PSES 609-18/19 (KZN)
PSES 609-18/19 (KZN)
Award Date:
23 July 2019
Case Number: PSES 609-18/19 (KZN)
Province: KwaZulu-Natal
Applicant: T MKHIZE
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Award Date: 23 July 2019
Arbitrator: Saber Ahmed Jazbhay
CASE NUMBER: PSES 609-18/19 (KZN)
DATE OF AWARD: 23rd JULY 2019
APPLICANT: T MKHIZE
Represented by Mr P KHUN
CONNIE MARAIS ATTORNEYS
Telephone: 035 7897968
Mobile: 082 8228026
Fax: 035 7897916
Email: litigation@cmap.co.za
Applicant Mobile : 078 1589030
Applicant’s email: Mkhizehodgmail.com
RESPONDENT: DEPARTMENT OF EDUCATION (KWAZULU NATAL)
Represented by Mr TM Mchunu
Telephone: 035 9073714
Fax: 035 9926185
Email: Thabani.Mchunu@kzbdoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. The Arbitration proceedings were finalized on the 24TH JUNE 2019 under the auspices of the ELRC, in the boardroom of the Respondent , located at EMPANGENI in terms of section 191 of the Labour Relations Act No 66 of 1995 (the LRA”). The Parties were required to submit, which they duly complied, closing arguments by no later than the 15TH JULY 2019
2. Both parties were in attendance and were represented by their respective legal representatives. The primary issue in dispute was couched in terms of section 191(1) [read with section 191(5)(a)] of the LRA] –Dismissal related to misconduct.
3. The proceedings were conducted in English and were digitally as well as manually recorded.
4. Both the Respondent and the Applicant, each submitted a bundle of documents as part of its evidence which I marked “A” and “B” respectively.
BACKGROUND TO THIS DISPUTE
The Applicant, a high school educator employed by the Department of Education (KwaZulu-Natal) since 2000, was summarily dismissed , after an internal disciplinary hearing, from his employment on 1st November 2018 for having engaged in a sexual relationship with a female 16-year old grade 11 learner enrolled at the Dlangezwa High School, where he was employed. Aggrieved with his dismissal, he referred an unfair dismissal dispute to the Education Labour Relations Council. The Applicant denied the relationship with the learner or the allegations against him.
5. It is common cause that
a. The Respondent, the Department of Education KZN provides employment to educators.
b. The Applicant was an educator since 2000,
c. and that, from 2013 to the date of his dismissal, he was an educator, at the Dlangezwa High School where he taught mathematics.
d. It is not in dispute that the Applicant was a committed educator and that he was a dedicated educator serving his profession and the school and that other than this he does not a disciplinary record.
e. On or about the 28th November 2017 the Applicant was served with a Notice to Attend a Disciplinary Hearing to be held on the 4th December 2017 at the King Cetshwayo District Board Room , where he faced a charge of misconduct as follows:
Count 1
In that on or about January 2016 to 2017 and in that at or near Dlangezwa High School, he allegedly committed “an act ( sic) of sexual assault against Nombulelo Mjijwa, a Grade 11 learner ( at the time) at (the school) when he had sexual intercourse with her.” By doing so he contravened Section 17(1)(b) of the Employment of Educators Act 76 of 1998 as amended. (See page 5 of Bundle B)
f. He was found guilty and, after he had exhausted his domestic remedies, he was notified on the 29th October 2018 that he was dismissed, and that the dismissal would be effective from 1st November 2018.
g. He referred a dispute to the ELRC on or about the 1st November 2018..
h. The relief he seeks is reinstatement and back pay together with compensation.
OPENING STATEMENTS
The parties were invited to make opening statements. For the sake of brevity, what follows is a summary and not a verbatim account thereof.
APPLICANT
6. He will prove that the charges and the subsequent dismissal was unfair both procedurally as well as substantively .The relief he seeks is reinstatement with back pay ae well as compensation.
RESPONDENT
7. The Applicant was charged and dismissed on the aforementioned count of sexual assault on a learner who was at grade 11 and aged 16 years at the time.
8. It will produce four or more witnesses who will testify and prove that the Applicant was dismissed for fair reasons and that the dismissal was procedurally as well as substantively fair.
9. As it was established that a dismissal had taken place (s 192 (1)), the Respondent bore the onus to prove that the dismissal was substantively and procedurally fair (section 192 (2)).
ISSUE TO BE DECIDED
10. The issue to be determined is whether the dismissal of the applicant was procedurally as well as substantively fair.
11. Should I find in favour of the Applicant then I am required to consider what remedy would be appropriate.
12. Should I find against the Applicant, then the matter would be dismissed and the Applicant would not be entitled to relief.
SUMMARY OF THE EVIDENCE AND ARGUMENT
13. Section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the LRA”), requires me to issue an award with “brief” reasons”. I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration hearing.
14. However reference to “brief reasons” doesn’t mean that I must not consider all relevant evidence adduced during this arbitration and not to record them. I am supported by persuasive case law on this point. Furthermore, given the number of witnesses (eight in all who testified and reference to the documents used and referred to in these proceedings) this award is in line with the principle enunciated by the Labour Court in Country Fair Foods (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Another, [1999] ZALC 182 (19.8.1999) to the effect that as an arbitrator .
15. I am obliged to diligently apply my mind to all the facts. As Zondo, then JP, reminds is in the LAC judgment in Naepe v Commission for Conciliation, Mediation and Arbitration, [2008] ZALAC 2 ( 18 April 2008), that although a commissioner is expected to give “brief reasons” he or she is expected to take into account all the facts and factors which are of great significance to or which are critical to one or other of the issues he or she is called upon to decide. It is my respectful understanding that I must make mention as to what these facts are and what are the factors that inform my finding as recorded in this award.
Arbitrator’s notes
The footnotes accompanying this award are part and parcel with this award and should be read and considered together.
Respondent’s case
Respondent led the evidence of four witnesses. They were
(a) Nombulelo Mjijwa, ( the complainant)
(b) Mrs Zodwa Constance Xulu ( her mother)
(c) Warrant Officer Mayise
(d) Sabelwa Sthembeka Mkhwanazi
(a) Nombulelo Mjijwa ( hereinafter interchangeably referred to as ‘’ Mjijwa” alternatively as the “complainant’ )
Her evidence in chief ( as summarized)
My notes
It is apposite to record that she testified that she doesn’t remember the dates and everything and that she will testify what she recalls. Its common cause that she used to travel with the Applicant to and from school as she had difficulties with public transportation.
16. She testified as follows :-
16.1 The first instance
a. During the second week of the third school term in 2016, the Applicant, with whom she commuted to and from school started to engage her with questions that were of a personal and private nature . He also asked her to undress and change clothes in his car . She felt that was inappropriate and intensely personal and remained silent but after a short while replied to his question. He then took her home. Normally he would drop her off at the KFC from where she used to make her way home.
b. The next day, was sports day and he asked her to bring her gym or sports clothes with her . She replied that she wouldn’t be participating. She did, however carry her sports shoes with her in her bag.
c. The following day, which was also a sports day, during the third period he had informed her that he had to attend a meeting in Empangeni and that they would be leaving early and that she should change her clothing in the car as he would be long at the meeting. She told him that she did not have any other clothes other than what she was wearing and he suggested that she borrows some clothes. She stated that she had lent a dress to another learner at the hostel of the school which she retrieved.
d. She recalls that as they were driving, they passed sugar cane fields and he had asked her why she had not changed her clothes and he insisted that she changes in the car and assured her that he wasn’t going to do anything to her as she was afraid.
e. She testified that he didn’t seem to be the normal person and that he was not smiling . She started to change her clothing and put on her running shoes and socks. He had told her she must safely put her school clothes so that they don’t get creased.
f. When they had reached Empangeni, he parked the vehicle opposite Spar. He exited the vehicle alone and headed for a building and after a while returned with a key that looked like it was for a sliding door. He asked her to get out of the vehicle whereafter he gave her the key and told her to go into the building from where he had exited and shouted at her to get into a room.
g. She did so and she noticed that there were people there ( a male and a female) who directed her to the room. After she had difficulty opening the door, the Applicant who joined her opened the door and they got into the room where he told her to undress whilst he went into the toilet.
h. After a while he emerged unclothed and promptly proceeded to engage in sexual congress with her and had forced his way into her on two occasions and even ejaculated. All this was against he will and without her consent.
i. They then got dressed and he drove her home and on the way he threatened her with death if she revealed what had transpired. He also threatened to kill her parents.
j. She was devastated by this experience and when she got home, she saw her parents there, as well as her sister in law and her own son. She acted normal, She undressed her uniform .
k. Her sister in law noticed something different about her and asked her if everything was okay and she replied it was okay and then after kissing her son she went to bed early that day.
l. The next morning she went to KFC which was her pick up point and proceeded to school in his vehicle. Everything was normal.
16.2 The second and further instances
a. A weekend had passed. He had taken her to his house, on the way to school, as he had ostensibly forgotten something he needed to retrieve. He invited her in.
b. There too he forced himself upon her, allegedly in the domestic worker’s bedroom which was located in a building adjoining the main house.
