PSES 914-18/19 EC
PSES 914-18/19 EC
Award Date:
17 February 2020
Case Number: PSES 914-18/19 EC
Province: Eastern Cape
Applicant: ZOLA SAJINI
Respondent: Department of Education Eastern Cape
Issue: Unfair Dismissal - Misconduct
Venue: Whittlesea Magistrates Court.
Award Date: 17 February 2020
Arbitrator: Hadley Saayman
Case Number: PSES 914-18/19 EC
Commissioner: Hadley Saayman
Date: 17 FEBRUARY 2020
In the DISCIPLINARY INQUIRY of
ZOLA SAJINI (Persal number: 52968243)
And
Department of Education–Eastern Cape
Educator’s representative: Mr A. Mhlonto
Applicant’s address: 28 6th Avenue
Newton park
Port Elizabeth
6036
Telephone: 041- 364 0399
Telefax:
E-mail:
Department of Education’s representative: Mr B. Kwepile
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313
E-mail: buzanikwepile@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. The matter came before the ELRC in terms of Collective Agreement No. 3 of 2018 and was set down for an Inquiry on 30 August 2019,4 October 2019 and 31 January 2020 at the Whittlesea Magistrates Court.
2. The Educator was represented by Mr A. Mhlonto of NAPTOSA.
3. The Department of Education was represented by Mr B. Kwepile, a Chief Education Specialist: Labour Relations. The interpreter was Ms V Gojija and the intermediary Ms C Songelwa.
4. At the sitting of the disciplinary inquiry on 30 August 2019, the Educator’s representative three (3) points in limine and later withdrew two of it, leaving with the one point of a letter of representation from the Department of Education, which was provided before the next sitting of the disciplinary inquiry.
CHAIRPERSON’S DISCIPLINARY CHECKLIST
CRITERION YES NO COMMENT
Explain the purpose of the enquiry. √
Was the educator issued with a notification of enquiry? √
Did an investigation take place? √
Was the educator informed of his right to representation? √
Was the educator informed of his right to an interpreter? √
Was the educator informed of his right to call witnesses? √
Was the educator informed of his right to state his case? √
Was the educator given sufficient time to prepare for the enquiry? √
BACKGROUND TO THE DISPUTE:
1. The Educator is permanently employed as a post level one (1) teacher at Whittlesea Primary School.
2. The Educator was charged with contravention of inter alia:
I. Section 17(1) (b) of the Employment of Educators’ Act 76 of 1998, as amended, in that he had committed an act of Sexual Assault to a learner where it is said that:
• During 2017 he made sexual advances towards WN (not her real name), a 15 year old grade 6 learner in that he touched her breasts, played with her bra from behind and asked her what she was wearing underneath her school uniform and if she has a boyfriend.
• During 2017 he made sexual advances to ZJ (not her real name, a 13-year old grade 6 learner in that he put his hands on her private part and ordered her not to tell the boy learners.
• During 2017 he made sexual advances towards S Z (not her real name) a 14 year old grade 7 learner in that you offered her a lift home with other learners after dropping all learners to their respective places, he asked her if she has developed any pubic hair yet and if her clitoris was moving, he further put his finger on her private parts.
II. Section 18(1) (q) of the Employment of Educators’ Act 76 of 1998, as amended, in that he unjustifiably prejudiced the Administration, Discipline and Efficiency of the Department of Education, Office of the State or School, further Education and Training Institution or Adult Learning Centre:
• Where he compromised the integrity of the teaching profession when he performed an act of sexual assault to WN, ZJ and SZ, learners at Whittlesea Primary School.
• His conduct shamed the Department of Education and put the name of Whittlesea Primary School into disrepute by shaming the profession of Educators and destroying the trust relationship between himself and the Department of Education, parents and learners of the school.
ISSUE TO BE DECIDED
3. I must decide whether the Educator was guilty as charged by the Department of Education.
SURVEY OF EVIDENCE
4. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the Act,
relevant to the dispute at hand.
THE DEPARTMENT OF EDUCATION’S EVIDENCE
5. The first witness called by the Department of Education was ZJ (not her real name). She is currently attending a Senior Secondary School. On or about 14 February 2017 she was a grade 6 learner at Whittlesea Primary School. During breaktime on the particular day Ms Kesha send her to fetch her bottle in the cupboard in Mr Sajini’s classroom. When she entered the classroom, Mr Sajini was sitting in the classroom. When she looked into the cupboard in the first row, she could not find it, but found it in the last row. When she was about to leave the classroom, Mr Sajini called her. When she was close to him, he touched her private part with his hand. She was shocked and angry. Mr Sajini told her not to tell the boys. She went out of the classroom, gave the bottle to Ms Kesha and went to play. She told her friends “W” and “N” about the incident.
6. The second witness called by the Department of Education was “WN” (not her real name). She is currently attending a Senior Secondary School. During 2017 she was a grade 6 learner at Whittlesea Primary School. There was an occation which was supposed to be at Walter Sisulu University hall, but because there was a strike, the fuction was held at the hall close to the school. She went to the hall to clean it for a farewell function. She was busy mopping the floor when Mr Sajini and Mr Ncgezana came to the hall. Mr Ncgezana asked why she was mopping whilst there are a lot of boys. She told Mr Ncgezana that she told the boys to wait outside whilst she was mopping. Mr Sajini said that when I am finished mopping, I should come to his classroom. She went to his classroom and he instructed her to tidy up papers in the classroom. She picked up the papers and left to go and play outside. Mr Sajini called her again. He asked if she knows how to connect speakers. She said yes. He asked her to go with him to the hall and to assist him to connect the speakers. The two of them went to the hall. Mr Sajini was connecting the speakers at the entrance side and she was connecting the speakers at the kitchen side. When she bent facing his direction, Mr Sajini came to her and said she must kiss him. She said no and ran outside. She went back to the school to get her school bag and went home. She did not tell anyone at home. The following day she arrived late at school. Mr Sajini asked why she was late. She told him that she does not have money to pay for transport and that she walks to school. He said that when the school is out, I must come to his classroom and he would give her R10,00 for transport. She went and do scholar patrol. At the scholar patrol she told her friends that Mr Sajini offered her R10,00 for transport. The school started and it was maths period. She did not have a pen. Mr Sajini said that I must go and borrow a pen. During breaktime Mr Sajini called her and asked her what she was wearing underneath her school uniform. She told him that she was wearing a shorty, because her mother does not have money to buy a school tights. Mr Sajini said that she should come that he could see the what shorty she was wearing he won’t do anything to her. When she was about to leave the classroom, Mr Sajini pulled up her school dress. She was scared. She ran out and tell her friends “W” and “N”” about the incident.
