PSES580-19/20GP
PSES580-19/20GP
Award Date:
1 July 2020
Case Number: PSES580-19/20GP
Province: Gauteng
Applicant: Gauteng Department of Education
Respondent: KHOZA D J
Issue: Unfair Dismissal - Misconduct
Venue: ELRC offices at at Centurion
Award Date: 1 July 2020
Arbitrator: S Fourie
Case No PSES580-19/20GP
In the matter between
GAUTENG DEPARTMENT OF EDUCATION Applicant
and
KHOZA D J Respondent
ARBITRATOR: S Fourie
HEARD: 15 November 2019; 24 January 2020; 06 March 2020;
FINALISED: 06 March 2020 (7days to submit closing statements 13 March 2020)
DELIVERED: 01 July 2020
INQUIRY BY ARBITRATOR - ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter, an Inquiry by Arbitrator, was heard at the ELRC offices at at Centurion on 15 November 2019 and 24 January 2020 as well as at the Department of Education’s offices at Gauteng Tswane North on 6 March 2020. The Employee, Mr. David Khoza (“Khoza”), was represented by Mr. David Mashishi (“Mashishi”), a representative of the trade union SADTU. The Employer was represented Ms. Raliona Minah (“Minah”), its labour relations officer. I directed it compulsory for a intermediary service due to a minor witness although the witness’s identity is known to the parties. Goitsemang Boikanyo served as intermediary and Busi Seoketso as interpreter.
THE ISSUES TO BE DETERMINED
2. I am required to determine whether the employee is guilty of the charges against him and if so, to determine the appropriate sanction in terms of Section 188A of the Labour Relations Act 66 of 1995, as amended (“LRA”). This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. The employee David Khoza pleaded not guilty to both allegations listed hereunder.
BACKGROUND TO THE DISPUTE
3. The employee, is employed by Respondent from January 2009 at Adam Masebe Secondary School, as a PL1 educator. The employee was suspended from duty on 9 September 2019 whereafter two charges were levelled against the employee being:
Allegation 1
It is alleged that during the period 31 July 2019, you sexually assaulted a Grade 10 learner, Learner A, from Adam Masebe Secondary School where you are currently working by touching her vagina, and told her that you want to have sexual intercourse with her. In view of your actions, you are thus charged with misconduct in terms in terms of section 17(1) (c) of the Employment of Educators, Act 76 of 1998 as amended.
Allegation 2
It is alleged that during the period 31 July 2019, you allegedly showed a Grade 10 learner, Learner A, a gun and threatened to kill her if she tells anyone about the alleged sexual harassment. In view of your actions, you are thus charged with misconduct in terms in terms of section 18 (1) (dd) of the Employment of Educators, Act 76 of 1998 as amended.
SUMMARY OF THE EVIDENCE
4. This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and referred to as the LRA read with the changes as required by the context read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. This award is not intended to be a verbatim transcript of the evidence led at the inquiry by arbitrator hearing but rather a determination with brief reasons for such determination.
5. Evidence relevant to the determination or to support any of the elements of fairness as required may be referred to. This however does not mean that I failed to consider other evidence or ignored such evidence in coming to my decision. The Employer submitted a bundle of documents (Bundle ‘ER’ 1 – 23 pages), audio recordings and photo images. The Employee accepted the bundle submitted for what it purports to be.
The Employer’s case
6. Learner A, testified under a solemn affirmation (through an intermediary) in camera. She is 17 years of age and attended school at Adam Masebe Secondary School as a grade 10 learner. She knows Khoza because he used to teach her life sciences. On the 15th July 2019 Khoza looked for her and she went to his office. He enquired about her mark she received being a full mark, and whether she copied it from the memo, which she denied doing. He also said she must do it over and he said that she owed him. She asked Khoza what she owed him but he did not respond. Khoza kept on saying so and she asked whether she must buy him something to which he said no after which she realised there is a problem. She decided to discuss it with mam Phila but saying that it was for a friend (Lizzy) that she was asking. The next day mam Phila was not at work and she went to mam Motlhatledi explaining to her, still not exposing herself but asking guidance for a friend. After the third time she exposed herself to be the one experiencing the problem and Mothlatledi informed her that she must not do anything with the teacher should he ask for something. On the 17th July 2019 Khoza wanted to meet with her at NTK but she did not go. The next day Khoza asked her where she was because he waited for her to which she responded that she was busy. Khoza then wanted to give her R10 to meet at the Mall but she refused to take it. The next day being a Friday, they received their marks and she failed life sciences whereby she enquired from Khoza about it because she was supposed to receive full marks. He responded to say that he reduced her mark to be half (to 15 out of 30) and he said that she owed him. He continued to say that she do not need to worry because she will pass the next term. He then requested her cell number and she gave it to him. The next day she received a sms message stating: hi Learner A your life science teacher are you free..
7. The Monday Khoza asked her whether she saw the message and the reason she did not respond to it. She responded to say she did not had airtime. The Tuesday Khoza asked what she was doing on the Wednesday (Wednesdays they knock off earlier) but she responded to say nothing. Whilst taking, he asked whether there was a teacher coming and she responded to say no one was coming. She left for home and later Khoza called her asking her what she was doing. Khoza also asked where she was staying to which she responded in Suurman near the Mall. Later she went to the shops when Khoza called her again telling her to go to the Mall. She responded that she did not have money whereto he said she must borrow from the neighbour because he was in the parking area waiting for her. He dropped the phone and called again asking where learner A was. This took place on 31 July 2019 around 13:30. At the Mall Khoza opened the door for her to get into his vehicle and said that she must lay down that no one could see them. At Majaneng she could sit upright. Whilst on the road, Khoza asked her why she did nor pass and she responded that she came from the initiation school. He aslo showed her places whilst driving and she told him about a friend she has at Romotse whom was with her at initiation school. She asked him where they were going to which Khoza responded, Bosplaas. At Bosplaas he opened the gate and parked the vehicle. He told her that there was no bed in the place and he would make something on the floor. Whilst he was out of the vehicle (she being inside) she took pictures of Khoza. She also recorded their discussions together.
8. Learner A stated that Khoza asked her if she knew the reason for them to have sex to which she responded no. He told her to stop being childish whereto she asked him to explain it. He said they came out to have sex and that she must go in (to the room at Bosplaas) with him. She said she was afraid. Khoza said they will do it on the floor to which she replied that she’s afraid. He responded that he will hold her and be gentle with her not hurting her. Learner A resisted and Khoza said that he had aroused feelings when they talk about sex and whether Learner A felt aroused too to which she said no. Khoza then put his finger inside her vagina to feel if she is wet. He then said that she is lying to him because she is wet. She recorded this discussion. Khoza then got out of the vehicle whith Learner A remaining inside. He also said he made a mistake in reducing her marks and will fix it for her on condition that she sleeps with him and that she would not tell anyone. She replied that he must fix it first but Khoza asking please if he can just out his head (penis) inside. Learner A refused where after Khoza said she is wasting time and that he has a wife waiting at home being suspicious. Khoza said he wanted to have intercourse with her and if she is not enjoying it, he will “drop”it. He also said that when in the class room she can wink at him if she wants the act to be repeated. It was around 18:00pm when they then left Bosplaas going to a guest house. Khoza also said that he has a gun and if she would tell anyone he would shoot her family. He said that the gun takes 18 bullets and if shot in the forehead she would be dead. At the guest house Khoza paid and went to room 19 telling her that she must tell him when she is ready and he will come after school.
9. Khoza then left her at the room whereafter she went onto facebook to inform a friend that Khoza left her their and that she is afraid. The friend informed her mother who called her and arrangements were made for her brother (Kabelo) to fetch her. When Kabelo arrived she told him what happened and they spoke to the security of ther guest house. The next day they went to report the matter at the SAP who placed her and Khoza in separate rooms and after she explained what happened, the Police officer took her to Khoza. Khoza apologised and offered that he will pay. When the SAP told Khoza to pay R 30 000 he started to cry and they took him outside to cool down. He then returned again stating that he was sorry. Referring to the photos submitted on pages 26 and 27, she stated that she took it when she was inside the vehicle at Bosplaas. Snippets of the audio recording was presented consisting of two CD’s which the interpreter interpreted into the record.
10. During cross examination she confirmed that she understand the difference between right and wrong. She decided to approach a teacher and not the principle because she had a good relationship with the teacher she approached. She conceded not to have passed level 1 of Life Sciences. She received her results on 17 July 2019 and saw Khoza the same day. She agreed that two teachers told her not to go to Khoza but she did so outside the school yard, although she was not interested to go closer to him. She went to him as her teacher wanting to know what he wanted. She directed him to her place because he consistently asked her where she stayed. She stated that Khoza showed her a gun and forced her to get into his vehicle and he said that no one must see them. There were no people around them and she did not scream when she was picked up. The reason for taking the photos was to show where Khoza took her to sleep with her, but she did not send the photos to anyone. When she took the photos, Khoza looked at her whilst she was doing it. She stated that touching and putting his hand into her vagina is the same thing and that she and Khoza did not have sexual intercourse. The time at the guest house was around 8:30 to 9:00pm and Khoza paid for the guest house when he got out with money. She did not run away because the gate was locked and did not know which direction to go. Khoza also left her with the key of the room. She could not call anyone because she did not have airtime.
11. Mapoli Molekoa (Molekoa), testified under oath that she is the Principal at Adam Masebe Secondary School and wrote the letter on page 10 of the bundle which she wrote when she became aware of complaints against Khoza from educators. The compliant was that Khoza took a learner to his plot and later to a guest house at Suurman. The learner was seen on Wednesday at school but not back on Thursday and Friday. The educators indicated that the learner told them this after Mr. Khoza reduced her life science marks stating that she stole the memorandum from her office. After the educators informed her on 5 August 2019, she had a discussion with Learner A herself whom told her about Khoza who did not give her marks for a June task and that if she wanted full marks, she needed to go with him somewhere. Learner A told her that they Khoza gave her money to go to the Mall but she did not. However on Wednesday, Khoza phoned her after school to meet. Her mother send her to the shops when she met Khoza on the road and they left for Bosplaas. At Bosplaas she refuse to go into the house with Khoza. He showed her a gun from his seat and told her that she must be silent about going to the place or she and her family will be killed. Whilst in the car, Khoza touched her private parts wherafter they left for a guest house at Suurman where he left her.
12. Khoza came to her office requesting leave and early departure for stress after the long weekend. She spoke to Khoza about the allegations, and he denied that he took Learner A to his plot to Bosplaas but to a friend at Ramotsi. Whilst together, Learner A said that the friend was not at home and it is best to stay with Khoza. Khoza said he was on his way to his plot to investige allegations of vandalism. When he finished checking the plot, they returned whereby he asked Learner A direction to her house which she refused to provide. She requested Khoza to drop her at the garage near her home. Khoza acknowlged that he did take Learner A without the parents consent but that he was trying to help her.
13. During cross examination, she stated that she was not a witness but was informed afterwards. She informed Khoza that if a learner stole a memo he was to report it to the HOD or Deputy. Learner A explained that Khoza placed his hand on her panty but later, she said that he touched her vagina. The report would differ because it was done after the educators reported to her. Learner A did not say they had sex but that Khoza wanted to get inside the house but she did not agree whereafter he took her to a guest house. When Learner A reported the matter she was crying histerically and was scared. On the question why she met with Khoza she stated that Learner A needed marks to pass grade 10. Learner A reported the matter to two teachers and to the 1st teacher she did not tell her that it was concerning herself but a friend who needed help.
14. Boitumelo Motlhatlhedi (Motlhatlhedi), testified under oath that she is is a teacher at Adam Masebe for 5 years and wrote the statement on pages 12 to 13 of the bundle. Motlhatlhedi stated that Learner A came to her indicating a friend of her had a problem with the life science teacher who asked the friend to sleep with her. The second time Learner A approached her, she advised her to get help with the subject from other learners because she struggled with the subject. The third time she came to Motlhatlhedi, Learner A conceded that it was not a friend that had the problem but herself expereinced a problem with her life science teacher. She told her that she did not receive full marks for a test and when she complained about it, the teacher told her that she did not deserve it. The teacher said he would give her full marks if Learner A would give him something. The teacher wanted to meet her after school, but she did not want to and was scared of him. She further stated that Learner A cried and could not respond for a time. Motlhatlhedi told her to go home for them to continue talking the next day but Learner A was absent and the day thereafter. She then reported the matter to the Deputy Principal. A friend of Learner A informed them that she reported the matter to the SAP. They then reported the matter to the Principal who already knew about the matter because another teacher reported it already.