17. She continued to travel with him during 2016 until November 2016.
18. (a) She testified that as had not received her school report indicating that she had passed grade 11 which she said she had passed, at the end of that year and to advance to grade 12 , early in 2017 she went to check and, I assume conform her result .
(b) The Applicant, she testified, further, called her into his office and asked her to close and lock the door. She closed but did not locked the door. He asked her , now that she was going to be residing in the school dormitory, how they were going to proceed .
(c) She did not reply but left the room and headed for the dormitory where she started crying and this was noticed by her friend Sabelwe who asked her why she was crying. She confided in her and told her what had transpired.
(d) Sabelo then called her mother who advised her to report the matter to another female official in the school.
19 This was duly done and a Mrs Shange , a social worker initiated a process through child line and the police authorities.
Cross examination
20. She was asked why didn’t she scream or make a noise when she was being raped in the BnB . She relied that she couldn’t as there was a lot of ambient noise and that it wasn’t in her nature to scream. Instead she cried silently.
21. She confirmed that she had given birth to a child in May 2016.
22 She was asked who come there was nobody around at the time she entered the BnB . He reply was that she couldn’t remember . She reiterated that she didn’t seen anyone.
At his residence
23. They would go to his residence two or three times a week where the sexual assault would be perpetrated.
24 It was put to her that it was broad day light at the time when the alleged sexual assault took place in the Applicant’s house and that it was odd that no one noticed especially considering that there was a crèche directly opposite his house and his neighbour was an electrician who operated from home. Moreover, the Applicant had a domestic worker at the time who will testify that she was working at the house at the time and that she didn’t see the complainant. It was highly improbable that this would not be noticed.
24. In 2017, around March she was relocated by her mother from the hostel to Nkandla, It was put to her that was because she was involved in a fight with a fellow learner and she was expelled.
25. It was also put to her that she was not entirely forthcoming with the truth that she had given learners at the school different versions of alleged sexual, assault. She failed to respond when it was put to her that witnesses would testify that one occasion she alleged that she was raped by her brother’s friends who were high on dagga whilst on another occasion she was raped by her uncle and friends.
Re-examination
26. She was asked questions but nothing turned on them.
(b) Mrs Zodwa Constance Xulu
1. She testified that she had arranged with the Applicant to transport her daughter to and from school for a fee.
2. She also testified that he would come home as well.
3. She hadn’t noticed anything untoward vis-à-vis her daughter save for one occasion when they had arrived later than usual,
4. She was alerted by another learner that something had happened and then it dawned on her that the Applicant was naughty with her daughter.
5. On cross examination she too was asked why she hadn’t reported the alleged rape to the police or why she had taken any action. Her reply was that the social worker and an educator referred to as “the mistress” had already done so.
My notes
The remaining witnesses of the Respondent were unavailable as it was school holidays and they were out of time and could not come and testify. So as not to lose time, I saw it prudent to ask the Applicant’s representative to lead his client which he acceded to. However, I will analyse his testimony as well as those of other witnesses later.
(c) Warrant Officer Mayise
Evidence in chief
1. She was the investigating officer who took down the complainant’s statement and who went to the residence of the Applicant and took photos.
2. She testified that she and her late colleague were permitted to enter the residence with the complainant and that the domestic worker had let them in after permission was granted by the Applicant whom she or her colleague had called . The complainant had pointed out the room where the alleged sexual assault had taken place.
3. The complainant had pointed out the place to her and her colleague. She did call the Applicant and sought permission to enter the premises and that the Applicant did not insist on a warrant.
Cross-examination
4. She confirmed that the house maid was in attendance but that no statement had been taken from her or from the neighbours especially the crèche which was opposite the house.
(d) Sabelwa Sthembeka Mkhwanazi
My notes
The sequence in which witnesses testified at this hearing are not as they appear in this award. As on certain days, certain witnesses were unavailable for various reasons, such as this witness who was on leave during school holidays in Durban, she was the last witness to testify on the last day of this hearing, namely the 24th June 2019. In this context her testimony must be read and will be analysed.
Her evidence in chief
1. She was a grade 8 pupil at the time. And she knew the complainant whom she describes as a sister. They were roommates at the hostel in 2017. The complainant was more than a friend to her. She was like a sister .
2. She knew the Applicant and referred him by his pseudonym “ Deri ”. However, she testified that the complainant never referred to him as “Deri” but Mr Mkhize.
3. She testified that she had noticed the complainant crying and that she was told she was “ok” , but when she persisted she was told she would be told in private, what had transpired.
4. Eventually, in private, somewhere behind the scullery, the complainant graphically narrated what allegedly transpired . She was told
a. How and where the sexual assaults took place;
b. Who , namely the Applicant, was the perpetrator;
5. She believed the complainant’s version and found it inconceivable that she would lie about such a serious matter.
6. She phoned her mother for advice and from thereon social workers and the authorities were involved. Her mother also was given, on request, the complainant’s mother’s telephone number and there was a discussions between the two parents details whereof she wasn’t privy to.
7. She ventured an advice to the complainant about recording the incidents but the complainant told her that wouldn’t work as often when they met he would grope and breasts and parts and that she would be detected.
8. She also testified how the complainant would hide under the desk whenever the Applicant would send someone to the class to summon her to his office. She testified this was so because the complainant was allegedly terrified of what would happen in the office in relation to the sexual assaults.
9. She was asked about a witness, Bongiwe Mbonambi, another learner at the school who had testified at the behest of the Applicant.. She testified she never knew her and that probably she was a monitor.
Cross examination
10. She admitted that she had come to testify for her friend but she stated that she wasn’t lying She and the complainant were roommates in January-February 2017.
11. She admitted that she never witnessed any of the alleged sexual assaults .
12. It was put to her what the complainant had told, that is the different versions of alleged sexual assaults by her brother’s friends etc. . In response, she replied that these were denied by the complainant
13. She was cross examined that the complainant told her that she was “ok” whereas she testified, she told this hearing she had told the witness that she ”had a headache”. This witness wasn’t able to expand on her version but to reiterate what she was told by the complainant.
The Respondent had closed its case
The Applicant’s case
The Applicant as well as the following testified on his behalf
(1) Thabani Mkhise ( Applicant)
(i) He testified that on the 7th February 2017, he was summoned by the acting principal who advised him of the complaint that was registered against him by a learner for sexual assault and that there were two police officers assigned to investigate the complaint
His connection or interaction with the complainant
(ii) He was phoned by the complainant’s mother in February 2016 and he was asked if the complainant could travel with him for a fee from Emadlanzini which was near Richards Bay Airport. He agreed. Around that time he had been involved in a collision and following that he reported the accident to the Richards Bay Police. That led to delays. So they had got home later than usual and he had left her at home.
(iii) Apart from the complainant there was another passenger, Ms Nguni , who was a stand in educator for another educator on accouchement ( or maternity ) leave.She had stopped travelling with him in July 2016.
Value Lodge?
(iv) He denied all the allegations levelled against him. He has never been there. He also denied that he had taken the complainant at least three times a week to his residence. He testified that he has a domestic worker who was employed by him in 2016.
His residence?
(v) The complainant had been to his house before, once when he had inadvertently taken the keys to the house and the remote which his wife used to get in and to the house. He was phoned on his way to school and he turned the car around to return the key and the remote. The complainant was with him and she was briefly entered the premises .
(vi) He also denied that he told the complainant that she had passed as he was a teacher in commerce and math and she was a science learner and he had never taught her. He also denied that she had come to see him to register in 2017. He testified that the complainant was lying when she had testified that she had been given an assignment in LO and that was why she was expelled from hostel and school. She was expelled for assault on a fellow learner.
(vii) He testified about the procedural flaws and unfairness of the process against him. Specifically there was an inordinate delay from the time of the complaint to the time he as dismissed.
Cross examination
(i) It was his testimony that he believed that the complainant thought he was responsible for her failure at grade 11 whereas he denied that he had taught her. He inferred that was why she levelled these charges against him.
(ii) In 2017 he was distributing stationery at the school and her mother had come to him and asked him if he could pass by their house and uplift some books.
(iii) He denied that apart from the one occasion he had dropped her off at home that he had been there multiple times. He reiterated that he used to pick her up as arranged at KFC.
My Notes
Mr Mchunu asked the Applicant no questions about Value Lodge and the complainant’s allegations. Nor did he probe the Applicant’s version when he denied that he had ever been to the lodge.
(2) Sinikiwe Marylyn Khosa ( domestic worker)
a. She testified and she wasn’t seriously dented during her testimony.
b. She crisply answered that there was no way she would have been aware if there was someone on the premises and she denied that apart from the time that the complainant accompanied that she had seen the complainant at the residence .
c. Under cross examination she confirmed the version of the Applicant regarding that one time when he had inadvertently taken the remote and the keys with him which his wife needed to leave and enter the premises.
(3) Simangele Ntuli
Her evidence in chief
a. She was an educator who taught the complainant IsiZulu at grade 10.
b. In 2016 she was informed by the complainant that she had been raped and that she was pregnant . She had sight of a clinic card wherein the following was recorded
i. She had been raped
ii. A criminal charge had been laid
iii. And that she was pregnant
c. When she enquired from complainant, she was told that she had been raped by her brother’s friends when they were high on drugs(woonga) , She did not mention anybody else who had raped or sexually assaulted her. She reiterated this even when she was subjected to a gruelling and extensive cross-examination.
