Case Number: PSES109-18/19LP
Applicant: PSA obo T.T Mphethi
Respondent: DEPARTMENT OF EDUCATION – LIMPOPO
Venue: department of Education, Limpopo, Cnr Hospital and Hans Van Rensburg Street, Voorwarts Building, Polokwane
Award Date: 19 November 2020
Arbitrator: M.P Shai
Applicant: PSA obo T.T Mphethi
Respondent: Department of Education Limpopo
DETAILS OF HEARING AND REPRESENTATION
1. The matter was heard on the 24th May 2018, 17th September 2018, the 2nd and 3rd November 2020 at the department of Education, Limpopo, Cnr Hospital and Hans Van Rensburg Street, Voorwarts Building, Polokwane.
2. Both parties were present at all sittings. The Applicant was represented by Mr. Mohlatlole, a union official, whereas the Respondent was represented by Mr. M.K Masindi.
3. At the end of the proceedings, both parties filed closing arguments in writing. The closing arguments were filed on the 6th November 2020, and same were taken into account herein.
ISSUE TO BE DECIDED
4. I am called upon to determine whether the dismissal of the employee was unfair or not. In the event I find that it was not fair, I will determine an appropriate remedy for him.
BACKGROUND TO THE ISSUE
5. The Respondent employed the Applicant as a teacher attached to Bosele School for the Blind, Deaf and Dumb. The Applicant was taken through a disciplinary hearing wherein he was charged for:
You contravened the provisions of section 17(1) (b) of the Act in that, during or around January to March 2016 or at any period incidental thereto, at or near Bosele School for the Blind and Deaf, you sexually assaulted a grade 7 learner FV by touching her on her buttocks and vagina and therefore you committed an act of sexual assault on a learner.
You contravened the provisions of section 18(1) (a) of the Act in that, during or around January to march 2016 or at any period incidental thereto, at or near Bosele School for the Blind and Deaf, you failed to comply with or contravened this Act or any other statute relating to education in that:
You assaulted FV, a grade 7 leaner by slapping her face and therefore, you contravened the South African Council of educators Act 31 of 2000 Code of professional Ethics, item 3.4 by exercising authority without compassion.
You assaulted FV, a grade 7 leaner by slapping her face and therefore, you contravened the South African Council of educators Act 31 of 2000 Code of professional Ethics, item 3.5 by failing to avoid any form of humiliation and refrain from any form of abuse, physical or psychological.
You assaulted FV, a grade 7 leaner by slapping her face and therefore, you contravened the South African Council of Educators Act 84 of 1996, section 10 (1) by administering corporal punishment at school to a learner.
You contravened the provisions of section 18(1) (q) of the Act in that, during or around January to March 2016 or at any period incidental thereto, at or near Bosele School for the Blind and Deaf, you assaulted a grade 7 Learner FV by touching her breasts, buttocks and vagina, and therefore, while on duty you conducted yourself in an improper disgraceful or unacceptable manner.
You contravened the provisions of section 18(1) (r) of the Act in that, during or around January to March 2016 or at any period incidental thereto, at or near Bosele School for the Blind and Deaf, you assaulted a grade 7 Learner FV by slapping her on the face and therefore, you assaulted a learner.
You contravened the provisions of section 18(1) (f) of the Act in that, during or around the 7th April 2016 or at any period incidental thereto, at or near Bosele School for the Blind and Deaf, you unjustifiably prejudiced the discipline of the Department in that:
You sexually assaulted a grade 7 learner FV by touching her on her breasts, buttocks and vagina.
You assaulted a grade 7 learner FV by slapping her on the face.
You bribed a grade 7 learner FV with two hundred rand (R200.00) to silence her about sexual harassment.
6. The Applicant was found guilty and dismissed. He appealed but the appeal was unsuccessful. It is this dismissal that is at issue herein.
