circumstances of the case. It was noted that Learner A was 19 years old at the time of giving evidence, whilst the incident occurred when she was 18 years of age.

8. Ms Wentzel was placed under oath to respond to questions by the arbitrator and the parties’ representatives to confirm her credentials and provide an assessment whether an intermediary was necessary for the witness Learner A. She explained that if a witness is over 18 years of age an intermediary is not normally allowed in Court, but would allow the intermediary to remain to offer emotional support only to the witness. Her assessment of Learner A was that she could speak for herself and it would only be necessary for her as the intermediary to sit next to the witness to support her emotionally. She explained her role to the parties and the nature of the emotional support that would be provided to Learner A. After Ms Wentzel had clarified her role and that she was also not present as an interpreter, Adv Lourens and myself were satisfied that she could proceed on that basis, on the proviso that she would not consult with the witness and would not assist her with her responses. The same would apply to the other witnesses who were former learners who were called to testify for the parties and would be supported by Ms Wentzel. It was noted that all the other former learners whom the parties called to testify were either 18 years of age or older at the time of testifying in the arbitration, except for Learner B, who was 17 years old at the time of the arbitration and whose parents provided a letter of consent for her to testify at the arbitration.

9. At the third sitting of the arbitration on 11 July 2017 Mr Jansen for the respondent requested that the respondent also digitally record the proceedings from that date onwards. This was objected to by Adv Lourens for the applicant. Mr Jansen motivated this request on the basis that in previous review proceedings an arbitrator could not locate the record and the respondent’s Legal Department requested as a safeguard that the respondent also make their own recordings of arbitrations. After the parties had made their respective submissions in this regard I decided to permit the respondent to make their own digital recording of the arbitration based on the precedent established at the CCMA and on condition that the only official record will remain the arbitrator’s digital and electronic recordings of the proceedings. The applicant party was given the opportunity to also make their own digital recording of the remainder of the proceedings, but declined to do so.

ISSUE TO BE DECIDED

10. The purpose of this arbitration is to determine whether the applicant, Mr R van Wyk’s, dismissal by the respondent, the Department of Education – Western Cape, for alleged misconduct was fair on substantive grounds only, as well as the appropriate relief if unfairness is found. The relief sought was retrospective reinstatement. The onus of proof is on the respondent in this matter.

BACKGROUND TO THE DISPUTE

The following facts were common cause:

11. The applicant commenced working at George Secondary School on 1 January 1985. At the time of his dismissal he occupied the positions of Head of Department Post Level 2 and Hostel Superintendent with Persal number 50380427 earning a gross remuneration of R35200,75 per month. An incident occurred on Friday 4 March 2016 at the premises of the hostel of George Secondary School when the applicant gave a former grade 12 female learner and hostel resident, referred to as Learner A, R50,00 in his, the Hostel Superintendent’s accommodation/flat. Learner A since matriculated in 2016 and has left the school. Another female learner, referred to as Learner B, who has also since matriculated, was on the premises in the applicant’s kitchen during the incident, but was not present when the applicant gave Learner A the R50,00. Prior to the incident of 4 March 2016 the applicant requested a cell number for Learner A and she provided him with two numbers. Learners who were hostel residents normally went home on Friday afternoons and returned on Sunday afternoons by a bus contracted by the school. The applicant telephoned Learner A on her cell phone the evening of 4 March 2016 to enquire about her welfare since he had established that she had not gone home to her mother for the weekend from the hostel. On 8 March 2016 the applicant telephoned Learner A again on her cell phone to speak to her but her mother, referred to as Ms X, took the call. Ms X approached Mr M van Rooyen the School Principal the next day on 9 March 2016 and informed him about an alleged incident which occurred between the applicant and Learner A at the time when he gave her the R50,00. Mr van Rooyen called the applicant to the office with the mother present. During that meeting Ms X returned the R50,00 to the applicant and the applicant offered to the mother that he would pay for psychological treatment of Learner A, if required. The respondent conducted an investigation surrounding the incident of 4 March 2016 and decided to charge the applicant on 18 May 2016 as follows (translated from the Afrikaans):

CHARGE 1

It is alleged that you are guilty of misconduct as described in section 17(1)(b) of the Employment of Educators Act 76 of 1998 (as amended) (hereinafter referred to as the Act) in that you committed an act of sexual assault in respect of a learner during March 2016 by kissing learner A a learner associated with George High School on the mouth and had also attempted to insert your tongue into her mouth.

FIRST ALTERNATIVE CHARGE TO CHARGE 1

It is alleged that you are guilty of misconduct as described in section 18(1)(dd) of the Act in that you made yourself guilty of a statutory offence namely statutory sexual assault in that you during March 2016 kissed learner A, a learner associated with George High School on the mouth and had also attempted to insert your tongue into her mouth.

SECOND ALTERNATIVE TO CHARGE 1

It is alleged that you are guilty of misconduct as described in section 18(1)(q) of the Act in that you during March 2016 whilst you were on duty acted in an inappropriate, scandalous or unacceptable manner by kissing learner A, a learner assocated at that stage with George High School on the mouth.

12. A disciplinary hearing was held over two days, being 1 June 2016 and 21 July 2016. The Chairperson was an external presiding officer, Mr A Gunther. The applicant was found guilty of the main charge, not the alternative charges, with the sanction of dismissal imposed since section 17 of the Employment of Educators Act 76 of 1998 as amended (EEA) for serious misconduct applied. The sanction of dismissal was issued to the applicant on 26 July 2016 and received on 27 July 2016. The applicant appealed against the outcome on 12 August 2016 through his NAPTOSA representative Mr F Tassiem. The dismissal was upheld on appeal by Ms D Schäfer, the Minister of Education, Western Cape, on 24 October 2016, whereafter the applicant referred the dispute to the ELRC on 14 November 2016 for conciliation. The dispute was not conciliated and referred to arbitration on 27 December 2016 after a certificate of non-resolution was issued by the ELRC on 12 December 2016. As a consequence, a pre-arbitration meeting was not convened under the auspices of the ELRC.

The following facts were in dispute:

• Whether the applicant kissed and attempted to push (insert) his tongue into Learner A’s mouth during the incident of 4 March 2016.

• Whether the applicant’s telephone conversation with Learner A the evening of 4 March 2016 was overheard by two other female learners, referred to as Learner C and Learner D, at Learner D’s residence, as well as what the content of that conversation was.

• What the content of the applicant’s conversation with Learner A’s mother, Ms X, was the evening of 8 March 2016.

• What the reason was why the applicant offered to pay for psychological treatment for Learner A.

• Whether Ms E Cloete a Hostel Supervisor was present the evening of 4 March 2016 when the applicant telephoned Learner A from his Hostel Superintendent’s accommodation.

• What Learner A’s interaction was with Learner B, who was present in the Superintendent’s kitchen, immediately after the incident and afterwards in the school bus on 4 March 2016.

• What the reason was why the applicant requested a telephone number from Learner A prior to the incident of 4 March 2016.

• Whether the applicant had committed the offence that he was charged and dismissed for.

• Whether the applicant’s dismissal was unfair on substantive grounds only.

SURVEY OF EVIDENCE AND ARGUMENT

13. The former grade 12 learner and complainant in this case, referred to as Learner A, Mr M van Rooyen, the Principal of George Secondary School, a former learner referred to as Learner C and the mother of Learner A, referred to as Ms X, testified under oath for the respondent.

14. A former learner referred to as Learner B, a former learner referred to as Learner E, Mr R van Wyk, the applicant, Ms E Cloete, Hostel Supervisor, Mr R Cupido former Hostel Supervisor, Mr L Rothman, former Relief Hostel Supervisor and Ms E Swarts, Hostel Matron at George Secondary School, testified under oath for the applicant party.

15. Documents were handed in by both parties at the commencement of the arbitration and admitted as evidence. It is noted that the disciplinary hearing minutes which the respondent handed in on 16 May 2017 were not admitted by the applicant party and subsequently removed from the bundle of documents, whilst the applicant’s appeal application handed in on 16 May 2017 by the respondent as an additional document was admitted.

16. It was suggested to, and agreed by the parties that, based on the evidence presented at that stage, an in loco inspection of the Superintendent’s accommodation at the school hostel should be conducted during the sitting of 10 August 2017. This was done in the presence of the parties and a sketch was prepared of the accommodation layout and provided to the parties on 11 August 2017 for their information, who confirmed that the sketch could be added to the admitted documents.

17. The parties requested after the arbitration that written closing arguments be handed in due to the volume of evidence that required to be processed. This was agreed to, as well as that they would submit written closing arguments simultaneously to one another and the ELRC by close of business on 18 October 2017, for forwarding to the arbitrator. The parties accepted that in the circumstances the arbitration award would only be due to them within 14 days after the arbitrator received the written closing arguments.

18. The parties also agreed during the proceedings that all references in the witnesses’ testimonies made to statements by Mr T Lawa and Ms E Roberston, both School Governing Body (SGB) members, relating to alleged threats made against Learner A by the WCED if she withdrew the case, will be taken off the record as hearsay evidence since neither of them would be testifying at the arbitration.

19. Due to the considerable volume of evidence presented during the arbitration, only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, were relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.

THE RESPONDENT’S EVIDENCE

20. The respondent’s case was that the main complainant Learner A would testify to the incident that took place in the room in the Superintendent’s accommodation where she alleged the applicant tried to kiss her and push his tongue into her mouth. The respondent had thoroughly investigated the matter and found there was indeed a case, which is why they continued to draw up a charge sheet. Learner A’s mother Ms X would testify that when she became aware of the incident she visited the school, returned the money that the applicant gave to Learner A, that the applicant had told her that he was prepared to pay for psychological treatment for her daughter and that the applicant telephoned their home to speak to Learner A, which made it clear that the incident had taken place. Two learner witnesses would testify to a telephone conversation that took place the evening of the incident when the applicant telephoned and asked for Learner A and he spoke to her while the telephone was on speaker and they overheard the conversation. The School Principal would testify and confirm that after the parent informed him about the incident he called the applicant in and was present when the mother returned the R50,00 to the applicant and when the applicant stated that he would pay for psychological treatment if Learner A had to undergo such treatment. They believed that they would prove on the balance of probabilities that the applicant was guilty of the charges brought against him. With respect to the relief sought, should the arbitration be found in the applicant’s favour, they would recommend compensation and would not be able to reinstate him.

21. Learner A testified as follows under oath in her evidence in chief: She was currently in employment and matriculated at George Secondary School in 2016. She described what happened between her and the applicant on Friday afternoon 4 March 2016. Before that day she was with her best friend on the back verandah of the school grounds. The applicant offered to take her home for the weekend, but she told him that she was going to Sedgefield for the weekend. The applicant also offered to give her pocket money for the hostel school tour to Cape Town. She was very happy about that because her mother is a single parent and could not pay for everything. She did not at that stage ask him for pocket money. She liked the applicant and saw him as a father figure, trusted him and spoke to him about many things such as her personal circumstances at home. The applicant told her to give him her cell number. She told him that she had two numbers and he told her to give the two numbers to him. The reason why he asked the numbers she assumed is because she walked from the Wilderness village to Wilderness Heights where her home was. She did not give him the two numbers at the time but only gave them to the applicant on the Friday. On the Friday the school closed early and when she was on her way to fetch her bags to wait for the school bus Mr Cupido, one of the Hostel Supervisors, called her and told her to fetch the tour pages from the applicant. The applicant was walking from the school to his accommodation (flat) at the hostel. The applicant told her to take one of the tour pages and write her telephone (cell) numbers on it. She wrote both her numbers on the page and took it to the applicant in his flat. When she reached the flat she knocked and the applicant answered from the sitting room, whereupon she entered the flat and went into the sitting room. She saw two other learners, referred to as Learners B and F, in the kitchen of the flat cleaning dishes. The applicant asked her to telephone the bus company African Express, who transported the hostel learners, from the flat’s landline to inform them that the school had closed early and that they could come to fetch the learners. After that the applicant asked how it was going and she responded it was going OK. He also asked if she had a lot of pocket money and she said she had enough. The applicant then walked out and she in the meantime served a hostel girl from the tuck shop (situated adjacent to the applicant’s flat) who came to buy chips (Paaper Bites). She put that money down and the applicant came out of his room (bedroom) with money in his hand. He told her to come and fetch the money in the bedroom otherwise the other children present will see he is giving her money. She entered the room and while she took the money with her left hand he pulled her towards him with her left hand, kissed her and tried to stick his tongue into her mouth. She got a big fright, pulled away from the applicant and walked out of the room. She did not scream since this did not come up in her thougths then. She did not know how long the kiss lasted and got a big fright because she did not expect that from the applicant since she saw him as a father figure. She did not run out of the flat but walked quickly and stood outside with her friends Learners C and D. When she walked out of the room (bedroom) the applicant told her that she must not act like that (“ek moet nie vir my so hou nie”). She and Learner C were going to visit Learner D at Learner D’s home in Sedgefield that weekend and they stood and waited for the bus. She did not see Learner B who was one of the learners who stayed at the Hostel and who would testify for the applicant party if she was either present when the alleged offence happened or when she, Learner A, left the applicant’s flat. Learner B was in the flat when she entered but she did not know when she left. Neither Learners B or F could have seen what happened in the bedroom when it was alleged that the applicant kissed her or when the applicant gave her the money since they were in the kitchen. She did not tell her friends Learners C and D then what happened since she was still busy processing it all. She spoke to them but did not talk about the incident. She did not see Learner B on the bus but it was possible that she was on the bus and she would have seen her if she was sitting close to them. When they got off the bus in Sedgefield Learners C and D wanted to know what was going on and she said she would tell them at home since she was scared that the other children would hear what she was going to tell them. She was introduced to Learner D’s parents when they got there and after a long time they went into the room (bedroom) and she told them that the applicant kissed her. She did not tell them about the tongue in the mouth at the time since she did not want to go into detail. They at first did not take her seriously and laughed at her but when they finished laughing they got serious and she told them she pulled away from him and walked out. At about 18h00 she got a call from a strange number which she did not recognise. She assumed it was the applicant since nobody normally called her except her parents, brothers and sisters, whose numbers she had, since she did not have a boyfriend at that stage. She put the phone on loudspeaker because she was scared it was the applicant and wanted Learners C and D to hear because he was the only other person who had her number. The details of this conversation were as follows: The applicant asked whether she was safe and she said yes. He asked if she was in Paccies (Pacaltsdorp) and she said no, that she was in Sedgefield. He asked with whom and she said with Learner D, using her nickname. He asked if she was with her sister and she said yes. The applicant asked if he could come past there and she said no that she was going home the next day. He said then that she could come to the hostel and he could take her home. It did not make sense that she must go from Sedgefield to the hostel since Wilderness where she stayed was closer than George. The applicant then asked if she did not miss the hostel and she replied no. He then asked if she did not miss him. She did not answer him since she did not miss him. She remained silent because she did not want to answer him. He then told her to not say “sir” (‘meneer’) because the other people will know that he was phoning her. He did not know that there were others present and she did not know why he would say that. She then ended the telephone call. The Sunday she packed her bag again for the bus and telephoned her mother around 15h00 to inform her that she wanted to come home and get off at Wilderness, where they stay at Wilderness Heights. Her mother told her she could not come home and had to return to the hostel because the study time was better at the hostel. She did not tell her mother what happened because she thought she could forget about it and leave it like that. The reason why she wanted to go home is that she did not want to see a lot of the applicant again. She went with the school bus to the hostel the Sunday. She was scared again when she got off the bus and went straight to her room in the girls’ block. Three of her hostel friends told her to come with them to Checkers where they always do shopping and she told them that she did not want to walk with them. When she refused to walk with them they wanted to know why and she told them that the applicant kissed her but that they must tell nobody. They told her that they would not leave her and that they would stay together. They bought chips at Checkers and on the way back they did not want to go past the parking area because they saw the applicant and Mr Cupido stand in front of the applicant’s flat. They walked quickly around the back of the boys’ block and when they almost got there Mr Cupido called them. They walked over to the applicant and Mr Cupido and greeted everybody. The applicant said that he likes it if a girl looks him in the eye when she greets him. She did not respond and told the one friend that they must go, whereupon they returned to the girls’ block. The Monday after school she sat in the block the whole time as she was too scared to go out and was terrified of the applicant. At that moment she did not worry about the tour money that the applicant was going to pay for her. She telephoned her brother the Monday evening and told him to tell her mother that she wanted to come home the next day (Tuesday) and would tell them why when she got home. On the Tuesday she left the school after netball practice, fetched her bags and went home on the African Express bus. Her brother and mother did not at that stage know what was going on and why she decided to go home. She did not have permission to go home and asked her one friend to tell Ms E Cloete the Hostel Supervisor that she was going home. Her mother was not home yet when she arrived in Wilderness therefore she went to her sister’s home until 17h00 when her mother got home. She went to her room and about 20h00 that evening told her mother what happened and that the applicant kissed her and that she had walked out of the flat. She only told her mother about the kiss and not the tongue in the mouth since she was uncomfortable about that. She could see her mother was angry when she heard that. Her mother said that she will go to the school the next day (Wednesday) and told her she must go to school and cannot stay at home, which she refused to do. That Tuesday at about 21h30 in the evening the applicant phoned on her cell number while she was sitting in her mother’s room. She had saved his number on her phone as a warning and did not take the call. Her mother saw the phone ring and told her to pick it up. She told her mother that she would not. Her mother asked who was calling and she told her mother it was the applicant. Her mother told her to give the phone to her which she did and her mother spoke to the applicant. She was present sitting on her mother’s bed while her mother was talking to the applicant but could not hear what they were saying. It would be untrue if the applicant said that he never tried to kiss her or push his tongue into her mouth. She had no reason to lie about the incident since the applicant would have paid her tour money and pocket money and would have also sponsored the tour. The tour happened after the incident. She did not at that stage receive any money for the tour from the applicant since Mr Cupido would have got her sponsors for her tour money, but could only get half and had suggested that she ask the applicant for the other half of the tour money when she informed him that her mother did not have that type of money. She went to the applicant’s flat before the kissing incident to ask the applicant and he had agreed to pay half the money. She had no reason to falsely accuse the applicant since she saw him as a father figure. She did not go on the tour in the end.