Cross examination
d. When cross examined she categorically reiterated that at no time did the complainant mention the Applicant. As to why after learning of the rape, why hadn’t taken action when she was told about the rape. Her reply was that a case had already been opened. She tried to intervene but there were personal family challenges she also reiterated that the complainant never mentioned that she had been raped by the Applicant. She adamantly testified that the complainant told her that the Applicant tried to touch her.
e. She was asked about whether Sabelwa and another learner who had come to see her together with the complainant. She unpacked what happened;
i. They came to her during or shortly before school assembly and wanted to speak to her. She indicated to them that they would meet after assembly.
ii. She had meanwhile discussed with the complainant what had happened so that when they eventually did meet she never spoke with Sabelwa.
iii. At that meeting she was told by the complainant that the Applicant wanted to touch her.
iv. She had undertaken to meet them again some other time but personal supervening circumstances prevented this.
v. She did, however try to follow up. On the 3rd February 2017 at 2:30 pm or thereabouts, she went to admin block to look for the complainant but she was updated by other learners that the matter had been escalated to the authorities and that she was asked for and she gave a statement to the police investigating the alleged sexual assaults.
(4) Mbongiwe Mbonambi
Evidence in chief
1. She lived at the hostel and was with the complainant for a period of two months in the same room in 2017
2. She testified that the complainant was expelled for fighting with another learner and she was relocated to Nkandla at the behest of her mother.
3. She also testified that the complainant had told her that she had been raped by her uncle and his friend and also that she had been sexually molested by the Applicant.
4. The complainant was given to change versions so often that no one lent any credibility to her allegations.
5. The Applicant was known throughout school by the pseudonym of “Deri” and that therefore it was inconceivable that the complainant who had testified that she didn’t know his pseudonym.
Cross examination
6. She admitted that she came to testify to assist the Applicant but she denied that she was lying.
Closing Arguments
My notes
I wish to acknowledge the prodigious effort and time that the parties put into their voluminous closing arguments. This case concerns a very serious issue which requires a comprehensive effort to establish guilt or innocence. No short cuts. To this end both parties have put in a sterling effort to gainsay their respective versions. I do not intend to set out their closing arguments in any detail save to record that I have them into account in all their vigour.
.
Applicant’s Closing arguments
The Applicant strongly argues that the Respondent has woefully fallen short of the required standards of proving, on a balance of probability, that the dismissal of the Applicant passed muster that the dismissal was based on fair reasons and that it was procedurally as well as substantively fair.
Procedural fairness
It argued that the was procedural unfairness inherent in the process followed and this was exacerbated by the inordinate length of time it took from the time of the complaint against the Applicant to the time he was charged and dismissed took a considerable long time.
(a) Timeline
The allegation of sexual assault was made
- On 6th February 2017,
- On 7th February 2017 statements were taken by the police
- On the 28th November 2017, applicant was charged
- On the 5th December 2017, a disciplinary hearing was held
- On the 23rd April 2018, he was notified that he was found guilty and the sanction was dismissal
- On the 24th April 2018, he appealed against the decision
- On the 29th October 2018, he was informed of the unsuccessful outcome
- On 1st November 2018, his dismissal was effective.
It was argued that this was “unreasonable, unnecessary and procedurally unsound.
(b) Substantive unfairness
Here it argued that there was a plethora of facts that militated against whether, at its worst, there was a fair reason for dismissal and whether or not, at the very least, on the balance of probability there were sound and cogent reasons underpinning the Respondent’s decision to find the Applicant guilty and to sanction him with a dismissal. In support of its case that the Respondent woefully fell short of this standards, the Applicant argued that
- The Respondent failed to produce any direct evidence to gainsay the version of the complainant
- No documentary evidence or witnesses testified to prove that there had been in fact sexual assault on the complainant.
- The complainant herself wasn’t convincing in that she appeared to have adjusting her testimony as she went along prompted by the questions that were put to her. It is submitted that her testimony wasn’t that of a paragon of virtue or of a wronged woman but that of someone who had the perchance to fabricate versions of sexual assault, alternatively of rape. My attention was brought to the several versions she had given to people. On one occasion she level allegations of rape against the woonga imbibing friends of her brother. On another occasion she had accused her uncle and a friend. Ranged against these are the allegations against the Applicant, an educator. These alleged fabrications did not advance her case. She was not a credible witness and therefore could not be believed. In fact one or two witnesses doubted the veracity of her version.
- No witness was called to testify from the BnB or from the social services to corroborate her version from a circumstantial point to view since we have only her version of events. The evidence of the others were largely as narrated by her to them and regurgitated during this arbitration.
- She had lied that she had passed grade 11 whereas she had in fact failed. She was less than economical with the truth about why she was expelled from school and the hostel and the truth had to be prised out of her as corroborated by witnesses.
- Her version that she was taken by the Applicant to his house two or three times a week was contradicted by the testimony of the Applicant’s former domestic . Furthermore the standard and level of investigation by the SAPS was woefully deficient in that no statement or evidence was gather from personnel at the BnB . Nor did they interview and take a statement from the domestic worker Sinkiwe Marylin Khoza who testified that , apart from the one occasion when the complainant accompanied the police, she hadn’t seen the complainant inside the residence at any time. If the Applicant had sneaked her in she would have known as she was working at all time and that the remote gates emitted a sound alerting people. Even her own witness, Sabelwe who regarded the complainant as a sister engaged in speculative conjecture as to what was narrated to her. It was pointed out that she didn’t even have her mobile number.
For the aforementioned reasons, inter alia, the version of the Applicant was to be believed. He was clear and precise in his testimony and he even permitted the SAPS to conduct a search and investigation and to take photographs. From this it can be inferred that he was indeed truthful and that he had nothing to conceal.
Respondent’s closing arguments
It succinctly argued that the Applicant , being a professional educator was aware of his fiduciary responsibility vis-à-vis learners and that he had been found guilty and dismissed for a fair reason. The version of the complainant of the nature and extent of the sexual assault was preferable over that of a bare denial by the Applicant. He had indeed committed those offences and that he had forced her to have sex against her will and consent.
She had testified that when she was handed the key to the room at the Value Lodge, she was directed by a man and a woman which room to go to. She also testified that she did not lay a charge immediately because the life of her parents and herself had been threatened by the Applicant.
Her witnesses, especially Sabelwa corroborated her version.
Pursuant to the foregoing, inter alia, it strenuously argued that the version of the complainant as more believable and preferable over that of the Applicant and that I should find that the dismissal was procedurally and substantively fair.
ANALYSIS OF EVIDENCE AND ARGUMENTS
It is important that I mention what the Labour Appeal Court stated in Grey v Education Labour Relations Council and Others . It declared that
In terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998 (EEA) it is imperative that an educator ‘found guilty of having had a sexual relationship with a learner of the school where he or she is employed “must be dismissed” from his or her employment.’ It regarded the prevalence of educator-on-learner sexual misconduct as constituting an abuse, “not only of the authority and responsibility vested in an educator, but of the rights of the child given that ‘…no child has equal power to say 'no' to a parental figure or to anticipate the consequences of sexual involvement with a caretaker. In such an unequal relationship the adult (educator) bears sole responsibility for…sexual activity with a minor”’ .
Ahead of undertaking an analysis of the evidence and arguments in this case, it is apposite that I unpack jurisprudential principles which inform this award which trenches upon a very critical and emotive issue, namely sexual assault and harassment of learners in the school.
I reiterate that there is as the LAC held in Grey supra that “with a high prevalence of educator-on-learner sexual misconduct in South Africa, our law reflects that sexual misconduct with a learner constitutes an abuse, not only of the authority and responsibility vested in an educator, but of the rights of the child given that “…no child has equal power to say 'no' to a parental figure or to anticipate the consequences of sexual involvement with a caretaker. In such an unequal relationship the adult (educator) bears sole responsibility for…sexual activity with a minor”.
It is for this reason , inter alia, that I recorded the testimony of critical witnesses in detail. The interests of fairness and justice required a thorough analysis of the facts , the evidence and the arguments during this arbitration.
Jurisprudential principles
(a) The onus of proof
It’s trite that he onus is on the Respondent to prove that it had fair reason to dismiss the Applicant and that it had been consistent in its sanction of dismissal of the Applicant. The standard or quantum of proof required for the dismissal to be for a fair reason, is proof upon a preponderance of probability. There must be a reasonable degree of probability to support a finding. By ‘balance of probability’ it means that the Respondent is required to put sufficient evidence before me to ensure that its version outweighs the version as support by proven facts and evidence of the Applicant. If the Respondent puts evidence before me against which the Applicant had no evidence to counter, however slight that evidence may be, the balance of probability tilts in favour of the Respondent.
(b) My obligation
Where one is faced with two contradictory and contested versions, the labour court set the standard in Solidarity obo Van Zyl v KPMG Services (Pty) Ltd and Others . Cognizant of the Supreme Court of Appeal Court decision in Stellenbosch Farmers' Winery Group Ltd and Another v Martell Et Cie and Others . I summarize these in the next paragraph.