7. The Applicant denied all allegations and prayed for reinstatement if I find in his favour.
SURVEY OF EVIDENCE FOR THE RESPONDENT
MR CLASS MUDAU TESTIFIED UNDER OATH FOR THE RESPONDENT AS FOLLOWS:
8. He works at Centrum next to the Bosele School for the Blind, Deaf and Dumb. On the 7th April 2016, he was at Bosele School for the Blind, Deaf and Dumb. While exiting a staff room, he saw the Applicant slapping the leaner FV with an open hand. He was amazed by this conduct. He asked the learner why the Applicant slapped her, the learner indicated she did nothing wrong. He then proceeded to the shop.
9. The leaner was in school uniform. He however did not see the learner’s spectacles.
HE TESTIFED AS FOLLOWS UNDER CROSS EXAMINATION:
10. He left his work place at 10h30. There is one yard between his work place and Bosele School for the Blind, Deaf and Dumb and he took about 10 minutes to arrive at the school.
11. His eye sight is good, he can see clearly far and nearer. At the time of the incident, the Applicant was about 5 meter away from him. He had gone there to buy food for Mr Ndobeng, who had sent for him. He usually buys food for him at 10h30.
12. When he got out of a staff room, he heard the sound of a clap and was amazed. At the time he was on his way out towards where the incident happened. He saw the learner, Felicia after the incident. When he saw her, she was without glasses. Although he was coming from behind, he could recognize the learner as she had a particular hairstyle (known as lephondo). At the time the applicant was in the class.
13. He saw the Applicant slapping the learner Felicia however; he can’t remember on which side she was slapped.
14. He insisted that he saw the Applicant slapping the learner with an open hand.
MS FV TESTIFIED FOR THE RESPONDENT UNDER OATH AS FOLLOWS:
15. In 2016, she was in grade 7 at Bosele School for the Blind, Deaf and Dumb.
16. On the day in question, the Applicant sent for her at the computer laboratory. On arrival, he asked her why she was not greeting him anymore. Her response was that she did not see him. The Applicant then said to her, “why do I see you but you don’t see me”. Her response was again that she did not see him. At that moment a learner by the name of Sechocho, a boy knocked on the door. The Applicant invited him to come in and put a letter on the table and leave.
17. The Applicant then started to touch her on her breasts, bums and on the crotch. She then turned to the right and at he asked her if she was alright, he then kissed her on her lips. The Applicant then told her that he wants to spend 10 minutes with her at his room. She then said no to the proposition and said she wants to look after other leaners at the hostel. The Applicant’s response was that, they are big enough to look after themselves.
18. After that, she went to the hostel. On arrival, she was informed that Ms Monyemangena was looking for her. She then went to her. Ms Monyemangene gave her money to give to the Applicant who was apparently going to the Moratiwa Mall and would buy bread for her. She took the money and went to the hostel and waited for a while. After a while she went back to Ms Monyemangena and reported that she could not find him. Ms Monyemangene then asked her to go to the security gate to ask if he had gone out. She then went to the Applicant’s room. She knocked on the door and the Applicant opened slightly, and he had wrapped himself with a towel. She then told him that she had been sent to give him money for bread. The Applicant then said to her; don’t tell me about bread, I want you.
19. She then went to Ms Monyemangena and told her that the security officer say the Applicant has gone out of the gate. She then went back to the hostel and reported the matter to Ms Sekgobela. She told her what the Applicant did to her at the computer laboratory. Ms Sekgobela then said she would call him to order.
20. Sometime later the Applicant called her and asked her how much is the bus fare to her home. She told him that she did not know as it was her mother who was paying for her. The Applicant took out two hundred rand (R200.00) note and gave it to her.
21. Ms Sekgobela later called her and informed her that she has called him to order and he had apologized. Ms Sekgobela further asked her if she had informed anybody about the matter, and she confirmed that she did not. She told her not to inform anybody because he has apologized. Further that, she said she should not tell her mother too. She further told her that the applicant had given her two hundred rand (R200.00) note, Ms Sekgobela asked for the said money and took it and said she would return the money to him and tell him to stop it.