7. “WN” testified further that during 2017, she was then in grade 7. Mr Sajini was teaching them about body parts. Mr Sajini did not like learners to laugh when he was teaching them about puberty. The following day during breaktime, Mr Sajini called her and asked her if she have relationships with boys. She said no. He said she was lying, because if her breasts”tities” are “big” , she must have boyfriends. She went out and tell her friend “N”. The following day, during the maths period Mr Sajini came to her toached her breasts and asked if she was wearing a bra. She again went out and tell her friend “N”. Her friends advised her to go and report these incidents to Ms Matolo so that Ms Matolo can report it to the Principal. She did not report it to Ms Matolo. There was an event at the police station. We went there. The following day the social workers came to the school. The social workers said they must come to their offices. At their offices the social workers told us how to behave and drugs abuse. They gave them a paper to write about the topics. She did not write about the topics. She wrote about what happened to her at school. She asked the social worker not to read it to the other learners. The following day the social workers came to school and took me to their offices. At there offices they asked me to explain what happened to me. The day thereafter they came to our house and asked my father whether he was aware what is happening to me at school. She was scared at school and could not concentrate at school. She also did not trust anyone at school.
THE EDUCATOR’S EVIDENCE
8. The Educator, Mr ZOLA SAJINI testified that he started teaching in 1994. He started teaching at Whittlesea Primary School during 2016. He is teaching Maths, EMS and NS. In 2017 and 2018, he was the class teacher for grade 6. The school does not have a staff room. During break times he sits outside on the veranda or in his classroom. He stores his valuable items, such as laptop and learning apparatus in his cupboard in his classroom. He has a key for his cupboard and the key of the classroom is in the Principal’s office. He only shares items, such as laptop or USB with other teachers.
9. Around 12h00 on a Friday, they usually do spring cleaning. Ms Kesha and Ms Mathithi usually supervise the learners cleaning the classroom. He will be at the garden on the school ground with the boys.
10. During 2017, the learner ZJ was in his grade-6 class. The learner, ZJ was a disciplined learner and performed academically well. The school usually celebrates valentine’s day on 14 February. He denied that he touched the learner, ZJ’s private part on 14 February 2017.
11. He became aware of the allegations against him during the September 2018 school holiday. A colleague, Mr Siyo telephoned him and told him that he was arrested for alleged sexual assault on learners and there are allegations that he was also involved in same incidents. On 3 October 2018, Ms Petheni telephoned him and warned him that he would be arrested. He was then arrested the following day.
12. Mr Sajini denied that he asked the learner, WN to assist him to sort out the papers in his classroom during 2017. He denied that he touched the learner WN. There is an Agricultural hall outside the school yard, but they do not use it. They normally use the Walter Sisulu University hall, school hall or a tent for functions. The entertainment committee requested him to enquire about a PA system. He brought the PA system, speaker and a cordless mike to school. He does not remember asking the learner, WN to assist him with the speakers. He denied that he asked the learner, WN to kiss him or that he touched her breasts.
13. The Educator also called Ms ANDISWA KHESA, a teacher at Whittlesea Primary School. She was transferred from Comfivaba to Whittleseastarted teaching at the same school in 2016. In 2017 she was the grade 5 class teacher.She was teaching Maths grade 5, NS grade 5, Technology grade5 and Isi-Xhosa for grade 6 and 7. She knows the learner “ZJ”, she was teaching her in grade 5 in 2016. They do not have a staff room, or a kitchen and her belongings are locked in her cupboard in her classroom. She does not share her belongings with others.
14. The Educator also called Mr SIPHIWO KEVA, the school principal of Whittlesea Primary School. He became Principal of Whittlesea Primary in 2015. The cleaning committee supervises the cleaning of the school. Ms Thuta is a grade-R teacher and responsible for organising the grade-R ceremonies. If there are not a lot of learners, they use the school hall, if a large number, they use an outside venue. He remembered the learner WN. They did not use the Agricultural hall for functions. The grade-R and grade 7 ceremonies were held in a tent which they hired. The speakers they used, are the same as those from the funeral parlours. He is not sure whether the social workers call the grade 7 learners to their offices. He does not remember that. The social workers usually come to school and at assembly do presentations. He was told by the detective that Mr Sajini was arrested for allegations of sexual assault. That was during the school holiday. He cannot recall that Ms Matola reported any incident of sexual harassment about Mr Sajini to him.
ANALYSIS OF EVIDENCE
15. Fairness requires that the position and interests of both the Educator and Department of Education are considered in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper regard to the objectives sought to be achieved by the Labour Relations Act.
16. In the matter of Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others 2003 (1) SA 11 (SCA) the Supreme Court of Appeal has laid out the accepted test applicable to both a trial court and an arbitrator when faced with a factual dispute, in particular when faced with two irreconcilable versions. According to this judgment (at para 5) the court concluded on the disputed issues by making findings on:
a) the credibility of the various factual witnesses.
b) their reliability; and
c) the probabilities:
a) The court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. This finding will, in turn, depend on a variety of subsidiary factors, such as
- the witness’ candour and demeanour ;
• his or her bias, latent and blatant;
• internal contradictions in his or her evidence;
• external contradictions with what was pleaded or put on his or her behalf, or with es tablished fact or with his or her own extra-curial statements or actions;
• the probability or improbability of particular aspects of his or her version; and
• the calibre and cogency of his or her performance compared to that of other witnesses testifying about the same incident or event.
b) A witness’ reliability will depend, apart from some of the factors above, on
• the opportunities he or she had to experience or observe the event in
question; and
• the quality, integrity and independence of his or her recall thereof.
c) Finally, an analysis and evaluation of the probabilities and improbabilities of each party’s version on each of the disputed issues are necessary components in reaching conclusion.
17. During cross-examination the Educator’s representative asked the learner, ZJ various questions, which the leaner, ZJ answered. The learner was asked where the cupboard in the class of Mr Sajini was. She explained that the cupboard is close to where Mr Sajini was sitting on the left side. The learner was asked why she did not asked permission from Mr Sajini to searched in his cupboard, because the cupboard is lockable. The learner answered that she forgot to ask permission. The learner was asked whether the cupboard was open or locked. The learner answered that the cupboard was closed. The learner was asked whether Mr Sajini was sitting or standing. The learner answered that he was seated. The learner was asked if Mr Sajini asked her what she was doing in his classroom. The learner answered that Mr Sajini did not asked her what she was doing in his classroom. The learner was asked whether she walked pass Mr Sajini on her way to from the cupboard. The learner answered yes. The learner was asked if Mr Sajini called her. She answered yes. The learner was asked whether she was wearing a school uniform or a short pants. She answered that she was wearing a pink pants. The leaner was asked whether Mr Sajini touched her with both hands. She answered with one hand. The representative further put it to the learner that because, she did not tell any elder person what she tell is not true. She answered that it is the truth.
18. It is common cause that the Educator’s representative never put it to the learner, ZJ where Mr Sajini was on that particular day. It was never put to the learner that Mr Sajini was not in the classroom. It is also common cause that the school does not have a staff room. In fact, Mr Sajini testified that sometimes he sits outside on the veranda or in in his classroom. The only plausible deduction is that Mr Sajini was indeed in his classroom during the break time. It was also common cause that the cupboard was not locked. It therefore makes sense that the learner opened the cupboard to look for the bottle. The question why the learner did not ask for permission to search in Mr Sajini’s cupboard and the question whether he touched the learner with both hands, suggests that Mr Sajini was in the classroom. It was not disputed that Mr Sajini was not seated when the learner entered and exit the classroom. It was further not put to the learner that Mr Sajini never called her when she was about to leave the classroom. Under cross-examination the learner answered that she was wearing a pink pants, which was not disputed. It was clearly put to the learner that the only reason, she is not telling the truth, was because she did not tell any elder person. The leaner confirmed that it was not easy for her to talk to elder people about the incident. Mr Sajini conceded that the learner, ZJ was a disciplined learner and she performed academically well. Mr Sajini further conceded that that if a learner is disciplined such a learner is a honest person.
