Case Number: ELRC62-20/21KZN
Applicant: Musa Mdlalose
Respondent: THE HEAD OF THE DEPARTMENT OF EDUCATION – KWAZULU-NATAL
Issue: Unfair Dismissal - Misconduct
Award Date: 10 August 2020
Arbitrator: J KIRBY
IN THE ELRC: INQUIRY BY ARBITRATOR BETWEEN:
THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Employer”
Musa Mdlalose “the Employee”
Inquiry by arbitrator-finding
Case Number: ELRC62-20/21KZN
Last date of arbitration: 31 July 2020
Submission of closing arguments: 5 August 2020
Date of award: 10 August 2020
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
1. The inquiry by arbitrator was held remotely on 31 July 2020, on which day, the presentation of evidence was finalized. The representatives of both parties requested and were granted permission to submit written closing argument by no later than 5 August 2020.
2. The Employee, Musa Mdlalose, was represented by Mr Mtolo, an official of his trade union, the National Teachers Union. The Employee testified and a bundle of documents marked exhibit B was submitted on his behalf.
3. The Employer, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by its employee, Ms J Dumisa. A single witness testified on behalf of the Employer. In addition, a bundle of documents, marked exhibit A, was submitted on behalf of the Employer.
4. The proceedings were digitally recorded.
5. The services of an interpreter were used for the evidence of the Employer’s witness.
PRELIMINARY ISSUES AND THE EXPLANATION OF THE EMPLOYEE’S RIGHTS
6. Both parties confirmed that the services of an intermediary were not required as the complainant was not a child.
7. The Employee confirmed that he was aware of and understood his following rights:
7.1. His right to be informed of the charge. The Employee had been given a copy of the charge sheet on 24 July 2020;
7.2. His right to have sufficient time to prepare for the hearing. The Employee and his representative had had sufficient time to prepare and were ready to proceed;
7.3. His right to representation. The Employee had elected to be represented by an official from his trade union;
7.4. His right to have an interpreter. The Employee stated that he did not require the services of an interpreter;
7.5. His right to question witnesses of the Employer and to dispute any documentary evidence;
7.6. His right to give evidence in his defence and to call witnesses. The Employee indicated that he did not have any witnesses whom he wanted to call; and
7.7. His right to submit documentary evidence. The Employee submitted documentary evidence; namely, exhibit B.
8. It was explained to both parties, who indicated that they understood that:
8.1. A separate hearing in respect of sanction in event of a finding of guilty, would not be held. Evidence in mitigation and aggravation of sentence would be presented prior to a finding on the merits of the case having been given;
8.2. They could make closing arguments after all evidence had been heard; and
8.3. In terms of section 120 of the Children’s Act I, as the arbitrator, acting on my own or on application of the Department may make a finding that the Educator is unsuitable to work with children and that they may make representations in this regard.
THE CHARGE, PLEA AND PLEA EXPLANATION
9. The Employee was charged with the following act of alleged misconduct:
“It is alleged that at or near Ngotshe High School you allegedly sexually assaulted a learner, (the complainant,) in so doing you contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998 as amended.”
10. The Employee pleaded not guilty.
11. In explanation of his plea the Employee’s representative submitted that the Employee denies having assaulted the complainant in anyway whatsoever and further it was submitted that the Employee denies having had any form of a sexual relationship with the complainant.
12. It was further submitted that the complainant had at no time alleged that she had been sexually assaulted by the Employee. She had, however, alleged that he had fathered a child with her as a result of a consensual sexual relationship. The Employee denied having had such a relationship with the complainant and a DNA paternity test had excluded the possibility of him being the father of the complainant’s child.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Employer’s case
13. In 2017 the complainant was a grade 10 learner at Ngotshe High School. She was then nineteen years old. The Employee has never been an educator at a school attended by her though he had then stayed about a four minute walk away from her home.
14. The complainant is an orphan who in 2017 lived with her grandmother and aunt.
15. She and other learners would visit the Employee at his residence to attend extra mathematic lessons.
16. The complainant had had sexual intercourse with the Employee on numerous occasions during 2017 when she went to his house and she had fallen pregnant and subsequently given birth. She had not had sex with any other person and had claimed maintenance from the Employee in the Maintenance Court. She acknowledges that the DNA paternity test had found the probability of the Employee being the father of the child was 0%-at page 12 of exhibit B.