22. When the schools closed and had gone home, she did not report the matter to her mother as per instruction of Ms Sekgobela
23. At reopening of the schools, it was the Applicant who was the only teacher present at school. The Applicant found them in grade 5 class and were making noise, as there was nothing they were doing. The Applicant came and asked them why they were many in the class. He then asked those who were not doing grade 5 to stand in front of him. The Applicant sent one learner to get a duster for him. He then hit them with a duster and sent them to their classes. When her time came, he hit her the most and as she was leaving he asked her why she was clicking her tongue against him. She said she did not do that. The Applicant then slapped her on her face and her spectacles fell off her face and broke. She cried and then went to her hostel, from where she phoned her mother. She then related the whole story including the instruction by Ms Sekgobela.
24. When asked how he kissed her as is alleged that he does not see, she insisted he does see. Further that, he can write on the chalk board, but she is perplexed by the fact that when he comes to the hearing he uses the stick.
UNDER CROSS EXAMINATION SHE TESTIFIED AS FOLLOWS:
25. She understands what is to testify under oath. She admitted that she did not tell the truth to Ms Monyemangena because she was scared.
26. The money she got from Ms Monyemangena was returned to him. She told Ms Sekgobela about this incident because she was dealing with such matters. She did not ask about what bread to buy because she was confused. She can’t remember how much she was given but it was a note. She was confused by the fact that the Applicant told her that he wants to spend 10 minutes with her, and on the other hand she was being sent to the same person (Applicant).
27. At the school, boys and girls stay in separate hostels and neither is permitted to go to each other’s hostel unless one is specifically sent there. The Applicant’s room was in the boy’s hostel. She can’t remember if she met one of the boys there but if they were there she may not have noticed them. She further cannot remember what she was wearing as the incident happened a long time ago, 2016. She remembers the learner who came to call her and the teacher who was in charge of her class that day.
28. She remembers that one Millicent came to the laboratory while she was there.
29. When asked how he touched her, she said she was standing in front of him and was asking me why she was not greeting him anymore, and he started to touch her breasts with both hands, further that he touched and brushed her bums. While doing so he was seated. She became afraid even though she said she was ok, as she did not know what to say. At the time Millicent and Karabo came in, he let her off and they did not see what he did. When Karabo came it was at the point when he was asking her why she was not greeting him anymore. He had not started touching her. It is this time the Applicant stated that they will finish the project. She was surprised by this statement as he did not offer her any subject.
30. She confirmed that she told Ms Sekgobela everything that happened to her. She explained that she told her that the Applicant touched her inappropriately and she thought she understood what she meant.
31. She was hit with a duster 3 times like any other learner but she was hit harder than others. After the beating, she was called back, and it was then that the second beating happened.
32. At the school, the Applicant does not use the walking stick. She confirmed further that during the second beating, her spectacles got broken. She confirmed that the Applicant could read a book using a computer.
SURVEY OF EVIDENCE FOR THE APPLICANT:
MR MPHETHI THOMAS THEOPHILUS TESTIFIED ON HIS BEHALF UNDER OATH AS FOLLOWS:
33. He was a teacher at Bosele School for the Blind, Deaf and Dumb, having started with the Respondent in 1994. He was placed at the above school due to his eye problem, blindness. His left eye is totally blind whereas the right eye is partially blind. At the above school, he was classified as a blind person. He offers classes for grade 4, 5 and 6. He is assigned an assistant who helps him with preparations for the classes, reading in class, writing on the chalk- board, marking for learners and also taking him to the classes. He can’t go to class without assistance. Further that, he is assisted by a computer to read.
34. He identifies learners by their smell, footsteps and voices. He knows the learner Felicia. He denied that he sent the learner Joyous to call her for him. He denied touching the said learner nor any learner.
35. He however remembers speaking to Ms Sekgobela about the learner, Felicia. The learner complained to her that he had knocked her spectacles off her and they got broken. Ms Sekgobela never said anything about sexual harassment.
36. He denied that the leaner came to give him money to buy bread for Ms Monyemangena. This can’t happen because Ms Monyemangena knows that he is blind and can’t buy bread for her. It is usually security personnel that are sent for that purpose.