19. During cross-examination the Educator’s representative asked the learner “WN” various questions, which the learner WN answered. The learner was asked inter alia: if she could remember when the first incident happened in 2017. She said that it could be during September. The learner was asked what the occasion was and the learner answered Grade-R and Grade-7 farewell function. The learner was asked who supervised the cleaning of the hall and she answered that Ms Thuta. It was put to the learner that Mr Sajini did not call her to his class to tidy up the papers and that he did not pull up her dress. The learner answered that he did.
The learner was asked who else went with her when she and Mr Sajini went to the hall to connect the speakers. The learner answered she alone wet with him. The learner was asked if there were other people at the hall and she answered that there were the people were fixing the entrance. The learner also answered that Mr Sajini called her to a small room where there were plugs and instructed her to connect the speakers. When she was busy behind the door, Mr Sajini asked her to kiss him. It was also put to the learner that, because Mr Sajini did not try to stop her when she ran out, Mr Sajini did not ask her to kiss him. The learner answered that he did.
20. It was common cause that Mr Sajini brought the PA system to the hall as requested by the entertainment committee. It was never put to the learner WN that Mr Sajini never asked her to go and assist him to connect the speakers at the hall. It was also never disputed that Mr Sajini offered the learner a R10 for her transport. It was also not disputed that Mr Sajini asked the learner WN whether she was wearing a bra. It was also not disputed that Mr Sajini asked the learner WN whether she had boyfriends if her breasts are “big”. It was further not disputed that Mr Sajini asked the learner that he wanted to see her shorts under the uniform. It was never put to the learner that the function was held in a tent. It was also not disputed that Mr Sajini and Mr Ncgezana came to the hall where the learner, WN was mopping the floor. It is possible that Ms Thuta supervised the cleaning of the hall, because the school principal, Mr Keva confirmed that other teachers could be involved with cleaning if requested by the cleaning committee. The learner WN testified that the function was supposed to be at Walter Sisulu hall, but because there was a strike it was held at the hall next to the school. Mr Sajini in his evidence in chief confirmed that they usually use the Walter Sisulu University hall, the school hall or a tent.
21. The Labour Court in Potgietersrus Platinum Ltd. v CCMA (J1459/98 of 30 July 1999) held that, it is merely required of the employer to show that circumstantial evidence that an employee is guilty of the misconduct, is more plausible than the possibility that he/she did not commit the misconduct. Should the employer be able to demonstrate a sufficient evidentiary basis to implicate the employee on a balance of probabilities, a mere and persistent denial by an employee without offering an actual version in answer to the evidence of the employer, is not a sufficient defence. As pointed out by the court, consistent denial does not constitute an alternative persuasive version and undue weight should not be attached to this as opposed to detailed, consistent, corroborated, and essentially unchallenged evidence presented by the employer. Should the employer demonstrate a sufficient evidentiary basis to prima facie implicate the employee on a balance of probabilities, the onus to prove whatever defence / explanation he offers, lies with the employee.
22. In considering the evidence of Ms Andiswa Kesha the following became apparent. Ms Kesha and Mr Sajini both started teaching at Whittlesea during 2016 and are colleagues. Ms Kesha confirmed that she knows the learner ZJ, because she was teaching her in grade 5 in 2016. However, during cross-examination Ms Kesha confirmed that she was also teaching the learner ZJ, Isi-Xhosa in grade 6 during 2017. She further confirmed that the learner, ZJ was a very good learner and even received awards for Mathematics and Natural Science. In her evidence in chief she did not specifically said that she did not send the learner to fetch her bottle in Mr Sajini’s classroom. Ms Kesha only testified in her evidence in chief that how could that be. It was never put to the learner, ZJ that Ms Kesha will come and testify that her belongings are in her grade 5 classroom cupboard and that she usually send her grade 5 learners. Under cross-examination the learner ZJ, answered that it was not the first time Ms Kesha send her. In fact, the learner ZJ further answered that Ms Kesha did not only send her to grade 6 class of Mr Sajini, but also to other classes as well. The latter was never put to Ms Kesha by Mr Sajini’s representative to comment on and therefore stood undisputed. The learner, ZJ clearly answered during cross-examination that she was in the passage during breaktime, when Ms Kesha called her to go and fetch Ms Kesha’s bottle in Mr Sajini’s classroom. The learner, ZJ further answered that the grade 5 learners were out for breaktime. Even this was not contested. The learner, ZJ also answered during cross-examination that there was something in Ms Kesha’s bottle. Ms Kesha never disputed that she had something in her bottle on that particular, except to state that it could not be that she send the learner, ZJ to fetch her bottle in Mr Sajini’s classroom. Under cross-examination the learner, ZJ answered that she took the bottle to Ms Kesha, where she was in her grade 5 classroom. Ms Kesha labelled the learner WN as “silly”. Under cross-examination the learner WN answered all the questions clearly and led her evidence in chief in detail. I therefore totally disagree with Ms Kesha’s labelling of the learner, WN as “silly”. In fact, the learner, WN testified that as a result of the molestation at school, she finds it difficult to concentrate. Ms Kesha conceded that she does not know anything about the case against Mr Sajini, because she only heard about the allegations against MR Sajini during the school holiday.
23. During cross-examination Mr Sihiwo Keva confirmed that he never experienced any disciplinary problems with the learners, NJ and WN. Mr Keva also confirmed that sometimes other teachers also assisted with the cleaning if requested by the cleaning committee. Mr Keva further confirmed that social workers do come to school and present seminars to learners. Mr Keva confirmed that the detective informed him that the social workers are aware of the case against Mr Sajini. What is interesting, is that the Educator representative never put it to Mr Keva that the learner WN also mentioned about the Walter Sisulu hall. However, Mr Keva mentioned that they never used the the Walter Sisulu hall. It was never put to the learner, WN that a tent was hired for the function. Mr Keva also confirmed that the other teachers could also assist with cleaning if requested by the cleaning committee. It was also not put to the learner the type of speakers they used for the function. The learner, WN never testified that she reported the incident to Ms Latola, In fact, the learner WN testified that the her friends advised that they should report the matter to Ms Latola, but she did not. Under cross-examination Mr Keva conceded that he received the details about the case from the detective.
24. A finding on a balance of probabilities is also not merely a mechanical balancing of evidence – or for that matter, the number of witnesses on each side. In Selamolele v Makhado 1988 (2) SA 372 (V) at 374J–375B the approach to the question whether the onus has been discharged was dealt with as follows:
“Ultimately the question is whether the onus on the party, who asserts a state of facts, has been discharged on a balance of probabilities and this depends not on a mechanical quantitative balancing out of the pans of the scale of probabilities but, firstly, on a qualitative assessment of the truth and/or inherent probabilities of the evidence of the witnesses and, secondly, an ascertainment of which of two versions is the more probable.”