22. Learner A testified as follows under cross-examination: On Thursday 3 March 2016 the applicant offered to take her home as a result of a conversation between herself, Mr Rothman and the applicant two weeks previously when Mr Rothman asked where she stayed, and she said in Wilderness Heights. They assumed that she walked from Wilderness village to Wilderness Heights from where the bus drops her off at the N2 at Wilderness lagoon around 15h00 on a Friday afternoon. She normally walked to the hiking spot and hiked from there to Wilderness Heights or got a lift if she was fortunate. She did not know the distance, but it was quite a way. She did not believe it was dangerous for a girl to hike to the Heights on her own since she grew up there, it was a small place, and everybody knew everybody. She wanted to go on the school tour but did not really want to go as knew her mother could not pay for it and she did not want to ask her mother. Mr Cupido asked if she wanted to go but she told him that she did not know if her mother could afford it, which is when she asked for financial help for the tour a few days or weeks before the incident. Mr Cupido had told her he would get a sponsor for her and would also ask the applicant if he could help. She had first decided to go on the tour and then to not go on the tour since she tended to change her mind. The applicant did not out of his own offer to help her with the tour money. She did not know why she did not in her examination in chief say to the respondent’s representative that the applicant never offered to pay for her but that it was Mr Cupido who went to the applicant and asked for financial help for her and that she was confused and still in shock at the time in the arbitration on 16 May 2017 when she was asked that question, but was feeling more confident now and had made a mistake then. She confirmed that Learners B and F as well as the applicant were in the superintendent’s flat when she entered there on 4 March 2016. She was 100 percent sure that Mr Cupido was not present inside the flat at the time but was sitting outside with another female learner, referred to as Learner G, at the steps going to the dining room of the hostel. She was not the one sitting on the steps as what the applicant had said. Mr Cupido and Learner G sat there because she still asked Learner G for a pen after Mr Cupido called her and said she must fetch the tour pages from the applicant who was coming from the school side into the hostel yard. She got the tour pages from the applicant who told her to write her cell numbers on them. She took one page, got the pen from learner G and wrote the numbers down. The applicant was walking to his flat while she was doing that. She took the page with the cell numbers and knocked on the door of the flat, when the applicant came out. The applicant walked into the sitting room and told her to put the page with the cell numbers on the table and asked her to phone African Express. Mr Cupido was not in the sitting room when she entered to give the two cell numbers to the applicant that Friday afternoon. She repeated the rest of her testimony as provided in her evidence in chief, with the following added: She was not sure if the two learners in the kitchen heard the applicant say to her to come into his room (bedroom) as he did not want the children to see him give her money, but he did say that to her and she followed him into the room. She did not know if it was strange for a teacher to give a learner money. The applicant gave her the R50,00 inside the room, not far from the door, but not in the doorway. She confirmed again that when the applicant gave her the money he pulled her closer by her left hand with his right hand, kissed her, tried to push his tongue into her mouth and told her to not be like that. She then pulled her hand and head away when the applicant tried to push his tongue in her mouth and walked out after he told her to not be like that. It happened too quick for her to turn her head away when he tried to kiss her. She did nothing with her free hand since it helped when she pulled away and could walk away. Although the applicant had a knee operation about a month before and could not stand securely on his legs it did not prevent him from pulling her towards him. She denied the applicant’s version that he spoke to her in the sitting room about her socio-economic circumstances and that he asked if she needed pocket money and he told her to fetch the money when she then followed him, but that he instead came out of the room with the money and told her to come into the room so that the other children could not see him giving her the money. She agreed that the applicant moved slowly although he was not on crutches. The applicant never gave her a sympathetic little hug in the doorway of the room and had never ever done that before either. She bet her life on the fact that the applicant really kissed her and tried to push his tongue into her mouth. She denied that the applicant told her and Learners B and F that they must enjoy the weekend and that she had responded yes. Mr Cupido was not inside the flat and did not come out of the toilet and walk out behind them. She had asked her mother if she could go to Sedgefield, she never said that her sister stayed in Pacaltsdorp and she never said that she was going to Pacaltsdorp that weekend. She confirmed again that the applicant did not call her from the landline the Friday evening and he never said that she could stay in the hostel but had said that she can come to the hostel and he would take her home. The applicant also never said that he, Mr Cupido and Ms Cloete would come to see her in Sedgefield but only that he would come past there. The applicant had asked if she missed him and the hostel and told her that she must not say “sir”. She agreed that she did ask the applicant for financial help with the tour money the Thursday prior to the incident when he said he would give her half the tour money and the pocket money. On the Monday after the incident she did take the tour indemnity form to the applicant. Mr Cupido did not call her the Sunday afternoon when they walked past the applicant’s residence to ask for her tour indemnity form because she told her friend that they must go when the applicant told her that he likes a girl to look him in the eye when he greets her. Ms Cloete sent her to the hostel on the Tuesday to put a bag away but she did not know why she did not tell Ms Cloete then that she was leaving the hostel. The incident affected her school work and sometimes she could not sleep at night and had nightmares. When it happened, she felt very uncomfortable as did not expect that from the applicant and got a big fright. She became very quiet and did not want to talk to anybody for a few minutes after which she left the flat to join Learner C. It did not occur to her to scream when it happened, and she just pulled away from the applicant. She did not tell the two learners inside the flat that the applicant had kissed her because they were not there when she went outside. Learner B did not stand in the passage when she came out of the flat. They only asked her on the bus why she was so quiet and asked her again when they got off the bus, when she said she would tell them (Learners C and D) why when they got home. She sat next to Learners C and D in the same row on the bus, with herself on the corner off the aisle and Learner D at the window. Learner B did not sit next to Learner D on the bus and she was 100 percent sure they did not take cell photographs (selfies) of themselves. She did not look out for Learner B on the bus and did not know where she sat. She did not testify in her evidence in chief that they also asked her on the bus what was going on but they did ask her on the bus and she did not think to mention this then since she only said what she felt was important. She repeated what happened when they arrived at Learner D’s home and what she told Learners C and D about the incident. She did not tell them immediately what happened since Learner C was talking to her mother and Learners C and D, who were good friends, were talking amongst themselves and she did not want to hurry them up. Everybody did not react the same way to a traumatic incident and had different ways of handling it. She did not tell Learners C and D that the applicant also pushed his tongue into her mouth since it was disgusting to put it in such words. The kiss was also disgusting but the tongue was very disgusting since she had never had a boyfriend and it was strange to her. She was only comfortable to tell them about the kiss, but not the tongue in the mouth. She could not remember what time they went to sleep that night or what they all spoke about. The Saturday during the day they stayed at Learner D’s home and cleaned up there. The Saturday evening they were to go to a birthday bash but there were too few people there so they went to ABs Tavern instead. At the tavern she only drank beer and did not know if there was also vodka. She used the money that was left from her bus fare and the money that the applicant gave to her. She enjoyed herself and partied with the others. She knew Learner E who was with them at ABs Tavern that evening. She confirmed that the applicant telephoned her the Friday evening and that Learners C and D heard everything because the phone was on speaker phone. She repeated the conversation that took place between herself and the applicant. She agreed that it did not make sense that the applicant would come and fetch her from Sedgefield and travel past her home in Wilderness to take her to the hostel in George and take her back home again. She did not know why the applicant would say that she must not call him “sir” because the other children would hear when he did not know that they could hear. She did not say goodbye to the applicant but just turned the phone off. She did not think it necessary to say in her evidence in chief that Learner C commented after the telephone conversation “gosh this sir” (“jinne die meneer jong”). Only Learner C commented on the conversation which they overheard, whilst Learner D did not comment but just sat there. She did not convey this information to anybody else except the two present. She only told her friends at the hostel about the incident when she returned there. She did not tell anybody else about the telephone conversation except her mother, who she told on the Tuesday everything which was said. She did not know that Mr Cupido and Ms Cloete were present the Friday evening when the applicant called her. The applicant telephoned her from a cell number and not a land line that evening. The applicant did not say to her over the telephone that he and Mr Cupido would come and fetch her if she was not OK but when he asked if she was OK he did not offer for them to fetch her but said to her that she can come to the hostel and he will take her home and asked if he can come past (“maak ‘n draai”). The applicant did not end the call, but she did. When she telephoned her mother the Sunday morning before the bus came around at 12h00 to ask if she can come home and her mother told her she could not and must go back to the hostel, she did not tell her then about the incident since she thought things will go back to normal. By this statement she meant that she could forget what happened and would see less of the applicant if she was at home since the applicant did not teach subjects to her and she did not see him easily in the passage at school. Although she did not want to tell anybody else what happened she told her three friends the Sunday afternoon when they insisted she tell them. She only told them that the applicant kissed her but did not menton that he pushed his tongue into her mouth. She was not in Mr van Rooyen’s office the Wednesday when her mother came to see the Principal as she was only called in later. She told Mr van Rooyen that the applicant kissed her and wanted to push his tongue into her mouth and about the telephone call. She did not tell Mr van Rooyen that the applicant kissed her tongue in the mouth. She could not explain why Mr van Rooyen gave a different version when he testified. She had an open and honest relationship with her mother and told her most things which made her emotional or uncomfortable in life. She would not have told her mother about what happened Friday 4 March 2016 but had to tell her because the situation made her feel uncomfortable. She did not get off at Wilderness Lagoon the Friday afternoon to go home after the incident as had already decided to go to stay with Learner D in Sedgefield and did not want to disappoint her. She only told her mother the Tuesday what happened and did not tell her brother first but told him she would tell him when she got home. She was scared again of the applicant the Sunday afternoon when she arrived at the hostel but went to the hostel because her mother had told her to do so. If she had told her mother what happened the Sunday morning her mother would have told her to go home. When Mr Cupido called them across the Sunday afternoon to where he and the applicant were she did not look the applicant in the face when she greeted him and only said “good afternoon sir”. She did not tell her Hostel Supervisor Ms Cloete the Monday when she saw her at school that she was leaving the hostel, but asked a friend to inform Ms Cloete. When she telephoned her brother the Monday evening to tell him that she was coming home she did not give him the reason why. She arrived home around 15h00 the Tuesday afternoon, was not sure when her mother came home and only told her mother what happened between 20h00 and 21h00 that evening because she was with her sister. She did not tell her sister what happened. This delay in telling her mother did not mean that the incident did not bother her. She knew she could always tell her mother what happened but first wanted to see her sister’s child. She was 19 years old at the time of the arbitration and 18 years old at the time of the incident. Any person could not have telephoned her by accident the Friday evening since she knew she had given her number to the applicant the same day, which is why she put the call on speaker phone. She confirmed that she told her mother that the applicant kissed her and tried to push his tongue into her mouth whereas she had testified in her evidence in chief that she was uncomfortable at the time to tell her mother that the applicant tried to push his tongue in her mouth. She told her mother a few days afterwards that the applicant tried to push his tongue into her mouth. She did not testify to this in her evidence in chief since she did not think it was necessary and only focused on that had happened and wanted to keep her story as short as possible. She spoke the truth about what happened in the room. When her mother took the call and spoke to the applicant over the telephone the Tuesday evening she could not remember anymore what they were talking about since she did not pay attention to the call and did not want to listen to it because she was upset and did not want to get upset further. She did not think about walking out of the room but just sat there and did not listen to the call. She knew Auntie Mammie as the lady who worked in the hostel kitchen, with her name confirmed as Ms E Swarts. She never had a conversation with Ms Swarts a week before Friday 4 March 2016 in which she said to Ms Swarts that it was not nice at the hostel and and did not want to stay in the hostel anymore because she had said to her mother that she wanted to go to the hostel since she knew she would learn more there. She said to her mother at the end of grade 10 that she wanted to go to the hostel, which is why she went to the hostel from grade 11. She did not return to the hostel after she heard that the applicant had left since she did not fell comfortable about returning there. She wanted to withdraw the criminal case brought against the applicant because it affected her school work and she could not sleep. They withdrew the case at the Court because the Prosecutor had said that there was insufficient evidence because she had said in her statement to the SAPS that she had told a lie in her initial statement and wanted to withdraw the case. This was after she was offered R20000,00 to withdraw the case to go to college and was told her mother could not afford psychological help if she needed it. The Prosecutor then said to her that she would be torn to pieces. She did not get counselling for her case but the social worker was there to show her how to improve marks and her school results. She was not sure, but this happened about three or four times. She did not tell the social worker about the incident with the applicant. The applicant did not say to her on Tuesday 1 March 2016 in the presence of Mr Rothman that she must give her cell number to him so that he can contact her if the bus leaves Sedgefield later than 16h00 for her own safety and that she could wait at the garage in Wilderness if the bus was late. The bus never arrived at the hostel as late as 19h00 but normally reached the hostel before 18h00 and they still had time to go to Checkers. She did not recall that the applicant reminded her on Wednesday 2 March 2016 on the way to school that she must not forget to bring the cell phone number as the weather forecast indicated it would rain the Friday and that they, meaning himself and Mr Cupido and/or Ms Cloete, may have to take her home with the hostel transport. All that she knew was that on the Thursday the applicant found her and her friend on the school grounds and told her she must give her numbers to him and he offered to pay half the tour money and give the pocket money and that he would take her home and fetch her on Fridays and Sundays. She did mention to the applicant in the sitting room the Friday afternoon that she was going to visit Learner D that weekend but Mr Cupido was not present. She did mention to the applicant that her parents were separated when she asked him for the tour money in front of Learner G. The Friday afternoon in his flat the applicant did ask her if she had pocket money and she told him she did get pocket money but not a lot. She did not fabricate what happened to look for a reason to get away from the hostel because she felt safer at home where her mother could support her. She did not laugh most of the time during her evidence in chief as put to her by the applicant’s representative.