17. The complainant denied that she was protecting any other male by not revealing the identity of the putative father of her child or that she was involved in any conspiracy to falsely implicate the Employee.
18. Under cross-examination the complainant admitted that she had never complained that the Employee had assaulted her or that she had sex with him because she was afraid of him. She had not done so when interviewed by the Learner Support Agent; she had not reported any assault to the police or the maintenance officer; she had not complained of any assault to the maintenance magistrate or when the Employer had conducted its investigation. She further agreed that the Employee had initially been charged with having been in a consensual sexual relationship with her. She further agreed that she had not mentioned any threat of assault during her evidence in chief.
19. The complainant agreed that her grandmother and aunt with whom she stayed in 2017 had their own relationships at the time. She denied that she was withholding the identity of the father of her child and she disputed the scientific evidence that the Employee could not be the father.
20. When the complainant had visited the Employee for mathematics lessons, he had given her food and on one occasion he had given her R70. She was afraid of him as he was a quiet person with whom it was difficult to get close. She had always voluntarily gone to the Employee’s house.
21. Under re-examination the complainant confirmed that she had never complained that the Employee had beaten or assaulted her in anyway. She had had sex with the Educator as she liked the things, he had given to her.
The Employee’s case
22. The Employee had assisted the complainant and others with mathematics. He had never been in a sexual relationship with her.
23. He had given her a lift to school one morning and noticed that she was pregnant.
24. He had initially been approached by the complainant’s aunt for money to take the new born child to hospital. He had refused and he had then been summoned to the maintenance court where again money had been demanded from him. He had refused to pay any money and had requested a DNA test at his own expense.
25. Under cross-examination the Employee testified that he had been an educator for eleven years and that he knew that the complainant was a learner. He had assisted the complainant and others with their schoolwork. The complainant, however, was not particularly conscientious and only came for lessons on approximately three occasions.
26. The Employee denied having given R70 to the complainant.
27. It was put to the Employee that as an educator he was in loco parentis with regards to the complainant and he had abused her vulnerability as a poor person to have sex with her. This was denied.
SUMMARY OF ARGUMENTS
28. It was submitted that the Employee was bound by the Code of Professional Ethics published in terms of the South Africa Council of Educators Act, 2000. In particular, it was submitted that he was bound by the following obligations:
28.1. “To strive to enable learners to develop a set of values consistent with the fundamental rights contained in the Constitution of South Africa-section 3.3;
28.2. To avoid any form of humiliation; and refrains from any form of abuse, physical or psychological-3.5;
28.3. To refrain from improper physical contact with learners-3.6;
28.4. To refrain from any form of sexual relationship with learners at a school-3.8;
28.5. To use appropriate language and behavior in his or her interaction with learners, and acts in such a way as to elicit respect from the learners-3.10 and
28.6. Does not abuse the position he or she holds for financial, political or personal gain-3.12.”
29. While the complainant had not been a learner at the school of the Employee, he had been aware that she was a learner. He was also aware that the complainant was vulnerable as she was an orphan living with her grandmother and aunt. The Educator had abused this vulnerability and his position of authority as an educator to compel the complainant to have sex with him. In this regard it was submitted that:
“… it was the learner’s evidence on many times although it did not come out clearly that she was scared of Mr Mdlalose, that on its own proves sexual assault.”
30. Sexual offences are seen in a serious light in terms of the SACE Code of Conduct and the Employment of Educators Act 76 of 1998 (EEA.) The Educator had abused his position of authority to have sex with a learner and he ought to be found guilty of having contravened section 17(1)(b) of the EEA and be dismissed.
31. It was submitted that at no stage had the complainant mentioned that the Employee had assaulted or threatened to assault her in anyway.