25. Both learners NJ and WN were credible witnesses and even Mr Sajini could not think of any reason why the learners would fabricate the allegations against him. In fact, all the educators and the school principal confirmed that they were disciplined learners. What is however, worrying is that both MS Kesha and Mr Keva merely came to support Mr Sajini in the inquiry. The Children’s Act, 2005 and the Children’s Amended Act 2007, codifies the common law principal of in loco parentis, which refers to a person who steps into the shoes of a child’s parents for a specific purpose. It means that a person acting in loco parentis, such as a teacher, has a responsibility to ‘(a) safeguard the child’s health, wellbeing and development; and
(b) protect the child from maltreatment, abuse, neglect, degradation, discrimination,
exploitation, and any other physical, emotional or mental harm or hazards’.
It is clear why the learner, WN testified that she could not trust any of them at school and that she was scared to report the incidents to any elder person. The Principal, Mr Keva did not provide any documents, including a visitor’s register, rapid incident report or logbook as required by the Department of Education. Mr Keva merely denied that the function was held in the hall but claimed that they hired a tent. No rental documents were provided herein. His evidence did not take the matter further. Neither Ms Kesha nor Mr Keva were present when the alleged incidents occurred. Mr Sajini never explained where he was when the alleged incidents occurred and he offered mere denials, without offering an actual version.
26. In the case of Assmang Ltd (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation, Mediation and Arbitration and others [2015] 6 BLLR 589 (LC), the Labour Court has considered what it means to discharge an onus on a balance of probabilities. It stated that it is not enough for the chairperson to simply find that the evidence seems to be evenly balanced (or that neither side’s evidence had been discredited) and that therefore the employer had not discharged its onus - especially if the evidence on both sides are diametrically opposed and mutually destructive. The conflicting versions must be weighed up against the inherent or general probabilities of the matter and a finding must be made. Both versions cannot be allowed to stand and a finding made on onus alone. The court stated that the enquiry is two-fold: there has to be balancing of the probabilities; and there has to be a finding on credibility of the witnesses.
27. The Constitution of the Republic of South Africa, 1996, provides an umbrella of rights to protect learners from sexual violence. Section 12 states that each person has the right to bodily integrity, and to not be treated in a cruel, inhuman or degrading fashion. This should be read with Section 10, which says that each person has the right to dignity. This means that all other learners and teachers at a school must not interfere with a learner’s body in a way that hurts him or her physically or emotionally.
28. This gives special rights to children against abuse of any sort and places a special duty on society to protect them. Sexual violence in schools not only interferes with a learner’s ability to protect his or her rights in terms of his or her body. It also usually affects a learner’s ability to access his or her right to a basic education. This is because the learner often feels uncomfortable and threatened at school, and is scared, traumatised and unable to focus on learning. Many learners drop out of school because of the trauma, especially if the perpetrator remains in school with the learner.
29. Everyone has both the right to a basic education and the right to learn in a safe and secure environment. The Constitution states that each person’s individual rights must be respected and protected. This means that a person’s dignity, bodily integrity and special rights as a child must not be interfered with.
30. Section 7 of the Constitution goes further, though, and says that rights must be actively ‘promoted’ and ‘fulfilled’. This means that measures must be taken to ensure that people can enjoy the full extent of the rights that they are given. This may include active steps by the state or other people. The Constitution also speaks about how rights bind the state and other people.
31. Section 8 of the Constitution states that each branch of the state (government, the legislature and the courts) has a duty to ensure that rights are respected, protected, advanced and fulfilled. State institutions, such as schools, are especially bound by this section to enforce the Bill of Rights. This means that schools and the Department have the duty to protect learners’ rights to a basic education and must actively protect learners from being hurt or violated. This includes properly punishing teachers who commit sexual offences. The School and the Department of Education have dismally failed to protect the learners ZJ and WN by allowing the Educator to continue teaching, when they became aware of the allegations against the Educator.
32. Section 8 also states that individual people and companies are bound by the Bill of Rights. This means, for instance, that any person who interferes with another person’s bodily integrity, dignity or rights as a child has infringed that person’s constitutional rights and must be held responsible for that.
33. The Constitution recognises the unequal starting position of bearers of rights, and states in Section 9 that each person has the right to equality. Sexual violence compromises the right to equality; as in this case, learners who are poor, black and female are the most likely targets of sexual violence.
34. Section 28(1)(d) of the Constitution of the Republic of South Africa, 1996, provides that ‘(e)very child has the right to …be protected from maltreatment, neglect, abuse or degradation.”
35. In Centre for Child Law v Minister of Justice and Constitutional Development and Others, 2009 (6) SA 632 (CC); 2009 (11) BCLR 1105 (CC) at para 26, it was stated:
“The Constitution draws this sharp distinction between children and adults not out of sentimental considerations, but for practical reasons relating to children’s greater physical and psychological vulnerability. Children’s bodies are generally frailer, and their ability to make choices generally more constricted, than those of adults. They are less able to protect themselves, more needful of protection, and less resourceful in self-maintenance than adults.”
36. The Children’s Act gives content to and supplements the special rights of children in the Constitution. It binds natural and juristic persons, such as schools or state institutions. Section 7 of the Children’s Act says that every decision regarding children must be made in the ‘best interests of the child’. This includes that children must be protected from physical or psychological harm caused by ‘subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence…’
37. Having considered the evidence and submissions in its totality, I am convinced that the Educator, Mr Sajini had sexually assaulted the learners, ZJ and WN. Mr Sajini has conducted himself in an improper, disgraceful or unacceptable manner. It therefore follows that he is guilty herein.
38. The closing argument of the Educator that he was the victim of a conspiracy, caused by the infighting politics at school and that he was not criminally convicted does not persuade me that he is not guilty herein. The argument that section 18(1)(q) is formulated incorrectly in the above charge, does not have a bearing on the result herein.
39. Section 17(1)(b) of the Employment of Educators’ Act 76 of 1998, as amended stated that: “An Educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner,”
40. Section 18(1) (q) of the Employment of Educators’ Act 76 of 1998, as amended, stated that
“Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner;”
41. Section 120(1) of the Children’s Act, No 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” Section 120(2) of the act provides that a finding that a person is unsuitable to work with children may be made by such forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children.
42. The representative of the Department of Education-EC did not make such an application either during or at the end of this inquiry. Whilst I can make such a finding on own accord, I find that in the absence of such an application by the Department of Education-EC and in the absence of the Educator not having had an opportunity to make submissions as to why such a finding should not be made, I cannot make a finding at this stage as to whether or not the Educator must be declared unsuitable to work with children.
AWARD
41. The Educator, Mr ZOLA SAJINI (persal number 52968243) is guilty of the contravention of Section 17(1)(b) and Section 18(1) (q) of the Employment of Educators’ Act 76 of 1998, as amended.
42. The Educator, Mr ZOLA SAJINI, must be dismissed by the Department of Education- Eastern Cape by no later than 31 March 2020.
43. The Department of Education-Eastern Cape should report and provide a copy of the Award to the South African Council of Educators (SACE), within fourteen (14) days after the Award has been served on the Educator.