15. During cross examination, she stated that she was not a eye witness but was told by Learner A. At first she explained about her friend being the one in need and looked concerned for the friend. She was scared to open up and lied about the friend in need. Learner A informed her about the situation on 30 July 2019.
16. Kabelo Skosana (Skosana) testified under oath that he is the cousin to Learner A. He received a call from his aunt, Learner A’s mother who was looking for Learner A, but she was not with him. Later around 08:00pm he received another call from her still looking for Learner A. Being worried, he phoned her but the phone was dropped. Later, one of Learner A’s friends managed to locate her through facebook and that she was at Bosplaas. Between 10:00 to 11:00 pm he received a call from Learner A’s mother saying that they Learner A was at a guest house at Suurman and he said that he will go and fetch her with two cousins. The security informed them that Learner A was at room 19 where he found her crying expecting Khoza to enter. She said that Khoza left for his home but will return. Skosana’s cousin asked the security about the person who brought Learner A to the guest house whom informed them that it was a mature heavy build person, driving a MP200. Learner A was scared and she explained to them what happened and she also said that there was no reason to go back to school. She told them that when she went to the shops, Khoza came to her showing her a gun to climb into his vehicle. They went to Bosplaas where Khoza told her to stay in the vehicle while he prepare the house. It was when she took photos and texed her friend. She also said that Khoza touched her private parts by putting his hand on her vagina. The following day they went to the SAP to open a case who also called Khoza to report to the SAP. At the SAP, Khoza wanted to pay Learner A to cancel the case for him to continue as a teacher. Khoza was crying denying the allegations but wanted to pay Learner A.
17. During cross examination, he stated that he can only testify about what he saw when he fetched Learner A. The security also worked as the receptionist and receives people who said that Learner A and Khoza booked in. The door to room 19 was closed but not locked. On the question whether Learner A texed her friend, Skosana responded that when Khoza was out from the car at Bosplaas, Learner A had contact with her friend on facebook. Skosana stated that a MP200 is a Nissan as described by Learner A similar to the neighbours car.
The Employee’s Case
18. David Jabulani Khoza (Khoza), testified under oath that he is employed in his 10th year with the Department of Education and confirms being a teacher at Adam Masebe Secondary School. He knows Learner A as a grade 10 learner and he teached her life sciences during 2019. To the allegations levelled against him he pleaded not guilty and stated that he is not a violant person, do not smoke or drink and always sober. During Learner A’s evidence he died inside not to say anything. The days heading up to the 31st of July 2019, he stated that when all returned from the winter holidays, there was a learner Learner A in one of the grade 10 classes who had a total mark (30 out of 30) for her script. He did not know the learner and called her in to enquire about the mark because from her script, she copied the memorandum letter by letter. Learner A admitted that she took the memo from a box in Khoza’s classroom and said that she failed the previous year. Khoza told her that she could have received zero, but that it was okey and he decided to give her half the mark (being 15 out of 30) to which Learner A applogised and was satisfied.
19. For days thereafter Learner A would come to his office telling Khoza that she owe him for not giving her a zero. When she would see him at his office, she would look at the window to see whether there was someone and then rushed into his office, having a strange behaviour. He stated that he helped her out of his good heart being a Christian. When Learner A came to take a portfolio file to her mother, she said that her mother requested Khoza’a cellphone number. On the 28th July 2019 around 9:15 being a Sunday night, he saw four missed calls from Learner A on his phone, but did not know from who the calls were. The following day Learner A came to his office accusing him of not answering her calls the previous night. Khoza asked her what she was looking for to which Learner A replied that she was alone at home and wanted Khoza to come over because she owe him and will do anything to pass her Life Science exam.
20. On the 31st July 2019 the learners knocked of early around 13:30pm and Khoza remained at school till between 14:30 to 15:00pm. He received a call from Learner A being desperate and needed help. She said that there was no one at home and that her mother and brother went to their grandmother and she was afraid to sleep alone and wanted to go to a friend. Khoza told her that he was busy and that she must ask someon for R10 to go to the Mall. He told her that he will find her at the Mall to help her to go to her friend at Romotsi because he was going to his plot at Bosplaas because he had complaints of vandalism that he needed to check. Later she called back not finding help to borrow R10 and that Khoza must fetch her. Khoza stated that he was in trouble having a desperate learner and that he would not have peace with himself if he would to leave her alone so he asked direction to her place. He got lost on the way but Learner A called him to say that she saw him passing her place. Learner A was wearing a white top and a mini short having her cell phone with her. Khoza stated that even for the person he is he was shy to pick her up the way she was dressed. Learner A explained her story and Khoza said that he will take her to the Mall to go to Ramotsi, but Learner A said that she was not in a hurry and that Ramotsi is near Bosplaas. Learner A told Khoza that he could go to Bosplaas first and Khoza trusted her not to be in a hurry so he went to Bosplaas first to drop her on his way back.
21. Bosplaas is a 1 hectare plot situated in a remote area with a one room building previously used as a office but vandalised. He climbed out of the vehicle to look at the place, finding a open window and when he looked back, he saw Learner A busy with her phone as if she was taking pictures of him. Khoza asked her if she was taking pictures to which she responded no. He stated that if a person has evil intentions, such person will stop if seen doing it, but he did not see a reason as to why she would want to take a picture of him because he wanted to help her. When he was finished, he went back to the car and saw Learner A to drop something which was his wallet lying open on the floor of the car in which R200 was missing. He confronted Learner A about the R200 to which she apologised and gave it back to him. (He placed his wallet and gun in the cabinet of the vehicle). She acted strange and said that she wanted board a taxi to go to her friend. Khoza took back the R200 and gave her R50 should she be in need of other things. Whilst they were in the car, Learner A interrogated Khoza accusing him of having an relationship with a grade 12 learner which he denied. When Khoza said they must go, Learner A wanted them to sleep at Bosplaas because she was afraid to go home and did not want to go to the friend’s place anymore. Khoza said it was not possible because he has a wife and children but did not want to be rude to her. She refused to go to her friend and Khoza gave her his phone to call her friend but the friend was not at home, only the friend’s mother and she agreed to sleep there. (Khoza stated that he was not aware that Learner A was recording the discussion). After dropping the phone, Learner A changed her mind and said they must wait until dark for the neighbour not to see her because she took her mother’s boyfriend. They stayed until dark and took another road because Learner A was scared to be seen with him. Whilst driving, Learner A wanted to be dropped next to the road to which Khoza responded it to be too dangerous and that he must take her home for her safety. Khoza stopped on the side of the road for her to show him the way to her home but Learner A wanted to go to his place which Khoza refused. Being angry Learner A got out of the vehicle, slapt the door behind her and left. Khoza was worried but left for home.
22. Khoza stated that he never went to a guest house in his life. At the SAP he requested the SAP to investigate the employer. He stated that his car’s tracker can be presented to show that he stopped next to the road and not at a guest house. The sms message on page 25 of the bundle, he send to Learner A as the group leader of her group for extra classes. Khoza confirmed that it was him in the pictures on pages 26 and 27 of the bundle and stated that he does not know who took the pictures but think that it was Learner A. The following day he received a call from a detective to go to the SAP and told them the same as what he testified about. When he was introduced to her mother, he knew she lied to him and that all was a set up. He then understood why Learner A did not want him to pick her up at home. Another SAP member came and asked the mother how the other case are going and Khoza realised he was another victim. He cried thinking he was going to jail and loosing his work having two small children. Khoza thanked God for the mother to have exposed the other cases. He realised that this is how they survive and she did the same to her steph father for accusing him of rape. Khoza continued to state that another worker at school told him that Learner A challenged him for sex. At the SAP, they talked about a teacher, Mpela and Khoza realised that this was planned a long time ago. The next day he went to the teacher who was suprised about this whole thing although Learner A came to her with no evidence. He stated that the Principal never called him and stated that the SAP was bribed by the Learner A’s mother because the Principal took her back to school to re-open the case and Khoza’a gun was taken away until today. Khoza denied to have touched Learner A notwithstanding that she was wearing a mini. He knew if he would, Learner A would not resist to have sex. He also stated that he never had sex with her.
23. During cross examination, Khoza stated that when he has a problematic learner at school he would arrange to meet alone with the learner, to listen and to resolve it himself and if not, he would involve a senior such as an HOD to assist. About Learner A, he did not think of her as problematic and thought after the marks issue, that it was resolved because she apologised. He did not know that she would steal and lie. He stated that because Learner A called him over a weekend, he did not take the call and that he was patient with her because she said she would do anything to pass any subject. For being called by a child on a Sunday night and being accused for not answering, Khoza stated that he told Learner A that he was with his wife and that he did not owe Learner A anything. Khoza also stated that when Learner A would visit him at his office he did not suspect anything only now, afterwards he realised that she was on a mission. He also stated that Learner A was the only learner with whom this occurred and with no other learner.
24. Khoza stated that it was possible to receive a hundred percent when it is a smart learner. When Learner A copied the memo, he subtracted half of her marks to be able to write again but the marks was already entered into the system and captured before the scripts were returned to learners. Khoza also said that he was busy sending the marks to the clerks and stated that he never said that the marks were already captured. Learner A did not re-write because he marked during the holiday and the clerks needed the marks. Learner A was on holiday and it was fair to subtract the mark. He gave Learner A half and not zero because he judged it to be around what other learners received and if it was a problem his moderator could have picked it up, but no one corrected him. Khoza opologised for the way he dealt with the mark of Learner A but other teachers do not operate the way he does. He was not Learner A’s class teacher (guardian class) and the only reason why Learner A would have called upon Khoza out of all the other teachers, was because she had a hidden agenda setting him up. He advised her to get hold of R10 but at that stage he did not realise Learner A pre-planned something. He did not refer Learner A to a HOD or Principal because he realised it later when he was at the SAP. He also stated that even when she left the car he must have phoned the SAP.
25. Learner A sounded desperate and he thought he needed to assist her and that he was her only hope when she said she had no other relatives, but he realised that she had another motive. On the question why Khoza did not call for help, he stated that Learner A was the one who called him for assistance and admits that he had some oversight and did not think properly. Khoza denied that he called Learner A but that she called him. He also stated that he realised something was going on when the Principal took her to the SAP. On the question whether it was proper to fetch learner without the consent of the parents, Khoza stated that at that moment the parents were not there, he asked for the mother’s phone number but Learner A did not have it. He also stated that she said her mother did not had a phone at that stage. It was an emergency and he trusted Learner A. On the question that if it was an emergency and having no consent he could have offered a taxi, Khoza stated that she had no money for a taxi and he was there to assist her when she called for help. It was his intention to give her money for a taxi but she said Bosplaas and Ramotsi was close to each other therefore he was not taking Learner A to Bosplaas but she found transport with him to drop her afterwards at Ramotsi. He took an instruction from her as a child and acknowledged not to say no, and did not see the bigger picture of the whole thing.
26. For Khoza, Learner A acted in a strange way when she took R200 to board a taxi to go to her friend at Ramotsi and when she asked him to spend the night with her in the empty room, he realised something strange. At Bosplaas, he saw her busy with her phone aiming towards him but he did not realise she was taking photos of him. He also stated that he has a gun which he takes along when he goes to Bosplaas for protection. He knew he was going there so he took it along. Caring for Learner A’s safety, when she left the car angry, he pleaded with her not to leave when he stopped next to the road. Learner A said she knew where she was going to and it would have looked strange if he would have chased her with his car.
27. Referrring to the SMS message, it was send to Learner A from him because she was the study leader of the group and not to her as an individual. The SMS is plural using “are” and not singular. All Learner A was saying is a lie and he could have screamed when Learner A testified. He told the SAP that he regretted to have helped her because it brought him into trouble. At the SAP when he relasied he was a victim and being set-up, he started to cry because he has children. Khoza also stated that all who were at the SAP lied. He was not taking Learner A to Bosplaas and it was to assit her to drop her off later. He also stated that someone trained Learner A to say what she did. Learner A is dangerous, a liar and a thief and she did the same with her stephfather. Khoza stated that it was around 5:00 to 6:00pm when she left his car and not between 10:00 to 11:00pm like Skosana testified. Referring to the recording, Khoza stated that he did not say what was recorded and could not hear the recording. He also did not have knowledge that he was recorded. It was part of the set-up against him and Learner A was send to do so. Learner A towards him denied to have taken pictures referring to pages 26 and 27 which shows it was a set-up. Khoza conceded drining a MP200 and vehemently denied to have been at a guest house. He can provide his car-tracker as proof that the evidence against him is fabricated and there is a lot of MP200’s out there.