Labour Courts have held that the duty of an arbitrator when confronted by two irreconcilable versions, is essentially the same as that of a judge in a trial court. Briefly but pertinently, to come to a conclusion on the disputed issues I am obliged to makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As regards (a) any finding on the credibility of a particular witness will depend on the impression about the veracity of the witness. As to (b), a witness' reliability depends, inter alia, on the opportunities he or she had to experience or observe the event in question and on the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probabilities and improbabilities of each party's version on each of the disputed issues.
There is this intangible but very real inter-relationship between reliability and probability. In the ultimate analysis I must determine whether the party upon which the onus lies has discharged its responsibility especially in this case where the charge against the Applicant is so serious that dismissal was a fair and only sanction that could be reached.
(c) Circumstantial evidence?
Where direct evidence is absent I cannot close my mind to circumstantial evidence as reminded by the labour court in Distell Ltd v Commission For Conciliation, Mediation And Arbitration and Others , In that case there was no reliable evidence to indicate that the employee who was dismissed was guilty of misconduct. The principle enunciated by the court goes as follows:
“The use of circumstantial evidence is a powerful tool in proving the existence of an issue in dispute. Hoffmann & Zeffertt note the distinction between direct evidence and circumstantial evidence. Direct evidence is provided by a witness who testifies directly on the issue in dispute. So, for instance, in a murder trial, a witness who testifies that he saw the accused stab the deceased with a knife, provides direct evidence as to the stabbing. On the other hand, a witness who testifies that he saw the accused emerge from a room in which the deceased was subsequently discovered, bearing a knife dripping with blood, provides only indirect or circumstantial evidence to support the fact that the accused had stabbed the deceased.
Circumstantial evidence is thus evidence of a fact from which a reasonable inference, only that inference, can be drawn as to the existence of a fact in dispute. Whilst direct evidence is more compelling than circumstantial evidence, in reality circumstantial evidence may be more persuasive than direct evidence .
Analysis of the evidence and arguments
1. The Respondent’s case is that the Applicant sexually assaulted the complainant on more than one occasion as reflected in the charge sheet and that he deserved the sanction which became imperative in terms of section 17(1)(b) of the Employment of Educators’ Act No 76 of 1998.
2. It bases it conclusion primarily on the evidence and testimony of the complainant whose memory of recall wasn’t at its optimum for whilst she recalled certain minutiae of what transpired she could not remember the dates and at times was vague and unsure of her facts and was not entirely forthcoming.
3. That was the only direct evidence before me. She rehearsed the allegedly terrible odium she experienced but whilst she mentioned that there was a man and woman at the BnB who directed her to her room where she was allegedly raped, we do not have their evidence before us that she had been there. She also mentioned a social worker, Mrs Shange who was never called to testify and so contextually support her version.
4. The complainant provided lurid details which was not gainsaid by independently verifiable evidence. This made the evidence of this man and woman at the BnB critical from which circumstantial evidence could be gleaned and an inference could be drawn that what she alleged probably happened. It is unfortunate that the Respondent didn’t deem it critical to secure their presence and testimony of what she alleged that she had been directed by a man and a woman at the BnB to where the room was.
5. Sadly this was not forthcoming and there is no basis from which to find this aspect of her testimony reliable and credible.
6. Even if my analysis in respect of a specific incident or sexual encounter such as what I’ve referred to supra is wrong, the totality of the complainant’s evidence, as supported by the other witnesses, has not enabled the Respondent to discharge its burden of proving, on a balance of probabilities, that the Applicant had sexually assaulted the complainant at the school where he is employed. There was, in my analysis, a misfit between crucial and critical pieces of the proverbial jigsaw puzzle.
7. In this regard, the Applicant's testimony is indeed relevant because he was able to produce witnesses who corroborated his version and defence. They were reliable and on point .Therefore, the Applicant's submission that the learner's evidence is totally unreliable and untruthful has merit.
8. Amazing that with such a serious offence, we do not have any medical reports or affidavits to gainsay her version. Nor do we have the evidence of the social worker who allegedly initiated the complaint which culminated in the Applicant being charged criminally . The police investigation, as evidence through the evidence of Warrant Officer Mayise was woefully deficient. It interviewed and took down statements from the complainant , the witness Ms Ntuli and the Applicant but not from the domestic employee who was a critical witness and whose testimony was vital especially since the complainant alleged that she had been to the Applicant’s residence at least three times a week. The former domestic employee, Sinikiwe Marylin Khosa testified in a cogent and honest manner and her testimony wasn’t seriously contested. She testified that she had been a live in domestic and that at no time did she witness or seen the complainant at the residence of the Applicant. She also testified that it was not possible for the Applicant to sneak the complainant in as she would have heard the car in which the Applicant is alleged to have transported the complainant as well as the remotely controlled gate which made a sound or noise that would have alerted her.
9. The investigation of the Respondent and the SAPS also omitted to investigate, interview and obtain evidence from the crèche directly opposite the Applicant’s residence or from neighbours as the sexual assaults had taken place during the day. Someone would have noticed something. This aspect of the complainant’s version was not convincing or persuasive. None of her witnesses placed her on the scene or provided the slightest tangible evidence from which the probability of what had transpired was credible and believable. 10. I found that she probably tailored her version of alleged sexual assaults.
Regarding allegations of prior rape incidents
10. Allegations of previous rape incidents were not put to her by the Applicant’s attorney. They were put into evidence by witnesses with the intention to impugn her credibility. They cannot be trusted as they have not been verified even though not denied.
11. On one occasion and this wasn’t denied or persuasively refuted any of her witnesses, that she had been raped by her brother’s friends who were high on woonga. Testimony was also led that she also alleged that she had been raped by her uncle and his friends. None these were refuted and they appear to be flights of fancy depending on to whom she was narrating the alleged incidents. These allegations were not put to her and therefore cannot be accepted.
Her credibility
12. Nevertheless, she wasn’t entirely forthcoming with the truth as to why, for instance she had to relocate from her erstwhile school to Nkandla at the behest of her mother. She lied that she was expelled for leafing the dormitory to do an LO assignment outside school whereas there was documentary evidence that she was expelled for assaulting a fellow learner and she was subjected to criminal process. This evidence had to prised out of her. None of those who testified on her behalf were able to provide even circumstantial evidence to even remotely show that it was probable that her version was credible.
13. Unlike in Grey where the learner had recorded her ordeal in a diary which was intercepted and read by her mother all we have are faltering allegations. She testified that after the first alleged incident at the BnB she was driven home by the Applicant and her sister in law noticed that something was amiss and enquired about that. This sister-in-law was never called in to testify.
The Applicant
14. The Applicant also testified. He denied the allegations of sexual impropriety on his part and his version was inferentially supported by the testimony of his domestic employee for instance. I cannot discount the fact that when he was asked by the investigating officers for permission to enter his residence, he didn’t insist on a warrant and as inferred by his legal representative this is evidence that he was cooperative with the police and that he had nothing to hide. He answered questions clearly and he responded satisfactorily to the challenges to his credibility by providing sound and cogent answers to the Respondent’s Mr Mchunu.
Was the procedural unfairness as alleged?
15. I could find no or little evidence to persuade me that the Respondent had committed procedural unfairness. The facts that almost eight to ten months had elapsed it was necessary for a thorough investigation and there was no prejudice suffered by the Applicant who wasn’t suspended with full pay.
Was the dismissal substantively sound and for a fair reason?
16. The lack of any depth in the evidence of the complainant and embellished by those who testified persuaded me that the Respondent had failed to discharge the onus upon it and that, inevitably it is my conclusion that the dismissal wasn’t supported by any evidence and that I find that the dismissal was substantively unfair.
17. It’s axiomatic that, considering the conspectus of evidence the Applicant is entitled to the relief he seeks, namely reinstatement with back pay and without loss of benefits.. Details of his benefits are set out in paragraph 18 below..
18. According to the evidence before me the dismissal of the Applicant was effective 1st November 2018. This means that he was last paid in October 2018. . His combined total income was R31023-75 calculated as follows
a. R 29, 747-75 ( basic gross monthly salary) plus
b. R 1276-00 ( monthly home owner allowance)
19. The total from November 2018 to July 2019 totals R 279213-75 (R31023-75 x 9 months= R279213-75) minus such deductions as the Respondent is in terms of law entitled or obliged to make.
AWARD
A. The dismissal of the Applicant was procedurally fair but substantively unfair
B. The Applicant is entitled to the relief he seeks. He is reinstated with full pay backdated from the date of dismissal.
C. The amount of back pay plus benefits due to him amount to R 279213-75 minus such deductions as the Respondent is in terms of law entitled or obliged to make.
D. The Respondent is ordered to reinstate the Applicant, Mr Thabani Mkhise, in its employ on terms and conditions no less favourable to him than those governed the employment relationship immediately prior to his dismissal.
E. In addition , the Respondent is ordered to pay the nett amount reflected in para C above within forty five ( 45) days from the 31st July 2019 . Interest thereon shall accrue at 10,50% thereon such interest to run from the 15th September 2019 if the nett amount isn’t paid into the bank account of the Applicant to date of payment.
F. The reinstatement in paragraph B is to operate retrospectively from the date of his dismissal.
G. Mr Thabani Mkhize is to tender his services within seven days of his becoming aware of this award.
H. There is no order as to costs.
Dated at Durban on this the 23rd day of July 2019.