Signature:
Commissioner: Hadley Saayman
Sector: Education
Province: Eastern Cape
Applicant: ZOLA SAJINI
Respondent: Department of Education Eastern Cape
Issue: Unfair Dismissal - Misconduct
Venue: Whittlesea Magistrates Court.
Award Date: 17 February 2020
Arbitrator: Hadley Saayman
Case Number: PSES 914-18/19 EC
Commissioner: Hadley Saayman
Date: 17 FEBRUARY 2020
In the DISCIPLINARY INQUIRY of
ZOLA SAJINI (Persal number: 52968243)
And
Department of Education–Eastern Cape
Educator’s representative: Mr A. Mhlonto
Applicant’s address: 28 6th Avenue
Newton park
Port Elizabeth
6036
Telephone: 041- 364 0399
Telefax:
E-mail:
Department of Education’s representative: Mr B. Kwepile
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313
E-mail: buzanikwepile@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. The matter came before the ELRC in terms of Collective Agreement No. 3 of 2018 and was set down for an Inquiry on 30 August 2019,4 October 2019 and 31 January 2020 at the Whittlesea Magistrates Court.
2. The Educator was represented by Mr A. Mhlonto of NAPTOSA.
3. The Department of Education was represented by Mr B. Kwepile, a Chief Education Specialist: Labour Relations. The interpreter was Ms V Gojija and the intermediary Ms C Songelwa.
4. At the sitting of the disciplinary inquiry on 30 August 2019, the Educator’s representative three (3) points in limine and later withdrew two of it, leaving with the one point of a letter of representation from the Department of Education, which was provided before the next sitting of the disciplinary inquiry.
CHAIRPERSON’S DISCIPLINARY CHECKLIST
CRITERION YES NO COMMENT
Explain the purpose of the enquiry. √
Was the educator issued with a notification of enquiry? √
Did an investigation take place? √
Was the educator informed of his right to representation? √
Was the educator informed of his right to an interpreter? √
Was the educator informed of his right to call witnesses? √
Was the educator informed of his right to state his case? √
Was the educator given sufficient time to prepare for the enquiry? √
BACKGROUND TO THE DISPUTE:
1. The Educator is permanently employed as a post level one (1) teacher at Whittlesea Primary School.
2. The Educator was charged with contravention of inter alia:
I. Section 17(1) (b) of the Employment of Educators’ Act 76 of 1998, as amended, in that he had committed an act of Sexual Assault to a learner where it is said that:
• During 2017 he made sexual advances towards WN (not her real name), a 15 year old grade 6 learner in that he touched her breasts, played with her bra from behind and asked her what she was wearing underneath her school uniform and if she has a boyfriend.
• During 2017 he made sexual advances to ZJ (not her real name, a 13-year old grade 6 learner in that he put his hands on her private part and ordered her not to tell the boy learners.
• During 2017 he made sexual advances towards S Z (not her real name) a 14 year old grade 7 learner in that you offered her a lift home with other learners after dropping all learners to their respective places, he asked her if she has developed any pubic hair yet and if her clitoris was moving, he further put his finger on her private parts.
II. Section 18(1) (q) of the Employment of Educators’ Act 76 of 1998, as amended, in that he unjustifiably prejudiced the Administration, Discipline and Efficiency of the Department of Education, Office of the State or School, further Education and Training Institution or Adult Learning Centre:
• Where he compromised the integrity of the teaching profession when he performed an act of sexual assault to WN, ZJ and SZ, learners at Whittlesea Primary School.
• His conduct shamed the Department of Education and put the name of Whittlesea Primary School into disrepute by shaming the profession of Educators and destroying the trust relationship between himself and the Department of Education, parents and learners of the school.
ISSUE TO BE DECIDED
3. I must decide whether the Educator was guilty as charged by the Department of Education.
SURVEY OF EVIDENCE
4. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the Act,
relevant to the dispute at hand.
THE DEPARTMENT OF EDUCATION’S EVIDENCE
5. The first witness called by the Department of Education was ZJ (not her real name). She is currently attending a Senior Secondary School. On or about 14 February 2017 she was a grade 6 learner at Whittlesea Primary School. During breaktime on the particular day Ms Kesha send her to fetch her bottle in the cupboard in Mr Sajini’s classroom. When she entered the classroom, Mr Sajini was sitting in the classroom. When she looked into the cupboard in the first row, she could not find it, but found it in the last row. When she was about to leave the classroom, Mr Sajini called her. When she was close to him, he touched her private part with his hand. She was shocked and angry. Mr Sajini told her not to tell the boys. She went out of the classroom, gave the bottle to Ms Kesha and went to play. She told her friends “W” and “N” about the incident.
6. The second witness called by the Department of Education was “WN” (not her real name). She is currently attending a Senior Secondary School. During 2017 she was a grade 6 learner at Whittlesea Primary School. There was an occation which was supposed to be at Walter Sisulu University hall, but because there was a strike, the fuction was held at the hall close to the school. She went to the hall to clean it for a farewell function. She was busy mopping the floor when Mr Sajini and Mr Ncgezana came to the hall. Mr Ncgezana asked why she was mopping whilst there are a lot of boys. She told Mr Ncgezana that she told the boys to wait outside whilst she was mopping. Mr Sajini said that when I am finished mopping, I should come to his classroom. She went to his classroom and he instructed her to tidy up papers in the classroom. She picked up the papers and left to go and play outside. Mr Sajini called her again. He asked if she knows how to connect speakers. She said yes. He asked her to go with him to the hall and to assist him to connect the speakers. The two of them went to the hall. Mr Sajini was connecting the speakers at the entrance side and she was connecting the speakers at the kitchen side. When she bent facing his direction, Mr Sajini came to her and said she must kiss him. She said no and ran outside. She went back to the school to get her school bag and went home. She did not tell anyone at home. The following day she arrived late at school. Mr Sajini asked why she was late. She told him that she does not have money to pay for transport and that she walks to school. He said that when the school is out, I must come to his classroom and he would give her R10,00 for transport. She went and do scholar patrol. At the scholar patrol she told her friends that Mr Sajini offered her R10,00 for transport. The school started and it was maths period. She did not have a pen. Mr Sajini said that I must go and borrow a pen. During breaktime Mr Sajini called her and asked her what she was wearing underneath her school uniform. She told him that she was wearing a shorty, because her mother does not have money to buy a school tights. Mr Sajini said that she should come that he could see the what shorty she was wearing he won’t do anything to her. When she was about to leave the classroom, Mr Sajini pulled up her school dress. She was scared. She ran out and tell her friends “W” and “N”” about the incident.