23. Learner A testified as follows under re-examination: She never saw Learner B at any stage during the alleged incident. The alleged pushing of the tongue into the mouth was the most disgusting for her. The applicant had promised her the pocket money and half the tour money on the Thursday before the alleged incident. She had no reason to cut off the hand that is feeding her. In the statement that she made at the SAPS she told the truth about the kiss and tongue in the mouth, but not about the money. She went back the second time to tell the SAPS that everything that she had said in the statement was a lie. She did that because she felt that life was not about money and that she could save the money herself and wanted to set things right.

24. Mr M van Rooyen, Principal of George Secondary School, testified as follows under oath in his evidence in chief: He had acted two years as School Principal and two years in a permanent capacity, therefor a total of four years. On 9 March 2016 Ms X the mother of Learner A came to his office and loged a complaint regarding the applicant about an incident which allegedly took place on 4 March 2016 at the hostel. Ms X alleged that her daughter complained that the applicant kissed her inappropriately on that day. Ms X was very upset and wanted the assurance that the complaint would be handed in at the EMDC office in George. He telephoned Mr D Samson the Circuit Manager at the time, who told him that the complaint must be put in writing and handed in in writing. Before he did that he called the applicant because he was very shocked and also wanted to hear his side, not that he wanted to hear the case. The mother gave R50,00 back to the applicant when he entered the office, stating that she did not need his money. The applicant also defended himself by stating that he only gave the girl a fatherly little hug (“drukkie”). The applicant also offered to pay for psychological assistance if needed. After that he told the applicant to leave the office and the complaint was put in writing and later handed over to the WCED. He did not really know Learner A before the incident because she had never been in his office for any problems. Ms X was very angry and aggressive when she reported the incident. The applicant was very shocked and denied that the incident took place. He did hear the applicant say that he only gave Learner A a fatherly hug. The applicant’s reaction when the mother gave the R50,00 back was that it was a donation for the tour that the hostel learners would have gone on. Learner A came across quiet and withdrawn after the alleged incident whilst the applicant remained his normal self.

25. Mr van Rooyen testified as follows under cross-examination: The applicant had never been charged for sexual assault of children and he had never received complaints from parents regarding this. It is correct that the applicant as Hostel Superintendent regularly drove learners from sport practice sessions before and after matches and also hostel children Fridays and Saturdays, with no complaints received from these learners. He was shocked when he heard the complaint against the applicant since he and the applicant had a good working relationship, although not a social relationship. It was correct that the applicant had the hostel very close to his heart, that when he took over the hostel there was a bank balance of R2700,00 and when he was asked to vacate his accommodation in the hostel prior to his dismissal the bank balance was R200000,00 in credit, which was achieved over 2,5 years. He could not comment why the applicant would do something that would deprive himself from the privilege of being Hostel Superintendent. It could be right that Ms X arrived at the school about 08h30 and left around 11h45 on 9 March 2016. Ms X came across as very nervous and asked once for a smoke break when he told her that he would be on the line to his Circuit Manager. He saw angry, aggressive and nervous in the same light. Ms X came across as more angry than nervous since she was worked up about the allegation. She took the R50,00 out of her bag and gave it to the applicant when he entered the office. At that stage Ms X had already told him that the applicant gave Learner A the money and that she was going to give it back. With reference to the improper kiss he meant that Ms X alleged that the applicant kissed Learner A with his tongue in her mouth. He was dead certain that Ms X said that. He had mentioned to the applicant that Ms X knew exactly what the procedure was in the case of a complaint. Although it was more than a year ago, his memory was reasonable. It could have been that the applicant said that he gave Learner A a sympathetic little hug (“drukkie”) instead of saying he gave her a fatherly hug. The applicant had said that if Learner A suffered shock or anything he would help with psychological assistance. He could not recall that the applicant said that he would pay for psychological help because the social services at the EMCD was slow. He was almost certain that social services was not mentioned. The school social services worked through his office and Ms Katson did have an interview with Learner A and a follow up session, which is normal procedure. He did not know the content of these sessions since they are confidential. He was not sure of the dates when the services were provided to Learner A, but it was after the incident. He did not call Learner A into the office on 9 March 2016 to make a statement. He went to Learner A’s class afterwards to ascertain who she was. He never had a conversation with Learner A regarding the case and only spoke to her when she and two other learners were called to testify (at the applicant’s disciplinary hearing) when Mr Jansen was present. He had no other interaction with Learner A and did not speak to any of the other educators about Learner A. He confirmed that he never knew Learner A before. He had assessed that Learner A was quiet and withdrawn after the incident and like someone who was in her shell because she did not talk a lot and she would walk past him without really greeting him, unlike other learners who would greet him out loud. The applicant’s behaviour was exactly the same as before regardless of the complaint that was lodged. He still trusted the applicant after the incident and asked him to transport learners to a camp at Bergoord and trusted him to perform all his duties as Department Head. The applicant also gave his full cooperation and still handed in his marked papers after he was notified of his dismissal. His view was that a person is not guilty until found guilty. He assumed that the R50,00 which Ms X returned was a donation for the hostel tour but he could have been wrong and that it was not given to Learner A for that purpose. He had been teaching together with the applicant at the same school since 1985. He himself was shocked when he heard the complaint against the applicant because he realised it had far reaching consequences for any colleague, not only the applicant. Mr Jansen had telephoned him and informed him that it looked like the complainant wanted to withdraw the complaint. Mr Jansen did not provide him for a reason for this. The complainant (Learner A) and her mother were never with him to tell him that they wanted to withdraw the complaint.

26. Mr van Rooyen testified as follows under re-examination: The fact that the hostel’s bank account improved while he was Superintendent did not have an impact on that the applicant was possibly guilty of the complaints since in his personal view the two did not have any relationship with one another. It was not strange for Ms X to be angry or nervous. He himself would not have acted normally and would have been angry if it was his daughter. Although he still trusted the applicant and allowed him to continue with his normal duties as Principal he had to withdraw all the applicant’s duties after he was found guilty and instructed him to leave the premises immediately under orders of the WCED, with his personal feelings irrelevant.

27. Learner C testified as follows under oath in her evidence in chief: She asked Learner A to go with her to Sedgefield with her cousin Learner D. Learner A had told them at her cousin’s house the Friday that the applicant had kissed her. She told them she would first tell them at home since she did not want to talk in front of the children. That afternoon Learner A was with the applicant where he stayed and they all sat at the bottom and waited for the bus. The place where the applicant stayed was near there and they saw Learner A coming from there. While they waited for the bus Learner A did not have a nice expression on her face and they asked her what it was and she told them she would tell them at home. They got on the bus and Learner A did not talk a lot on the bus. She, Learner C, sat in the middle of the bus row, with Learner D at the window and Learner A at the aisle end. When they got home Learner A told them that the applicant kissed her and that she pushed him away. After that they stayed quiet and spoke about normal things when a call came through on Learner A’s cell phone which she put on loudspeaker. It was the applicant who was talking. He asked where Learner A was and she said she is in Sedgefield. He asked with whom she is and she gave the nickname of Learner D. The applicant asked if she was with her sister and she just said yes. The applicant asked if she missed the hostel and she said no and he then asked if she is missing him and she said “no sir” (“nee meneer”) (the witness was giggling while she testified to this). The applicant said to her she must not say “meneer” since the children will hear just now that he is talking to her. She herself, Learner A and Learner D heard this conversation. Learner D’s mother was in the front room and not present, with the door closed. Although she did not know the applicant’s voice because he did not teach her a subject, she knew it was the applicant since he told Learner A she must not say “meneer”. She was dead certain that such a conversation took place. After the telephone conversation she could see that Learner A was surprised because the applicant had asked if she misses him and because of a lot of other things. The other things was because the applicant asked Learner A if he must come and fetch her to which she had replied no. She was not sure when the call came through, but it was probably around 17h00 to 18h00. She believed Learner A when she told them that the applicant kissed her and that she pushed him away since Learner A was not a person who told lies. She was dead certain that nobody told her what to say here at the arbitration.

28. Learner C testified as follows under cross-examination: She and Learner D were not really friends of Learner A but just knew one another. They invited Learner A even though they did not know her because they stayed in the same place. She saw Learner A come out of the applicant’s flat (building) the Friday afternoon. Although she did not know Learner A intimately she saw her a lot and could see on her expression that her face had changed. She asked Learner A on the bus why she was looking like that. She did not answer but when they got off the bus she said she would tell them at home. She did not tell them why she put the phone on loudspeaker when the phone rang that evening. She knew it was the applicant because he spoke about the hostel. Although there were other male supervisors at the hostel she knew it was the applicant because Learner A gave her number to the applicant that Friday for the tour stuff. Learner A did not tell her why she gave the number to the applicant. She knew about the tour because they spoke about it afterwards. Learner A indicated that the applicant called her, for if it was somebody else the name would have appeared on the phone. She also told them in the room after the call that she gave her number to the applicant. If Learner A had testified that she never told them that she pushed the applicant away when he kissed her, Learner A did tell them, as well that she pushed the applicant away. They knew that Learner A only gave her number to the applicant and not anybody else because she stayed in the hostel during the week. She queried who else she then would give her number to. During the conversation the applicant said he could fetch Learner A and then she could be at the hostel where he is. Learner A then responded no and that she is going home the Sunday. She was there the whole time and heard the whole conversation. She responded to Learner A’s evidence that she did not answer the applicant when he asked if she was missing him that she did answer the applicant since she was in the room. She heard the applicant ask Learner A that he would take her to the hostel and take her back home. She did not say that in her evidence because it would come back to her if she went deeper. Although she stated she had heard nothing further she admitted that she did hear him ask Learner A if she arrived safely. She had also forgotten to say that the applicant asked Learner A if she is in Pacs (Pacaltsdorp). Her story was true since she was present when the call was made, but it was a long time ago, her life went on and she could not think about it all the time, whilst it happened to Learner A and not to her. When Learner A ended the call, she herself said “God, that sir/mister” (“Here, daai meneer”). Learner D did not talk at all. They went to the sitting room afterwards to watch TV and did not still sit and talk in the room after the telephone conversation. She knew Learner B from school and from Fairview where she came from. Learner B lied if she said that she and Learner D sat together on the bus because she (Learner B) sat in the two seater opposite them at the end with her bags at the window. She spoke the truth that Learner B sat there. Learner A must have seen her but probably forgot. They did not take selfies as Learner B would testify, who may be talking about another weekend when they did take selfies. She and Learner D took selfies on another day. They did not make jokes and laugh on the bus and it was quiet on the bus. They were at ABs Tavern the Saturday evening. They drank beer and 1818 vodka with Leaner E. Learner A did not party like them and wanted to go home early. She, Learner C, did not go home with the others at around midnight.

29. No re-examination of this witness took place.

30. Ms X, Learner A’s mother, testified as follows under oath in her evidence in chief: She is currently a Domestic Worker working for Ms W Heunis. Learner A is her daughter. Learner A telephoned her the Sunday in March 2016, the date unsure, to ask if she could get off in Wilderness. This was strange to her and she wanted to know why but she would not tell her over the telephone. Learner A was coming from Sedgefield where she visited her cousins. She told her she could not get off there and must go to the hostel. Learner A went to the hostel and sent a Whatsapp message to her son the Monday. Her son came to her the Tuesday morning and told her there is something wrong with his sister and that she would come that afternoon and explain it to her mother. Learner A came home and explained the incident that the applicant kissed her. She at that stage did not really know who the applicant was since she had only seen him once at school and did not know his surname. She tried to calm her daughter down as she was not feeling well. Her daughter told her she was scared to go back to the hostel. She then decided to go to see the School Principal the Wednesday. The applicant telephoned the Tuesday evening at 21h30. She knew it was the applicant who telephoned since her daughter said it was his number and she could see she was full of fear. She answered the phone and when she did so he knew it was her answering. The applicant did not know her and they had only seen each other once at school. He asked where Learner A was and she said that she is at home. He then said he was worried and she asked why he was worried. He said it was because he did not see her in the dining hall. She then told the applicant that she was going to the school the next day to see the Principal and also wanted to see him. He asked that she must see him and she replied no, that she did not want to see him but wanted to see him and the Principal. She could not remember what the applicant’s reaction was to that because everything was recorded on her old telephone, of which recordings are in the the possession of Mr Jansen and the SAPS Detective Ms Janse. She then ended the call. She had recorded the call because her daughter had explained the events to her the Tuesday and when she said it was him she took the phone and recorded the call. She did not get the applicant’s permission to record the call. She did not have the phone on which the recording was made since it was on her old telephone which was presently at home. She first wanted to go to the school the Thursday but her daughter did not want to go to school the Wednesday so she decided to go on the Wednesday and her daughter then took the school bus to school. She herself went to the school by taxi. When she reached the school she asked for the School Principal. The Principal was inside the reception area and he asked what it was about and she said it was personal and he took her to his office. Her daughter was at school but not with them. She explained what had happened to the Principal and he called the applicant in. The Principal explained to the applicant why she had come to the school. The applicant said it was only a little fatherly hug and if her daughter felt like that he will take her to the psychologist and pay for that. At that moment she did not feel well since her daughter saw the applicant as a father figure and she discussed a lot of her personal things from home with him, which she told her about on Fridays. She found it strange that her daughter told their personal circumstances to an educator and then these kind of things happened. When she heard these things she was very cross and gave him back the R50,00 that he gave Learner A the Friday, which he took. According to her daughter the applicant knew that she was going to Sedgefield the weekend and he asked if she had enough pocket money for the weekend and she told him she had but not a lot. After the applicant had left the Principal called in her daughter. Her daughter explained the events to the Principal who asked if it was a fatherly hug. Her daughter said it was not a hug, but a kiss and that he tried to push his tongue into her mouth. At that stage she was only aware about the kiss and not about the tongue in the mouth. When she heard this she became very angry. She asked the Principal what she must do and whether she must go to the WCED herself but he said that he would deal with it and made the call. They also opened a criminal case with the SAPS. They withdrew the case on one condition. They told them in the first place that the Procecutor would only impose a fine on the applicant. In the second place her daughter’s school work suffered and she failed the first term. Her marks improved after the case was withdrawn. She believed her daughter when she told her about the incident with the applicant. The reason why she believed her was because she would always tell her if a boy was after her and she never had a boyfriend, not even now. When her daughter described the incident she was different, not the cheerful person that she always was, and became withdrawn. She believed her daughter’s version and not the applicant’s although she was not present when the incident happened. After the incident and the case was withdrawn her daughter became withdrawn, locked herself in her room, just took something to eat into her room and went to school the next morning. That is why she asked the Principal for a psychologist to see her daughter. Her daughter only received psychological treatment twice at school. She was not present during these sessions.