ELRC PANELIST
Saber Ahmed Jazbhay
Province: KwaZulu-Natal
Applicant: T MKHIZE
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Award Date: 23 July 2019
Arbitrator: Saber Ahmed Jazbhay
CASE NUMBER: PSES 609-18/19 (KZN)
DATE OF AWARD: 23rd JULY 2019
APPLICANT: T MKHIZE
Represented by Mr P KHUN
CONNIE MARAIS ATTORNEYS
Telephone: 035 7897968
Mobile: 082 8228026
Fax: 035 7897916
Email: litigation@cmap.co.za
Applicant Mobile : 078 1589030
Applicant’s email: Mkhizehodgmail.com
RESPONDENT: DEPARTMENT OF EDUCATION (KWAZULU NATAL)
Represented by Mr TM Mchunu
Telephone: 035 9073714
Fax: 035 9926185
Email: Thabani.Mchunu@kzbdoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. The Arbitration proceedings were finalized on the 24TH JUNE 2019 under the auspices of the ELRC, in the boardroom of the Respondent , located at EMPANGENI in terms of section 191 of the Labour Relations Act No 66 of 1995 (the LRA”). The Parties were required to submit, which they duly complied, closing arguments by no later than the 15TH JULY 2019
2. Both parties were in attendance and were represented by their respective legal representatives. The primary issue in dispute was couched in terms of section 191(1) [read with section 191(5)(a)] of the LRA] –Dismissal related to misconduct.
3. The proceedings were conducted in English and were digitally as well as manually recorded.
4. Both the Respondent and the Applicant, each submitted a bundle of documents as part of its evidence which I marked “A” and “B” respectively.
BACKGROUND TO THIS DISPUTE
The Applicant, a high school educator employed by the Department of Education (KwaZulu-Natal) since 2000, was summarily dismissed , after an internal disciplinary hearing, from his employment on 1st November 2018 for having engaged in a sexual relationship with a female 16-year old grade 11 learner enrolled at the Dlangezwa High School, where he was employed. Aggrieved with his dismissal, he referred an unfair dismissal dispute to the Education Labour Relations Council. The Applicant denied the relationship with the learner or the allegations against him.
5. It is common cause that
a. The Respondent, the Department of Education KZN provides employment to educators.
b. The Applicant was an educator since 2000,
c. and that, from 2013 to the date of his dismissal, he was an educator, at the Dlangezwa High School where he taught mathematics.
d. It is not in dispute that the Applicant was a committed educator and that he was a dedicated educator serving his profession and the school and that other than this he does not a disciplinary record.
e. On or about the 28th November 2017 the Applicant was served with a Notice to Attend a Disciplinary Hearing to be held on the 4th December 2017 at the King Cetshwayo District Board Room , where he faced a charge of misconduct as follows:
Count 1
In that on or about January 2016 to 2017 and in that at or near Dlangezwa High School, he allegedly committed “an act ( sic) of sexual assault against Nombulelo Mjijwa, a Grade 11 learner ( at the time) at (the school) when he had sexual intercourse with her.” By doing so he contravened Section 17(1)(b) of the Employment of Educators Act 76 of 1998 as amended. (See page 5 of Bundle B)
f. He was found guilty and, after he had exhausted his domestic remedies, he was notified on the 29th October 2018 that he was dismissed, and that the dismissal would be effective from 1st November 2018.
g. He referred a dispute to the ELRC on or about the 1st November 2018..
h. The relief he seeks is reinstatement and back pay together with compensation.
OPENING STATEMENTS
The parties were invited to make opening statements. For the sake of brevity, what follows is a summary and not a verbatim account thereof.
APPLICANT
6. He will prove that the charges and the subsequent dismissal was unfair both procedurally as well as substantively .The relief he seeks is reinstatement with back pay ae well as compensation.
RESPONDENT
7. The Applicant was charged and dismissed on the aforementioned count of sexual assault on a learner who was at grade 11 and aged 16 years at the time.
8. It will produce four or more witnesses who will testify and prove that the Applicant was dismissed for fair reasons and that the dismissal was procedurally as well as substantively fair.
9. As it was established that a dismissal had taken place (s 192 (1)), the Respondent bore the onus to prove that the dismissal was substantively and procedurally fair (section 192 (2)).
ISSUE TO BE DECIDED
10. The issue to be determined is whether the dismissal of the applicant was procedurally as well as substantively fair.
11. Should I find in favour of the Applicant then I am required to consider what remedy would be appropriate.
12. Should I find against the Applicant, then the matter would be dismissed and the Applicant would not be entitled to relief.
SUMMARY OF THE EVIDENCE AND ARGUMENT
13. Section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the LRA”), requires me to issue an award with “brief” reasons”. I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration hearing.
14. However reference to “brief reasons” doesn’t mean that I must not consider all relevant evidence adduced during this arbitration and not to record them. I am supported by persuasive case law on this point. Furthermore, given the number of witnesses (eight in all who testified and reference to the documents used and referred to in these proceedings) this award is in line with the principle enunciated by the Labour Court in Country Fair Foods (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Another, [1999] ZALC 182 (19.8.1999) to the effect that as an arbitrator .
15. I am obliged to diligently apply my mind to all the facts. As Zondo, then JP, reminds is in the LAC judgment in Naepe v Commission for Conciliation, Mediation and Arbitration, [2008] ZALAC 2 ( 18 April 2008), that although a commissioner is expected to give “brief reasons” he or she is expected to take into account all the facts and factors which are of great significance to or which are critical to one or other of the issues he or she is called upon to decide. It is my respectful understanding that I must make mention as to what these facts are and what are the factors that inform my finding as recorded in this award.
Arbitrator’s notes
The footnotes accompanying this award are part and parcel with this award and should be read and considered together.
Respondent’s case
Respondent led the evidence of four witnesses. They were
(a) Nombulelo Mjijwa, ( the complainant)
(b) Mrs Zodwa Constance Xulu ( her mother)
(c) Warrant Officer Mayise
(d) Sabelwa Sthembeka Mkhwanazi
(a) Nombulelo Mjijwa ( hereinafter interchangeably referred to as ‘’ Mjijwa” alternatively as the “complainant’ )
Her evidence in chief ( as summarized)
My notes
It is apposite to record that she testified that she doesn’t remember the dates and everything and that she will testify what she recalls. Its common cause that she used to travel with the Applicant to and from school as she had difficulties with public transportation.
16. She testified as follows :-
16.1 The first instance
a. During the second week of the third school term in 2016, the Applicant, with whom she commuted to and from school started to engage her with questions that were of a personal and private nature . He also asked her to undress and change clothes in his car . She felt that was inappropriate and intensely personal and remained silent but after a short while replied to his question. He then took her home. Normally he would drop her off at the KFC from where she used to make her way home.
b. The next day, was sports day and he asked her to bring her gym or sports clothes with her . She replied that she wouldn’t be participating. She did, however carry her sports shoes with her in her bag.
c. The following day, which was also a sports day, during the third period he had informed her that he had to attend a meeting in Empangeni and that they would be leaving early and that she should change her clothing in the car as he would be long at the meeting. She told him that she did not have any other clothes other than what she was wearing and he suggested that she borrows some clothes. She stated that she had lent a dress to another learner at the hostel of the school which she retrieved.
d. She recalls that as they were driving, they passed sugar cane fields and he had asked her why she had not changed her clothes and he insisted that she changes in the car and assured her that he wasn’t going to do anything to her as she was afraid.
e. She testified that he didn’t seem to be the normal person and that he was not smiling . She started to change her clothing and put on her running shoes and socks. He had told her she must safely put her school clothes so that they don’t get creased.
f. When they had reached Empangeni, he parked the vehicle opposite Spar. He exited the vehicle alone and headed for a building and after a while returned with a key that looked like it was for a sliding door. He asked her to get out of the vehicle whereafter he gave her the key and told her to go into the building from where he had exited and shouted at her to get into a room.
g. She did so and she noticed that there were people there ( a male and a female) who directed her to the room. After she had difficulty opening the door, the Applicant who joined her opened the door and they got into the room where he told her to undress whilst he went into the toilet.
h. After a while he emerged unclothed and promptly proceeded to engage in sexual congress with her and had forced his way into her on two occasions and even ejaculated. All this was against he will and without her consent.
i. They then got dressed and he drove her home and on the way he threatened her with death if she revealed what had transpired. He also threatened to kill her parents.
j. She was devastated by this experience and when she got home, she saw her parents there, as well as her sister in law and her own son. She acted normal, She undressed her uniform .
k. Her sister in law noticed something different about her and asked her if everything was okay and she replied it was okay and then after kissing her son she went to bed early that day.
l. The next morning she went to KFC which was her pick up point and proceeded to school in his vehicle. Everything was normal.
16.2 The second and further instances
a. A weekend had passed. He had taken her to his house, on the way to school, as he had ostensibly forgotten something he needed to retrieve. He invited her in.
b. There too he forced himself upon her, allegedly in the domestic worker’s bedroom which was located in a building adjoining the main house.
17. She continued to travel with him during 2016 until November 2016.
18. (a) She testified that as had not received her school report indicating that she had passed grade 11 which she said she had passed, at the end of that year and to advance to grade 12 , early in 2017 she went to check and, I assume conform her result .