7. “WN” testified further that during 2017, she was then in grade 7. Mr Sajini was teaching them about body parts. Mr Sajini did not like learners to laugh when he was teaching them about puberty. The following day during breaktime, Mr Sajini called her and asked her if she have relationships with boys. She said no. He said she was lying, because if her breasts”tities” are “big” , she must have boyfriends. She went out and tell her friend “N”. The following day, during the maths period Mr Sajini came to her toached her breasts and asked if she was wearing a bra. She again went out and tell her friend “N”. Her friends advised her to go and report these incidents to Ms Matolo so that Ms Matolo can report it to the Principal. She did not report it to Ms Matolo. There was an event at the police station. We went there. The following day the social workers came to the school. The social workers said they must come to their offices. At their offices the social workers told us how to behave and drugs abuse. They gave them a paper to write about the topics. She did not write about the topics. She wrote about what happened to her at school. She asked the social worker not to read it to the other learners. The following day the social workers came to school and took me to their offices. At there offices they asked me to explain what happened to me. The day thereafter they came to our house and asked my father whether he was aware what is happening to me at school. She was scared at school and could not concentrate at school. She also did not trust anyone at school.
THE EDUCATOR’S EVIDENCE
8. The Educator, Mr ZOLA SAJINI testified that he started teaching in 1994. He started teaching at Whittlesea Primary School during 2016. He is teaching Maths, EMS and NS. In 2017 and 2018, he was the class teacher for grade 6. The school does not have a staff room. During break times he sits outside on the veranda or in his classroom. He stores his valuable items, such as laptop and learning apparatus in his cupboard in his classroom. He has a key for his cupboard and the key of the classroom is in the Principal’s office. He only shares items, such as laptop or USB with other teachers.
9. Around 12h00 on a Friday, they usually do spring cleaning. Ms Kesha and Ms Mathithi usually supervise the learners cleaning the classroom. He will be at the garden on the school ground with the boys.
10. During 2017, the learner ZJ was in his grade-6 class. The learner, ZJ was a disciplined learner and performed academically well. The school usually celebrates valentine’s day on 14 February. He denied that he touched the learner, ZJ’s private part on 14 February 2017.
11. He became aware of the allegations against him during the September 2018 school holiday. A colleague, Mr Siyo telephoned him and told him that he was arrested for alleged sexual assault on learners and there are allegations that he was also involved in same incidents. On 3 October 2018, Ms Petheni telephoned him and warned him that he would be arrested. He was then arrested the following day.
12. Mr Sajini denied that he asked the learner, WN to assist him to sort out the papers in his classroom during 2017. He denied that he touched the learner WN. There is an Agricultural hall outside the school yard, but they do not use it. They normally use the Walter Sisulu University hall, school hall or a tent for functions. The entertainment committee requested him to enquire about a PA system. He brought the PA system, speaker and a cordless mike to school. He does not remember asking the learner, WN to assist him with the speakers. He denied that he asked the learner, WN to kiss him or that he touched her breasts.
13. The Educator also called Ms ANDISWA KHESA, a teacher at Whittlesea Primary School. She was transferred from Comfivaba to Whittleseastarted teaching at the same school in 2016. In 2017 she was the grade 5 class teacher.She was teaching Maths grade 5, NS grade 5, Technology grade5 and Isi-Xhosa for grade 6 and 7. She knows the learner “ZJ”, she was teaching her in grade 5 in 2016. They do not have a staff room, or a kitchen and her belongings are locked in her cupboard in her classroom. She does not share her belongings with others.
14. The Educator also called Mr SIPHIWO KEVA, the school principal of Whittlesea Primary School. He became Principal of Whittlesea Primary in 2015. The cleaning committee supervises the cleaning of the school. Ms Thuta is a grade-R teacher and responsible for organising the grade-R ceremonies. If there are not a lot of learners, they use the school hall, if a large number, they use an outside venue. He remembered the learner WN. They did not use the Agricultural hall for functions. The grade-R and grade 7 ceremonies were held in a tent which they hired. The speakers they used, are the same as those from the funeral parlours. He is not sure whether the social workers call the grade 7 learners to their offices. He does not remember that. The social workers usually come to school and at assembly do presentations. He was told by the detective that Mr Sajini was arrested for allegations of sexual assault. That was during the school holiday. He cannot recall that Ms Matola reported any incident of sexual harassment about Mr Sajini to him.
ANALYSIS OF EVIDENCE
15. Fairness requires that the position and interests of both the Educator and Department of Education are considered in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper regard to the objectives sought to be achieved by the Labour Relations Act.
16. In the matter of Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others 2003 (1) SA 11 (SCA) the Supreme Court of Appeal has laid out the accepted test applicable to both a trial court and an arbitrator when faced with a factual dispute, in particular when faced with two irreconcilable versions. According to this judgment (at para 5) the court concluded on the disputed issues by making findings on:
a) the credibility of the various factual witnesses.
b) their reliability; and
c) the probabilities:
a) The court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. This finding will, in turn, depend on a variety of subsidiary factors, such as
- the witness’ candour and demeanour ;
• his or her bias, latent and blatant;
• internal contradictions in his or her evidence;
• external contradictions with what was pleaded or put on his or her behalf, or with es tablished fact or with his or her own extra-curial statements or actions;
• the probability or improbability of particular aspects of his or her version; and
• the calibre and cogency of his or her performance compared to that of other witnesses testifying about the same incident or event.
b) A witness’ reliability will depend, apart from some of the factors above, on
• the opportunities he or she had to experience or observe the event in
question; and
• the quality, integrity and independence of his or her recall thereof.
c) Finally, an analysis and evaluation of the probabilities and improbabilities of each party’s version on each of the disputed issues are necessary components in reaching conclusion.
17. During cross-examination the Educator’s representative asked the learner, ZJ various questions, which the leaner, ZJ answered. The learner was asked where the cupboard in the class of Mr Sajini was. She explained that the cupboard is close to where Mr Sajini was sitting on the left side. The learner was asked why she did not asked permission from Mr Sajini to searched in his cupboard, because the cupboard is lockable. The learner answered that she forgot to ask permission. The learner was asked whether the cupboard was open or locked. The learner answered that the cupboard was closed. The learner was asked whether Mr Sajini was sitting or standing. The learner answered that he was seated. The learner was asked if Mr Sajini asked her what she was doing in his classroom. The learner answered that Mr Sajini did not asked her what she was doing in his classroom. The learner was asked whether she walked pass Mr Sajini on her way to from the cupboard. The learner answered yes. The learner was asked if Mr Sajini called her. She answered yes. The learner was asked whether she was wearing a school uniform or a short pants. She answered that she was wearing a pink pants. The leaner was asked whether Mr Sajini touched her with both hands. She answered with one hand. The representative further put it to the learner that because, she did not tell any elder person what she tell is not true. She answered that it is the truth.
18. It is common cause that the Educator’s representative never put it to the learner, ZJ where Mr Sajini was on that particular day. It was never put to the learner that Mr Sajini was not in the classroom. It is also common cause that the school does not have a staff room. In fact, Mr Sajini testified that sometimes he sits outside on the veranda or in in his classroom. The only plausible deduction is that Mr Sajini was indeed in his classroom during the break time. It was also common cause that the cupboard was not locked. It therefore makes sense that the learner opened the cupboard to look for the bottle. The question why the learner did not ask for permission to search in Mr Sajini’s cupboard and the question whether he touched the learner with both hands, suggests that Mr Sajini was in the classroom. It was not disputed that Mr Sajini was not seated when the learner entered and exit the classroom. It was further not put to the learner that Mr Sajini never called her when she was about to leave the classroom. Under cross-examination the learner answered that she was wearing a pink pants, which was not disputed. It was clearly put to the learner that the only reason, she is not telling the truth, was because she did not tell any elder person. The leaner confirmed that it was not easy for her to talk to elder people about the incident. Mr Sajini conceded that the learner, ZJ was a disciplined learner and she performed academically well. Mr Sajini further conceded that that if a learner is disciplined such a learner is a honest person.