37. He further denied that he bribed the learner with two hundred rand (R200.00).
38. He admitted an incident wherein he found the learners in grade 5 class making noise. In the process of them running away from the class, he knocked Felicia’s spectacles off her face and had apologized for this when Ms Sekgobela addressed the matter with him. He however denied assaulting the learners with a duster. He stated that he does not see, he could not identify any of them.
39. With regard to touching and kissing the learner, he testified that due to the setup in the laboratory, there is no way he could sit face to face with the learner, nor could he reach her in a sitting position. Ms. Mafate, the deputy principal, also confirmed that the said glasses alleged to have been broken, the learner had them the following Monday.
40. Further that she does not know why the learner would lie about him.
HE TESTIFIED AS FOLLOWS UNDER CROSS EXAMINATION:
41. He admitted that he did not put it to the learner that she confirmed with Ms Mafate that glasses she was putting on that day were broken. Further that, he admitted that he did not put it to the learner that he did not send learner Joyous to call her. When it was put to him that he did not challenge the learner on her version was put to her that this could not happen taking the setup in the laboratory and on a sitting position.
MS TSHUKUDU ESTER MAFATE TESTIFIED UNDER OATH AS FOLLOWS:
42. She is a deputy principal and responsible for the Deaf section in Bosele School for the Blind, Deaf and Dumb. She knows the Applicant as they worked together. In 2016 while holding a school management team meeting, one lady arrived and made a report. She reported that the Applicant has assaulted her child and her spectacles got broken. Further that, she also reported that the Applicant was sexually harassing the said child. They called the Applicant who denied the allegations. The previous Friday one Mr Mahlanya came to her and told her about the allegations of assault and sexual harassment against the leaner by the Applicant. Mr Mahlanya told her that the child alleged that her spectacles were broken. She called the learner, and when she came the learner was putting on the said spectacles. She asked the learner whether the said spectacles were the ones she alleged that they were broken and the child responded in the positive. The Applicant was informed of this but denied assaulting anyone but admitted he tried to block them from leaving the class and in the process, the spectacles fell off.
SHE BRIEFLY TESTIFIED AS FOLLOWS UNDER CROSS EXAMINATION:
43. The allegations were not investigated, only an enquiry from the Applicant was sought.
44. When she asked the learner if she was assaulted she said no, but they were trying to get out of the class and her glasses fell off. She does not know anything about the Applicant assaulting learners with a duster.
MS MORENA MASHEGO MILICENT TESTIFIED UNDER OATH AS FOLLOWS:
45. She works as a teacher assistant at the school. Her duties include assisting the teachers with preparations of lessons, marking scripts, assessments and also accompanying teachers to classes. She is allocated specific teachers to assist and the Applicant was one of them.
46. The Applicant can’t walk around without her assistance. She can enter any hostel, but it is rare that she would go to the male hostel. It is not permissible for a girl learner to enter the boy’s hostel.
47. She knows the learner FV, but can’t remember finding her with the Applicant in the computer laboratory. The laboratory is a public space, not only the Applicant sits there. She knows the learner by the name of Joyous but does not know anything about the learner being asked to call Felicia.
48. The Applicant sees a little bit. She remembers the day she and the Applicant found learners in grade 5 class. The Applicant asked them why they were there. The learners ran away from the class. At that stage she went to the staff room to collect the teaching material. The Applicant remained at the door of the said class. She came back and collected him and they left. She does not know what happened when she was away. She heard from others that it was alleged that the Applicant assaulted the learners.
MS MAPETLA EDITH MADUBANYA TESTIFIED UNDER OATH AS FOLLOWS:
49. She is employed by the Respondent and placed at Bosele School for the Blind, Deaf and Dumb. She is an HOD and also acts as assistant superintendent at the school.