31. Ms X testified as follows under cross-examination: She was a Domestic Worker and had never received any training such as a psychiatrist or social worker to be able to observe or explain a person’s state of mind. She did not receive any report from the school from anybody who had observed her daughter. She confirmed that her daughter locked herself into her room after the incident. She did not know that the Saturday evening after the incident her daughter was at AB’s Tavern in Sedgefield and drank beer and partied there. In response to the version that her daughter’s testimony that she never locked herself up in her room and ate there she responded that her daughter only closed her room door and did not lock it. The other negative things that her daughter experienced as a result of the incident were that she did not go to the church youth group and life group, that her schoolwork deteriorated and that her daughter told her about nightmares. Her daughter did not really tell her about the psychological sessions and what happened during them except that she saw the psychologist twice. She repeated what her daughter told her happened in the applicant’s flat. Her daughter had started by saying that she must telephone the bus and about a child who came to buy chips at the tuck shop, the R50,00 and the kiss, that she pulled away and ran away to the other children. She did say that she pulled away and ran away in response to her daughter’s testimony that she walked away and did not run away. That was not all that her daughter told her but she could not remember everything. Her daughter went from school to Sedgefield and not Pacaltsdorp to visit her cousins and she told her that the applicant telephoned her and she put the phone on loudspeaker so that Learners C and D could hear the conversation, also that when she said “meneer” he told her she must not say “meneer” otherwise the other children will hear it is him, about if he can fetch her and is she in Pacaltsdorp with her sister. She did not know what would have happened if he had come to fetch her. She is dead certain that her daughter told the Principal that the applicant kissed her and tried to push his tongue into her mouth. She was shocked when her daughter also said in front of the Principal that the applicant tried to push his tongue into her mouth, as the kiss alone made her angry. Her daughter only told her about the incident on the Tuesday after it happened on the Friday and the Wednesday she heard at the school that the applicant also tried to push his tongue into her mouth. The applicant had said in the office that he gave Learner A a fatherly hug and not a sympathetic hug and the Principal had told him that educators may not do that. She was telling the truth of what was said in the office, which was different to what the Principal had testified. Her daughter told her she was going to Sedgefield for the weekend with her cousins. She had many cousins in Sedgefield. Learner A only discovered at school that she and Learners C and D were cousins (family). She did not know if the applicant was schocked when the Principal called him into the office since she did not know him to know if he was shocked. After the incident when her daughter got support and counselling her work improved a lot. She was aware that she got 29 % in two of her subjects and that she passed with a C average in the end of the year. She did not know if her daughter was condoned or put over so that she could improve her symbols to go to college. The State Prosecutor at the Court said that the applicant would just get a fine for what he had done in response to Adv Lourens’ comment that in his experience in the Criminal Courts sexual assault of an inappropriate kiss would not lead to a fine but at least a suspended sentence. She could not remember when she asked the Principal for psychiatric help, but it was probably about three weeks after the incident. She did not talk to her daughter immediately after the telephone call from the applicant on the Tuesday evening about the call as her daughter was sitting in a little heap at the foot of the bed.

32. There was no re-examination of this witness.

THE APPLICANT’S EVIDENCE

33. The applicant’s case was that on Friday afternoon 4 March 2016 the applicant enquired about the welfare of a previous learner, Learner A, and asked her how it was going at home, whereupon she replied that her parents were separated and that it was not going well financially at home. Because she mentioned that it was not going well financially the applicant enquired if he could make a financial contribution, to which she replied in the affirmative. The applicant told her that she must come and fetch the money as there were two other learners also present there at the Superintendent’s accommodation where he stayed at the hostel. She followed him into the bedroom, where he took the money (R50,00) out and gave it to her. As a result of what she had mentioned to him about her family circumstances, he gave her a sympathetic little hug (“simpatieke drukkie”), whereafter they left the room and he wished her and the other two learners present a nice weekend, to which they responded in the affirmative. He expressed his concern about Learner A later to Ms E Cloete, a Hostel Supervisor, since Learner A stayed in her block. Ms Cloete recommended that the applicant telephone the learner, which he did that same evening and asked her if if she was in Pacaltsdorp, enquired about her welfare, and informed her that they would come and fetch her if all was not well. The whole case surrounded whether the applicant kissed Learner A or tried to push his tongue into her mouth. The applicant denied that he kissed Learner A or tried to push his tongue into her mouth. Only substantive unfairness was alleged. The relief sought was that the applicant immediately be placed back into his post with retrospective compensation from the outcome of the appeal on 24 October 2016, when his salary was stopped.

34. Learner B testified as follows under oath in her evidence in chief: She was 17 years old. The Friday (4 March 2017) after school she fetched her bags from the hostel block where they slept and took them outside to wait for the bus. When she came outside she was called by Learner F and they went to the applicant’s flat. Mr Cupido was there and asked if they did not want to clean up the kitchen as there was something for them to eat. When they were in the kitchen Learner A and Learner G entered the kitchen. Learners C and D were outside. Learner A came to fetch a glass of colddrink from the kitchen for Mr Cupido. About 5 minutes later Learner A returned and made a glass of colddrink for Learner G and not long after that Learner A came to fetch a glass of water for herself. When Learner A left the kitchen she went into the sitting room. When they had finished cleaning completely she and Learner F left the kitchen and Learner A left afterwards. The applicant then said to them that they, being herself, Learner F and Learner A, must have a nice weekend, whereupon they in unison replied “yes, thank you”. Learner A moved out together with them. She did not see anything strange with Learner A, but only knew her from sight and did not really know her. Learner A did not run and they all walked. She went to her friends after that. The bus came later and she sat on the second seat from the window, with a space left open. Learner D sat at the end on the aisle, with Learner C in the middle and Learner A at the window in the row. When the bus pulled away Learner D came to sit in the empty seat next to her. Then Learner C moved to sit on the aisle and Learner A in the middle, with nobody in the seat where Learner A was previously sitting. Learner D said she was only going to sit next to her until Wilderness. When they reached Wilderness she asked Learner D when she was going to move because she wanted one of her friends sitting in the back of the bus to sit next to her. Learner D then replied that she was no longer moving. Learners C and D took selfies of themselves while they were sitting in the row, taken by Learner D. She and Learners A, C and D made jokes and everybody laughted together. That was all that happened on the bus and they got off at Sedgefield at the Shell garage. She did not know Learner C but only knew her from sight. She responded to the testimony of Learner C that she (Learner C) and Learners D and A sat together in one row on the bus on three seats next to each other and that she sat on one seat and had her bag in the open seat, that her bag was always in the front of the bus. Learner A was not quiet on the bus and participated in the activities of making jokes and taking selfies. They did not take selfies on another day and Learner D sat next to her and took her cell phone, turned and took selfies of just the three of them.

35. Learner B testified as follows under cross-examination: Her memory was not too good and also not too bad and she could make mistakes. Although this happened almost a year ago, she always sat in the same place on the bus. The applicant asked her to testify the Tuesday before this sitting of the arbitration, but this was not the first time he asked her, which she thought was in the middle of the previous year. He asked her to testify to what happened in the house (flat) on the Friday. She was in the kitchen when Learner A came out. She and Learner F walked from the kitchen out of the door, with Learner A walking in front of them. She was in the kitchen and not in the passage when Learner A came out. Learner A stood in the doorway with Learners C and D. She liked everybody and not only the applicant. She could not see inside the applicant’s room (bedroom) when she was in the kitchen and she would not know if anything happened in the applicant’s room. She knew from Learner A’s appearance that she was normal since she saw Learner A almost every day. Learner A smiled to her as on every day, went to Sedgefield with Learner D that day and talked as normal on the bus. She responded to Learner A’s testimony that she was not there when she (Learner A) came out of the room, that she and Learner F were present. The evidence of who sat where on the bus was important because Learner D does not normally sit with her and the person who normally sat with her was sitting at the back of the bus. The applicant did not tell her to testify about where they were sitting on the bus, because it was what had happened in the bus. The applicant did not tell her what to say at the arbitration. She was speaking the truth.

36. Learner B testified as follows under re-examination: She told Adv Lourens prior to the arbitration what happened that day in the flat and the bus and where they sat. It was therefore not the first time that she had been asked about the bus. One walked out of the door of the kitchen into the passage, which are adjacent. She stood in front of the sink when Learner A came out.

37. Learner E testified as follows under oath in his evidence in chief: He was at ABs Tavern Saturday evening 5 March 2016. He and his friend, including Learner A and her friends (Learners B and C), put in R50,00 to club in to buy beer and 1818 vodka. They had a nice party and Learner A also partied. By partying he meant that they danced together, drank together and shot pool. They were all drunk, enjoyed themselves, talked a lot and had a nice time together. He knew that Learner A and Learner D were together. Learner D and her boyfriend had argued during the time and the three walked out together. He did not know what time that was, but only that it was after midnight.

38. Learner E testified as follows under cross-examination: It would not be wrong if one went to a club to enjoy oneself if you had gone through a difficult time or if somebody had hurt you deeply or insulted you. It was not wrong for Learner A to relax that Saturday evening if it was alleged that the applicant had kissed her and tried to push his tongue into her mouth on the Friday. The Friday on the bus it did not look like something had happened from the way that Learner A and Learner D carried on. Nobody had discussed the case about the bus with him and he raised this because he had a good memory and still rode on the bus. He agreed that one did not have to sit in a corner if one had a difficult time and it was not wrong of Learner A to party and forget about the problems.

39. Learner E testified as follows under re-examination: One would forget about problems if one was nicely drunk. As an under-age minor one is in big trouble if one had been drinking in a tavern under age 18 years and one’s mother found out.