19. During cross-examination the Educator’s representative asked the learner “WN” various questions, which the learner WN answered. The learner was asked inter alia: if she could remember when the first incident happened in 2017. She said that it could be during September. The learner was asked what the occasion was and the learner answered Grade-R and Grade-7 farewell function. The learner was asked who supervised the cleaning of the hall and she answered that Ms Thuta. It was put to the learner that Mr Sajini did not call her to his class to tidy up the papers and that he did not pull up her dress. The learner answered that he did.
The learner was asked who else went with her when she and Mr Sajini went to the hall to connect the speakers. The learner answered she alone wet with him. The learner was asked if there were other people at the hall and she answered that there were the people were fixing the entrance. The learner also answered that Mr Sajini called her to a small room where there were plugs and instructed her to connect the speakers. When she was busy behind the door, Mr Sajini asked her to kiss him. It was also put to the learner that, because Mr Sajini did not try to stop her when she ran out, Mr Sajini did not ask her to kiss him. The learner answered that he did.
20. It was common cause that Mr Sajini brought the PA system to the hall as requested by the entertainment committee. It was never put to the learner WN that Mr Sajini never asked her to go and assist him to connect the speakers at the hall. It was also never disputed that Mr Sajini offered the learner a R10 for her transport. It was also not disputed that Mr Sajini asked the learner WN whether she was wearing a bra. It was also not disputed that Mr Sajini asked the learner WN whether she had boyfriends if her breasts are “big”. It was further not disputed that Mr Sajini asked the learner that he wanted to see her shorts under the uniform. It was never put to the learner that the function was held in a tent. It was also not disputed that Mr Sajini and Mr Ncgezana came to the hall where the learner, WN was mopping the floor. It is possible that Ms Thuta supervised the cleaning of the hall, because the school principal, Mr Keva confirmed that other teachers could be involved with cleaning if requested by the cleaning committee. The learner WN testified that the function was supposed to be at Walter Sisulu hall, but because there was a strike it was held at the hall next to the school. Mr Sajini in his evidence in chief confirmed that they usually use the Walter Sisulu University hall, the school hall or a tent.
21. The Labour Court in Potgietersrus Platinum Ltd. v CCMA (J1459/98 of 30 July 1999) held that, it is merely required of the employer to show that circumstantial evidence that an employee is guilty of the misconduct, is more plausible than the possibility that he/she did not commit the misconduct. Should the employer be able to demonstrate a sufficient evidentiary basis to implicate the employee on a balance of probabilities, a mere and persistent denial by an employee without offering an actual version in answer to the evidence of the employer, is not a sufficient defence. As pointed out by the court, consistent denial does not constitute an alternative persuasive version and undue weight should not be attached to this as opposed to detailed, consistent, corroborated, and essentially unchallenged evidence presented by the employer. Should the employer demonstrate a sufficient evidentiary basis to prima facie implicate the employee on a balance of probabilities, the onus to prove whatever defence / explanation he offers, lies with the employee.
22. In considering the evidence of Ms Andiswa Kesha the following became apparent. Ms Kesha and Mr Sajini both started teaching at Whittlesea during 2016 and are colleagues. Ms Kesha confirmed that she knows the learner ZJ, because she was teaching her in grade 5 in 2016. However, during cross-examination Ms Kesha confirmed that she was also teaching the learner ZJ, Isi-Xhosa in grade 6 during 2017. She further confirmed that the learner, ZJ was a very good learner and even received awards for Mathematics and Natural Science. In her evidence in chief she did not specifically said that she did not send the learner to fetch her bottle in Mr Sajini’s classroom. Ms Kesha only testified in her evidence in chief that how could that be. It was never put to the learner, ZJ that Ms Kesha will come and testify that her belongings are in her grade 5 classroom cupboard and that she usually send her grade 5 learners. Under cross-examination the learner ZJ, answered that it was not the first time Ms Kesha send her. In fact, the learner ZJ further answered that Ms Kesha did not only send her to grade 6 class of Mr Sajini, but also to other classes as well. The latter was never put to Ms Kesha by Mr Sajini’s representative to comment on and therefore stood undisputed. The learner, ZJ clearly answered during cross-examination that she was in the passage during breaktime, when Ms Kesha called her to go and fetch Ms Kesha’s bottle in Mr Sajini’s classroom. The learner, ZJ further answered that the grade 5 learners were out for breaktime. Even this was not contested. The learner, ZJ also answered during cross-examination that there was something in Ms Kesha’s bottle. Ms Kesha never disputed that she had something in her bottle on that particular, except to state that it could not be that she send the learner, ZJ to fetch her bottle in Mr Sajini’s classroom. Under cross-examination the learner, ZJ answered that she took the bottle to Ms Kesha, where she was in her grade 5 classroom. Ms Kesha labelled the learner WN as “silly”. Under cross-examination the learner WN answered all the questions clearly and led her evidence in chief in detail. I therefore totally disagree with Ms Kesha’s labelling of the learner, WN as “silly”. In fact, the learner, WN testified that as a result of the molestation at school, she finds it difficult to concentrate. Ms Kesha conceded that she does not know anything about the case against Mr Sajini, because she only heard about the allegations against MR Sajini during the school holiday.
23. During cross-examination Mr Sihiwo Keva confirmed that he never experienced any disciplinary problems with the learners, NJ and WN. Mr Keva also confirmed that sometimes other teachers also assisted with the cleaning if requested by the cleaning committee. Mr Keva further confirmed that social workers do come to school and present seminars to learners. Mr Keva confirmed that the detective informed him that the social workers are aware of the case against Mr Sajini. What is interesting, is that the Educator representative never put it to Mr Keva that the learner WN also mentioned about the Walter Sisulu hall. However, Mr Keva mentioned that they never used the the Walter Sisulu hall. It was never put to the learner, WN that a tent was hired for the function. Mr Keva also confirmed that the other teachers could also assist with cleaning if requested by the cleaning committee. It was also not put to the learner the type of speakers they used for the function. The learner, WN never testified that she reported the incident to Ms Latola, In fact, the learner WN testified that the her friends advised that they should report the matter to Ms Latola, but she did not. Under cross-examination Mr Keva conceded that he received the details about the case from the detective.
24. A finding on a balance of probabilities is also not merely a mechanical balancing of evidence – or for that matter, the number of witnesses on each side. In Selamolele v Makhado 1988 (2) SA 372 (V) at 374J–375B the approach to the question whether the onus has been discharged was dealt with as follows:
“Ultimately the question is whether the onus on the party, who asserts a state of facts, has been discharged on a balance of probabilities and this depends not on a mechanical quantitative balancing out of the pans of the scale of probabilities but, firstly, on a qualitative assessment of the truth and/or inherent probabilities of the evidence of the witnesses and, secondly, an ascertainment of which of two versions is the more probable.”