SUBMISSIONS IN ARGUMENT
27. Both parties agreed to submit arguments inclusive of mitigating and aggravating circumstances in writing which was useful. The submissions were carefully considered, but will not be repeated here, as the contents basically mirror what was put during the leading of evidence and cross-examination in the arbitration hearing itself. None of the submissions convinced me to a different outcome that has been reached.
ANALYSIS OF EVIDENCE AND ARGUMENT
28. Written arguments inclusive of mitigating and aggravating evidence were submitted by both parties. I do not intend to summarise these arguments here in detail. In short it was submitted on behalf of the employer that the employer has proved the charges against the applicant and that the dismissal should be confirmed.
29. In order for a dismissal to be fair, Section 188A of the Labour Relations Act requires and Inquiry by arbitrator. An employer may, with the consent of the employee or in accordance with a collective agreement, request a council, an accredited agency or the Commission to appoint an arbitrator to conduct an inquiry into allegations about the conduct or capacity of that employee. The onus is on the employer to prove the allegations levelled against the employee is in accordance with substantive fairness. The parties in this matter agreed that I am required to determine under substantive fairness, whether the employee, David Khoza touched a Grade 10 learner, Learner A’s vagina and telling her he wanted to have sexual intercourse with her. I am aslo required to decide whether the employee showed Learner A a gun and threatened to kill her if she tells anyone about the alledged sexual harassment.
30. Before analysing the evidence presented, I will comment on the credibility of the witnesses. The employer’s witnesses, impressed me as credible and reliable witnesses who just stated what they knew and were willing to make concessions that were detrimental to the case of the employer. Learner A testified in camera and spoke in uninhibited fashion, with conviction and sincerity, and I have no doubt that what transpired when the conversation with Khoza took place at Bosplaas, happened exactly as she related it. Even if Khoza’s version about the events was correct, he should not have dealt with the situation by disqualifying Learner A outright shifting the blame on her and the Principal, that the whole thing was a set-up. He should have interrogated the information gleaned from her responses, and sought further clarity about the “strange behaviour’ he allegedly observed. There were minor contradictions in the evidence of the employer but such contradictions were weighed and found not to be material. Khoza was not compelling and avoided to answer questions, posing questions in return and shifting the blame continuously to others. His testimony and his demeanour did not reflected earnestness and his sincerity spoken to have a good heart and being a Christian, could not be found in the evidence presented by the him.
31. It is common cause that Khoza is the life science teacher to Learner A, a grade 10 learner at Adam Masebe Secondary School. It is common cause that Learner A received half from a full mark to be 15 out of 30 for a script/paper done. It is also common cause that Khoza on 31 July 2019 took Learner A a Grade 10 learner with him in his vehicle. It is also common cause that the Khoza drove a MP200 vehicle during this time and the same vehicle Learner A drove with Khoza. It is also common cause that whilst together, Khoza and Learner A were at a place called Bosplaas. It is also common cause that Bosplaas belongs to Khoza, a small holding with a small building and it is common casue that Khoza had a gun in his vehicle.
Under Substantive Fairness
33. I am guided by item 7 of the Code of Good Conduct on Dismissals contained in Schedule 8 to the LRA (hereinafter referred to as "the Code") which requires me to consider whether or not the Applicant contravened a rule regulating conduct in or of relevance to the workplace referring to misconduct in terms in terms of section 17(1) (b) and section 18 (1) (dd) of the Employment of Educators, Act 76 of 1998 as amended.
34. Khoza claims that he did not touch Learner A on her vagina and did not threaten her with a gun. In Moahlodi v East Rand Gold & Uranium Co Ltd (1998) 19 ILJ (IC) the court formulated the test as follows: an employer need not to be satisfied beyond reasonable doubt that an employee has committed the offence. We must remind ourselves that this is not a criminal trial and that the employer is therefore not required to prove the guilt of the applicant beyond a reasonable doubt. The standard of proof in civil proceedings and arbitrations, is a balance of probabilities see Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC). The test for deciding whether something has been proved on a balance of probabilities, is whether the version of the party bearing the onus, is more probable than not see Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A) at 157D.
35. In other words, the evidence must show that the existence of the fact in dispute is more probable than its non-existence. The difference between a possibility and a probability is that when something is possible, it can or could have happened. When something is probable, it most likely will or did happen. In determining probabilities, evidence is assessed against human experience, logic and common sense see Hoffmann en Zeffertt The South African Law of Evidence 4th ed 102. In order to resolve factual disputes a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie 2003 (1) SA 11 (SCA) at 14I par 5. The Court further remarked as follows: “As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it…. But when all factors are equipoised probabilities prevail " (at 14I - 15E par 5 per Nienaber JA)
36. Only Learner A testified as a learner minor, and when the alleged incident took place, she was in grade 10. It is an established principle that the evidence of children should be treated with caution and that a tribunal must fully appreciate the dangers inherent in the acceptance of such evidence see Woji v Santam Insurance Co Limited 1981 (1) SA 1020 (A) at 1028B – D. Although Learner A’s identity was disclosed, I have indeed approached her evidence with caution because of averments made of threats and that the alleged incident took place whilst she was a minor. I am also cautioned that single witness evidence are presented and also hearsay evidence of those who were not present with Khoza and Learner A. The parties in this matter agreed that I have to decide under substantive fairness whether the applicant was guilty of touching Learner A’s vagina wanted to have sexual intercourse with her and whether Khoza threatened Learner A with a gun, therefore, I need to determine whether Khoza is guilty of such alleged misconduct in terms of section 17 and 18 of the Employment of Educators Act.
37. In casu, the employer presented Learner A, the Principal Mapoli Molekoa, Boitumelo Motlhatlhedi and Jabulani Skosana in support of their case. Molekoa and Motlhatlhedi testified about what they heard from Learner A and Khoza testified about what he experienced and his observations at the SAP. He also testified about what he and Molekoa talked about. The events prior to 31 July 2019 and of the 31st July 2019 on the way to Bosplaas, at Bosplaas and thereafter, is evidence of two single witnesses being Learner A and Khoza. In relation to the hearsay evidence presented by Molekoa, Motlhathledi and Skosana, in Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for Chemical Industry & Others (JA51/10) [2013] ZALAC 16 (handed down on 19 July 2013), the Court with approval referred to the matter of Southern Sun Hotels and that of Swiss South Africa and confirmed the principle that hearsay evidence is allowed if it is in the interest of justice and that it was not irregular for the arbitrator to have relied on the hearsay evidence as the evidence was confirmed by other evidence. In addition, arbitrators have even more leeway than civil courts in determining what evidence should be admitted (Le Monde Luggage CC t/a Pakwells Petje v Commissioner Dunn & others [2007] 10 BLLR 909 (LAC) at paragraph 17); Naraindath v CCMA & others [2006] 6 BLLR 716 (LC) at paragraph 26.) What is more important than admissibility is the weight a commissioner ultimately attaches to evidence such as hearsay when making inferences to deduce the facts of a case.
38. Considering the aforesaid, Molekoa’s statement on page 10 of the bundle, do corroborate with her evidence on what Learner A told her. Her statement corroborated the events leading up to the 31st of July 2019 when Khoza allegedly refused to give her a total mark for life science alleging that she stole the memorandum. Molekoa also stated that Learner A told her about Khoza not giving her full marks for a June task and that if she wanted full marks, she needed to go with him somewhere. The third time Learner A came to Motlhatlhedi, she conceded that it was not a friend that had the problem but herself, who experienced a problem with her Life Science teacher. She told her that she were not given full marks for a test and when she complained about it the teacher told her that she did not deserve it. The teacher said he would give her full marks if Learner A would give him something. In her statement she wrote that Khoza asked her to sleep with her.
39 With minimal and immaterial contradictions Molekoa and Motlhatlhedi corroborated each other in what Learner A told them when she complained with Motlhatlhedi on 30 July 2019 a day prior to them driving together in Khoza’s vehicle to Bosplaas. This was told by Learner A to Molekoa afterwards on 5 August 2019. These versions supra remained uncontested by Khoza. Learner A stated that Khoza enquired about her total mark she received and whether she copied it from the memo. Molekoa and Motlhatlhedi also corroborated each other that Khoza said she must do it over and he said that she owed him. Learner A stated that she asked Khoza what she owed him but he did not respond and Khoza kept on saying so and she asked him whether she must buy him something to which he said no, after which she realised there is a problem. Khoza on the other hand stated that it was Learner A who continued to bother him that she owed him. He stated that for days after the discussion about the paper for which Learner A apologised for, she would come to his office telling Khoza that she owe him for not giving her a zero. When she was with him at his office she would look at the window to see whether there was someone and then rush into his office having a strange behaviour. I am inclined to attached weight to Molekoa and Motlhathledi evidence of what Learner A informed them on different dates about Khoza. I am of the view that Khoza told Learner A that she owed him and not the other way around.
40. Mashishi’s attempt to discredit Learner A’s evidence that she is a liar did not go far in my view. Khoza during his evidence trusted Learner A to such extent that he believed her when she said her family was away for the weekend. He also trusted her, being a child, to know that Romotsi was in the same direction as Bosplaas. He kept on believing her and conceded that it was wrong to take a learner child without the parents consent but kept on saying that he was her only help and that it was an emergency, which in my view is highly unlikely. After Khoza realsied that their was a problem with Learner A to continuously owe him, I am of the view that Khoza being an adult an a teacher in a responsible position must have known that there is a problem. I am of the view that a reasonable teacher in the same position as Khoza would have reported her behavior in the first instance when she showed behavior where it directs to a sexual nature. Learner A in my view rather experienced exactly what Motlhatlhedi testified about being shy at first not wanting to disclose herself in the events and later disclosed herself as the victim and not a friend to her. The last discussion Motlhatlhedi had with Learner A was on 30 July 2019 a day prior to Khoza and Learner A leaving together in Khoza’s vehicle. Motlhatlhedi stated that Learner A was emotional and cried not able to speak for a while. Motlhatlhedi told her to go home for them to continue talking the next day but Learner A was absent and the day after. In my view both Motlhatlhedi and Molekoa’s separate experience of what Learner A told them, corroborate each other to such an extent that Learner A’s version to both (of what occurred prior to 31 July 2019) deserve to be weighed in favour of Learner A’s evidence.
41. The charges levelled against Khoza, he denied to have touched Learner A on her vagina nor did he threatened her with a gun. No objection was raised by Khoza about the pictures of him and the recording made although he stated that he doesn’t know where the recording comes from but he saw Learner A taking pictures but it shows that it was a set up. The recordings made by Learner A were submitted on two CDs. Only one CD was clear enough to be translated and snippets from one CD translated to be the following: Khoza: the thing happening here must not be known that I am here with you do you understand why people must not know because I am a teacher and might not have a relationship with a learner [sic] Learner A: are we in a relationship? [sic] Khoza: I don’t know what do you call it. What do you think is happening here? Learner A: This thing happening. Khoza: How can you agree if you don’t know what is happening. Learner A: I have friends….(inaudible)..Khoza: Do you have sisters but you know? Learner A: I don’t know. Khoza But you know …(talks about whatsapp) this is between me and you and where does your boyfriend stay. Learner A: In Suurman. Khoza: No problem you don’t owe me don’t be afraid. You never done this before? Learner A: long you’ve been trying this. Khoza: No because you agree or not. Is it wrong? Is it the first time you ever slept with someone? Learner A: No Khoza: Is it the 1st time? Learner A: Yes. Grade 12 learner..and teacher. Khoza: Me? What is her name I don’t do those things, a grade 12 learner? Learner A: I will wink at you tomorrow. Khoza: She is in grade 11 it is a story. Learner A: She say so. Khoza: Do you believe it? Learner A: No….(talks about Kekana inaudible). Common sense directs that the discussion between Khoza and Learner A is of a sexual nature. In the discussion above Khoza told Learner A that she don’t owe him and that she must not be afraid. Referring to Learner A’s evidence, Khoza said that he reduced her mark to be half (to 15 out of 30) and said that she owed him. He continued to say that she do not need to worry because she will pass the next term. He then requested her cell number and she gave it to him. The next day she received a sms message stating: hi Learner A your life science teacher are you free [sic]. Khoza denied that he was the one owing Learner A but that it was Learner A who continuously told him that she owed him. Khoza also stated that he do not operate the way other teachers do and appologised having a oversight in not calling the HOD but helped Learner A out of his good heart being a Christian which in my view in not a excuse in being a responsible teacher. Khoza stated that for days thereafter (after he assisted her with the marks) Learner A would come to his office telling Khoza that she owe him for not giving her a zero. When she was with him at his office she would look at the window to look whether there was someone and then rush into his office having a strange behaviour. Kohza realised the strange behaviour however Khoza also stated that on the 28th July 2019 around 9:15 being a Sunday night, he saw four missed calls from Learner A on his phone, but did not know from who the calls were. Khoza corrected himself during his testimony to say that it was from her and then that he did not know that it was Learner A contradicting himself. He stated that the following day Learner A came to his office accusing him of not answering her calls the previous night. Khoza asked her what she was looking for to which Learner A replied that she was alone at home and wanted Khoza to come over because she owe him and will do anything to pass her Life Science exam. This in itself, must have been reported by Khoza as a responsible teacher, and he must have kept his distance but he did not. I am of the view that Khoza created the opportunity to advance sexual favours from Learner A.