50. She confirmed that during the SMT meeting, allegations of assault and sexual harassment were discussed. It was alleged that the Applicant perpetrated the two misconducts. During the meeting, Ms Mafate explained that the previous Friday when she received the information, she called the learner and asked her about the incident. The learner had put on the said glasses and confirmed that they were glasses allegedly broken. Ms Mafate further explained that she called the Applicant who denied the assault.
51. The Applicant can’t see, he has an assistant who assists him. The Applicant can’t see the distance of more than 1 meter. He can walk on rails without assistance but needs to be assisted where there are no rails.
52. The learners are not allowed to enter the opposite sex’s hostel. She would be surprised if one says she was allowed to do so.
53. She confirmed that the matter was not investigated beyond the SMT meeting.
ANALYSIS OF EVIDENCE AND ARGUMENTS
54. In this matter dismissal is common cause hence the onus reverts to the Respondent to justify the fairness of the dismissal. Only substantive fairness was contested. The Respondent must justify the dismissal on a balance of probabilities, which is achieved by weighing the two versions against each other, and one that is more probable wins the day.
55. The Applicant was charged on various charges which may be classified as relating to assault, sexual harassment and bribing a learner. The charges are more properly captured at paragraph 5 above.
56. I must state that going through the charges, there is a lot of splitting (duplication) of the charges. The charges as I see them fall in the main in three categories. I have listed them above and I will deal with them as such.
57. The respondent led the evidence of one witness, the alleged victim of the misconducts, FV. She testified that on the day in question, the Applicant sent one of the learners Joyous to call her to the computer laboratory where he was. She found him alone. The Applicant asked her why she was not greeting him anymore. Her response was that, she did not see him. According to her she was standing in front of him. She testified that the Applicant started to touch her breasts with both hands, her bums and crotch then after kissed her on her mouth.
58. It appears further that at the time the two were talking as aforesaid, another learner knocked and was allowed in and the Applicant instructed to put the document he had on the table, which he did. Further that, just as the incident was taking place, one learner and teacher assistant Milicent came in and the Applicant let loose her. In addition, the Applicant told her that he wants to spend 10 minutes with her at his room.
59. After this encounter the leaner testified that one teacher Ms Monyemangena gave her money to take it to the Applicant to buy her bread. According to her, she did not go but remained at hostel. Later she went to report that she did not find him. Ms Monyemangena then asked her to go and check with security if the Applicant had gone out of the gate. She then decided to go to the applicant’s room where she found him wrapped himself with a towel. According to her when she told him about the money he said she must not talk about the money, he wanted her. She then left and took the money back to Ms Monyemangena and told the latter that she did not find him. She did not tell her what was happening.
60. It is her evidence that she told Ms Sekgobela about the incident but just told her that he touched her inappropriately and did not give details, she thought she understood her. Further that she informed her mother telephonically immediately after the incident.
61. The Applicant also gave evidence and denied the allegations of sexual harassment. According to him it never occurred. The issue of sexual harassment was dealt together with a charge of assault at the school level. At the time and during the arbitration, he admitted that the incident happened between him and the learner, but denied assault. He explained that he was standing at the door and asking the learners who were making noise why they were there. As they ran out he may have caused the learner’s spectacles to fall off her face. This will be dealt further below. The point here is that he denied sexual harassment but admitted an encounter in the manner described above. The main defense by the Applicant was that he could not have done what is alleged as he does not see. He emphasized the fact that he is classified as a blind. The Applicant’s assistant testified that he could see a little bit. Ms Modubanya also testified that the Applicant appears that he does not see beyond 1 meter. The learner Felicia testified that she is amazed to see the Applicant walking with a stick as at the school he hardly used the walking stick.
62. In assessing the evidence of both the victim and the alleged perpetrator, I have to approach it with caution, because its single witness evidence. It is the evidence of the learner against that of the Applicant. When the incident happened, the learner told Ms Sekgobela about it. She further spoke to her mother about it once the case of assault came about. She explained that the reason she did not tell her mother during the holidays is because Ms Sekgobela had told her not to inform her as the Applicant had apologized.