25. Both learners NJ and WN were credible witnesses and even Mr Sajini could not think of any reason why the learners would fabricate the allegations against him. In fact, all the educators and the school principal confirmed that they were disciplined learners. What is however, worrying is that both MS Kesha and Mr Keva merely came to support Mr Sajini in the inquiry. The Children’s Act, 2005 and the Children’s Amended Act 2007, codifies the common law principal of in loco parentis, which refers to a person who steps into the shoes of a child’s parents for a specific purpose. It means that a person acting in loco parentis, such as a teacher, has a responsibility to ‘(a) safeguard the child’s health, wellbeing and development; and
(b) protect the child from maltreatment, abuse, neglect, degradation, discrimination,
exploitation, and any other physical, emotional or mental harm or hazards’.
It is clear why the learner, WN testified that she could not trust any of them at school and that she was scared to report the incidents to any elder person. The Principal, Mr Keva did not provide any documents, including a visitor’s register, rapid incident report or logbook as required by the Department of Education. Mr Keva merely denied that the function was held in the hall but claimed that they hired a tent. No rental documents were provided herein. His evidence did not take the matter further. Neither Ms Kesha nor Mr Keva were present when the alleged incidents occurred. Mr Sajini never explained where he was when the alleged incidents occurred and he offered mere denials, without offering an actual version.
26. In the case of Assmang Ltd (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation, Mediation and Arbitration and others [2015] 6 BLLR 589 (LC), the Labour Court has considered what it means to discharge an onus on a balance of probabilities. It stated that it is not enough for the chairperson to simply find that the evidence seems to be evenly balanced (or that neither side’s evidence had been discredited) and that therefore the employer had not discharged its onus - especially if the evidence on both sides are diametrically opposed and mutually destructive. The conflicting versions must be weighed up against the inherent or general probabilities of the matter and a finding must be made. Both versions cannot be allowed to stand and a finding made on onus alone. The court stated that the enquiry is two-fold: there has to be balancing of the probabilities; and there has to be a finding on credibility of the witnesses.
27. The Constitution of the Republic of South Africa, 1996, provides an umbrella of rights to protect learners from sexual violence. Section 12 states that each person has the right to bodily integrity, and to not be treated in a cruel, inhuman or degrading fashion. This should be read with Section 10, which says that each person has the right to dignity. This means that all other learners and teachers at a school must not interfere with a learner’s body in a way that hurts him or her physically or emotionally.
28. This gives special rights to children against abuse of any sort and places a special duty on society to protect them. Sexual violence in schools not only interferes with a learner’s ability to protect his or her rights in terms of his or her body. It also usually affects a learner’s ability to access his or her right to a basic education. This is because the learner often feels uncomfortable and threatened at school, and is scared, traumatised and unable to focus on learning. Many learners drop out of school because of the trauma, especially if the perpetrator remains in school with the learner.
29. Everyone has both the right to a basic education and the right to learn in a safe and secure environment. The Constitution states that each person’s individual rights must be respected and protected. This means that a person’s dignity, bodily integrity and special rights as a child must not be interfered with.
30. Section 7 of the Constitution goes further, though, and says that rights must be actively ‘promoted’ and ‘fulfilled’. This means that measures must be taken to ensure that people can enjoy the full extent of the rights that they are given. This may include active steps by the state or other people. The Constitution also speaks about how rights bind the state and other people.
31. Section 8 of the Constitution states that each branch of the state (government, the legislature and the courts) has a duty to ensure that rights are respected, protected, advanced and fulfilled. State institutions, such as schools, are especially bound by this section to enforce the Bill of Rights. This means that schools and the Department have the duty to protect learners’ rights to a basic education and must actively protect learners from being hurt or violated. This includes properly punishing teachers who commit sexual offences. The School and the Department of Education have dismally failed to protect the learners ZJ and WN by allowing the Educator to continue teaching, when they became aware of the allegations against the Educator.
32. Section 8 also states that individual people and companies are bound by the Bill of Rights. This means, for instance, that any person who interferes with another person’s bodily integrity, dignity or rights as a child has infringed that person’s constitutional rights and must be held responsible for that.
33. The Constitution recognises the unequal starting position of bearers of rights, and states in Section 9 that each person has the right to equality. Sexual violence compromises the right to equality; as in this case, learners who are poor, black and female are the most likely targets of sexual violence.
34. Section 28(1)(d) of the Constitution of the Republic of South Africa, 1996, provides that ‘(e)very child has the right to …be protected from maltreatment, neglect, abuse or degradation.”
35. In Centre for Child Law v Minister of Justice and Constitutional Development and Others, 2009 (6) SA 632 (CC); 2009 (11) BCLR 1105 (CC) at para 26, it was stated:
“The Constitution draws this sharp distinction between children and adults not out of sentimental considerations, but for practical reasons relating to children’s greater physical and psychological vulnerability. Children’s bodies are generally frailer, and their ability to make choices generally more constricted, than those of adults. They are less able to protect themselves, more needful of protection, and less resourceful in self-maintenance than adults.”
36. The Children’s Act gives content to and supplements the special rights of children in the Constitution. It binds natural and juristic persons, such as schools or state institutions. Section 7 of the Children’s Act says that every decision regarding children must be made in the ‘best interests of the child’. This includes that children must be protected from physical or psychological harm caused by ‘subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence…’
37. Having considered the evidence and submissions in its totality, I am convinced that the Educator, Mr Sajini had sexually assaulted the learners, ZJ and WN. Mr Sajini has conducted himself in an improper, disgraceful or unacceptable manner. It therefore follows that he is guilty herein.
38. The closing argument of the Educator that he was the victim of a conspiracy, caused by the infighting politics at school and that he was not criminally convicted does not persuade me that he is not guilty herein. The argument that section 18(1)(q) is formulated incorrectly in the above charge, does not have a bearing on the result herein.
39. Section 17(1)(b) of the Employment of Educators’ Act 76 of 1998, as amended stated that: “An Educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner,”
40. Section 18(1) (q) of the Employment of Educators’ Act 76 of 1998, as amended, stated that
“Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner;”
41. Section 120(1) of the Children’s Act, No 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” Section 120(2) of the act provides that a finding that a person is unsuitable to work with children may be made by such forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children.
42. The representative of the Department of Education-EC did not make such an application either during or at the end of this inquiry. Whilst I can make such a finding on own accord, I find that in the absence of such an application by the Department of Education-EC and in the absence of the Educator not having had an opportunity to make submissions as to why such a finding should not be made, I cannot make a finding at this stage as to whether or not the Educator must be declared unsuitable to work with children.
AWARD
41. The Educator, Mr ZOLA SAJINI (persal number 52968243) is guilty of the contravention of Section 17(1)(b) and Section 18(1) (q) of the Employment of Educators’ Act 76 of 1998, as amended.
42. The Educator, Mr ZOLA SAJINI, must be dismissed by the Department of Education- Eastern Cape by no later than 31 March 2020.
43. The Department of Education-Eastern Cape should report and provide a copy of the Award to the South African Council of Educators (SACE), within fourteen (14) days after the Award has been served on the Educator.
Signature:
Commissioner: Hadley Saayman
Sector: Education