42. The charges levelled against Khoza is that he did not touch Learner A on her vagina and threatened her with a gun. No objection was raised by Khoza about the pictures of him and the recording made by Learner A although he denied that he said what was translated. Snippest of the recording above directs to a discussion with a strong sexual tone between a teacher and a learner which discussion in itself was not to be a normal discussion betaween a teacher and learner and therefore not a mere drop of Learner A at Romotsi after a visit at Bosplaas. Being a responsible teacher, Khoza, in my view was not instructed or “subordinate” by Learner A the way he stated. Khoza was at least then suppose to drop Learner A at her friend at Ramotsi before Bosplaas and not there after. Khoza in my view was purpose driven. The journey to Bosplaas in my view was not because Khoza wanted to visit the place due to vandalism but to satisfy his sexual desires with Learner A. Learner A’s version that at the Mall, Khoza opened the door for her to get into his vehicle and said that she must lay down that no one could see her and at Majaneng she could sit upright, such version remained uncontested by Khoza and directs to the objective he had in mind when he picked Learner A up. Khoza stated that Learner A told him that Ramotsi is close to Bosplaas which I view to be unlikely in relation to Learner A who, whilst laying down in the vehicle after being picked up, asked Khoza where they were going to which Khoza responded, Bosplaas.
43. Learner A stated that at Bosplaas, Khoza opened the gate and parked the vehicle. He told her that there was no bed in the place and he would make something on the floor. Whilst he was out of the vehicle she (being inside) took pictures of Khoza. The picture submitted show Khoza opening the steelgate and door of the building then looking inside. Khoza stated that he saw Learner A busy with her phone taking pictures of him. He also stated that if a person has evil intentions (meaning Learner A), such person will stop if seen doing it (taking photos), but he did not see a reason as to why she would want to take a picture of him because he wanted to help her. Still Khoza believed in his good heart assisting Learner A however in my view Khoza had sexual thoughts in mind. Hereafter Khoza climbed back into the vehicle (Learner A inside) when the recording was made which directs to a discussion of sexual nature. Whilst both were inside the vehicle, Khoza stated he saw Learner A to drop something which was his wallet lying open on the floor of the car in which R 200 was missing. He confronted Learner A about the R200 to which she apologised and gave it back to him. As a sideline remark, Khoza stated that he puts his wallet and gun in the cabinet of the vehicle, as if he was inclined to say that Learner A was supposed that have seen the gun whereafter he stated that she acted strangely wanting to leave for her friend, but moments later she changed her mind wanting to sleep with him at Bosplaas. (I will continue with the second offence of the alleged threat below).
44. Learner A on the other hand stated that Khoza asked her if she knew the reason for them to have sex to which she responded no. He told her to stop being childish whereto she asked him to explain it. He said they came out to have sex and that she must go in with him (the building). She said she was afraid but Khoza said they will do it on the floor and she do not have to be affraid. This discussion whilst in the vehicle, (considering the snippest from one CD above), was of a sexual nature and Khoza most likely had this in mind when he took Learner A to Bosplaas. I am also of the view that whilst having a discussion of such nature, especially Khoza having sex in mind and Learner A who owed him (nearing the highlight of the aforegoing plan), common sense directs that such person would be aroused, especially being a male. Khoza’s plan came to the fore when Learner A stated the following which is more likely to have taken place: He responded that he will hold her and be gentle with her not hurting her. Learner A resisted and Khoza said that he has aroused feelings when they talk about sex and whether Learner A feel aroused too to which she said no. Khoza then put his finger inside her vagina to feel if she is wet. He then said that she is lying to him because she is wet. She recorded this discussion. Khoza then got out of the vehicle whith Learner A remaining inside. He also said he made a mistake in reducing her marks and will fix it for her on condition that she sleeps with him and that she would not tell anyone. She replied that he must fix it first but Khoza asking please if he can just out his head (penis [sic]) inside. Learner A refused wherafter Khoza said she is wasting time and that he has a wife waiting at home being suspicious. Khoza said he wanted to have intercourse with her and if she is not enjoying it he will “drop”it. From Learner A’s evidence above, it would be reasonable to suggest that the recording to it was the one which was inaudible, however I am convinced that Khoza used the aforegoing plan (the marks of the paper he awarded Learner A half for), to set his plan in motion. I am also sensitized that Learner A herself is a vulnerable child with learning problems and previously subjected to rape.
45. Khoza kept on stating that he has his vehicle’s tracker record to show that he was not at a guest house and that it will show where he dropped Learner A. Such evidence were not submitted and I accept Learner A’s version that from Bosplaas Khoza took her to a guest house at Suurman where Skosana collected her between 10:00 to 11:00pm. Skosana’s evidence stood firm which supported the hearsay evidence of Motlhatlhedi who stated that Learner A informed her that they left Bosplaas to a guest house in Suurman. With Learner A’s evidence and the supporting hearsay evidence, Minah has shifted the weight on a balance of probabilities in favour of the employer being the more probable version. After Learner A refused to satisfy Khoza’s desire at Bosplaas, they left for this guest house in Suurman but before they left, Learner A’s version was that Khoza touched her vagina when he felt whether she was aroused. Khoza was aroused having his mind set up for sex with the act to take place at Bosplaas in this vacated building. In failing, I am of the view that he realized his act and the predicament he created for himself and resorted to a proper threat whereby he showed Learner A the gun threatening her and her family should she say something. The question to be determined is not whether a witness (Learner A) is wholly truthful in all she says, but whether the Court or Arbitrator can be satisfied that the story which the witness tells is a true one in its essential features (see Nicholas J in S v Oosthuizen 1982 (3) SA 571 (T) 576) Witnesses who reconstruct their observations frequently make mistakes (see Frank J in Johannes v South West Transport 1994 1 SA 200 (Nm HC) at 202C-D, quoting Lambrechts v African Guarantee & Indemnity Co 1955 3 SA 459 A). From Khoza’a side I only have a bare denial, claiming that all the witnesses called by the employer have fabricated a false version against him. In Shange v MEC for Education, Kwazulu-Natal (15860/08) [2013] ZAKZDHC 32 (17 May 2013) the court warned that while a bare denial is easy to maintain to stonewall further interrogation during cross-examination, the risk of a bare denial defence is that a more credible version trumps a bare denial with equal ease. This is exactly what happened in this case.
46. In relation to charge 1, I find that Khoza during the period preceding and on 31 July 2019, sexually assaulted a Grade 10 learner, Learner A, from Adam Masebe Secondary School where he is currently working by touching her vagina, and told her that he want to have sexual intercourse with her. In view of his actions, it constitutes improper and disgraceful conduct in terms in terms of section 17(1) (c) of the Employment of Educators, Act 76 of 1998 as amended.
47. In relation to charge 2, I find that during the period 31 July 2019, Khoza showed a Grade 10 learner, Learner A, a gun and threatened to kill her if she tells anyone about the sexual harassment. In view of his actions of your actions, it constitutes improper and disgraceful conduct in terms in terms of section 18 (1) (dd) of the Employment of Educators, Act 76 of 1998 as amended.
48. Having held that Khoza misused his position as teacher, on a balance of probabilities has made himself guilty of sexual assaulting Learner A and threatened her with a gun, the South African government ratified the UN Convention on the Rights of the Child (CRC) in 1995. The CRC therefore forms part of South Africa’s international law obligations which means that the South African government is under an obligation to ensure that the CRC is implemented and complied with. In line with South Africa’s obligations under international law, the South African Constitution states that:
“Everyone has inherent dignity and the right to have their dignity respected and protected”
“Everyone has the right to be free from all forms of violence and not to be treated or punished in a cruel, inhuman or degrading way”
“A child’s best interest is of paramount importance in every matter concerning the child”
Every child has the right to be protected from maltreatment, neglect, abuse or degradation.
49. In determining the appropriateness of dismissal in relation to the charges, I adopt the approach of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). I also take into account the CCMA Guidelines on Misconduct Arbitrations. While discipline falls within the discretion of the employer, the employer must impose an appropriate and fair sanction.
Having held that Khoza is guilty of sexual assault as defined in section 17(1)(c) of the Employment of Educators Act in relation to charge 1, dismissal is mandatory. Neither the employer, nor I, or the Labour Court has any discretion to impose any other sanction than dismissal for this misconduct for as long as the conviction on section 17 in relation to charge 2 stands. Mitigating factors are completely irrelevant once an educator is convicted of this form of misconduct. For an educator to want to have sex with a learner and touching a learners vagina constitute serious misconduct. Adults are expected to help protecting all children from sexual abuse. In this regard Borchers J remarked in S v G 2004 (2) SACR 296 (W):
There is general outrage in South Africa at the moment over child abuse, and the prevalence thereof and the damage done by such crimes to society justifies that outcry. People are being exhorted to adopt the motto, ‘your child is my child’. All that this amounts to is that the public knows that its children are vulnerable and often cannot be protected for every moment of their lives. Decent people recognise these facts and help and protect children. They do not harm them, as the accused had done” (300h-301b);
50. Despite overwhelming evidence against Khoza, he refused to accept guilt. After having committed the acts of misconduct, he subjected Learner A to further trauma in that she had to testify about the sexual harassment that he had subjected her to in the arbitration hearing. In order to show true remorse, a person must be willing to accept guilt for his wrongdoing, must accept that he has done wrong and must accept that some sanction must be imposed for it (see S v G 1993 (2) SACR 359 (C)). Khoza was not willing to do that. The refusal by an employee to admit guilt and thereby show remorse for his misconduct is generally considered to be a serious aggravating factor (see Grogan Dismissal (2014 ed) 211). In this regard the Labour Appeal Court has stated in De Beers Consolidated Mines Ltd v CCMA & others (2000) 21 ILJ 1051 (LAC) at 1058 par 25:
"Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer's workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where…an employee… falsely denies having [committed misconduct] an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great."
51. The SACE code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). Our Courts have recognised that where the misconduct is of such a serious nature that from itself the inference could be drawn that the trust relationship and therefore the employment relationship has been destroyed, an Arbitrator may on this basis find that the trust relationship has been destroyed, and that dismissal is justified, see Grogan Dismissal (2nd ed 2014) 201, M Brassey et al The new Labour Law (Juta) at 96-7; Electrical & Allied Workers Union v The Production Casting Co (Pty) Ltd (1988) 9 ILJ 702. Conduct like this makes a continued employment relationship intolerable as teachers who act in this manner, cannot be trusted, especially when they in total denial.
52. I am satisfied that employer has succeeded in proving on a balance of probabilities that Khoza has irreparably destroyed the relationship of trust and had made the continuation of the employment relationship intolerable. I confirm dismissal as an appropriate sanction and find dismissal as sanction to be substantively fair.
AWARD
53. In the premises, I find summarily dismissal of Khoza from the employment of the Gauteng Department of Education to be effected from 23 March 2020.
54. Mr David Jabulani Khoza (Persal No 180175517) is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the Children's Act 38 of 2005.
The General Secretary of the ELRC must, in terms of Section 122(1) of the Children's Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children's Act 38 of 2005, that Mr David Jabulani Khoza (Persal No 180175517) is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
55. The ELRC is directed to forward a copy of this award to SACE. The attention of SACE is drawn to the fact that an educator Mr. David Jabulani Khoza (Persal No 180175517) has sexually assaulted a learner, Learner A by inserting his finger in her vagina and threatening her to kill her with a gun if she would tell anyone of being sexually harassed.
