Case Number: PSES298-19/20WC
Province: Western Cape
Applicant: Alexandre Levendal
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: Magistrates Court in Worcester
Award Date: 12 November 2020
Arbitrator: MM Marawu
Case No PSES298-19/20WC
In the inquiry by arbitrator between
Provincial Department of Education: Western Cape Employer
Alexandre Levendal Employee
ARBITRATOR: MM Marawu
HEARD: 18 November 2019 – 28 & 29 September 2020
DATE OF AWARD: 12 November 2020
INQUIRY BY ARBITRATOR
DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred for an inquiry by an arbitrator, (also known as a disciplinary hearing in the form of an arbitration) in terms of clause 32 of the Dispute Resolution Procedures of the Education Labour Relations Council (ELRC) and was heard on 28 and 29 September 2020 at the Magistrates Court in Worcester. Mr JF Horne (Employee Relations’ Officer) represented the Provincial Department of Education: WC (employer). Mr Eben Simons (Attorney) represented the employee. The hearing was digitally recorded. The parties submitted written closing arguments on 06 October 2020.
ISSUE TO BE DECIDED
2. I must determine whether the employee is guilty of the allegation(s) of misconduct presented by the employer against him, and dependent thereon, an appropriate sanction.
BACKGROUND TO THE DISPUTE
3. The employee is employed with the Western Cape Department of Education as an Educator at De Villiers Primary School since 2010.
4. It is alleged that the employee committed an act of misconduct, in that he made himself guilty of a common law or statutory offence towards a learner.
SURVEY OF EVIDENCE AND ARGUMENT
The Employer’s Submissions
5. The employer (Department of Education – Western Cape) presented testimony of a learner currently a student at Langeberg Secondary School and he testified with the assistance of an intermediary. The learner stated that he was invited by Mr Levendal to go with him and was to be taught to drive on his (Mr Levendal) car around 12 March 2019. He was 16 at the time and Mr Levendal saw him through his Aunt’s kitchen window and asked him if he was interested in learning to drive and he said yes.
6. They went to drive together on a conducive road where Mr Levendal allowed him to drive the vehicle up and down the road. Mr Levendal touched his penis as he was driving the car and told him to focus on the road ahead, not to worry about what he was doing with his penis. He pushed Mr Levendal’s hand away from his penis, but Mr Levendal kept on saying he must not worry, must just focus on driving and continued to undress his pants.
7. He ended up being confused and stopped fighting him out of fear, as he did not expect him to do such things. They drove towards a dam deep in the forest, and Mr Levendal got up to remove his (the minor learner’s) pants; he sucked his penis and put it on his (Mr Levendal) bums when it became hard.
8. He felt scared and asked Mr Levendal to take him home. He did not chat with Mr Levendal on social media before the incident, but started to chat with him on social media thereafter.
9. His Facebook page profile says ‘He lives in Robertson’ not Wellington, as it appears on the Facebook chats submitted with Mr Levendal’s bundle. He could only recognise chats on one page out of the 24 pages, where he chatted with Mr Levendcal regarding money he needed to go see a rugby game in Kraaifontein. There were other few chats he could recall on some of the pages, but he was ultimately denying that the 24 pages chats submitted with Mr Levendal’s bundle were all his chats.
10. The employer submitted arguments relating to the charge of m0isconduct towards the employee, as contemplated in Section 18(1)(dd) of the Employment of Educators Act 76 of 1998. It is of the belief that the employee was guilty on the balance of probabilities in respect of the common law or statutory offence, due to his inappropriate behaviour towards a learner.
11. The Western Cape Department of Education was guided by its ‘Abuse no more’ as well as the ‘Protocol for the Management and reporting of Sexual Abuse and Harassment in Schools’ policies, implemented nationwide.
The Employee’s Submissions
12. Mr Alexander Levendal is the employee in this matter and he testified that he has been an Educator with the department for a period of about ten (10) years. He started in 2010 teaching at De Villiers Primary school, where he taught the learner Social Science in grades 06 and 07.
13. Mr Levendal and his life partner were house sitting the minor learner’s aunt’s house in March 2019, when he met with the minor learner who was living with his mother in separate house in the back-yard of the minor learner’s aunt.
14. Facebook messages submitted with his bundle reflect that he started chatting with the minor learner in question towards end February 2019 and up to 13 March 2019.