40. Mr R van Wyk, the applicant, testified as follows under oath in his evidence in chief: He had pleaded not guilty to all the charges brought against him, the main and alternative charges. On Tuesday 1 March 2016 he and Mr L Rothman were talking near the tuck shop outside the hostel flat where he stayed as Superintendent. A few learners were moving around the tuck shop. Learner A and one or two friends came walking towards the tuck shop. Mr Rothman commented that he did not know this specific girl Learner A and asked if she is staying in the hostel. Mr Rothman was previously a Supervisor at the hostel in 2015 and he told him that she is their current Deputy Head Girl at the hostel. He called her and told her to introduce herself to Mr Rothman, which she did do. Mr Rothman asked Learner A where she stayed and she answered in Wilderness Heights. He (the applicant) added that she used the school bus transport on a Friday and Sunday and gets off at the lagoon in Wilderness. Mr Rothman asked how she gets to her home, if she walks or uses vehicle transport since it is quite a way up to where she stays, to which she replied that she covers the distance to her home by foot. Since the surroundings are known to them, Mr Rothman also expressed the concern about the long distance that she has to cover and he mentioned that the houses stop at a stage and there is then a bush section on the steep uphill to Wilderness Heights. For him and Mr Rothman it was at that stage to do with her safety since it appeared that she had to cover the distance of about two kms on her own. She added that her brother accompanied her on some Sundays from their residence to the lagoon to get the bus there which comes from Sedgefield and transports the hostel learners. In his experience he knew that the bus sometimes arrives late and in the winter it gets later quickly and the bus some evenings only arrives at the hostel after 18h00 and 18h30. He asked her to give him her cell number so that he could inform her if the bus will be late or will depart later from Sedgefield. Some of the learners had his cell number and would normally inform him of the departure time of the bus. The idea behind her giving him her cell number was that she could find a safe place to wait when the bus was late. Wednesday morning 2 March 2016 while he was on the way to school he saw Learner A and a few friends and reminded her to bring her cell number to him so that he could contact her if the bus was going to be late. He also commented to her that the weather forecast indicated that it would rain over the weekend and should it rain, and because she had to cover the distance by foot, that he and some of the supervisors could use the hostel transport to drive her home. On Friday afternoons the school normally finished half an hour before the time for the learners and the teachers stayed on half an hour later, which meant that they got to the hostel half an hour after the learners. That Friday 4 March 2016 he therefore got to the hostel half an hour after the learners. The learners were already outside the blocks with their luggage to take home where they waited for the bus. On the way to his flat he saw Learner A and a number of children sitting on the steps. He walked to her and said to her she must not forget to please give her cell number. After that he went to the flat. While he was still at school Mr Cupido, one of the Hostel Supervisors who was also busy arranging a tour for the learners, asked for his flat key as there was tour administration which he wanted to complete which was inside the Superintendent’s flat. When he entered the flat Mr Cupido was in the sitting room busy with the tour administration. Two Learners, Learner B and Learner F, were busy cleaning up in the kitchen inside the flat and he assumed that Mr Cupido had asked them to do so. A short while after that he and Mr Cupido were in the sitting room when Learner A knocked on the door and entered the flat. He took one of Mr Cupido’s indemnity forms and gave it to Learner A to write her cell number on that for him. Mr Cupido was very upset because he used one of his indemnity forms for her to write her cell number on the back. Learner A wrote down two cell numbers for him and said to him that he must use the other number if he could not get her on the one number. In the presence of Mr Cupido he asked Learner A to help a learner who came in to buy Paaper Bites (chips). When she returned he took his cell phone out and gave her African Express’s telephone number. As he moved to the toilet he asked Learner A to quickly telephone the bus company and ask them to send the bus transport to the hostel since the learners were sitting waiting for the transport. When he returned he asked Learner A if she was alright and how it was going at home. She said that it was not going well since her parents were separated/divorced. He asked if they are coping financially as they are going through a divorce. She replied that they were not really coping financially and also mentioned that she was going to visit a friend Learner D over the weekend. He asked her if she needed a few cents and she said that she would appreciate it if he could give her a few cents (money). Because he did not have money with him and it was in his room he told her to come and fetch the money. He moved out of the sitting room to his room (bedroom) to get the money for her. He went to his bedside cabinet and took R50,00 out of his wallet, being two R20,00 notes and one R10,00 note. Learner A stood in the door of his room when he turned around. He gave her the R50,00 with his right hand, put his left hand around her shoulders and gave her a sympathetic little hug (“simpatieke drukkie”). The sympathetic little hug was because she was experiencing socio-economic problems, social because her parents were divorced and economic because they were not coping financially. He asked her if it was enough, to which she answered yes. She then left the room from where she was standing in the door and walked down the passage. When she was about two meters away from him he told her to enjoy the weekend to which she answered yes. Learner A walked out normally and just after she passed the kitchen Learners B and F walked out behind her and left the house. Learners B and F said goodbye to him upon which also said to them they must enjoy the weekend. They replied that he must also enjoy his weekend. Mr Cupido came out of the toilet into the passage when Learners B and F came out of the kitchen. The toilet was just diagonally opposite the door of his room. He and Learner A were in the sitting room when Mr Cupido left the sitting room and walked down the passage. Since he came out of the toilet he assumed that Mr Cupido was indeed in the toilet. The learners left the flat with Learner A in front followed by Learners B and F and Mr Cupido walked behind them. He then went to his bedroom to change from his formal dress. After a while the bus arrived and he stood on the verandah in front of the flat and saw the bus leave the premises. In the evening Mr Cupido and Ms E Cloete, who is also a supervisor at the hostel, came to visit him at the flat. They sat in the sitting room and chatted about various things, including the learners, amongs others Learners F and D. Ms Cloete mentioned that Learner D had also left the hostel and that Ms L Josephs, a Hostel Supervisor in whose block Learner D stayed, had informed her that Learner D’s mother did not know that she had moved out of the hostel. He said that Learner A is going to stay with Learner D for the weekend. Ms Cloete expressed her concern and she and Mr Cupido mentioned that learners had in the past visited other learners without their parents being aware of it. On Ms Cloete’s recommendation that he must telephone to get confirmation if Learner A indeed did visit Learner D he telephoned Learner A. He got her number from the numbers which she had written down and which he had saved on his cell phone. He telephoned Learner A from the hostel’s land line telephone which he used for hostel business in the presence of Ms Cloete and Mr Cupido. Learner A answered her cell phone and he spoke to her as follows: He said hallo, asked if she is in Pacs (Pacaltsdorp), if she is safe and if she was with her sister whereupon she said she is in Sedgefield with Learner D (using the latter’s nickname). He asked if she was OK and that if she was not OK or comfortable in Sedgefield that she could come to the hostel. By coming to the hostel he did not mean to his flat but with Ms Cloete where she normally stays there, since his daughter stayed weekends with him in his flat. He said to Learner A that if it was necessary he, Mr Cupido and Ms Cloete would fetch her in Sedgefield, but she answered that she was alright and would go back home the next day. After this the conversation ended and he had no further telephonic contact with Learner A over the weekend. It did not sound as if Learner A’s cell phone was on speakerphone and it sounded like a normal telephone conversation to him. He saw Learner A again the Sunday when she returned to the hostel with the bus while he and Mr Cupido and a few learners stood on the verandah at his flat. Learner A and three or four of her frineds moved behind the flat past the boy’s block when Mr Cupido called her. She and her friends moved towards them and Mr Cupido asked Learner A when she is going to bring her indemnity form for the tour to him. The learners including Learner A greeted them. Learner A looked at him but looked away again and he pointed out to her that if somebody greets him he would like them to look him in the eyes. Learner A said to Mr Cupido she will bring it as soon as possible, after which they moved towards their block. He had no contact with Learner A the Monday, although he saw her at the hostel. The Tuesday evening 8 March 2016 Ms Josephs sent him a whatsapp message in which she informed him that Learner F, a grade 12 learner, had not arrived yet at the hostel. He promised Ms Josephs he would follow it up and make contact with Learner F’s parents or guardian. He also during the study session noticed that Learner A was not in the study hall. He asked Ms Josephs to make contact with Ms Cloete to find out if she had any knowledge why Learner A was not in the study hall. This was not strange since he during study sessions did an inspection to look specifically which learners were not present. Around 21h30 that evening Ms Josephs informed him that Ms Cloete had investigated and found that Learner A was not in the block. He telephoned Learner F’s guardian on her cell phone but it was on voice mail. He after that telephoned Learner A on her cell phone. It sounded to him like an adult person who answered the phone and he made the deduction that it was her mother. He asked the mother if she is aware that Learner A is not at the hostel. The mother did not really give him an answer and said to him that she had an “appeltjie met my om te skil” (“has a bone to pick with me”). He said to the mother if she has a problem that his door is open and she can come and sort it out with him. She did not mention what the bone was that she wanted to pick with him. According to Mr van Rooyen the Principal this conversation was recorded. The mother told him that she would not come to him but will go to the Principal, upon which he replied that she had the right to go to the Principal if she had a problem. On Wednesday 9 March 2016 Mr van Rooyen called him to his office around 09h00. When he entered the office Mr van Rooyen said that the mother sitting in his office alleged that he kissed Learner A and pushed his tongue into her mouth. The Principal said that he pushed his tongue into her mouth. He was very shocked when he heard these words and vehemently denied that he did not do that. He said to Mr van Rooyen in the presence of the mother that he gave Learner A a sympathetic little hug due to her socio-economic situation. The mother gave a R50,00 note (not the same R50,00 that he gave Learner A) to him and said she is giving the money that he gave to Learner A back to him again. He took the R50,00 back and said to her that he had meant well to give the girl the R50,00 because she had told him that she had only a little bit of pocket money and did not get a lot from her mother. He then left the office. The mother was more than 2,5 to 3 hours in the Principal’s office. A bit after 11h45 when he saw the mother come out of the office and she had left he went to Mr van Rooyen and told him that he was innocent. Mr van Rooyen raised his shoulders and said to him it looked like the mother came there with a pre-prepared letter which was possibly written by her employer. He also said to him that the telephone call which was recorded was very vague and you could hardly make out anything around this conversation. He assumed that they had laid a complaint with the respondent. Thursday on 10 March 2016 around 18h00 Mr van Rooyen ordered him to the staff room where some members of the school governing body were sitting. Mr Noble the Chairperson of the governing body was the spokesperson and informed him that a complaint was lodged against him by Learner A with the respondent and that he must immediately leave the hostel premises. This happened before the investigation into the allegations were concluded. He objected to the fact that he must immediately leave the premises and that it was unfair and inhumane since he would have to sleep in his car, which they then deferred to the Sunday for him to leave the premises. Regarding the tour money, around middle February 2016 he was sitting outside on the verandah and Learner A and Learner G spoke to Mr Cupido and Mr Cupido told him the two girls wanted to address him. They went into the sitting room with Mr Cupido where Learner A said to him she very much also wanted to go on the hostel tour but that she did not possess the necessary finances and if he could support her financially to go on the tour, of which the costs would be R1500,00. He said to her immediately that he could not provide the full amount but would make half the amount of R750,00 available to her. He also mentioned that he and Mr Cupido would possibly look if they could obtain sponsors or a sponsor for her. This was not the first learner whom he had helped financially and did not find strange that he offered help to Learner A, with her not being an exception. He mentioned the names of other learners whom he had helped financially, girls and boys. Learner A in his presence on Monday evening 7 March 2016 returned her indemnity form for the tour to Mr Cupido. The reason he told Learner A to come and fetch the money in the room on 4 March 2016 was because there were other learners in the kitchen, she was already a matriculant at that stage and he did not know how the other learners would feel if he gave the money to her in front of the other children. His knee was also a problem and he could not move around easily that day which is the other reason why he asked her to come fetch the money inside. He however under no circumstances told her to come and fetch the money in the room. He had asked Learner A the Friday evening over the telephone in the presence of Mr Cupido and Ms Cloete if she is in Pacaltsdorp since Ms Cloete had said they must establish if she is in Sedgefield and that he must establish in a round about way if she is really in Sedgefield. He had also told Learner A on the telephone that they will come and look the Saturday if she is indeed in Sedgefield, which they, meaning himself, Ms Cloete and Mr Cupido, did not do. He definitely did not ask Learner A the Friday evening over the phone whether she was missing him. Mr Cupido was definitely inside the flat and was present when Learner A wrote down the two numbers for him and was not outside sitting on the steps as Learner A had testified. He received no tour papers from Learner A as she had testified. Mr Cupido was busy with tour administration and the indemnity forms, which were part of it, lay on the table in the sitting room where he and Mr Cupido stood with Learner A around the table. Mr Cupido was the main organiser of the tour and just reported to him as Hostel Superintendent. Learners B and F were still inside the flat in the kitchen when Learner A left and went behind her after she left the flat. He did not tell Learner A to come inside the room to get the money because he did not want the other children to see him giving her the money, but told her in the sitting room that he would fetch the money for her, when she followed him to come and fetch it. He denied that he told Learner A to not act like that when she left the room after receiving the money. He was not going to say to a learner over the telephone that she must not say “meneer” in the presence of two colleagues. He also did not know that the telephone was on speakerphone and only heard this during the disciplinary hearing. He had said to Learner A that if she is not happy there then they could come and fetch her and he never said she must come and stay with him. It appeared to him that Learner A had made the allegations, which he denied, to incriminate him because she was looking for reasons to get away from the hostel. Learner A was well aware that he was removed from the hostel, yet she did not return to the hostel when she had the opportunity to do so. In the telephone conversation with Learner A’s mother he could not establish if she was angry or not since it was the first time that they spoke and according to him it was a normal conversation like civilised people. He offered to pay for counselling for Learner A in the Principal’s office given the nature of the allegations which were made, and which he had denied, that if she felt like that about a sympathetic little hug that he he would pay for professional help in the light that she was a matriculant. This was the first complaint lodged against him for which he had to appear in a disciplinary hearing and he never signed a warning, with his school work always being up to date. He had put his heart and soul into the hostel and wanted to make a difference in terms of the social, religious and financial aspects at the hostel. There were two things which he said to himself which he would not want to be dismissed for, the charge which he was currently here for and for finances which are not in order.

41. The applicant testified as follows under cross-examination: He was divorced children, with his eldest daughter 30 years old. Her mother is 50/51 years old. The mother matriculated at the same school where he was. He did not have a relationship with her when she was in matric. He repeated the evidence presented in his evidence in chief surrounding the incident, adding the following: Mr Rothman was a visitor to the school at that stage and still helped out at the school in a relief capacity. He asked Learner A to introduce herself to Mr Rothman because Mr Rothman had said that he knew most of the children at the hostel but did not know Learner A. He did not find it strange that Mr Rothman wanted to know where Learner A stayed and that he told Mr Rothman where she got up and off the bus. Mr Rothman was known to Learner A since he was a Supervisor at the hostel when she was there in 2015, but she was not known to Mr Rothman. He agreed that Learner A’s version regarding where Mr Cupido was on Friday 4 March 2016 differed from his because Learner A testified that Mr Cupido was not in his flat. Although Learner A had said that they had many discussions, he did not have that much contact with her to really get to know her, but he got to know her as someone who could communicate with people, she had friends and practised sport. She appeared quiet the few times he saw her but she was definitely not withdrawn. Learner A never said to him that she had R100,00 for pocket money, but that she had a few cents for pocket money but that it was not enough and that she would appreciate a few more cents. He would have paid half of the tour money of R750,00 for Learner A since he had promised to do so. He did not pay the money to her because he was prohibited from the hostel and there was no further contact between him and Learner A because of the complaint that she lodged. It did come out in Learner A’s evidence that she very much would have liked to have gone on the tour to Cape Town but she also said that she wanted to go the one moment and not go the next moment, and that she regularly made such decisions. After Learner A said she would appreciate more pocket money he went to fetch the money and she followed him. He told her in the sitting room to come and fetch the money because he did not have money with him at that stage, which was in his room. He explained again what happened inside the room between him and Learner A. When asked if he had permission to touch any part of the body of a learner he replied that they lived in a completely different world after 1994 and that children were much more open and it happened 100 times that learners even when they returned on Sundays from their homes would not only give him but the other supervisors a spontaneous hug. He did not know why she would carry on like that if he only gave her a sympathetic hug and that it was her perception, and he had his own perception of what happened there. Learner A was definitely not upset when she left his residence and she walked out as a normal person. The alleged incident happened before the tour took place. In response to the question why she would make such an allegation against someone who would give her the opportunity to go on a tour to Cape Town he responded that one could expect anything from a person who testified that she makes a decision one moment now and the next moment that. There had been no altercation between himself and Learner A before the incident. The possible motive was that Learner A had said to the Hostel Matron the Thursday before the incident that it was not nice at the hostel anymore and that she does not want to stay at the hostel anymore, which discussion Learner A had testified she could not remember. He did not make known to the mother and the Principal that he intended to give half of the tour money to Learner A. He did not inform the Principal since he expected that the learner or Mr Cupido would do so if necessary and that the learner would inform her parents. In response to the question on whether he as a male person had the right to touch any part of Learner A’s body he stated that she had the right to say to him that she does not like it, but she at that stage did not say that she did not like him giving her a hug. She did not say that he kissed her and pushed his tongue into her mouth but did say thank you for the money. In response to the question that he was aware what happened to his brother and did not see anything wrong when he invited a girl to his room and in his version gave her a hug, that he did not invite her to his room but only said to her she must come and fetch the money. She could have stood in the passage when she came to fetch the money and he did not expect her to come into his room when it was her first time in his residence and he expected her to stand in front of the door in the passage which is why he fetched the money to hand to her. He did not tell her to wait in the passage but only to fetch the money. He did not expect her to slavishly follow him. She was not really inside the room and stood at the door. If he wanted to be violent he could have pulled her into the room. Because there were two other learners in the residence he would definitely not do something like that. Learner A could have become aggressive and ran out of the house with learners standing outside, which would have directed attention to her and indicated that something abnormal must have happened inside. He agreed that it was Learner A’s version that Mr Cupido was never in the flat and that the two other learners were gone when she left the room, but that it was also her evidence that she could not remember everything. He did not ask Ms Cloete to telephone Learner A the Friday evening but as Superintendent of the hostel he normally did the telephoning if he must communicate with parents or learners unless he is too busy and he would ask the supervisors to do that. He did not try to contact the parent to find out if Learner A had permission to go to Sedgefield since he did not have the parent’s telephone number. He did not ask Learner A for the parent’s telephone number and wanted to find out from Learner A herself is she is really in Sedgefield in case the parent reverts and calls him if the learner is not in Sedgefield. His concern was for all the learners at the hostel and not only Learner A. He had no need to call all the other learners on the bus to find out where they were because they did not tell him that they are going visiting for the weekend. In response to the statement that it was the most probable that he was worried what happened that afternoon, which is why he telephoned Learner A, he stated that his only concern was if Learner A was really in Sedgefield, which was provoked by the his two colleagues and the discussion that they had around learners, in particular Learner D. He had invited the mother to say what the problem was during the telephone call of 8 March 2016 when she said she had a bone to pick with him, which she had the right to tell him at that stage. For him it was more important to know that Learner A was safe. When the mother said she will come to see the Principal he never said she may not go to the Principal and told her she had the right to do so. He mentioned the length of time which the mother was at the school on the Wednesday since he was aware that a principal is not supposed to launch an investigation into such cases and for him it appeared that the Principal was busy launching an investigation into the matter. He agreed with the content of his appeal letter of 12 August 2016. According to that document he had a problem with the sanction because he was found guilty and was prepared to accept demotion to Post Level 1 for the sake of retaining his work. He did not also oppose the finding of guilt in the appeal because he was guided by his Union at the time on what could be submitted in an appeal. In their telephonic conversation he had told his Union representative that he was innocent and not guilty and he eventually agreed to his representative’s recommendation for the sake of the appeal. He took exception to the version that he had an unhealthy relationship with Learner A due to her personal life and targeted her for a relationship with him since it was never his intention in any way to establish relationships with any of the learners or a learner, in particular when he was aware that he could lose his work. He also never groomed this learner (for a relationship). All that he did was ask and never demanded that this learner make her cell phone number available to him so that he could inform her if the bus transport departed later than scheduled. As Superintendent he was not only involved in the life of learner A but all the learners and she was no exception. What he knew about Learner A was what she revealed to him on 4 March 2016. He for the first time heard that her mother was a housekeeper during the disciplinary hearing, and for the first time heard she had a brother on 1 March 2016 when she said her brother sometimes took her away to the bus on Sundays. He never knew her financial status so the idea that he was totally involved with her was not the truth. He responded to the statement that he liked young ladies that tastes differ and he could not see where that came in. He was 55 years old and there were 1, 5 and 7 years’ difference in the ages of the ladies who were truly in his life. It was Learner A’s perception that she regarded him as a fatherly figure. He confirmed his version that he only gave Learner A a sympathetic little hug and never had the intention to in any way kiss her and/or push his tongue in her mouth since it was not his style, he had a lot of respect for the female gender and tried to be a law-abiding citizen.