S Fourie
ELRC Arbitrator
Gauteng
Province: Gauteng
Applicant: Gauteng Department of Education
Respondent: KHOZA D J
Issue: Unfair Dismissal - Misconduct
Venue: ELRC offices at at Centurion
Award Date: 1 July 2020
Arbitrator: S Fourie
Case No PSES580-19/20GP
In the matter between
GAUTENG DEPARTMENT OF EDUCATION Applicant
and
KHOZA D J Respondent
ARBITRATOR: S Fourie
HEARD: 15 November 2019; 24 January 2020; 06 March 2020;
FINALISED: 06 March 2020 (7days to submit closing statements 13 March 2020)
DELIVERED: 01 July 2020
INQUIRY BY ARBITRATOR - ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter, an Inquiry by Arbitrator, was heard at the ELRC offices at at Centurion on 15 November 2019 and 24 January 2020 as well as at the Department of Education’s offices at Gauteng Tswane North on 6 March 2020. The Employee, Mr. David Khoza (“Khoza”), was represented by Mr. David Mashishi (“Mashishi”), a representative of the trade union SADTU. The Employer was represented Ms. Raliona Minah (“Minah”), its labour relations officer. I directed it compulsory for a intermediary service due to a minor witness although the witness’s identity is known to the parties. Goitsemang Boikanyo served as intermediary and Busi Seoketso as interpreter.
THE ISSUES TO BE DETERMINED
2. I am required to determine whether the employee is guilty of the charges against him and if so, to determine the appropriate sanction in terms of Section 188A of the Labour Relations Act 66 of 1995, as amended (“LRA”). This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. The employee David Khoza pleaded not guilty to both allegations listed hereunder.
BACKGROUND TO THE DISPUTE
3. The employee, is employed by Respondent from January 2009 at Adam Masebe Secondary School, as a PL1 educator. The employee was suspended from duty on 9 September 2019 whereafter two charges were levelled against the employee being:
Allegation 1
It is alleged that during the period 31 July 2019, you sexually assaulted a Grade 10 learner, Learner A, from Adam Masebe Secondary School where you are currently working by touching her vagina, and told her that you want to have sexual intercourse with her. In view of your actions, you are thus charged with misconduct in terms in terms of section 17(1) (c) of the Employment of Educators, Act 76 of 1998 as amended.
Allegation 2
It is alleged that during the period 31 July 2019, you allegedly showed a Grade 10 learner, Learner A, a gun and threatened to kill her if she tells anyone about the alleged sexual harassment. In view of your actions, you are thus charged with misconduct in terms in terms of section 18 (1) (dd) of the Employment of Educators, Act 76 of 1998 as amended.
SUMMARY OF THE EVIDENCE
4. This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and referred to as the LRA read with the changes as required by the context read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. This award is not intended to be a verbatim transcript of the evidence led at the inquiry by arbitrator hearing but rather a determination with brief reasons for such determination.
5. Evidence relevant to the determination or to support any of the elements of fairness as required may be referred to. This however does not mean that I failed to consider other evidence or ignored such evidence in coming to my decision. The Employer submitted a bundle of documents (Bundle ‘ER’ 1 – 23 pages), audio recordings and photo images. The Employee accepted the bundle submitted for what it purports to be.
The Employer’s case
6. Learner A, testified under a solemn affirmation (through an intermediary) in camera. She is 17 years of age and attended school at Adam Masebe Secondary School as a grade 10 learner. She knows Khoza because he used to teach her life sciences. On the 15th July 2019 Khoza looked for her and she went to his office. He enquired about her mark she received being a full mark, and whether she copied it from the memo, which she denied doing. He also said she must do it over and he said that she owed him. She asked Khoza what she owed him but he did not respond. Khoza kept on saying so and she asked whether she must buy him something to which he said no after which she realised there is a problem. She decided to discuss it with mam Phila but saying that it was for a friend (Lizzy) that she was asking. The next day mam Phila was not at work and she went to mam Motlhatledi explaining to her, still not exposing herself but asking guidance for a friend. After the third time she exposed herself to be the one experiencing the problem and Mothlatledi informed her that she must not do anything with the teacher should he ask for something. On the 17th July 2019 Khoza wanted to meet with her at NTK but she did not go. The next day Khoza asked her where she was because he waited for her to which she responded that she was busy. Khoza then wanted to give her R10 to meet at the Mall but she refused to take it. The next day being a Friday, they received their marks and she failed life sciences whereby she enquired from Khoza about it because she was supposed to receive full marks. He responded to say that he reduced her mark to be half (to 15 out of 30) and he said that she owed him. He continued to say that she do not need to worry because she will pass the next term. He then requested her cell number and she gave it to him. The next day she received a sms message stating: hi Learner A your life science teacher are you free..
7. The Monday Khoza asked her whether she saw the message and the reason she did not respond to it. She responded to say she did not had airtime. The Tuesday Khoza asked what she was doing on the Wednesday (Wednesdays they knock off earlier) but she responded to say nothing. Whilst taking, he asked whether there was a teacher coming and she responded to say no one was coming. She left for home and later Khoza called her asking her what she was doing. Khoza also asked where she was staying to which she responded in Suurman near the Mall. Later she went to the shops when Khoza called her again telling her to go to the Mall. She responded that she did not have money whereto he said she must borrow from the neighbour because he was in the parking area waiting for her. He dropped the phone and called again asking where learner A was. This took place on 31 July 2019 around 13:30. At the Mall Khoza opened the door for her to get into his vehicle and said that she must lay down that no one could see them. At Majaneng she could sit upright. Whilst on the road, Khoza asked her why she did nor pass and she responded that she came from the initiation school. He aslo showed her places whilst driving and she told him about a friend she has at Romotse whom was with her at initiation school. She asked him where they were going to which Khoza responded, Bosplaas. At Bosplaas he opened the gate and parked the vehicle. He told her that there was no bed in the place and he would make something on the floor. Whilst he was out of the vehicle (she being inside) she took pictures of Khoza. She also recorded their discussions together.
8. Learner A stated that Khoza asked her if she knew the reason for them to have sex to which she responded no. He told her to stop being childish whereto she asked him to explain it. He said they came out to have sex and that she must go in (to the room at Bosplaas) with him. She said she was afraid. Khoza said they will do it on the floor to which she replied that she’s afraid. He responded that he will hold her and be gentle with her not hurting her. Learner A resisted and Khoza said that he had aroused feelings when they talk about sex and whether Learner A felt aroused too to which she said no. Khoza then put his finger inside her vagina to feel if she is wet. He then said that she is lying to him because she is wet. She recorded this discussion. Khoza then got out of the vehicle whith Learner A remaining inside. He also said he made a mistake in reducing her marks and will fix it for her on condition that she sleeps with him and that she would not tell anyone. She replied that he must fix it first but Khoza asking please if he can just out his head (penis) inside. Learner A refused where after Khoza said she is wasting time and that he has a wife waiting at home being suspicious. Khoza said he wanted to have intercourse with her and if she is not enjoying it, he will “drop”it. He also said that when in the class room she can wink at him if she wants the act to be repeated. It was around 18:00pm when they then left Bosplaas going to a guest house. Khoza also said that he has a gun and if she would tell anyone he would shoot her family. He said that the gun takes 18 bullets and if shot in the forehead she would be dead. At the guest house Khoza paid and went to room 19 telling her that she must tell him when she is ready and he will come after school.
9. Khoza then left her at the room whereafter she went onto facebook to inform a friend that Khoza left her their and that she is afraid. The friend informed her mother who called her and arrangements were made for her brother (Kabelo) to fetch her. When Kabelo arrived she told him what happened and they spoke to the security of ther guest house. The next day they went to report the matter at the SAP who placed her and Khoza in separate rooms and after she explained what happened, the Police officer took her to Khoza. Khoza apologised and offered that he will pay. When the SAP told Khoza to pay R 30 000 he started to cry and they took him outside to cool down. He then returned again stating that he was sorry. Referring to the photos submitted on pages 26 and 27, she stated that she took it when she was inside the vehicle at Bosplaas. Snippets of the audio recording was presented consisting of two CD’s which the interpreter interpreted into the record.
10. During cross examination she confirmed that she understand the difference between right and wrong. She decided to approach a teacher and not the principle because she had a good relationship with the teacher she approached. She conceded not to have passed level 1 of Life Sciences. She received her results on 17 July 2019 and saw Khoza the same day. She agreed that two teachers told her not to go to Khoza but she did so outside the school yard, although she was not interested to go closer to him. She went to him as her teacher wanting to know what he wanted. She directed him to her place because he consistently asked her where she stayed. She stated that Khoza showed her a gun and forced her to get into his vehicle and he said that no one must see them. There were no people around them and she did not scream when she was picked up. The reason for taking the photos was to show where Khoza took her to sleep with her, but she did not send the photos to anyone. When she took the photos, Khoza looked at her whilst she was doing it. She stated that touching and putting his hand into her vagina is the same thing and that she and Khoza did not have sexual intercourse. The time at the guest house was around 8:30 to 9:00pm and Khoza paid for the guest house when he got out with money. She did not run away because the gate was locked and did not know which direction to go. Khoza also left her with the key of the room. She could not call anyone because she did not have airtime.
11. Mapoli Molekoa (Molekoa), testified under oath that she is the Principal at Adam Masebe Secondary School and wrote the letter on page 10 of the bundle which she wrote when she became aware of complaints against Khoza from educators. The compliant was that Khoza took a learner to his plot and later to a guest house at Suurman. The learner was seen on Wednesday at school but not back on Thursday and Friday. The educators indicated that the learner told them this after Mr. Khoza reduced her life science marks stating that she stole the memorandum from her office. After the educators informed her on 5 August 2019, she had a discussion with Learner A herself whom told her about Khoza who did not give her marks for a June task and that if she wanted full marks, she needed to go with him somewhere. Learner A told her that they Khoza gave her money to go to the Mall but she did not. However on Wednesday, Khoza phoned her after school to meet. Her mother send her to the shops when she met Khoza on the road and they left for Bosplaas. At Bosplaas she refuse to go into the house with Khoza. He showed her a gun from his seat and told her that she must be silent about going to the place or she and her family will be killed. Whilst in the car, Khoza touched her private parts wherafter they left for a guest house at Suurman where he left her.
12. Khoza came to her office requesting leave and early departure for stress after the long weekend. She spoke to Khoza about the allegations, and he denied that he took Learner A to his plot to Bosplaas but to a friend at Ramotsi. Whilst together, Learner A said that the friend was not at home and it is best to stay with Khoza. Khoza said he was on his way to his plot to investige allegations of vandalism. When he finished checking the plot, they returned whereby he asked Learner A direction to her house which she refused to provide. She requested Khoza to drop her at the garage near her home. Khoza acknowlged that he did take Learner A without the parents consent but that he was trying to help her.
13. During cross examination, she stated that she was not a witness but was informed afterwards. She informed Khoza that if a learner stole a memo he was to report it to the HOD or Deputy. Learner A explained that Khoza placed his hand on her panty but later, she said that he touched her vagina. The report would differ because it was done after the educators reported to her. Learner A did not say they had sex but that Khoza wanted to get inside the house but she did not agree whereafter he took her to a guest house. When Learner A reported the matter she was crying histerically and was scared. On the question why she met with Khoza she stated that Learner A needed marks to pass grade 10. Learner A reported the matter to two teachers and to the 1st teacher she did not tell her that it was concerning herself but a friend who needed help.
14. Boitumelo Motlhatlhedi (Motlhatlhedi), testified under oath that she is is a teacher at Adam Masebe for 5 years and wrote the statement on pages 12 to 13 of the bundle. Motlhatlhedi stated that Learner A came to her indicating a friend of her had a problem with the life science teacher who asked the friend to sleep with her. The second time Learner A approached her, she advised her to get help with the subject from other learners because she struggled with the subject. The third time she came to Motlhatlhedi, Learner A conceded that it was not a friend that had the problem but herself expereinced a problem with her life science teacher. She told her that she did not receive full marks for a test and when she complained about it, the teacher told her that she did not deserve it. The teacher said he would give her full marks if Learner A would give him something. The teacher wanted to meet her after school, but she did not want to and was scared of him. She further stated that Learner A cried and could not respond for a time. Motlhatlhedi told her to go home for them to continue talking the next day but Learner A was absent and the day thereafter. She then reported the matter to the Deputy Principal. A friend of Learner A informed them that she reported the matter to the SAP. They then reported the matter to the Principal who already knew about the matter because another teacher reported it already.