15. They arranged a driving lesson together with the learner over their Facebook chats and agreed to meet on 12 March 2019; the learner told him he was 17 at the time. In the same Facebook chats, he also persuaded the learner to also have sex with him during their driving lesson and the learner consented.
16. On the allegation against him, he is pleading not guilty, because the learner was 16 (legal age of consent) at the time and was no longer a learner at his school. They were two individuals of legal age, who had sexual relations as consenting adults.
17. He and the learner made arrangements to meet for a driving lesson on 12 March 2019. He made it clear to the learner, via their Facebook chats that he was also going to have sex with him and the learner did not object to his advances. As he was teaching him to drive, he touched his left leg to assist him with stepping on pedals timeously. He ultimately asked him if he was erected and asked to see his (the learner’s) penis, to which he consented.
18. He sucked the learner’s penis with his permission and subsequently sat on his lap, wherein he (the learner) ejaculated, without penetration though. The learner did not complain about the incident to anyone, until his mother went through his phone and saw their Facebook chats. If his mother did not get hold of his phone he would not have reported the incident at all.
19. In his closing arguments, the employee submitted that the Prosecutor withdrew the criminal case against the employee and there is no statutory or common law proven, in the circumstances. The legal age of consent in South Africa was 16 years and the learner also told Mr Levendal that he was 17 years old at the time.
20. The Facebook chats of some 24 pages between the employee and the learner were submitted with the employee’s bundle, which the learner denied and only admitted to one page of the chats and some other few pages that were put to him during cross-examination.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. It is common cause that the employee (Mr A Levendal) who was a practicing Educator with the Western Cape Department of Education (the employer) did have a sexual encounter with a learner, who was 16 years old at the time. Therefore the main issue to be decided is whether there was consent between the two individuals who engaged into such sexual relations.
22. The employee was charged with one charge of misconduct presented as: “It is alleged that you are guilty of misconduct in terms of Section 18(1)(dd) of the Employment of Educators Act 76 of 1998, in that during the first quarter of 2019, you committed a statutory offence in terms of Section 5(1) of the Criminal Law Amendment Act of 2007, against a former Learner of Langeberg High School, in that you rubbed his penis and/or sucked his penis and/or placed his penis in your anus.”
23. The employee’s legal representative submitted a copy of the criminal case charges’ withdrawal sheet, to prove that the statutory offence case against the employee did not exist.
24. In its effort to prove its case, the employer presented an allegation against Mr Levendal, which related to the alleged sexual assault of a learner in terms of article 18(1)(dd) of the Act, in that he ‘commit[ted] a common law or statutory offence’. Section 17(1)(c) of the Act further states:
“An educator must be dismissed if she or he is found guilty of… (c) Having sexual relationship with a learner of the school where she or he is employed”
25. For the Department of Education to prove the allegation contained in Section 18(1)(dd), it would have to show that the employee had indeed committed a common law or statutory offence towards a learner. Revealing that there was a ‘statutory sexual assault’ case that was proven or existed. For such a case to exist or be proven, it would be because the learner was below legal age of consent (16 years) when a sexual relationship occurred or the employee forced himself on the learner.
26. In his testimony the learner indicated that he pushed the employee’s hand away, but eventually allowed him to continue doing what he wanted to do. He did not state that he was seriously against what Mr Levendal was doing to him or objected strongly when he was touching or sucking his penis. It seemed that even though he may have not been used to what was happening to him at the time, he still did not deem it necessary to object strongly or even complain to anyone about the incident, even after the encounter.
27. It is also common cause that the learner was at Langeberg Secondary School at the time of the incident and Mr Levendal taught at De Villiers Primary School; he was the former teacher of the learner. It follows therefore that the Department could not discharge its onus of proving the above misconduct allegation against the employee.
28. Based on the evidence presented before me, I am of the view that taking into account the totality of circumstances, including the fact that the criminal case against the employee was withdrawn from the Magistrate Court, Mr Levendal is not guilty of the allegation contemplated in Section 18(1)(dd) as alleged by the employer.
29. Having said that, the department may have to seek guidance from the South African Council of Educators (SACE) with specific reference to the relevant Codes of Ethical conduct applicable to all educators registered with the SACE.
30. In the premises I make the following award.
31. Mr Alexander Levendal has been found not guilty of the charge of Serious Misconduct.
32. The employee’s suspension must be lifted and he must report for duty with immediate effect.
M M Marawu