63. I have also looked at the demeanor of the learner, she appeared to me to be a credible witness, could remember the incident reasonably well though she was 14 years when it happened. She explained well reasons why she did not tell the truth at the time, viz she was afraid and did not know what to say. She was young at the time. Further that, there appears to be no motive to implicate the Applicant on the part of the learner.
64. Looking at the totality of the evidence, I find that the Applicant probably committed the sexual harassment against the learner.
65. The Respondent led evidence of the learner FV who testified that the Applicant found her and others in the grade 5 class making a noise. He stood at the door and asked them why they were making noise. According to her, he asked another learner to bring a duster and spanked each one of them three (3) times. She however was spanked the hardest. She further testified that after she was slapped on the hand, she was called back and accused of clicking against the Applicant. This sound of the click symbolizes an expression of anger and dismay. While she was explaining that she did not click, the Applicant then gave her a clap on the face and her spectacles fell off. The Applicant denied this version and contended that he stood at the door and asked the learners why they were making noise. He testified that it might have happened that during the process they ran away, the spectacles may have fallen and that is what he apologized for if it happened that way. The leaner, Felicia, immediately after the incident, called her mother and informed her and secondly she reported same to Ms Sekgobela. Although Ms Sekgobela did not testify, Ms Mafate confirmed that she reported the matter of assault and breakage of the spectacles to her. Further that, Mr Motau testified that he saw the Applicant assaulting the learner with an open hand. He however contradicted himself when he said he only heard a sound of a clap, however he enquired from the learner why she was assaulted and the learner explained that he was assaulted by the Applicant and the Applicant was in the vicinity. This serves to corroborate what the learner testified to. The Applicant was therefore correctly found guilty on this charge.
CHARGE 5 count 3
66. In this regard, the Respondent led the evidence of the learner FV who testified that following the assault encounter with the Applicant, the latter called her and asked her what was the bus fare to her home. According to her, she said she did not know as it was her mother who usually pays the fares. The learner testified that the Applicant then took out two hundred rand (R200.00) and gave it to her. She accepted the money and reported the matter to Ms Sekgobela who took the money with a promise that she will take it back and call him to order. The Applicant on the other hand testified that this never took place. We are faced here with the learner’s word against that of the alleged perpetrator. There is no corroboration on either side. The said evidence should be approached with caution. The reason why the Respondent regards this as bribery is what transpired between the Applicant and the learner viz the assault and sexual harassment encounter. According to the Respondent, the conduct was intended to silence the learner from revealing what transpired earlier. The Applicant as I say offered a bare denial. Taking into account that Ms Mafate called the Applicant when she received a complaint from Mr Mahlanya who was apparently contacted by the learner’s mother it is probable that, in an attempt pacify the child, he paid the said R200 note. He had a motive. When assessing the totality of evidence and demeanor of the learner’s forthrightness in which she was relating the incident I find her to be a credible witness. This incident took place quite some time back but she could remember the events without much difficulty. I conclude that the Applicant probably bribed the learner with two hundred rand (R200.00) note. I further find that a finding of guilt was fair in the circumstances.
67. I further find and determine that charge 3 is a duplication of charge 1 and therefore amounts to splitting of charges. Further that charge 4 amounts to a duplication of charges as it is similar to charge 2. Further that count 5 count 1 and 2 are similar to charge 2 and amounts to unwarranted splitting of charges the net result of which is unfair since the Applicant is perceived to be guilty of more charges than was the case.
Was the sanction of dismissal fair in all the circumstances? I find that it was notwithstanding the duplication of charges. Section 17 of Act 76 of 1998 as amended provides that for serious misconduct (1) an educator must be dismissed if he or she is found guilty of amongst others-: “(a) theft, bribery, fraud, or an act of corruption in regard to examinations or promotional reports,
(b) Committing an act of sexual assault on a learner, student or other employee…”
68. I am of the view after consideration of all the evidence that the sanction of dismissal was the correct sanction in the circumstances.
69. I find that the dismissal of the Applicant was substantively fair.
70. The Applicant’s dispute referral is dismissed.
M.P Shai: PANELIST