15. During cross examination, she stated that she was not a eye witness but was told by Learner A. At first she explained about her friend being the one in need and looked concerned for the friend. She was scared to open up and lied about the friend in need. Learner A informed her about the situation on 30 July 2019.
16. Kabelo Skosana (Skosana) testified under oath that he is the cousin to Learner A. He received a call from his aunt, Learner A’s mother who was looking for Learner A, but she was not with him. Later around 08:00pm he received another call from her still looking for Learner A. Being worried, he phoned her but the phone was dropped. Later, one of Learner A’s friends managed to locate her through facebook and that she was at Bosplaas. Between 10:00 to 11:00 pm he received a call from Learner A’s mother saying that they Learner A was at a guest house at Suurman and he said that he will go and fetch her with two cousins. The security informed them that Learner A was at room 19 where he found her crying expecting Khoza to enter. She said that Khoza left for his home but will return. Skosana’s cousin asked the security about the person who brought Learner A to the guest house whom informed them that it was a mature heavy build person, driving a MP200. Learner A was scared and she explained to them what happened and she also said that there was no reason to go back to school. She told them that when she went to the shops, Khoza came to her showing her a gun to climb into his vehicle. They went to Bosplaas where Khoza told her to stay in the vehicle while he prepare the house. It was when she took photos and texed her friend. She also said that Khoza touched her private parts by putting his hand on her vagina. The following day they went to the SAP to open a case who also called Khoza to report to the SAP. At the SAP, Khoza wanted to pay Learner A to cancel the case for him to continue as a teacher. Khoza was crying denying the allegations but wanted to pay Learner A.
17. During cross examination, he stated that he can only testify about what he saw when he fetched Learner A. The security also worked as the receptionist and receives people who said that Learner A and Khoza booked in. The door to room 19 was closed but not locked. On the question whether Learner A texed her friend, Skosana responded that when Khoza was out from the car at Bosplaas, Learner A had contact with her friend on facebook. Skosana stated that a MP200 is a Nissan as described by Learner A similar to the neighbours car.
The Employee’s Case
18. David Jabulani Khoza (Khoza), testified under oath that he is employed in his 10th year with the Department of Education and confirms being a teacher at Adam Masebe Secondary School. He knows Learner A as a grade 10 learner and he teached her life sciences during 2019. To the allegations levelled against him he pleaded not guilty and stated that he is not a violant person, do not smoke or drink and always sober. During Learner A’s evidence he died inside not to say anything. The days heading up to the 31st of July 2019, he stated that when all returned from the winter holidays, there was a learner Learner A in one of the grade 10 classes who had a total mark (30 out of 30) for her script. He did not know the learner and called her in to enquire about the mark because from her script, she copied the memorandum letter by letter. Learner A admitted that she took the memo from a box in Khoza’s classroom and said that she failed the previous year. Khoza told her that she could have received zero, but that it was okey and he decided to give her half the mark (being 15 out of 30) to which Learner A applogised and was satisfied.
19. For days thereafter Learner A would come to his office telling Khoza that she owe him for not giving her a zero. When she would see him at his office, she would look at the window to see whether there was someone and then rushed into his office, having a strange behaviour. He stated that he helped her out of his good heart being a Christian. When Learner A came to take a portfolio file to her mother, she said that her mother requested Khoza’a cellphone number. On the 28th July 2019 around 9:15 being a Sunday night, he saw four missed calls from Learner A on his phone, but did not know from who the calls were. The following day Learner A came to his office accusing him of not answering her calls the previous night. Khoza asked her what she was looking for to which Learner A replied that she was alone at home and wanted Khoza to come over because she owe him and will do anything to pass her Life Science exam.
20. On the 31st July 2019 the learners knocked of early around 13:30pm and Khoza remained at school till between 14:30 to 15:00pm. He received a call from Learner A being desperate and needed help. She said that there was no one at home and that her mother and brother went to their grandmother and she was afraid to sleep alone and wanted to go to a friend. Khoza told her that he was busy and that she must ask someon for R10 to go to the Mall. He told her that he will find her at the Mall to help her to go to her friend at Romotsi because he was going to his plot at Bosplaas because he had complaints of vandalism that he needed to check. Later she called back not finding help to borrow R10 and that Khoza must fetch her. Khoza stated that he was in trouble having a desperate learner and that he would not have peace with himself if he would to leave her alone so he asked direction to her place. He got lost on the way but Learner A called him to say that she saw him passing her place. Learner A was wearing a white top and a mini short having her cell phone with her. Khoza stated that even for the person he is he was shy to pick her up the way she was dressed. Learner A explained her story and Khoza said that he will take her to the Mall to go to Ramotsi, but Learner A said that she was not in a hurry and that Ramotsi is near Bosplaas. Learner A told Khoza that he could go to Bosplaas first and Khoza trusted her not to be in a hurry so he went to Bosplaas first to drop her on his way back.
21. Bosplaas is a 1 hectare plot situated in a remote area with a one room building previously used as a office but vandalised. He climbed out of the vehicle to look at the place, finding a open window and when he looked back, he saw Learner A busy with her phone as if she was taking pictures of him. Khoza asked her if she was taking pictures to which she responded no. He stated that if a person has evil intentions, such person will stop if seen doing it, but he did not see a reason as to why she would want to take a picture of him because he wanted to help her. When he was finished, he went back to the car and saw Learner A to drop something which was his wallet lying open on the floor of the car in which R200 was missing. He confronted Learner A about the R200 to which she apologised and gave it back to him. (He placed his wallet and gun in the cabinet of the vehicle). She acted strange and said that she wanted board a taxi to go to her friend. Khoza took back the R200 and gave her R50 should she be in need of other things. Whilst they were in the car, Learner A interrogated Khoza accusing him of having an relationship with a grade 12 learner which he denied. When Khoza said they must go, Learner A wanted them to sleep at Bosplaas because she was afraid to go home and did not want to go to the friend’s place anymore. Khoza said it was not possible because he has a wife and children but did not want to be rude to her. She refused to go to her friend and Khoza gave her his phone to call her friend but the friend was not at home, only the friend’s mother and she agreed to sleep there. (Khoza stated that he was not aware that Learner A was recording the discussion). After dropping the phone, Learner A changed her mind and said they must wait until dark for the neighbour not to see her because she took her mother’s boyfriend. They stayed until dark and took another road because Learner A was scared to be seen with him. Whilst driving, Learner A wanted to be dropped next to the road to which Khoza responded it to be too dangerous and that he must take her home for her safety. Khoza stopped on the side of the road for her to show him the way to her home but Learner A wanted to go to his place which Khoza refused. Being angry Learner A got out of the vehicle, slapt the door behind her and left. Khoza was worried but left for home.
22. Khoza stated that he never went to a guest house in his life. At the SAP he requested the SAP to investigate the employer. He stated that his car’s tracker can be presented to show that he stopped next to the road and not at a guest house. The sms message on page 25 of the bundle, he send to Learner A as the group leader of her group for extra classes. Khoza confirmed that it was him in the pictures on pages 26 and 27 of the bundle and stated that he does not know who took the pictures but think that it was Learner A. The following day he received a call from a detective to go to the SAP and told them the same as what he testified about. When he was introduced to her mother, he knew she lied to him and that all was a set up. He then understood why Learner A did not want him to pick her up at home. Another SAP member came and asked the mother how the other case are going and Khoza realised he was another victim. He cried thinking he was going to jail and loosing his work having two small children. Khoza thanked God for the mother to have exposed the other cases. He realised that this is how they survive and she did the same to her steph father for accusing him of rape. Khoza continued to state that another worker at school told him that Learner A challenged him for sex. At the SAP, they talked about a teacher, Mpela and Khoza realised that this was planned a long time ago. The next day he went to the teacher who was suprised about this whole thing although Learner A came to her with no evidence. He stated that the Principal never called him and stated that the SAP was bribed by the Learner A’s mother because the Principal took her back to school to re-open the case and Khoza’a gun was taken away until today. Khoza denied to have touched Learner A notwithstanding that she was wearing a mini. He knew if he would, Learner A would not resist to have sex. He also stated that he never had sex with her.
23. During cross examination, Khoza stated that when he has a problematic learner at school he would arrange to meet alone with the learner, to listen and to resolve it himself and if not, he would involve a senior such as an HOD to assist. About Learner A, he did not think of her as problematic and thought after the marks issue, that it was resolved because she apologised. He did not know that she would steal and lie. He stated that because Learner A called him over a weekend, he did not take the call and that he was patient with her because she said she would do anything to pass any subject. For being called by a child on a Sunday night and being accused for not answering, Khoza stated that he told Learner A that he was with his wife and that he did not owe Learner A anything. Khoza also stated that when Learner A would visit him at his office he did not suspect anything only now, afterwards he realised that she was on a mission. He also stated that Learner A was the only learner with whom this occurred and with no other learner.
24. Khoza stated that it was possible to receive a hundred percent when it is a smart learner. When Learner A copied the memo, he subtracted half of her marks to be able to write again but the marks was already entered into the system and captured before the scripts were returned to learners. Khoza also said that he was busy sending the marks to the clerks and stated that he never said that the marks were already captured. Learner A did not re-write because he marked during the holiday and the clerks needed the marks. Learner A was on holiday and it was fair to subtract the mark. He gave Learner A half and not zero because he judged it to be around what other learners received and if it was a problem his moderator could have picked it up, but no one corrected him. Khoza opologised for the way he dealt with the mark of Learner A but other teachers do not operate the way he does. He was not Learner A’s class teacher (guardian class) and the only reason why Learner A would have called upon Khoza out of all the other teachers, was because she had a hidden agenda setting him up. He advised her to get hold of R10 but at that stage he did not realise Learner A pre-planned something. He did not refer Learner A to a HOD or Principal because he realised it later when he was at the SAP. He also stated that even when she left the car he must have phoned the SAP.
25. Learner A sounded desperate and he thought he needed to assist her and that he was her only hope when she said she had no other relatives, but he realised that she had another motive. On the question why Khoza did not call for help, he stated that Learner A was the one who called him for assistance and admits that he had some oversight and did not think properly. Khoza denied that he called Learner A but that she called him. He also stated that he realised something was going on when the Principal took her to the SAP. On the question whether it was proper to fetch learner without the consent of the parents, Khoza stated that at that moment the parents were not there, he asked for the mother’s phone number but Learner A did not have it. He also stated that she said her mother did not had a phone at that stage. It was an emergency and he trusted Learner A. On the question that if it was an emergency and having no consent he could have offered a taxi, Khoza stated that she had no money for a taxi and he was there to assist her when she called for help. It was his intention to give her money for a taxi but she said Bosplaas and Ramotsi was close to each other therefore he was not taking Learner A to Bosplaas but she found transport with him to drop her afterwards at Ramotsi. He took an instruction from her as a child and acknowledged not to say no, and did not see the bigger picture of the whole thing.
26. For Khoza, Learner A acted in a strange way when she took R200 to board a taxi to go to her friend at Ramotsi and when she asked him to spend the night with her in the empty room, he realised something strange. At Bosplaas, he saw her busy with her phone aiming towards him but he did not realise she was taking photos of him. He also stated that he has a gun which he takes along when he goes to Bosplaas for protection. He knew he was going there so he took it along. Caring for Learner A’s safety, when she left the car angry, he pleaded with her not to leave when he stopped next to the road. Learner A said she knew where she was going to and it would have looked strange if he would have chased her with his car.
27. Referrring to the SMS message, it was send to Learner A from him because she was the study leader of the group and not to her as an individual. The SMS is plural using “are” and not singular. All Learner A was saying is a lie and he could have screamed when Learner A testified. He told the SAP that he regretted to have helped her because it brought him into trouble. At the SAP when he relasied he was a victim and being set-up, he started to cry because he has children. Khoza also stated that all who were at the SAP lied. He was not taking Learner A to Bosplaas and it was to assit her to drop her off later. He also stated that someone trained Learner A to say what she did. Learner A is dangerous, a liar and a thief and she did the same with her stephfather. Khoza stated that it was around 5:00 to 6:00pm when she left his car and not between 10:00 to 11:00pm like Skosana testified. Referring to the recording, Khoza stated that he did not say what was recorded and could not hear the recording. He also did not have knowledge that he was recorded. It was part of the set-up against him and Learner A was send to do so. Learner A towards him denied to have taken pictures referring to pages 26 and 27 which shows it was a set-up. Khoza conceded drining a MP200 and vehemently denied to have been at a guest house. He can provide his car-tracker as proof that the evidence against him is fabricated and there is a lot of MP200’s out there.