42. Mr van Wyk testified as follows under re-examination: He had taught for 31 years. With reference to his brother, he had never been charged for any sexual incidents involving children and would not in this manner lose his source of income. What he did for Learner A he did for other learners. His intention with Learner A was to see if she could get home safely. She had declared her need which is why he offered the few cents to her. He also offered her help when she approached him for the tour, which he would have done for any of his other learners. He and Learner A had contact three times with one another, including the day of the incident, within the course of one week. Except for the incident there were other learners present whilst Mr Cupido and two other learners were in the flat at the time of the incident. It would be absurd that he would be able to groom a 18 year old for a relationship in the presence of her friends and/or other learners. He had helped other learners and workers (staff) like he had helped Learner A, of which some of the supervisors were aware. Learner A only revealed the personal information about her parents to him on Friday 4 March 2016 and not long before the time. He would call the parents of hostel learners if they transgress the hostel rules, are involved in drugs, cause disciplinary problems at the hostel or with supervisors, when a learner is sick or hospitalised, if learners get behind with their payments for the bus transport and if they had absconded from the hostel. It was not necessary for him to call Learner A’s parent(s) except for the evening after when there was a discussion around learners who go to friends over weekends without the permission of their parents. He did not believe there was an obligation on him to make it known to the parents if he made donations to learners. He had expected that if Learner A was for the first time in his residence and he had told her to come and fetch the money that she would come between the toilet and door of the room to wait in the passage, but not inside the door. He would definitely not tell a matric learner in a civilised environment to follow him but wait outside the room. He believed she had norms and values which her parents taught her which she would have applied. His instructions to his Union representative for the appeal letter was that he must confirm and emphasise that he never kissed the girl nor pushed his tongue into her mouth, and it was said in the appeal letter that he was not guilty but that he would be prepared to accept a lower position to retain his work. He did not have an unhealthy relationship with Learner A and treated all the girls on an equal basis, with his door open to any learner who needed to communicate with him. In most cases he always ensured that there was another person (witness), whether another learner or a supervisor, with him should girls come to talk to him or he spoke to them. He explained the nature of the discussions when girls approached him for financial help. He normally started a discussion with a learner on how he/she is and how it is going at home, with valuable information obtained sometimes when learners open up then. As Superintendent he believed that he should know and be aware of the home circumstances of learners. When he touched Learner A his intention was to say to her he was sorry about the circumstances in which she found herself since he as divorced person experienced the conflict with his children and how he as father had reached out to them and still have a healthy relationship with his children. In his opinion, after death, a divorce is the most traumatic experience which one can have, which is why he had sympathy and empathy for Learner A. It was not strange when Mr Rothman enquired about Learner A because they wanted to know where the children stay. It was not out of character for Mr Rothman to ask about Learner A and that he had not seen her before, since he as Superintendent did not know all the 160 learners at the hostel and one saw a new face day to day. As to the motive why a learner who he was good to would accuse him falsely, it appeared that Learner A was unhappy and as the Hostel Matron would testify that she no longer wanted to be at the hostel, whilst the person whom she was scared of was removed from the hostel. She had the opportunity to go back to the hostel, which her mother would have wanted because her mother had said that it would be better for her at the hostel. This could also have been in the light that her friend Learner D had at that stage moved out of the hostel to stay with Learner C and she preferred to no longer live under the rules of the hostel and spend more time with Learners D and C, therefore she had to find a reason to convince her mother that she no longer wanted to be at the hostel.

43. Ms E Cloete, Hostel Supervisor, testified as follows under oath in her evidence in chief: She was present and aware of the call made to Learner A the Friday evening of 4 March 2016. She and Mr Cupido were in the applicant’s sitting room that Friday evening. They spoke about the welfare of the learners and Mr Cupido said he was very upset because Learner A wrote her telephone numbers on the tour pages because he only had a few of the pages left. This was around when the Afrikaans news was on television. That is when the applicant mentioned that Learner A is in Sedgefield for the weekend and that he also gave her R50,00. The applicant also asked if they were aware that Learner A’s parents were separated and she replied that she was not aware of that. She asked the applicant with whom Learner A was in Sedgefield and he answered that she was with Learner D. She told the applicant that the lady with whom Learner D stayed informed her that Learner D left the hostel without permission and sometimes made as if she was going to the hostel and did not arrive there. The lady also told her that she informed Learner D’s mother and that her mother did not know about this. That is when she suggested that the applicant telephone Learner A to find out if she is indeed in Sedgefield with learner D. She told the applicant that he must approach it in a round about way and to ask whether Learner A is with her sister in Pacaltsdorp to find out if she is in Sedgefield. She also said that if Learner A is not OK then the applicant must tell her that they will go and fetch her and she can stay at the hostel. That is when the applicant telephoned from the flat land line after looking up the number on his cell phone. She heard the applicant say the following to Learner A over the telephone: “Good evening, how is it going, are you OK, are you with your sister in Pacs (Pacaltsdorp), are you with Learner D, if you are not OK, we can come and fetch you, then you can come and stay in the hostel, we will come and look the next day if you are indeed in Sedgefield”. The applicant then said goodbye, rang off and told them that she is OK and is in Sedgefield, which was the end of the conversation. A while after that she went to her room where she stayed in Block 1. She was Learner A’s Hostel Supervisor. She did not see Learner A the Friday at the hostel but the Tuesday when she sent Learner A to get another learner to put her (Ms Cloete’s) bag in her room. Learner A left the hostel on the Tuesday without permission. She realised this when Learner A was not in the hall on the Wednesday. She was on duty the Tuesday and Learner A stayed in her block. Learner A did not ask her to leave the hostel and she did not give her permission to do so. She did not see Learner A in the hostel again after she left without permission.

44. Ms Cloete testified as follows under cross-examination: During the day she worked at the school. She was busy with her B Ed degree and was not an educator yet. When the applicant spoke to Learner A over the telephone she at no stage spoke to Learner A. She would agree that Learner A could not confirm that she was present. She could also not add anything more to the incident surrounding the kiss and tongue in the mouth because she was not present at the time of the incident.

45. There was no re-examination of this witness.

46. Mr R Cupido, former Hostel Supervisor, testified as follows under oath in his evidence in chief: The Friday 4 March 2016 he asked for the applicant’s flat key and went to complete the tour things in the front room. He asked Learners B and F to clean the kitchen for him and then finished the tour matters in the front room. The applicant came from the school and then Learner A also came into the front room with him and wrote two of her telephone numbers on his tour indemnity forms. He was very upset because she wrote on his forms because he did not have a lot of them and she also had to get one. Learner A said to the applicant at the time that if he could not get her on the one number he must try the other. He specifically remembered the pink and purple pen that she wrote with in ink. That afternoon Learner A helped another learner with Paaper Bites and when she returned the applicant asked her to phone the bus and while she was behind the couch at the telephone he walked out of the front room to the toilet. While he was in the toilet he heard the applicant ask Learner A in front of the toilet door if it is enough and she said it “probably is sir” (“seker ja meneer”). When he came out of the toilet he saw Learner A in the passage at the kitchen door. The applicant came out his room and was also in the passage when he came out of the toilet. Learners B and F also came out of the kitchen and all five of them were out in the passage, with Learner A in front past the kitchen going towards the door. The applicant said to them they must have a nice weekend and Learners B and F said, “sir also” (“meneer ook”) when they all were out. That evening he went to the applicant’s flat and he and the applicant sat in the front room. Ms Cloete came to join them and they spoke a little bit. It was around the news time on television and they spoke about the welfare of the children. He said he was so cross about Learner A who wrote on the tour forms. The applicant told them that Learner A went to Learner D in Sedgefield. Ms Cloete then said that the lady who Learner D stays with told her that Learner D does not come to the hostel and is unreliable. The applicant told them he gave Learner A R50,00 and Ms Cloete said the children are never where they say they are and recommended that the applicant telephone Learner A to find out where she really is. The applicant telephoned her from the house phone behind the couch and asked the following of her: “Are you with your sister in Pacs, are you OK are you with Learner D (using her nickname), if you are not safe that we can come and fetch you and you can sleep at the hostel”? The applicant then ended the call and said no, she is with Learner D. They would have gone to fetch Learner A the next day. They did not go and fetch her because she said she was OK and assured them that she said where she was. He saw her after the Friday on the Sunday. He called Learner A across the Sunday and asked where the indemnity form was because she would also have gone on the tour. She said she would bring it to him and they went to Checkers the Sunday. She then brought the indemnity form to him the Monday evening. He did not see Learner A again after the Monday evening. He was Hostel Supervisor and tour leader at the time of the incident.

47. Mr Cupido testified as follows under cross-examination: He was no longer in the employ of the respondent and was in dispute with the respondent. He went to the toilet in the applicant’s flat (on 4 March 2016) to relieve himself and was there for about three minutes. The door was closed and he would not have seen if anything had happened in the bedroom. He would not know if the applicant had kissed Learner A and tried to push his tongue in her mouth. He saw nothing but heard the applicant ask Learner A if it is enough and she said “probably yes sir” (“seker ja meneer”). He had a reasonable memory. He was certain that Learner A was on the way to Checkers on the Sunday since she told him so. He admitted he could have been wrong if the applicant’s testimony was that they came from Checkers. He was however not wrong about the telephone call. He at no stage spoke to Learner A himself at the time of the telephone call but was present when the applicant made the call to Learner A. He agreed that he could not contribute to the incident about the kiss.

48. Mr Cupido testified as follows under re-examination: He could have heard if something had happened because the conversation between the applicant and Learner A was very calm and when he came out she was quite calm.

49. Mr L Rothman testified as follows under oath in his evidence in chief: The afternoon before supper around the first week of March 2016 at about 16h00 he and the applicant sat in front of the house where the applicant stayed at the hostel. At that stage they were in the process of arranging an educational tour to Cape Town for the children. His position at the hostel at the time was as relief Hostel Supervisor after the previous supervisor Mr Barnes left. Prior to that he was Hostel Supervisor for six months from July to December 2015. They sat and spoke there and some of the children walked up and down. When he saw Learner A walking along he commented that she looked like a new person to him. The applicant called her and asked her to introduce herself to him. The applicant said she was the Deputy Head Girl at the Hostel. He asked her where she was from and she said from Wilderness Heights. Because they knew the area they asked her how she came from her house the Sunday afternoon to where the bus picked her up. She explained amongst other things that she walked from their residence the Sunday afternoon to where the bus picks them up at the lagoon area when it comes from Sedgefield and that sometimes her brother accompanied her, but not always. The applicant asked specifically on rainy days and when the bus came late it would be good for her to give her telephone number to him so that he could make arrangements with her when the bus will be late. The conversation was basically about the safety aspect because from the bottom of Wilderness to the top of Wilderness Heights where she stayed there is an area with no houses and bush alongside the road. She left after they finished talking to her and she would later give the telephone number to the applicant. He could not remember if it would be later that same day of later in the week, but it would be later. It was not mentioned during this conversation that the applicant was going to help Learner A with R50,00 pocket money, but it was not strange for the applicant to offer financial help to learners. He provided examples of assistance to two girls and a boy in which he was involved in where the applicant did not hesitate to offer help with either the provision of his vehicle or a financial contribution where there was a need.

50. Mr Rothman testified as follows under cross-examination: He could not shed any light on the complaint that the applicant kissed a learner and tried to push his tongue into her mouth since he was not present. In 2016 when he relieved as Hostel Supervisor the applicant was his senior. He responded to the statement that he came to blow the applicant’s trumpet and could not assist with the charges against the applicant, that there were also several boys involved who the applicant assisted and the assumption that the applicant only assisted girls was completely wrong.

51. Mr Rothman testified as follows under re-examination: His purpose at the arbitration was not to glorify the applicant nor to blow the applicant’s trumpet, but to present the truth which is known to him.

52. Ms E Swarts, Hostel Matron, testified as follows in her evidence in chief: She had been the Hostel Matron at George Secondary School for the last ten years. To date she had worked under nine hostel superintendents. She knew Learner A. On Thursday 3 March 2016 Learner A was with her during the first break to eat at the feeding scheme. Learner A said to her that she is going home. She asked her why she was going home since she went home on Fridays and Learner A responded that she was going home since she no longer wanted to stay in the hostel and would be going home the next day (Friday 4 March 2016). She asked Learner A what the reason was that she no longer wanted to live in the hostel and she told her it was no longer nice at the hostel. After that Learner A went back to school. They went home the Friday and she did not see Learner A again after that. The next Friday the Principal Mr van Rooyen informed all the hostel staff, including herself, that the applicant will no longer be the hostel superintendent from the Monday. She did not ask Mr van Rooyen what happened and why the applicant was leaving. Mr van Rooyen told them that Mr Prins would oversee the hostel from 14 March 2016.

53. Ms Swarts testified as follows under cross-examination: She did not ask Learner A anything further about it when she told her it was no longer nice at the hostel. She agreed that she could not make any contribution to the arbitration and could not make any deduction either why Learner A said it was no longer nice at the hostel.

54. There was no re-examination of this witness.

CLOSING ARGUMENT

55. Written closing arguments were submitted by both parties to the ELRC and forwarded to the arbitrator by the agreed due date of 18 October 2017. These closing arguments are not repeated here for the sake of brevity, but have been taken into account in arriving at the award.

ANALYSIS OF EVIDENCE AND ARGUMENT

56. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the dismissal of the applicant, Mr R van Wyk, by the respondent, the Department of Education - Western Cape, for alleged misconduct was fair on subantive grounds only and to grant the appropriate relief if unfairness is found.

57. From the outset I am aware that this matter poses particular challenges, such as the testimony of single witnesses surrounding an incident during which only the applicant and the complainant Learner A were present, the testimony of child witnesses, albeit if some of them were at the time of the arbitration no longer children as defined in the Childrens Act 38 of 2005 (the CA), the application of the principle of the best interests of the child as contained in section 28(2) of the Constitution of the RSA which even if not raised by the parties I am still bound to consider, the reliability and credibility of the evidence presented by the parties’ witnesses as well as the probability of the parties’ respective versions (as opposed to the test of the balance of probabilities).

58. I am also mindful of the main and alternative charges which were brought against the applicant, to which he pleaded not guilty in his disciplinary hearing and of which he was only found guilty of the main charge at the conclusion of that hearing, which are repeated here for ease of reference:

CHARGE 1

It is alleged that you are guilty of misconduct as described in section 17(1)(b) of the Employment of Educators Act 76 of 1998 (as amended) (hereinafter referred to as the Act) in that you committed an act of sexual assault in respect of a learner during March 2016 by kissing learner A a learner associated with George High School on the mouth and had also attempted to insert your tongue into her mouth.