(b) The Applicant, she testified, further, called her into his office and asked her to close and lock the door. She closed but did not locked the door. He asked her , now that she was going to be residing in the school dormitory, how they were going to proceed .
(c) She did not reply but left the room and headed for the dormitory where she started crying and this was noticed by her friend Sabelwe who asked her why she was crying. She confided in her and told her what had transpired.
(d) Sabelo then called her mother who advised her to report the matter to another female official in the school.
19 This was duly done and a Mrs Shange , a social worker initiated a process through child line and the police authorities.
Cross examination
20. She was asked why didn’t she scream or make a noise when she was being raped in the BnB . She relied that she couldn’t as there was a lot of ambient noise and that it wasn’t in her nature to scream. Instead she cried silently.
21. She confirmed that she had given birth to a child in May 2016.
22 She was asked who come there was nobody around at the time she entered the BnB . He reply was that she couldn’t remember . She reiterated that she didn’t seen anyone.
At his residence
23. They would go to his residence two or three times a week where the sexual assault would be perpetrated.
24 It was put to her that it was broad day light at the time when the alleged sexual assault took place in the Applicant’s house and that it was odd that no one noticed especially considering that there was a crèche directly opposite his house and his neighbour was an electrician who operated from home. Moreover, the Applicant had a domestic worker at the time who will testify that she was working at the house at the time and that she didn’t see the complainant. It was highly improbable that this would not be noticed.
24. In 2017, around March she was relocated by her mother from the hostel to Nkandla, It was put to her that was because she was involved in a fight with a fellow learner and she was expelled.
25. It was also put to her that she was not entirely forthcoming with the truth that she had given learners at the school different versions of alleged sexual, assault. She failed to respond when it was put to her that witnesses would testify that one occasion she alleged that she was raped by her brother’s friends who were high on dagga whilst on another occasion she was raped by her uncle and friends.
Re-examination
26. She was asked questions but nothing turned on them.
(b) Mrs Zodwa Constance Xulu
1. She testified that she had arranged with the Applicant to transport her daughter to and from school for a fee.
2. She also testified that he would come home as well.
3. She hadn’t noticed anything untoward vis-à-vis her daughter save for one occasion when they had arrived later than usual,
4. She was alerted by another learner that something had happened and then it dawned on her that the Applicant was naughty with her daughter.
5. On cross examination she too was asked why she hadn’t reported the alleged rape to the police or why she had taken any action. Her reply was that the social worker and an educator referred to as “the mistress” had already done so.
My notes
The remaining witnesses of the Respondent were unavailable as it was school holidays and they were out of time and could not come and testify. So as not to lose time, I saw it prudent to ask the Applicant’s representative to lead his client which he acceded to. However, I will analyse his testimony as well as those of other witnesses later.
(c) Warrant Officer Mayise
Evidence in chief
1. She was the investigating officer who took down the complainant’s statement and who went to the residence of the Applicant and took photos.
2. She testified that she and her late colleague were permitted to enter the residence with the complainant and that the domestic worker had let them in after permission was granted by the Applicant whom she or her colleague had called . The complainant had pointed out the room where the alleged sexual assault had taken place.
3. The complainant had pointed out the place to her and her colleague. She did call the Applicant and sought permission to enter the premises and that the Applicant did not insist on a warrant.
Cross-examination
4. She confirmed that the house maid was in attendance but that no statement had been taken from her or from the neighbours especially the crèche which was opposite the house.
(d) Sabelwa Sthembeka Mkhwanazi
My notes
The sequence in which witnesses testified at this hearing are not as they appear in this award. As on certain days, certain witnesses were unavailable for various reasons, such as this witness who was on leave during school holidays in Durban, she was the last witness to testify on the last day of this hearing, namely the 24th June 2019. In this context her testimony must be read and will be analysed.
Her evidence in chief
1. She was a grade 8 pupil at the time. And she knew the complainant whom she describes as a sister. They were roommates at the hostel in 2017. The complainant was more than a friend to her. She was like a sister .
2. She knew the Applicant and referred him by his pseudonym “ Deri ”. However, she testified that the complainant never referred to him as “Deri” but Mr Mkhize.
3. She testified that she had noticed the complainant crying and that she was told she was “ok” , but when she persisted she was told she would be told in private, what had transpired.
4. Eventually, in private, somewhere behind the scullery, the complainant graphically narrated what allegedly transpired . She was told
a. How and where the sexual assaults took place;
b. Who , namely the Applicant, was the perpetrator;
5. She believed the complainant’s version and found it inconceivable that she would lie about such a serious matter.
6. She phoned her mother for advice and from thereon social workers and the authorities were involved. Her mother also was given, on request, the complainant’s mother’s telephone number and there was a discussions between the two parents details whereof she wasn’t privy to.
7. She ventured an advice to the complainant about recording the incidents but the complainant told her that wouldn’t work as often when they met he would grope and breasts and parts and that she would be detected.
8. She also testified how the complainant would hide under the desk whenever the Applicant would send someone to the class to summon her to his office. She testified this was so because the complainant was allegedly terrified of what would happen in the office in relation to the sexual assaults.
9. She was asked about a witness, Bongiwe Mbonambi, another learner at the school who had testified at the behest of the Applicant.. She testified she never knew her and that probably she was a monitor.
Cross examination
10. She admitted that she had come to testify for her friend but she stated that she wasn’t lying She and the complainant were roommates in January-February 2017.
11. She admitted that she never witnessed any of the alleged sexual assaults .
12. It was put to her what the complainant had told, that is the different versions of alleged sexual assaults by her brother’s friends etc. . In response, she replied that these were denied by the complainant
13. She was cross examined that the complainant told her that she was “ok” whereas she testified, she told this hearing she had told the witness that she ”had a headache”. This witness wasn’t able to expand on her version but to reiterate what she was told by the complainant.
The Respondent had closed its case
The Applicant’s case
The Applicant as well as the following testified on his behalf
(1) Thabani Mkhise ( Applicant)
(i) He testified that on the 7th February 2017, he was summoned by the acting principal who advised him of the complaint that was registered against him by a learner for sexual assault and that there were two police officers assigned to investigate the complaint
His connection or interaction with the complainant
(ii) He was phoned by the complainant’s mother in February 2016 and he was asked if the complainant could travel with him for a fee from Emadlanzini which was near Richards Bay Airport. He agreed. Around that time he had been involved in a collision and following that he reported the accident to the Richards Bay Police. That led to delays. So they had got home later than usual and he had left her at home.
(iii) Apart from the complainant there was another passenger, Ms Nguni , who was a stand in educator for another educator on accouchement ( or maternity ) leave.She had stopped travelling with him in July 2016.
Value Lodge?
(iv) He denied all the allegations levelled against him. He has never been there. He also denied that he had taken the complainant at least three times a week to his residence. He testified that he has a domestic worker who was employed by him in 2016.
His residence?
(v) The complainant had been to his house before, once when he had inadvertently taken the keys to the house and the remote which his wife used to get in and to the house. He was phoned on his way to school and he turned the car around to return the key and the remote. The complainant was with him and she was briefly entered the premises .
(vi) He also denied that he told the complainant that she had passed as he was a teacher in commerce and math and she was a science learner and he had never taught her. He also denied that she had come to see him to register in 2017. He testified that the complainant was lying when she had testified that she had been given an assignment in LO and that was why she was expelled from hostel and school. She was expelled for assault on a fellow learner.
(vii) He testified about the procedural flaws and unfairness of the process against him. Specifically there was an inordinate delay from the time of the complaint to the time he as dismissed.
Cross examination
(i) It was his testimony that he believed that the complainant thought he was responsible for her failure at grade 11 whereas he denied that he had taught her. He inferred that was why she levelled these charges against him.
(ii) In 2017 he was distributing stationery at the school and her mother had come to him and asked him if he could pass by their house and uplift some books.
(iii) He denied that apart from the one occasion he had dropped her off at home that he had been there multiple times. He reiterated that he used to pick her up as arranged at KFC.
My Notes
Mr Mchunu asked the Applicant no questions about Value Lodge and the complainant’s allegations. Nor did he probe the Applicant’s version when he denied that he had ever been to the lodge.
(2) Sinikiwe Marylyn Khosa ( domestic worker)
a. She testified and she wasn’t seriously dented during her testimony.
b. She crisply answered that there was no way she would have been aware if there was someone on the premises and she denied that apart from the time that the complainant accompanied that she had seen the complainant at the residence .
c. Under cross examination she confirmed the version of the Applicant regarding that one time when he had inadvertently taken the remote and the keys with him which his wife needed to leave and enter the premises.
(3) Simangele Ntuli
Her evidence in chief
a. She was an educator who taught the complainant IsiZulu at grade 10.
b. In 2016 she was informed by the complainant that she had been raped and that she was pregnant . She had sight of a clinic card wherein the following was recorded
i. She had been raped
ii. A criminal charge had been laid
iii. And that she was pregnant
c. When she enquired from complainant, she was told that she had been raped by her brother’s friends when they were high on drugs(woonga) , She did not mention anybody else who had raped or sexually assaulted her. She reiterated this even when she was subjected to a gruelling and extensive cross-examination.