SUBMISSIONS IN ARGUMENT
27. Both parties agreed to submit arguments inclusive of mitigating and aggravating circumstances in writing which was useful. The submissions were carefully considered, but will not be repeated here, as the contents basically mirror what was put during the leading of evidence and cross-examination in the arbitration hearing itself. None of the submissions convinced me to a different outcome that has been reached.
ANALYSIS OF EVIDENCE AND ARGUMENT
28. Written arguments inclusive of mitigating and aggravating evidence were submitted by both parties. I do not intend to summarise these arguments here in detail. In short it was submitted on behalf of the employer that the employer has proved the charges against the applicant and that the dismissal should be confirmed.
29. In order for a dismissal to be fair, Section 188A of the Labour Relations Act requires and Inquiry by arbitrator. An employer may, with the consent of the employee or in accordance with a collective agreement, request a council, an accredited agency or the Commission to appoint an arbitrator to conduct an inquiry into allegations about the conduct or capacity of that employee. The onus is on the employer to prove the allegations levelled against the employee is in accordance with substantive fairness. The parties in this matter agreed that I am required to determine under substantive fairness, whether the employee, David Khoza touched a Grade 10 learner, Learner A’s vagina and telling her he wanted to have sexual intercourse with her. I am aslo required to decide whether the employee showed Learner A a gun and threatened to kill her if she tells anyone about the alledged sexual harassment.
30. Before analysing the evidence presented, I will comment on the credibility of the witnesses. The employer’s witnesses, impressed me as credible and reliable witnesses who just stated what they knew and were willing to make concessions that were detrimental to the case of the employer. Learner A testified in camera and spoke in uninhibited fashion, with conviction and sincerity, and I have no doubt that what transpired when the conversation with Khoza took place at Bosplaas, happened exactly as she related it. Even if Khoza’s version about the events was correct, he should not have dealt with the situation by disqualifying Learner A outright shifting the blame on her and the Principal, that the whole thing was a set-up. He should have interrogated the information gleaned from her responses, and sought further clarity about the “strange behaviour’ he allegedly observed. There were minor contradictions in the evidence of the employer but such contradictions were weighed and found not to be material. Khoza was not compelling and avoided to answer questions, posing questions in return and shifting the blame continuously to others. His testimony and his demeanour did not reflected earnestness and his sincerity spoken to have a good heart and being a Christian, could not be found in the evidence presented by the him.
31. It is common cause that Khoza is the life science teacher to Learner A, a grade 10 learner at Adam Masebe Secondary School. It is common cause that Learner A received half from a full mark to be 15 out of 30 for a script/paper done. It is also common cause that Khoza on 31 July 2019 took Learner A a Grade 10 learner with him in his vehicle. It is also common cause that the Khoza drove a MP200 vehicle during this time and the same vehicle Learner A drove with Khoza. It is also common cause that whilst together, Khoza and Learner A were at a place called Bosplaas. It is also common cause that Bosplaas belongs to Khoza, a small holding with a small building and it is common casue that Khoza had a gun in his vehicle.
Under Substantive Fairness
33. I am guided by item 7 of the Code of Good Conduct on Dismissals contained in Schedule 8 to the LRA (hereinafter referred to as "the Code") which requires me to consider whether or not the Applicant contravened a rule regulating conduct in or of relevance to the workplace referring to misconduct in terms in terms of section 17(1) (b) and section 18 (1) (dd) of the Employment of Educators, Act 76 of 1998 as amended.
34. Khoza claims that he did not touch Learner A on her vagina and did not threaten her with a gun. In Moahlodi v East Rand Gold & Uranium Co Ltd (1998) 19 ILJ (IC) the court formulated the test as follows: an employer need not to be satisfied beyond reasonable doubt that an employee has committed the offence. We must remind ourselves that this is not a criminal trial and that the employer is therefore not required to prove the guilt of the applicant beyond a reasonable doubt. The standard of proof in civil proceedings and arbitrations, is a balance of probabilities see Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC). The test for deciding whether something has been proved on a balance of probabilities, is whether the version of the party bearing the onus, is more probable than not see Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A) at 157D.
35. In other words, the evidence must show that the existence of the fact in dispute is more probable than its non-existence. The difference between a possibility and a probability is that when something is possible, it can or could have happened. When something is probable, it most likely will or did happen. In determining probabilities, evidence is assessed against human experience, logic and common sense see Hoffmann en Zeffertt The South African Law of Evidence 4th ed 102. In order to resolve factual disputes a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie 2003 (1) SA 11 (SCA) at 14I par 5. The Court further remarked as follows: “As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it…. But when all factors are equipoised probabilities prevail " (at 14I - 15E par 5 per Nienaber JA)
36. Only Learner A testified as a learner minor, and when the alleged incident took place, she was in grade 10. It is an established principle that the evidence of children should be treated with caution and that a tribunal must fully appreciate the dangers inherent in the acceptance of such evidence see Woji v Santam Insurance Co Limited 1981 (1) SA 1020 (A) at 1028B – D. Although Learner A’s identity was disclosed, I have indeed approached her evidence with caution because of averments made of threats and that the alleged incident took place whilst she was a minor. I am also cautioned that single witness evidence are presented and also hearsay evidence of those who were not present with Khoza and Learner A. The parties in this matter agreed that I have to decide under substantive fairness whether the applicant was guilty of touching Learner A’s vagina wanted to have sexual intercourse with her and whether Khoza threatened Learner A with a gun, therefore, I need to determine whether Khoza is guilty of such alleged misconduct in terms of section 17 and 18 of the Employment of Educators Act.
37. In casu, the employer presented Learner A, the Principal Mapoli Molekoa, Boitumelo Motlhatlhedi and Jabulani Skosana in support of their case. Molekoa and Motlhatlhedi testified about what they heard from Learner A and Khoza testified about what he experienced and his observations at the SAP. He also testified about what he and Molekoa talked about. The events prior to 31 July 2019 and of the 31st July 2019 on the way to Bosplaas, at Bosplaas and thereafter, is evidence of two single witnesses being Learner A and Khoza. In relation to the hearsay evidence presented by Molekoa, Motlhathledi and Skosana, in Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for Chemical Industry & Others (JA51/10) [2013] ZALAC 16 (handed down on 19 July 2013), the Court with approval referred to the matter of Southern Sun Hotels and that of Swiss South Africa and confirmed the principle that hearsay evidence is allowed if it is in the interest of justice and that it was not irregular for the arbitrator to have relied on the hearsay evidence as the evidence was confirmed by other evidence. In addition, arbitrators have even more leeway than civil courts in determining what evidence should be admitted (Le Monde Luggage CC t/a Pakwells Petje v Commissioner Dunn & others [2007] 10 BLLR 909 (LAC) at paragraph 17); Naraindath v CCMA & others [2006] 6 BLLR 716 (LC) at paragraph 26.) What is more important than admissibility is the weight a commissioner ultimately attaches to evidence such as hearsay when making inferences to deduce the facts of a case.
38. Considering the aforesaid, Molekoa’s statement on page 10 of the bundle, do corroborate with her evidence on what Learner A told her. Her statement corroborated the events leading up to the 31st of July 2019 when Khoza allegedly refused to give her a total mark for life science alleging that she stole the memorandum. Molekoa also stated that Learner A told her about Khoza not giving her full marks for a June task and that if she wanted full marks, she needed to go with him somewhere. The third time Learner A came to Motlhatlhedi, she conceded that it was not a friend that had the problem but herself, who experienced a problem with her Life Science teacher. She told her that she were not given full marks for a test and when she complained about it the teacher told her that she did not deserve it. The teacher said he would give her full marks if Learner A would give him something. In her statement she wrote that Khoza asked her to sleep with her.
39 With minimal and immaterial contradictions Molekoa and Motlhatlhedi corroborated each other in what Learner A told them when she complained with Motlhatlhedi on 30 July 2019 a day prior to them driving together in Khoza’s vehicle to Bosplaas. This was told by Learner A to Molekoa afterwards on 5 August 2019. These versions supra remained uncontested by Khoza. Learner A stated that Khoza enquired about her total mark she received and whether she copied it from the memo. Molekoa and Motlhatlhedi also corroborated each other that Khoza said she must do it over and he said that she owed him. Learner A stated that she asked Khoza what she owed him but he did not respond and Khoza kept on saying so and she asked him whether she must buy him something to which he said no, after which she realised there is a problem. Khoza on the other hand stated that it was Learner A who continued to bother him that she owed him. He stated that for days after the discussion about the paper for which Learner A apologised for, she would come to his office telling Khoza that she owe him for not giving her a zero. When she was with him at his office she would look at the window to see whether there was someone and then rush into his office having a strange behaviour. I am inclined to attached weight to Molekoa and Motlhathledi evidence of what Learner A informed them on different dates about Khoza. I am of the view that Khoza told Learner A that she owed him and not the other way around.
40. Mashishi’s attempt to discredit Learner A’s evidence that she is a liar did not go far in my view. Khoza during his evidence trusted Learner A to such extent that he believed her when she said her family was away for the weekend. He also trusted her, being a child, to know that Romotsi was in the same direction as Bosplaas. He kept on believing her and conceded that it was wrong to take a learner child without the parents consent but kept on saying that he was her only help and that it was an emergency, which in my view is highly unlikely. After Khoza realsied that their was a problem with Learner A to continuously owe him, I am of the view that Khoza being an adult an a teacher in a responsible position must have known that there is a problem. I am of the view that a reasonable teacher in the same position as Khoza would have reported her behavior in the first instance when she showed behavior where it directs to a sexual nature. Learner A in my view rather experienced exactly what Motlhatlhedi testified about being shy at first not wanting to disclose herself in the events and later disclosed herself as the victim and not a friend to her. The last discussion Motlhatlhedi had with Learner A was on 30 July 2019 a day prior to Khoza and Learner A leaving together in Khoza’s vehicle. Motlhatlhedi stated that Learner A was emotional and cried not able to speak for a while. Motlhatlhedi told her to go home for them to continue talking the next day but Learner A was absent and the day after. In my view both Motlhatlhedi and Molekoa’s separate experience of what Learner A told them, corroborate each other to such an extent that Learner A’s version to both (of what occurred prior to 31 July 2019) deserve to be weighed in favour of Learner A’s evidence.
41. The charges levelled against Khoza, he denied to have touched Learner A on her vagina nor did he threatened her with a gun. No objection was raised by Khoza about the pictures of him and the recording made although he stated that he doesn’t know where the recording comes from but he saw Learner A taking pictures but it shows that it was a set up. The recordings made by Learner A were submitted on two CDs. Only one CD was clear enough to be translated and snippets from one CD translated to be the following: Khoza: the thing happening here must not be known that I am here with you do you understand why people must not know because I am a teacher and might not have a relationship with a learner [sic] Learner A: are we in a relationship? [sic] Khoza: I don’t know what do you call it. What do you think is happening here? Learner A: This thing happening. Khoza: How can you agree if you don’t know what is happening. Learner A: I have friends….(inaudible)..Khoza: Do you have sisters but you know? Learner A: I don’t know. Khoza But you know …(talks about whatsapp) this is between me and you and where does your boyfriend stay. Learner A: In Suurman. Khoza: No problem you don’t owe me don’t be afraid. You never done this before? Learner A: long you’ve been trying this. Khoza: No because you agree or not. Is it wrong? Is it the first time you ever slept with someone? Learner A: No Khoza: Is it the 1st time? Learner A: Yes. Grade 12 learner..and teacher. Khoza: Me? What is her name I don’t do those things, a grade 12 learner? Learner A: I will wink at you tomorrow. Khoza: She is in grade 11 it is a story. Learner A: She say so. Khoza: Do you believe it? Learner A: No….(talks about Kekana inaudible). Common sense directs that the discussion between Khoza and Learner A is of a sexual nature. In the discussion above Khoza told Learner A that she don’t owe him and that she must not be afraid. Referring to Learner A’s evidence, Khoza said that he reduced her mark to be half (to 15 out of 30) and said that she owed him. He continued to say that she do not need to worry because she will pass the next term. He then requested her cell number and she gave it to him. The next day she received a sms message stating: hi Learner A your life science teacher are you free [sic]. Khoza denied that he was the one owing Learner A but that it was Learner A who continuously told him that she owed him. Khoza also stated that he do not operate the way other teachers do and appologised having a oversight in not calling the HOD but helped Learner A out of his good heart being a Christian which in my view in not a excuse in being a responsible teacher. Khoza stated that for days thereafter (after he assisted her with the marks) Learner A would come to his office telling Khoza that she owe him for not giving her a zero. When she was with him at his office she would look at the window to look whether there was someone and then rush into his office having a strange behaviour. Kohza realised the strange behaviour however Khoza also stated that on the 28th July 2019 around 9:15 being a Sunday night, he saw four missed calls from Learner A on his phone, but did not know from who the calls were. Khoza corrected himself during his testimony to say that it was from her and then that he did not know that it was Learner A contradicting himself. He stated that the following day Learner A came to his office accusing him of not answering her calls the previous night. Khoza asked her what she was looking for to which Learner A replied that she was alone at home and wanted Khoza to come over because she owe him and will do anything to pass her Life Science exam. This in itself, must have been reported by Khoza as a responsible teacher, and he must have kept his distance but he did not. I am of the view that Khoza created the opportunity to advance sexual favours from Learner A.