FIRST ALTERNATIVE CHARGE TO CHARGE 1

It is alleged that you are guilty of misconduct as described in section 18(1)(dd) of the Act in that you made yourself guilty of a statutory offence namely statutory sexual assault in that you during March 2016 kissed learner A, a learner associated with George High School on the mouth and had also attempted to insert your tongue into her mouth.

SECOND ALTERNATIVE TO CHARGE 1

It is alleged that you are guilty of misconduct as described in section 18(1)(q) of the Act in that you during March 2016 whilst you were on duty acted in an inappropriate, scandalous or unacceptable manner by kissing learner A, a learner assocated at that stage with George High School on the mouth.

59. Section 17(1)(b) of the Employment of Educators Act 76 of 1998 as amended (the EEA) under Chapter 5 Incapacity and Misconduct relating to serious misconduct, reads as follows:

17. (1) An educator must be dismissed if he or she is found guilty of –
(b) committing an act of sexual assault on a learner, student or other employee;

Dismissal is therefore in terms of the EEA automatic if an educator is found guilty of such an offence.

60. Sections 18(1)(dd) and18(1)(q) of the EEA relating to misconduct as referred to in the alternative charges read as follows:

18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she-
(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner;
(dd) commits a common law or statutory offence;

61. Section 18(5) (d) of the EEA states further as follows:
(5) An educator may be dismissed if her or she is found guity of –
(d) rape, as contemplated in subsection (1) (dd);

The interpretation of statutory sexual assault referred to in the First Alternative Charge to Charge 1 is therefore clarified as constituting rape.

62. I also refer again to the facts which were established and agreed as being in dispute at the commencement of the arbitration, being as follows:

• Whether the applicant kissed and attempted to push (insert) his tongue into Learner A’s mouth during the incident of 4 March 2016.

• Whether the applicant’s telephone conversation with Learner A the evening of 4 March 2016 was overheard by two other female learners, referred to as Learner C and Learner D, at Learner D’s residence, as well as what the content of that conversation was.

• What the content of the applicant’s conversation with Learner A’s mother, Ms X, was the evening of 8 March 2016.

• What the reason was why the applicant offered to pay for psychological treatment for Learner A.

• Whether Ms E Cloete a Hostel Supervisor was present the evening of 4 March 2016 when the applicant telephoned Learner A from his Hostel Superintendent’s accommodation.

• What Learner A’s interaction was with Learner B, who was present in the Superintendent’s kitchen, immediately after the incident and afterwards in the school bus on 4 March 2016.

• What the reason was why the applicant requested a telephone number from Learner A prior to the incident of 4 March 2016.

• Whether the applicant had committed the offence that he was charged and dismissed for.

• Whether the applicant’s dismissal was unfair on substantive grounds only.

63. Based on the evidence presented during the arbitration clarity was obtained regarding most of the disputed issues, with the following main disputed facts remaining:

• Whether the applicant kissed and attempted to push (insert) his tongue into Learner A’s mouth during the incident of 4 March 2016 (read with whether the applicant had committed the offence that he was charged and dismissed for); and

• Whether the applicant’s dismissal was unfair on substantive grounds only.

64. Considerable evidence was presented by the parties over this lengthy arbitration, with extensive cross-examination by the parties’ representatives to test the credibility, reliability and consistency of witnesses’ evidence and the probability of the key witnesses’ versions, being the applicant and the complainant Learner A. A considerable amount of peripheral evidence was also presented to highlight possible discrepancies and inconsistencies in witnesses’ testimonies. I will however focus on the main fact in dispute, namely whether it was probable that the applicant had committed the main charge of misconduct as alleged by the respondent, alternatively whether the applicant was guilty of the alternative charges of misconduct.

65. In Learner A’s version the applicant did kiss her and attempted to insert his tongue in her mouth in or at the entrance of his bedroom on Friday afternoon 4 March 2016. In the applicant’s version he only gave Learner A a sympathetic little hug in sympathy/empathy with her socio-economic circumstances and denied that he kissed or attempted to insert his tongue into her mouth.

66. It became common cause that there were no other direct witnesses to the incident. In both parties’ versions two learners, Learners B and F were in the kitchen of the applicant’s hostel accommodation/flat at the time of the incident. It was confirmed that they were out of view and earshot and were therefore unaware of the incident. The evidence of the applicant’s witness Mr Cupido was that he was in the toilet diagonally opposite to the door of the applicant’s bedroom, with the toilet door closed, at the time of the incident and only overheard the applicant asking Learner A if it (the money) was enough and her reply of “probably yes sir” (“seker ja meneer”). He testified that he heard nothing else and that he was behind Learner A and saw her leave in a normal unhurried manner when he exited the toilet. He agreed too that he could not make any other contribution to the actual incident. In the respondent’s version Learner A had denied that she saw Mr Cupido, either in the flat or around the time of the incident. It is probable that she may not have been aware that Mr Cupido was in the toilet at the time of the incident and that he may have moved to the toilet before she and the applicant moved towards the bedroom. As to why she denied that Mr Cupido was present in the flat, whereas other witnesses testified that he was when she was there, remains unexplained but is not regarded as material to confirm that there were no other direct witnesses to the incident and that the evidence of single witnesses applied to the disputed incident.

67. In these circumstances there were only two single witnesses to the incident, being the applicant and Learner A. The complainant Learner A could be regarded as a child witness. The ELRC took the precaution of arranging an intermediary to be present when the four former learner witnesses testified. Their ages varied from 17 years to 19 years at the time of the arbitration. Most of them would have been below 18 years of age at the time of the incident on 4 March 2016 and were still schoolgoing during 2016. I will therefore adopt the conservative approach and treat them as child witnesses, with the relevant principles to apply, but not to the extent which would apply to much younger children, with the test for a child to be regarded as a competent and compellable witness being not the age of the child but whether they appreciated the duty to speak the truth, have sufficient intelligence and can communicate effectively, with reference to section 164(1) of the Criminal Procedure Act 51 of 1977 (the CPA). Ms Wentzel, the appointed intermediary, assessed all the former learners, being Learners A, B, C and E before they testified and was satisfied that they were capable of independently and truthfully testifying under oath in the arbitration.

68. Reference is made to the resource material Child Witnesses in Labour Arbitration Proceedings produced by Mr Eugene van der Berg, Attorney of the High Court and Senior Lecturer: Public Law NMMU (2016), Schwikkard et al Principles of Evidence 451 (2016) Juta, as well as the judgement in S v Hanekom (2011) 1 SACR 430 (WCC) which provides an exposition on the assessment of child witness evidence in the Criminal Court, including the general principles of evidence as developed by the Law of Evidence to decide factual disputes. The so-called cautionary rules relating to single witnesses and child witnesses also require to be considered. These general factors to be taken into the account for the assessment of oral evidence according to the above references are the following:

69. Reliability and credibility, with reliability referring to the accuracy of the evidence of a witness whereas credibility refers to the believability of a witness, which includes the inclination of the witness to lie. It should be borne in mind that even honest witnesses may believe their evidence to be completely correct, with a reluctance to concede to possible human errors.

70. Three phases during which inaccuracy may occur in assessing reliability are accuracy of observation, accuracy of recollection (memory) and accuracy of reproduction. It is noted that it is not expected that the evidence of a witness must be faultless before a finding is made, since the Courts have adopted a more realistic view that it is human to make mistakes and not every error (or even lie) is fatal to the evidence of the witness, with a faultless version giving the impression that the version of the witness was faultless simply because it was well-rehearsed, with reference to the judgement in R v Gumede 1949 3 SA 749 (A).

71. The factors useful to determine the credibility of a witness are contradictions, probability, demeanour, cross-currents and cumulative effect. Contradictions entail more than one version of the same events, which means that one or both versions cannot be true, with the caution that identical versions by different witnesses can smack of collaboration to produce the same version. Probability in this context refers to the inherent probability or otherwise of the version of a witness, with something regarded as probable if it accords with one’s ordinary experience of human behavior and the likelihood of a version being fabricated. Demeanour refers to the body language (facial expressions and bodily posture) of a witness to establish if the witness is speaking the truth or not, bearing in mind cultural norms in this regard. Cross-currents are factors that can affect the impartiality and independence of the witness such as bias for or against the accused, self-interest, etcetera. Cumulative effect relates to the cumulative effect of all the relevant factors to be considered and all the evidence presented.

72. The so-called cautionary rule relating to the evidence of child witnesses is that the imaginativeness, inexperience and susceptibility to influence of the child are reasons why the evidence of children should be scrutinised “with care amounting perhaps, to suspicion” with reference to Schimdt and Rademeyer Law of Evidence 4-19 (Issue 12) LexisNexis and R v Manda 1951 (3) SA 158(A). It is pointed out that corroboration of suspected evidence is one of the methods by which the cautionary rule can be satisfied and that this cautionary rule may not apply for older child witnesses.

73. The cautionary rule relating to single witnesses is that the evidence of single witnesses, relating to cases of sexual misconduct involving a child, is required to be clear and satisfactory in every material respect, with reference to S v Ganie 1967 SA 203 SA 203 (N) and R v Mokoena 1932 OPD 79. Although the cautionary rule in sexual misconduct cases that for example a complainant may have been a “participant” in the act, that it is easier to falsify such evidence than to rebut it, that there was revenge or opportunity for financial gain, etcetera, has since been abolished, according to van der Berg it does not preclude one from being alert to the relationships between the parties and enquire into the motives and subtleties that may play a role.

74. Finally, the best interests of the child means that the child must be considered before a decision affecting his or her life is made, as provided for in section 28(2) of the Constitution of the RSA and section 8 of the Childrens Act 38 of 2005. Even if this is not raised by the parties in an arbitration I am obliged to consider the best interest of the child in arriving at the appropriate award. Prof Adriaan van der Walt in a paper titled The Principle of the Best Interests of the South African Child delivered on 9 September 2016 states as follows: “Taking into account that section 28(2) constitutes a right, all organs of state must respect, protect, promote and fulfil the best interest of a child or children in general”. Section 8 of the Childrens Act also provides as follows: “In all matters concerning the care, protection and well-being of the child the standard of the child’s best interests is of paramount importance and must be applied.” By stating that the child’s best interests are of paramount importance it means that they can trump the rights and interests of persons older than 18 years of age. Van der Walt continues to define the best interests of the child as follows: “Basic interests, for example [in] physical, emotional and intellectual care; developmental interests [in entering] adulthood as far [as] possible without disadvantage; autonomy interests, especially the freedom to choose a lifestyle of their own. “

75. In deciding this matter it is necessary for me to address the unavoidable issue of credibility, since material factual disputes emerged during the arbitration.

76. In Marapula & Others v Consteen (Pty) Ltd [1999] 8 BLLR 829 (LC) at 837 C – F the Court said the following in relation to the evaluation of evidence and the discharge of the onus by an employer:

“The onus is on the employer to prove that the dismissal was fair (section 192 of the LRA) on a preponderance of probability. In my opinion, the onus is discharged if the employer can show, by credible evidence, that its version is the more probable and acceptable version. The credibility of witnesses and the probability or improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the employer’s version, an investigation where questions of demeanour and impression are measured against the content of the witnesses’ evidence, where the importance of any discrepancies or contradictions are assessed and where a particular story is tested against facts which cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety.”

77. Assessing credibility is however not a matter of comparing the number of witnesses on one side with the number presenting an opposing version. I have to weigh up all the evidence in order to decide whether it was reliable or not and whether the truth was told, despite any shortcomings. In order to reach a just verdict based on the truth, I must be able to consider all the relevant admissible evidence. For this reason the basic principle in evaluating evidence is that evidence must be weighed in its totality. In this regard Navsa JA in S v Trainor 2003(1) SACR 35(SCA) at 41b-c said the following:
“A conspectus of all evidence is required. Evidence that is reliable should be weighed alongside such as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable, the quality of the evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of course; must be evaluated against the onus on any particular issue or in respect of the case in its entirety....”

78. When evaluating or assessing evidence, it is therefore imperative to evaluate all the evidence, and not to be selective in determining what evidence to consider. As Nugent J (as he then was) in S v Van der Meyden 1999 (1) SACR 447 (W) stated at 450:

“What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored.”

From the aforementioned it is therefore clear that the evidence must be assessed in its totality in order to arrive at a meaningful conclusion.

79. Bearing the foregoing principles, opinions and cautions in mind, I will attempt to apply these principles, rules and guidelines to assess the evidence of the parties’ witnesses, as relevant to the main fact in dispute, without going into the detail of all the evidence of the parties’ witnesses, commencing with the respondent’s evidence, who bears the onus of proof in this case.

The respondent’s evidence

80. Learner A, the complainant, was adamant and unwavering in her evidence that the applicant had kissed her and tried to insert his tongue into her mouth. I found no reason to doubt this evidence and found it improbable as to why she would have fabricated this version of the incident. The applicant party had argued that she was motivated to incriminate the applicant so that she had a reason to leave the hostel and spend more time with her friends, who had since left the hostel. It was not disputed that she was Deputy Head Girl at the Hostel and that she had never been in the Principal’s office for any problems, hence she came across as a responsible young person with no reason to go to such lengths which would lead to the dismissal of an educator if no grounds existed for a complaint. The Hostel Matron’s testimony that Learner A on the day prior to the incident had indicated that she was unhappy at the hostel and was going to leave the Friday on which the incident occurred, is coincidental and does not allude to premeditation or an advance fabrication of the incident, which it was clear, based on the evidence presented by both parties, did not occur by Learner A’s design. Several examples of the shortcomings and inconsistences in Learner A’s evidence and where it differed from the respondent’s witnesses’s evidence was noted and were also highlighted by the applicant party in argument. This in my view could be attributed to the stress which she as a youthful person was under in the arbitration and as a result of rigorous cross-examination. It was noted that she had withdrawn the criminal case against the applicant in order to put the incident behind her and to move forward. However, the respondent was still obliged legally in terms of the EEA to proceed with the investigation and internal disciplinary process against the applicant due to the nature of the complaint levied against him. Whether Learner A was reluctant to participate in the arbitration or not, her demeanour was nevertheless of someone who was attempting to be as honest as possible in her responses and was not evasive, with it taken into consideration that the events occurred more than 1,5 years ago, her youthfulness, that memory recall of peripheral events may not be as perfect as desired, and that certain other influences may have come to bear on her in the interim. I had made no specific notes that she had laughed and taken the proceedings lightly, and would attribute any laughter or giggling as more to nerves than contempt of the proceedings. Her evidence that she regarded the applicant as a father figure and that there had been an element of familiarity between them prior to the week of the incident is found to be more credible than the applicant’s version that his only contact with her was during the week of the incident, given that it was not disputed that she was the Deputy Head Girl of the hostel. This could explain her shock, possible embarrassment and reluctance to initially come forward immediately as to what had occurred on 4 March 2016, since people can react differently to certain scenarios, especially a young adolescent like the witness.

81. Mr van Rooyen, the School Principal, could not contribute much to the incident itself, save to confirm the parties’ versions and the evidence of Ms X, with a difference in language use such a reference to a fatherly as opposed to sympathetic little hug by the applicant and whether the applicant kissed Learner A tongue in the mouth as opposed to that he kissed her and tried to push his tongue into her mouth. It is accepted that since he did not have a vested interest in the events, which were reported to him on 8 March 2016, a considerable time ago, that his memory recall of the meeting(s) may not have been as accurate as he had proffered.