Cross examination
d. When cross examined she categorically reiterated that at no time did the complainant mention the Applicant. As to why after learning of the rape, why hadn’t taken action when she was told about the rape. Her reply was that a case had already been opened. She tried to intervene but there were personal family challenges she also reiterated that the complainant never mentioned that she had been raped by the Applicant. She adamantly testified that the complainant told her that the Applicant tried to touch her.
e. She was asked about whether Sabelwa and another learner who had come to see her together with the complainant. She unpacked what happened;
i. They came to her during or shortly before school assembly and wanted to speak to her. She indicated to them that they would meet after assembly.
ii. She had meanwhile discussed with the complainant what had happened so that when they eventually did meet she never spoke with Sabelwa.
iii. At that meeting she was told by the complainant that the Applicant wanted to touch her.
iv. She had undertaken to meet them again some other time but personal supervening circumstances prevented this.
v. She did, however try to follow up. On the 3rd February 2017 at 2:30 pm or thereabouts, she went to admin block to look for the complainant but she was updated by other learners that the matter had been escalated to the authorities and that she was asked for and she gave a statement to the police investigating the alleged sexual assaults.
(4) Mbongiwe Mbonambi
Evidence in chief
1. She lived at the hostel and was with the complainant for a period of two months in the same room in 2017
2. She testified that the complainant was expelled for fighting with another learner and she was relocated to Nkandla at the behest of her mother.
3. She also testified that the complainant had told her that she had been raped by her uncle and his friend and also that she had been sexually molested by the Applicant.
4. The complainant was given to change versions so often that no one lent any credibility to her allegations.
5. The Applicant was known throughout school by the pseudonym of “Deri” and that therefore it was inconceivable that the complainant who had testified that she didn’t know his pseudonym.
Cross examination
6. She admitted that she came to testify to assist the Applicant but she denied that she was lying.
Closing Arguments
My notes
I wish to acknowledge the prodigious effort and time that the parties put into their voluminous closing arguments. This case concerns a very serious issue which requires a comprehensive effort to establish guilt or innocence. No short cuts. To this end both parties have put in a sterling effort to gainsay their respective versions. I do not intend to set out their closing arguments in any detail save to record that I have them into account in all their vigour.
.
Applicant’s Closing arguments
The Applicant strongly argues that the Respondent has woefully fallen short of the required standards of proving, on a balance of probability, that the dismissal of the Applicant passed muster that the dismissal was based on fair reasons and that it was procedurally as well as substantively fair.
Procedural fairness
It argued that the was procedural unfairness inherent in the process followed and this was exacerbated by the inordinate length of time it took from the time of the complaint against the Applicant to the time he was charged and dismissed took a considerable long time.
(a) Timeline
The allegation of sexual assault was made
- On 6th February 2017,
- On 7th February 2017 statements were taken by the police
- On the 28th November 2017, applicant was charged
- On the 5th December 2017, a disciplinary hearing was held
- On the 23rd April 2018, he was notified that he was found guilty and the sanction was dismissal
- On the 24th April 2018, he appealed against the decision
- On the 29th October 2018, he was informed of the unsuccessful outcome
- On 1st November 2018, his dismissal was effective.
It was argued that this was “unreasonable, unnecessary and procedurally unsound.
(b) Substantive unfairness
Here it argued that there was a plethora of facts that militated against whether, at its worst, there was a fair reason for dismissal and whether or not, at the very least, on the balance of probability there were sound and cogent reasons underpinning the Respondent’s decision to find the Applicant guilty and to sanction him with a dismissal. In support of its case that the Respondent woefully fell short of this standards, the Applicant argued that
- The Respondent failed to produce any direct evidence to gainsay the version of the complainant
- No documentary evidence or witnesses testified to prove that there had been in fact sexual assault on the complainant.
- The complainant herself wasn’t convincing in that she appeared to have adjusting her testimony as she went along prompted by the questions that were put to her. It is submitted that her testimony wasn’t that of a paragon of virtue or of a wronged woman but that of someone who had the perchance to fabricate versions of sexual assault, alternatively of rape. My attention was brought to the several versions she had given to people. On one occasion she level allegations of rape against the woonga imbibing friends of her brother. On another occasion she had accused her uncle and a friend. Ranged against these are the allegations against the Applicant, an educator. These alleged fabrications did not advance her case. She was not a credible witness and therefore could not be believed. In fact one or two witnesses doubted the veracity of her version.
- No witness was called to testify from the BnB or from the social services to corroborate her version from a circumstantial point to view since we have only her version of events. The evidence of the others were largely as narrated by her to them and regurgitated during this arbitration.
- She had lied that she had passed grade 11 whereas she had in fact failed. She was less than economical with the truth about why she was expelled from school and the hostel and the truth had to be prised out of her as corroborated by witnesses.
- Her version that she was taken by the Applicant to his house two or three times a week was contradicted by the testimony of the Applicant’s former domestic . Furthermore the standard and level of investigation by the SAPS was woefully deficient in that no statement or evidence was gather from personnel at the BnB . Nor did they interview and take a statement from the domestic worker Sinkiwe Marylin Khoza who testified that , apart from the one occasion when the complainant accompanied the police, she hadn’t seen the complainant inside the residence at any time. If the Applicant had sneaked her in she would have known as she was working at all time and that the remote gates emitted a sound alerting people. Even her own witness, Sabelwe who regarded the complainant as a sister engaged in speculative conjecture as to what was narrated to her. It was pointed out that she didn’t even have her mobile number.
For the aforementioned reasons, inter alia, the version of the Applicant was to be believed. He was clear and precise in his testimony and he even permitted the SAPS to conduct a search and investigation and to take photographs. From this it can be inferred that he was indeed truthful and that he had nothing to conceal.
Respondent’s closing arguments
It succinctly argued that the Applicant , being a professional educator was aware of his fiduciary responsibility vis-à-vis learners and that he had been found guilty and dismissed for a fair reason. The version of the complainant of the nature and extent of the sexual assault was preferable over that of a bare denial by the Applicant. He had indeed committed those offences and that he had forced her to have sex against her will and consent.
She had testified that when she was handed the key to the room at the Value Lodge, she was directed by a man and a woman which room to go to. She also testified that she did not lay a charge immediately because the life of her parents and herself had been threatened by the Applicant.
Her witnesses, especially Sabelwa corroborated her version.
Pursuant to the foregoing, inter alia, it strenuously argued that the version of the complainant as more believable and preferable over that of the Applicant and that I should find that the dismissal was procedurally and substantively fair.
ANALYSIS OF EVIDENCE AND ARGUMENTS
It is important that I mention what the Labour Appeal Court stated in Grey v Education Labour Relations Council and Others . It declared that
In terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998 (EEA) it is imperative that an educator ‘found guilty of having had a sexual relationship with a learner of the school where he or she is employed “must be dismissed” from his or her employment.’ It regarded the prevalence of educator-on-learner sexual misconduct as constituting an abuse, “not only of the authority and responsibility vested in an educator, but of the rights of the child given that ‘…no child has equal power to say 'no' to a parental figure or to anticipate the consequences of sexual involvement with a caretaker. In such an unequal relationship the adult (educator) bears sole responsibility for…sexual activity with a minor”’ .
Ahead of undertaking an analysis of the evidence and arguments in this case, it is apposite that I unpack jurisprudential principles which inform this award which trenches upon a very critical and emotive issue, namely sexual assault and harassment of learners in the school.
I reiterate that there is as the LAC held in Grey supra that “with a high prevalence of educator-on-learner sexual misconduct in South Africa, our law reflects that sexual misconduct with a learner constitutes an abuse, not only of the authority and responsibility vested in an educator, but of the rights of the child given that “…no child has equal power to say 'no' to a parental figure or to anticipate the consequences of sexual involvement with a caretaker. In such an unequal relationship the adult (educator) bears sole responsibility for…sexual activity with a minor”.
It is for this reason , inter alia, that I recorded the testimony of critical witnesses in detail. The interests of fairness and justice required a thorough analysis of the facts , the evidence and the arguments during this arbitration.
Jurisprudential principles
(a) The onus of proof
It’s trite that he onus is on the Respondent to prove that it had fair reason to dismiss the Applicant and that it had been consistent in its sanction of dismissal of the Applicant. The standard or quantum of proof required for the dismissal to be for a fair reason, is proof upon a preponderance of probability. There must be a reasonable degree of probability to support a finding. By ‘balance of probability’ it means that the Respondent is required to put sufficient evidence before me to ensure that its version outweighs the version as support by proven facts and evidence of the Applicant. If the Respondent puts evidence before me against which the Applicant had no evidence to counter, however slight that evidence may be, the balance of probability tilts in favour of the Respondent.
(b) My obligation
Where one is faced with two contradictory and contested versions, the labour court set the standard in Solidarity obo Van Zyl v KPMG Services (Pty) Ltd and Others . Cognizant of the Supreme Court of Appeal Court decision in Stellenbosch Farmers' Winery Group Ltd and Another v Martell Et Cie and Others . I summarize these in the next paragraph.