42. The charges levelled against Khoza is that he did not touch Learner A on her vagina and threatened her with a gun. No objection was raised by Khoza about the pictures of him and the recording made by Learner A although he denied that he said what was translated. Snippest of the recording above directs to a discussion with a strong sexual tone between a teacher and a learner which discussion in itself was not to be a normal discussion betaween a teacher and learner and therefore not a mere drop of Learner A at Romotsi after a visit at Bosplaas. Being a responsible teacher, Khoza, in my view was not instructed or “subordinate” by Learner A the way he stated. Khoza was at least then suppose to drop Learner A at her friend at Ramotsi before Bosplaas and not there after. Khoza in my view was purpose driven. The journey to Bosplaas in my view was not because Khoza wanted to visit the place due to vandalism but to satisfy his sexual desires with Learner A. Learner A’s version that at the Mall, Khoza opened the door for her to get into his vehicle and said that she must lay down that no one could see her and at Majaneng she could sit upright, such version remained uncontested by Khoza and directs to the objective he had in mind when he picked Learner A up. Khoza stated that Learner A told him that Ramotsi is close to Bosplaas which I view to be unlikely in relation to Learner A who, whilst laying down in the vehicle after being picked up, asked Khoza where they were going to which Khoza responded, Bosplaas.
43. Learner A stated that at Bosplaas, Khoza opened the gate and parked the vehicle. He told her that there was no bed in the place and he would make something on the floor. Whilst he was out of the vehicle she (being inside) took pictures of Khoza. The picture submitted show Khoza opening the steelgate and door of the building then looking inside. Khoza stated that he saw Learner A busy with her phone taking pictures of him. He also stated that if a person has evil intentions (meaning Learner A), such person will stop if seen doing it (taking photos), but he did not see a reason as to why she would want to take a picture of him because he wanted to help her. Still Khoza believed in his good heart assisting Learner A however in my view Khoza had sexual thoughts in mind. Hereafter Khoza climbed back into the vehicle (Learner A inside) when the recording was made which directs to a discussion of sexual nature. Whilst both were inside the vehicle, Khoza stated he saw Learner A to drop something which was his wallet lying open on the floor of the car in which R 200 was missing. He confronted Learner A about the R200 to which she apologised and gave it back to him. As a sideline remark, Khoza stated that he puts his wallet and gun in the cabinet of the vehicle, as if he was inclined to say that Learner A was supposed that have seen the gun whereafter he stated that she acted strangely wanting to leave for her friend, but moments later she changed her mind wanting to sleep with him at Bosplaas. (I will continue with the second offence of the alleged threat below).
44. Learner A on the other hand stated that Khoza asked her if she knew the reason for them to have sex to which she responded no. He told her to stop being childish whereto she asked him to explain it. He said they came out to have sex and that she must go in with him (the building). She said she was afraid but Khoza said they will do it on the floor and she do not have to be affraid. This discussion whilst in the vehicle, (considering the snippest from one CD above), was of a sexual nature and Khoza most likely had this in mind when he took Learner A to Bosplaas. I am also of the view that whilst having a discussion of such nature, especially Khoza having sex in mind and Learner A who owed him (nearing the highlight of the aforegoing plan), common sense directs that such person would be aroused, especially being a male. Khoza’s plan came to the fore when Learner A stated the following which is more likely to have taken place: He responded that he will hold her and be gentle with her not hurting her. Learner A resisted and Khoza said that he has aroused feelings when they talk about sex and whether Learner A feel aroused too to which she said no. Khoza then put his finger inside her vagina to feel if she is wet. He then said that she is lying to him because she is wet. She recorded this discussion. Khoza then got out of the vehicle whith Learner A remaining inside. He also said he made a mistake in reducing her marks and will fix it for her on condition that she sleeps with him and that she would not tell anyone. She replied that he must fix it first but Khoza asking please if he can just out his head (penis [sic]) inside. Learner A refused wherafter Khoza said she is wasting time and that he has a wife waiting at home being suspicious. Khoza said he wanted to have intercourse with her and if she is not enjoying it he will “drop”it. From Learner A’s evidence above, it would be reasonable to suggest that the recording to it was the one which was inaudible, however I am convinced that Khoza used the aforegoing plan (the marks of the paper he awarded Learner A half for), to set his plan in motion. I am also sensitized that Learner A herself is a vulnerable child with learning problems and previously subjected to rape.
45. Khoza kept on stating that he has his vehicle’s tracker record to show that he was not at a guest house and that it will show where he dropped Learner A. Such evidence were not submitted and I accept Learner A’s version that from Bosplaas Khoza took her to a guest house at Suurman where Skosana collected her between 10:00 to 11:00pm. Skosana’s evidence stood firm which supported the hearsay evidence of Motlhatlhedi who stated that Learner A informed her that they left Bosplaas to a guest house in Suurman. With Learner A’s evidence and the supporting hearsay evidence, Minah has shifted the weight on a balance of probabilities in favour of the employer being the more probable version. After Learner A refused to satisfy Khoza’s desire at Bosplaas, they left for this guest house in Suurman but before they left, Learner A’s version was that Khoza touched her vagina when he felt whether she was aroused. Khoza was aroused having his mind set up for sex with the act to take place at Bosplaas in this vacated building. In failing, I am of the view that he realized his act and the predicament he created for himself and resorted to a proper threat whereby he showed Learner A the gun threatening her and her family should she say something. The question to be determined is not whether a witness (Learner A) is wholly truthful in all she says, but whether the Court or Arbitrator can be satisfied that the story which the witness tells is a true one in its essential features (see Nicholas J in S v Oosthuizen 1982 (3) SA 571 (T) 576) Witnesses who reconstruct their observations frequently make mistakes (see Frank J in Johannes v South West Transport 1994 1 SA 200 (Nm HC) at 202C-D, quoting Lambrechts v African Guarantee & Indemnity Co 1955 3 SA 459 A). From Khoza’a side I only have a bare denial, claiming that all the witnesses called by the employer have fabricated a false version against him. In Shange v MEC for Education, Kwazulu-Natal (15860/08) [2013] ZAKZDHC 32 (17 May 2013) the court warned that while a bare denial is easy to maintain to stonewall further interrogation during cross-examination, the risk of a bare denial defence is that a more credible version trumps a bare denial with equal ease. This is exactly what happened in this case.
46. In relation to charge 1, I find that Khoza during the period preceding and on 31 July 2019, sexually assaulted a Grade 10 learner, Learner A, from Adam Masebe Secondary School where he is currently working by touching her vagina, and told her that he want to have sexual intercourse with her. In view of his actions, it constitutes improper and disgraceful conduct in terms in terms of section 17(1) (c) of the Employment of Educators, Act 76 of 1998 as amended.
47. In relation to charge 2, I find that during the period 31 July 2019, Khoza showed a Grade 10 learner, Learner A, a gun and threatened to kill her if she tells anyone about the sexual harassment. In view of his actions of your actions, it constitutes improper and disgraceful conduct in terms in terms of section 18 (1) (dd) of the Employment of Educators, Act 76 of 1998 as amended.
48. Having held that Khoza misused his position as teacher, on a balance of probabilities has made himself guilty of sexual assaulting Learner A and threatened her with a gun, the South African government ratified the UN Convention on the Rights of the Child (CRC) in 1995. The CRC therefore forms part of South Africa’s international law obligations which means that the South African government is under an obligation to ensure that the CRC is implemented and complied with. In line with South Africa’s obligations under international law, the South African Constitution states that:
“Everyone has inherent dignity and the right to have their dignity respected and protected”
“Everyone has the right to be free from all forms of violence and not to be treated or punished in a cruel, inhuman or degrading way”
“A child’s best interest is of paramount importance in every matter concerning the child”
Every child has the right to be protected from maltreatment, neglect, abuse or degradation.
49. In determining the appropriateness of dismissal in relation to the charges, I adopt the approach of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). I also take into account the CCMA Guidelines on Misconduct Arbitrations. While discipline falls within the discretion of the employer, the employer must impose an appropriate and fair sanction.
Having held that Khoza is guilty of sexual assault as defined in section 17(1)(c) of the Employment of Educators Act in relation to charge 1, dismissal is mandatory. Neither the employer, nor I, or the Labour Court has any discretion to impose any other sanction than dismissal for this misconduct for as long as the conviction on section 17 in relation to charge 2 stands. Mitigating factors are completely irrelevant once an educator is convicted of this form of misconduct. For an educator to want to have sex with a learner and touching a learners vagina constitute serious misconduct. Adults are expected to help protecting all children from sexual abuse. In this regard Borchers J remarked in S v G 2004 (2) SACR 296 (W):
There is general outrage in South Africa at the moment over child abuse, and the prevalence thereof and the damage done by such crimes to society justifies that outcry. People are being exhorted to adopt the motto, ‘your child is my child’. All that this amounts to is that the public knows that its children are vulnerable and often cannot be protected for every moment of their lives. Decent people recognise these facts and help and protect children. They do not harm them, as the accused had done” (300h-301b);
50. Despite overwhelming evidence against Khoza, he refused to accept guilt. After having committed the acts of misconduct, he subjected Learner A to further trauma in that she had to testify about the sexual harassment that he had subjected her to in the arbitration hearing. In order to show true remorse, a person must be willing to accept guilt for his wrongdoing, must accept that he has done wrong and must accept that some sanction must be imposed for it (see S v G 1993 (2) SACR 359 (C)). Khoza was not willing to do that. The refusal by an employee to admit guilt and thereby show remorse for his misconduct is generally considered to be a serious aggravating factor (see Grogan Dismissal (2014 ed) 211). In this regard the Labour Appeal Court has stated in De Beers Consolidated Mines Ltd v CCMA & others (2000) 21 ILJ 1051 (LAC) at 1058 par 25:
"Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer's workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where…an employee… falsely denies having [committed misconduct] an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great."
51. The SACE code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). Our Courts have recognised that where the misconduct is of such a serious nature that from itself the inference could be drawn that the trust relationship and therefore the employment relationship has been destroyed, an Arbitrator may on this basis find that the trust relationship has been destroyed, and that dismissal is justified, see Grogan Dismissal (2nd ed 2014) 201, M Brassey et al The new Labour Law (Juta) at 96-7; Electrical & Allied Workers Union v The Production Casting Co (Pty) Ltd (1988) 9 ILJ 702. Conduct like this makes a continued employment relationship intolerable as teachers who act in this manner, cannot be trusted, especially when they in total denial.
52. I am satisfied that employer has succeeded in proving on a balance of probabilities that Khoza has irreparably destroyed the relationship of trust and had made the continuation of the employment relationship intolerable. I confirm dismissal as an appropriate sanction and find dismissal as sanction to be substantively fair.
AWARD
53. In the premises, I find summarily dismissal of Khoza from the employment of the Gauteng Department of Education to be effected from 23 March 2020.
54. Mr David Jabulani Khoza (Persal No 180175517) is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the Children's Act 38 of 2005.
The General Secretary of the ELRC must, in terms of Section 122(1) of the Children's Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children's Act 38 of 2005, that Mr David Jabulani Khoza (Persal No 180175517) is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
55. The ELRC is directed to forward a copy of this award to SACE. The attention of SACE is drawn to the fact that an educator Mr. David Jabulani Khoza (Persal No 180175517) has sexually assaulted a learner, Learner A by inserting his finger in her vagina and threatening her to kill her with a gun if she would tell anyone of being sexually harassed.
S Fourie
ELRC Arbitrator
Gauteng