32. The complainant, while not having alleged that the Employee had assaulted her in anyway, had alleged that she had been involved in a sexual relationship with him that had resulted in the birth of a child. Despite the scientific evidence having proven that the Employee could not be the father of the child, the complainant had persisted in maintaining that she had not had a sexual relationship with anyone else. This evidence of hers cannot be true and for reasons best known to her, she refuses to divulge the father’s identity.
33. The Employee denies having been in a sexual relationship with the complainant and denies having ever assaulted her in anyway. There is no corroborating evidence to support the allegation of sexual assault and the complainant herself had never alleged that she had been assaulted.
ANALYSIS OF EVIDENCE AND ARGUMENT
34. Section 17(1)(b) of the EEA provides that an educator must be dismissed if he is found guilty of committing an act of sexual assault on a learner.
35. The elements of sexual assault are:
35.1. Conduct of a sexual nature, which;
35.2. Results in the victim’s sexual integrity being impaired (or inspiring the belief that it will be impaired;)
35.3. Unlawfulness in the sense that there must be justifiable ground for the conduct of the perpetrator, such as consent; and
35.4. Intent to commit the misconduct.
36. The onus is on the Employer to establish that the Employee sexually assaulted the complainant.
37. It is the contention of the Employer that the Employee sexually assaulted the complainant by having sexual intercourse with her in circumstances in which he well knew that she could not consent to the act. The Employee is said to have abused his position of authority as an educator and the poor socio-economic situation of the complainant to induce her to have sex with him.
38. The Employer relies upon the evidence of a single witness; namely, the complainant. As a single witness the evidence of the complainant needs to be reliable and trustworthy in all material respects. It is common cause that the DNA test undergone by the Employee, the complainant and the child found that it was impossible for the Employee to be the father. Despite this medical certainty the complainant persisted in her denial that she had been sexually active with any other person at the relevant time. While this denial does not mean that the Employee could not have assaulted her, it does impact negatively on her reliability and credibility.
39. It is common cause that the complainant had not complained of having been assaulted by the Employee and that he had initially been charged with having had a sexual relationship with the complainant in contravention of section 17(1)(c) of the EEA. It was submitted, however, that the Employee had assaulted the complainant by having sex with her as he knew that she could not refuse to have sex given his position of authority and her poor socio-economic position. The difficulty the Employer has with this submission is that it is not supported by the evidence of the complainant. The complainant gave two reasons for why she had sex with the Employee. Firstly, she said that she was scared of him but not because of his position as an educator but because of his quiet personality that made it difficult to get close to him. This evidence does not in any way establish that the Employee negated any purported consent of the complainant by knowingly abusing his position of authority. In its closing address the Employer conceded that the evidence of the complainant did not clearly establish that she was scared of the Employee. In this regard, I find that her evidence does not establish that she was scared at all. In addition, if she was scared of the Employee, then there is also no explanation for why she repeatedly returned to his house where the alleged sexual assaults took place. Secondly, the complainant stated that she had sex with the Employee as she liked the things that he gave her. This evidence also does not prove that she had only consented to have sex with the Employee as a result of him having abused his position in such a way so as to negate her ability to consent.
40. On the other hand, the Employee denies having assaulted or ever having had a sexual relationship with the complainant. While the result of the DNA paternity test excluding the possibility of him being the father of the child does not mean that he did not sexually assault the complainant during the relevant period, it does cause one, however, to question why the complaint would allege a sexual relationship of whatever sort with the Employee yet deny that she had a sexual relationship with the father of her child. The Employee suggests that the complainant, for reasons known only to her, is shielding the identity of the father from being exposed and her or her family saw him as a source of money. This is, however, only speculation.
41. I am faced with two mutually destructive versions given by single witnesses. As indicated above, I find that the complainant’s denial, in the face of medical evidence to the contrary, that she had had a sexual relationship with anyone other than the Employee at the relevant period when conception occurred, to impact negatively on her credibility. As such, I am unable to find that the evidence on behalf of the Employer establishes that the Employee had sex with the complainant and much less am I able to find that he had sexually assaulted her as alleged by the Employer. I accordingly find that the Employer has not established that the Employee is guilty of having contravened section 17(1)(b) of the EEA.
42. The Employee, Musa Mdlalose, is found not guilty.
10 August 2020