82. Learner C who accompanied Learner A on the bus to Sedgefield the Friday afternoon 4 March 2016 and spent the weekend with Learner A in Sedgefield with Learner D, testified that she overheard the telephone conversation between the applicant and Learner A that evening and corroborated Learner A’s testimony on what happened on the bus to Sedgefield and the content of the telephone conversation between the applicant and Learner A the Friday evening. Her and Learner A’s version differed in that Learner A said that she had commented after the telephone conversation “jinne daai meneer” whereas she, Learner C, had commented “Here, daai meneer”. I do not regard this as a material defect or inconsistency in their evidence and that the recollection of the exact words may have been inaccurate due to the effluxion of time. It is noted that Learner A and Learner C’s evidence relating to the telephone conversation corresponded in the main with the evidence of the applicant and his witnesses Ms Cloete and Mr Ricardo, with the exception that the applicant in Learners A and C’s version had also asked Learner A if he missed her and the hostel and that she must not say “meneer” to him in front of the other children.

83. Ms X, Learner A’s mother, came across as an honest and uncomplicated witness, who testified to what was conveyed to her by her daughter and what had happened in the Principal’s office on 8 March 2016, without any notable inaccuracies. Her evidence of how and when the incident was communicated to her corresponded with that of Learner A. She also confirmed that her daughter had regarded the applicant as a father figure and had informed her on weekends about discussions surrounding personal issues from home that she and the applicant had during the week, with little reason for her to fabricate such evidence.

The applicant’s evidence

84. Learner B, who testified that she was present in the applicant’s kitchen with Learner F the afternoon of 4 March 2016 and accompanied Learners A, C and D on the bus to sedgefield that Friday, came across as spontaneous, with her evidence not appearing to be rehearsed nor prompted. Her version of who was present in the Superindent’s flat that afternoon and who was where differed somewhat from that of Learner A. Her recall of who sat where on the bus that afternoon and what the mood was on the bus, also differed from that of learner’s A and C, and it was put to her that she may have confused it with another day when they all travelled together on the bus. Again, since she did not have a vested interest in the matter and due to the time, that had elapsed since 4 March 2016, such an inaccuracy or inconsistency is not regarded as material to the crux of this case.

85. Learner E presented as an honest and credible witness but could not shed any light on the incident of 4 March 2016 and corroborated Learner A’s testimony relating to their visit to AB’s Tavern in Sedgefield on Saturday evening 5 March 2016. He had conceded that a traumatised or upset person may still party and enjoy him/herself to put an unpleasant event behind him/her.

86. The applicant’s evidence was consistent and unwavering in support of his version of events, with credible explanations provided for the nature of his prior interactions with Learner A. His evidence on the whole came across as slick and practised. On the face of it such evidence could be regarded as reliable and credible, except for a few aspects of concern which troubled me. Firstly, if the applicant had denied the incident of the kiss and the attempt to insert his tongue into Learner A’s mouth, it is curious why he offered a version of a sympathetic little hug instead. If the incident had not happened, he could merely have denied it and left it at that. It was common cause that the had also offered to pay for psychological treatment for Learner A if needed because of what happened on 4 March 2016. This poses the probability that he may have had more intimate personal contact with Learner A than he admitted to and was attempting to cover up his actions with the alternative of the hug, given the seriousness of the repercussions. His version that he had had limited interaction and contact with Learner A prior to the incident did not support the version of a fatherly figure who was prepared to assist all learners financially and personally. Learner A was the Deputy Head Girl of the hostel and he as Hostel Superintendent would have had more interaction with her than with the other hostel learners. Of concern too is the evidence of Learner B, Mr Cupido and the applicant, that two female, presumably both grade 12, learners were asked by Mr Cupido to enter and tidy the kitchen of the flat of a single male Superintendent with only Mr Cupido, a male Supervisor, present (in the applicant’s version since Learner A disputed that Mr Cupido was inside the flat) and that the applicant would tell an unaccompanied 18 year old female learner to follow him to his room to fetch the money offered as pocket money, regardless of whether she stood inside or in the doorway of his bedroom. He was aware that Learners B and F were busy in the kitchen and that Mr Cupido was not on the scene when he asked Learner A to follow him to fetch the money. In his evidence he had stated that he would normally have another learner or Supervisor present as a witness when he interacted with female learners, which precaution he did not take in this case. The correct thing for him to have done would have been to fetch the money from the bedroom and take it to Learner A in the sitting room, preferably with Mr Cupido or a female Supervisor present when he handed it over. It was the applicant’s and Mr Rothman’s evidence that the applicant frequently assisted learners financially, therefore the transaction need not have been of a clandestine nature which may not be witnessed by other learners. Based on the applicant’s version alone this must be regarded as inappropriate conduct for a male educator, including the giving of a hug to a female learner near his bedroom with no other person present. The applicant’s version of the incident overall is therefore found to not be probable and credible.

87. Ms Cloete and Mr Cupido’s evidence, two colleagues of the applicant, with only Ms Cloete still in employment, was remarkably consistent with that of the applicant, almost verbatim, on what transpired the evening of 4 March 2016 in the applicant’s flat and during the telephone conversation with Learner A that evening. This created the disturbing impression that this evidence had been rehearsed. They however could not make any contribution to the actual incident, except for what Mr Cupido had testified he heard through the closed toilet door.

88. Mr Rothman presented as a credible witness, with nothing to gain from his evidence at the arbitration. He provided a reasonable explanation as to why he and the applicant had enquired about where Learner A stayed and concerns about her safety when she travelled to home and back to the hostel by bus over the weekends. He confirmed that the applicant had assisted other learners, not only Learner A, financially when in need. He also could not contribute to the actual incident.

89. Ms E Swarts, the Hostel Matron, presented as a credible witness relating to the conversation with Learner A regarding her intention to leave the hostel, although Learner A had testified that she did not remember such a conversation. She, like Ms Cloete and Mr Cupido, could not shed any more light on the actual incident but could only provide a possible motive why Learner A would want to incriminate the applicant.

FINDING

90. Findings are based on the balance of probabilities, with only brief reasons supplied as required in section 138(7)(a) of the LRA.

91. I am fully aware that the onus of proof is on the respondent in this matter. However, despite certain instances of apparent inconsistency and possible unreliability of the evidence presented by the respondent’s witnesses relating to the peripheral evidence surrounding the case, I have already expressed my doubt as to the probability (not to be interpreted as the test of the balance of probabililties) of the applicant’s version of what transpired on 4 March 2016.

92. With reference to the charge(s) there are two mutually exclusive versions about the primary events contemplated by the charge(s), though much of the background is not contentious. Firstly, my impression of Learner A as a witness was that she was genuinely distressed by the applicant’s conduct in kissing her and trying to insert his tongue into her mouth. I certainly did not form the impression that she had fabricated her version about the incident, especially considering that there was no history of discord between her and the applicant prior to the incident. Her demeanour was that which I would expect of a person who had experienced the events that she described. Her evidence was also free of the embellishment that frequently forms part of made-up allegations.

93. I am also mindful of the fact that the applicant party pertinently attributed a motive to learner A’s evidence and to why she would deliberately present false evidence to incriminate the applicant. In essence this motive centred on learner A’s unhappiness at the hostel and her desire to leave the hostel and go back to her home.

94. A number of aspects are relevant as far as this line of argument is concerned. The first is that evidence of an alleged “motive to lie” is not sufficient to demonstrate that a witness is in fact untruthful or otherwise unreliable. The second is that I am not persuaded by the motive referred to by the applicant in support of his contention in this regard. The applicant’s own witness, Ms Swarts, testified during her evidence in chief that learner A already indicated to her the day prior to the incident that it was not nice anymore at the hostel and that she would like to return home. To suggest that learner A carefully planned to make up these allegations against the applicant based on what happened in his flat the following day is so far fetched that it is simply not capable of any serious consideration and is accordingly rejected as being implausible.

95. I must ask myself whether learner A was making up her version by implicating the applicant, or whether her evidence leaves so much to be desired that it is unreliable, even if not a deliberate concoction. I did not form that impression.

96. I conclude that it is very improbable that learner A had fabricated the allegations against the applicant. It is more likely than not that those allegations are true and I therefore find the respondent’s version more probable as to the true state of events and am accordingly satisfied that the respondent has discharged the onus to prove that the applicant was guilty of the act of kissing and attempting to insert his tongue into the mouth of Learner A on the Friday afternoon of 4 March 2016.

97. There is one further important consideration. The applicant party argued that I should have regard to the so-called “cautionary rule” with respect to the evidence of a single witness, namely Learner A, and that her evidence should be approached with caution.

98. It is so that Learner A was, in effect, a single witness. The other witnesses corroborated her evidence only insofar as they could testify to what she reported to them. It was hearsay evidence and had to be accorded the appropriate weight. In essence, this is a classic case of “she said, he said”.

99. Firstly, concerning the hearsay nature of the corroborating evidence, the Court in Naraindath D v CCMA & Others (2000) 21 ILJ 1151 (LC) pointed out at para 33 that the rule, even in our Courts, is no longer absolute in its effect in consequence of the provisions of section 3 of the Law of Evidence Amendment Act 45 of 1998 and at para 34: “If that is the approach in our courts of law then it follows a fortiori in my view that reliance by an arbitrator upon hearsay evidence which he or she is satisfied on proper grounds is reliable does not constitute a reviewable irregularity.” I agree, especially given the corroborative nature of the hearsay evidence in this case.

100. Secondly, with regard to the “cautionary rule”, that rule applies to criminal trials. As the learned authors du Toit et al comment in Labour Law through the Cases (LexisNexis) sv s 138 the cautionary rule relating to the evaluation of evidence of a single witness in criminal matters, that requires the evidence to be “clear and satisfactory in every respect” before it could be relied on, it was found in Northam Platinum Mines v Shai NO (2012) 33 ILJ 942 (LC) at para 31, with reference to S v Carolus 2008 (2) SACR 207 (SCA), that an arbitrator should assess “the probabilities of the respective versions and, if necessary, make credibility findings to arrive at an outcome”.

101. Barely two weeks after the judgment in Naraindath Supra the Labour Appeal Court handed down judgement in Blyvooruitzicht Gold Mining Co Ltd v Pretorius [2000] 7 BLLR 751 (LAC). That Court pointed out at 754D that, in criminal cases, the evidence of a single witness is only treated with caution if it is contested by an accused. It did not deal with the applicability of that principle to arbitrations in any further detail.

102. In Blue Ribbon Bakeries v Naicker [2000] 12 BLLR 1411 (LC) at para 8 the Court noted that the commissioner in that case “fail[ed] to apply the cautionary rules of evidence to the testimony of the first respondent who was a single witness”; but that was in the context where the commissioner failed altogether to make any credibility findings. In the case before me, I have made a credibility finding against the applicant and in favour of Learner A.

103. Having dispensed with these considerations, the next enquiry is then whether the applicant’s actions constituted sexual assault as contemplated by section 17(1)(b) of the EEA, the main charge on which the applicant was dismissed. Reference in this context to assist is made to the Code of Good Practice on the Handling of Sexual Harassment Cases of the Labour Relations Act 66 of 1995 as amended (the LRA) which states as follows under clause 4 Forms of sexual harassment at sub-clause (1)(a):

(1) Sexual harassment may include unwelcome physical, verbal or non-verbal conduct, but is not limited to the following examples:
(a) Physical conduct of a sexual nature includes all unwanted physical contact, ranging from touching to sexual assault and rape, and includes a strip search by or in the presence of the opposite sex.

The Concise Oxford Dictionary of Current English Eighth Edition 1990 further defines “assault” as: a violent physical or verbal attack; in law an act that threatens physical harm to a person (whether actual harm is done); an act of rape.

104. Given the above description, in this case it could not be established that an act of violent assault, sexual or otherwise, had occurred but rather an act of sexual harassment of unwanted physical contact in the form of a kiss with an attempt to simultaneously insert the tongue. Even if the applicant’s version of a sympathetic little hug had been supported, such a hug would have been of an unsolicited nature. I therefore do not find the applicant guilty of the main charge of sexual assault for which he was dismissed. The alternative charges should then be considered instead.

105. It has already been established at section 18(5)(d) of the EEA that the statutory offence referred to in section 18(1)(dd) of the EEA is that of sexual assault of a violent nature, being rape.

106. It was common cause that the applicant was not charged for raping Learner A, therefore I cannot find him guilty on the First Alternative Charge to Charge 1.

107. I instead find him guilty of the Second Alternative to Charge 1, which is repeated again for ease of reference:

SECOND ALTERNATIVE TO CHARGE 1

It is alleged that you are guilty of misconduct as described in section 18(1)(q) of the Act in that you during March 2016 whilst you were on duty acted in an inappropriate, scandalous or unacceptable manner by kissing learner A, a learner assocated at that stage with George High School on the mouth.

108. Section 18(1)(q) is also repeated again here for ease of reference, as follows:

18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she-
(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable
manner;

109. With respect to the appropriate sanction, section 18(3) of the EEA provides a range of sanctions which can be imposed if an educator is found to have committed misconduct as contemplated in section 18(1), of which one is dismissal. In deciding on whether to uphold or set aside the sanction of dismissal and replace it with an alternative sanction, the following has to be considered:

• That the misconduct involved a learner with the best interests of the child, being former Learner A and other learners with whom the educator has or will be associated with in the future, being paramount.
• That it is the respondent’s responsibility to ensure the emotional, intellectual and physical protection of all learners entrusted to it.
• That the applicant held a position of authority and responsibility as Head of Department and Hostel Superintendent.
• That educators are expected to set a moral example to learners and protect the fundamental rights or learners, which include the right to dignity, bodily and psychological integrity, and protection from maltreatment, neglect, abuse or degradation.
• That the nature of the misconduct committed by the applicant does not attract automatic dismissal in terms of section 17(1) of the EEA, but that a lesser sanction may apply.
• That the applicant had an unblemished disciplinary record over a period of service of around 31 years and that this was the first transgression that he had been charged for.
• That no performance nor capacity problems were testified to for the applicant.
• That he as a divorced person is the sole breadwinner and supporter of his family.
• That he had improved the financial position of the hostel whilst he was Superintendent.
• That he had attempted to cover up what had transpired on 4 March 2016 between him and Learner A and had therefore not been truthful in the arbitration.
• That he was aware of what the consequences of such conduct would be.
• That the trust relationship between the employer and the applicant had therefore been damaged.

110. I considered lesser sanctions such as a final written warning or demotion, as had been suggested in the applicant’s appeal to the MEC. However, after contemplating the abovementioned considerations and the circumstances of this matter, as well as the practical effect of reinstating an educator in any capacity who had lost the confidence of the respondent, learners and parents to conduct himself appropriately towards his charges, even if there is no possibility that such conduct may be repeated in the future, I find insufficient justification to set aside the sanction of dismissal and find that the applicant’s dismissal remains fair on substantive grounds.

AWARD

111. The dismissal of the applicant, Mr R van Wyk, by the respondent, the Department of Education- Western Cape, is found to be fair on substantive grounds and the matter is accordingly dismissed.

112. No order as to costs is made.

Panelist: A C E Reynolds (Mrs)