Labour Courts have held that the duty of an arbitrator when confronted by two irreconcilable versions, is essentially the same as that of a judge in a trial court. Briefly but pertinently, to come to a conclusion on the disputed issues I am obliged to makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As regards (a) any finding on the credibility of a particular witness will depend on the impression about the veracity of the witness. As to (b), a witness' reliability depends, inter alia, on the opportunities he or she had to experience or observe the event in question and on the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probabilities and improbabilities of each party's version on each of the disputed issues.
There is this intangible but very real inter-relationship between reliability and probability. In the ultimate analysis I must determine whether the party upon which the onus lies has discharged its responsibility especially in this case where the charge against the Applicant is so serious that dismissal was a fair and only sanction that could be reached.
(c) Circumstantial evidence?
Where direct evidence is absent I cannot close my mind to circumstantial evidence as reminded by the labour court in Distell Ltd v Commission For Conciliation, Mediation And Arbitration and Others , In that case there was no reliable evidence to indicate that the employee who was dismissed was guilty of misconduct. The principle enunciated by the court goes as follows:
“The use of circumstantial evidence is a powerful tool in proving the existence of an issue in dispute. Hoffmann & Zeffertt note the distinction between direct evidence and circumstantial evidence. Direct evidence is provided by a witness who testifies directly on the issue in dispute. So, for instance, in a murder trial, a witness who testifies that he saw the accused stab the deceased with a knife, provides direct evidence as to the stabbing. On the other hand, a witness who testifies that he saw the accused emerge from a room in which the deceased was subsequently discovered, bearing a knife dripping with blood, provides only indirect or circumstantial evidence to support the fact that the accused had stabbed the deceased.
Circumstantial evidence is thus evidence of a fact from which a reasonable inference, only that inference, can be drawn as to the existence of a fact in dispute. Whilst direct evidence is more compelling than circumstantial evidence, in reality circumstantial evidence may be more persuasive than direct evidence .
Analysis of the evidence and arguments
1. The Respondent’s case is that the Applicant sexually assaulted the complainant on more than one occasion as reflected in the charge sheet and that he deserved the sanction which became imperative in terms of section 17(1)(b) of the Employment of Educators’ Act No 76 of 1998.
2. It bases it conclusion primarily on the evidence and testimony of the complainant whose memory of recall wasn’t at its optimum for whilst she recalled certain minutiae of what transpired she could not remember the dates and at times was vague and unsure of her facts and was not entirely forthcoming.
3. That was the only direct evidence before me. She rehearsed the allegedly terrible odium she experienced but whilst she mentioned that there was a man and woman at the BnB who directed her to her room where she was allegedly raped, we do not have their evidence before us that she had been there. She also mentioned a social worker, Mrs Shange who was never called to testify and so contextually support her version.
4. The complainant provided lurid details which was not gainsaid by independently verifiable evidence. This made the evidence of this man and woman at the BnB critical from which circumstantial evidence could be gleaned and an inference could be drawn that what she alleged probably happened. It is unfortunate that the Respondent didn’t deem it critical to secure their presence and testimony of what she alleged that she had been directed by a man and a woman at the BnB to where the room was.
5. Sadly this was not forthcoming and there is no basis from which to find this aspect of her testimony reliable and credible.
6. Even if my analysis in respect of a specific incident or sexual encounter such as what I’ve referred to supra is wrong, the totality of the complainant’s evidence, as supported by the other witnesses, has not enabled the Respondent to discharge its burden of proving, on a balance of probabilities, that the Applicant had sexually assaulted the complainant at the school where he is employed. There was, in my analysis, a misfit between crucial and critical pieces of the proverbial jigsaw puzzle.
7. In this regard, the Applicant's testimony is indeed relevant because he was able to produce witnesses who corroborated his version and defence. They were reliable and on point .Therefore, the Applicant's submission that the learner's evidence is totally unreliable and untruthful has merit.
8. Amazing that with such a serious offence, we do not have any medical reports or affidavits to gainsay her version. Nor do we have the evidence of the social worker who allegedly initiated the complaint which culminated in the Applicant being charged criminally . The police investigation, as evidence through the evidence of Warrant Officer Mayise was woefully deficient. It interviewed and took down statements from the complainant , the witness Ms Ntuli and the Applicant but not from the domestic employee who was a critical witness and whose testimony was vital especially since the complainant alleged that she had been to the Applicant’s residence at least three times a week. The former domestic employee, Sinikiwe Marylin Khosa testified in a cogent and honest manner and her testimony wasn’t seriously contested. She testified that she had been a live in domestic and that at no time did she witness or seen the complainant at the residence of the Applicant. She also testified that it was not possible for the Applicant to sneak the complainant in as she would have heard the car in which the Applicant is alleged to have transported the complainant as well as the remotely controlled gate which made a sound or noise that would have alerted her.
9. The investigation of the Respondent and the SAPS also omitted to investigate, interview and obtain evidence from the crèche directly opposite the Applicant’s residence or from neighbours as the sexual assaults had taken place during the day. Someone would have noticed something. This aspect of the complainant’s version was not convincing or persuasive. None of her witnesses placed her on the scene or provided the slightest tangible evidence from which the probability of what had transpired was credible and believable. 10. I found that she probably tailored her version of alleged sexual assaults.
Regarding allegations of prior rape incidents
10. Allegations of previous rape incidents were not put to her by the Applicant’s attorney. They were put into evidence by witnesses with the intention to impugn her credibility. They cannot be trusted as they have not been verified even though not denied.
11. On one occasion and this wasn’t denied or persuasively refuted any of her witnesses, that she had been raped by her brother’s friends who were high on woonga. Testimony was also led that she also alleged that she had been raped by her uncle and his friends. None these were refuted and they appear to be flights of fancy depending on to whom she was narrating the alleged incidents. These allegations were not put to her and therefore cannot be accepted.
Her credibility
12. Nevertheless, she wasn’t entirely forthcoming with the truth as to why, for instance she had to relocate from her erstwhile school to Nkandla at the behest of her mother. She lied that she was expelled for leafing the dormitory to do an LO assignment outside school whereas there was documentary evidence that she was expelled for assaulting a fellow learner and she was subjected to criminal process. This evidence had to prised out of her. None of those who testified on her behalf were able to provide even circumstantial evidence to even remotely show that it was probable that her version was credible.
13. Unlike in Grey where the learner had recorded her ordeal in a diary which was intercepted and read by her mother all we have are faltering allegations. She testified that after the first alleged incident at the BnB she was driven home by the Applicant and her sister in law noticed that something was amiss and enquired about that. This sister-in-law was never called in to testify.
The Applicant
14. The Applicant also testified. He denied the allegations of sexual impropriety on his part and his version was inferentially supported by the testimony of his domestic employee for instance. I cannot discount the fact that when he was asked by the investigating officers for permission to enter his residence, he didn’t insist on a warrant and as inferred by his legal representative this is evidence that he was cooperative with the police and that he had nothing to hide. He answered questions clearly and he responded satisfactorily to the challenges to his credibility by providing sound and cogent answers to the Respondent’s Mr Mchunu.
Was the procedural unfairness as alleged?
15. I could find no or little evidence to persuade me that the Respondent had committed procedural unfairness. The facts that almost eight to ten months had elapsed it was necessary for a thorough investigation and there was no prejudice suffered by the Applicant who wasn’t suspended with full pay.
Was the dismissal substantively sound and for a fair reason?
16. The lack of any depth in the evidence of the complainant and embellished by those who testified persuaded me that the Respondent had failed to discharge the onus upon it and that, inevitably it is my conclusion that the dismissal wasn’t supported by any evidence and that I find that the dismissal was substantively unfair.
17. It’s axiomatic that, considering the conspectus of evidence the Applicant is entitled to the relief he seeks, namely reinstatement with back pay and without loss of benefits.. Details of his benefits are set out in paragraph 18 below..
18. According to the evidence before me the dismissal of the Applicant was effective 1st November 2018. This means that he was last paid in October 2018. . His combined total income was R31023-75 calculated as follows
a. R 29, 747-75 ( basic gross monthly salary) plus
b. R 1276-00 ( monthly home owner allowance)
19. The total from November 2018 to July 2019 totals R 279213-75 (R31023-75 x 9 months= R279213-75) minus such deductions as the Respondent is in terms of law entitled or obliged to make.
AWARD
A. The dismissal of the Applicant was procedurally fair but substantively unfair
B. The Applicant is entitled to the relief he seeks. He is reinstated with full pay backdated from the date of dismissal.
C. The amount of back pay plus benefits due to him amount to R 279213-75 minus such deductions as the Respondent is in terms of law entitled or obliged to make.
D. The Respondent is ordered to reinstate the Applicant, Mr Thabani Mkhise, in its employ on terms and conditions no less favourable to him than those governed the employment relationship immediately prior to his dismissal.
E. In addition , the Respondent is ordered to pay the nett amount reflected in para C above within forty five ( 45) days from the 31st July 2019 . Interest thereon shall accrue at 10,50% thereon such interest to run from the 15th September 2019 if the nett amount isn’t paid into the bank account of the Applicant to date of payment.
F. The reinstatement in paragraph B is to operate retrospectively from the date of his dismissal.
G. Mr Thabani Mkhize is to tender his services within seven days of his becoming aware of this award.
H. There is no order as to costs.
Dated at Durban on this the 23rd day of July 2019.
ELRC PANELIST
Saber Ahmed Jazbhay