PSES905-19/20 LP
PSES905-19/20 LP
Award Date:
1 December 2020
Case Number: PSES905-19/20 LP
Province: Limpopo
Applicant: Ngoako Reuben Masipa
Respondent: Department of Education: Limpopo
Issue: Unfair Dismissal - Misconduct
Venue: Via Zoom
Award Date: 1 December 2020
Arbitrator: Grace Mafa-Chali
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case Reference: PSES905-19/20 LP
Date: 01 December 2020
In the matter between:
Ngoako Reuben Masipa Applicant
And
Department of Education – LIMPOPO Respondent
ARBITRATION AWARD
THE DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearing was held on virtual platform (Zoom App) on 21 October 2020 at 09h00 and finalised on 18 November 2020 at 09h00. The Applicant was in attendance and represented by SADTU Full-Time Shopsteward, Mr Thobja Monyai. The Respondent was represented by Adv Rudzani Makhema, Labour Relations Practitioner. The proceedings were electronically recorded.
ISSUES TO BE DECIDED
2. I must decide whether the dismissal of the Applicant was substantively fair or not.
3. If so, to determine the appropriate relief.
BACKGROUND TO THE ISSUES
4. The Applicant was employed as an educator at Morebeng Secondary School in Sekgosese Central District, in Limpopo Province since 01 January 2005.
5. He was charged with misconduct in terms of Section 17(1) (d) and Section 18(1) (t) and (u) of the Employment of Educators Act 76 of 1998 (EEA). The charges related to allegations that on 13 March 2019 he intentionally knocked down a learner Katlego Legodi with his motor vehicle and she suffered some bodily injuries as a result of the assault and he furthermore on the same date threatened to kill the said learner using sign language thereby intimidating or victimising her. He was also charged with the third charge of verbal insult of the School Principal of Morebeng Secondary School on the same date by saying insulting words about his private parts for calling the South African Council of Educators (SACE). He attended the disciplinary hearing on 22 July 2019 and was found guilty of only charges 1 and 2 and not guilty on charge 3 relating to insults to the Principal; and was subsequently dismissed on 01 October 2019. The Applicant appealed against the dismissal sanction in February 2020 and the appeal outcome confirmed his dismissal.
6. The Applicant challenged only the substantive fairness of the dismissal in so far as the commission of the offence and the appropriateness of the dismissal sanction are concerned. Procedural fairness was not challenged.
7. The Respondent contended that the dismissal of the Applicant was substantively fair in that it has been proven during the disciplinary hearing that he committed the offences which are dismissible offences in terms of the EEA.
8. At the conclusion of the arbitration process, both parties requested to submit written closing arguments on 25 November 202 and they both obliged. I have considered them in my analysis of the evidence and arguments hereunder.
9. Parties submitted their bundles of documents. The Respondent’s bundle was marked Bundle “B” and the Applicant’s bundle was marked Bundle “A”. The Applicant’s Bundle of documents also contained the minutes of the Pre-Arbitration hearing signed on 24 February 2020.
SURVEY OF SUBMISSIONS AND ARGUMENTS
Respondent’s Evidence
Katlego Cathrine Legodi testified under oath as follows:
10. She made the statement of Page 1 of Bundle B at school on 08 May 2017 after her mother visited the school to confront the Applicant about the things he was doing to her. In started in March 2016 when she was in Grade 11 that the Applicant threatened her. He asked her for her cell number at school and she refused and when he asked it again she gave it to him thinking that he wanted to communicate with him about school issues.
11. The Applicant started calling her to come and meet him. For the first time he refused and when he called her for the second time to meet him at the bus stop she went there. It was on a Sunday around 5pm. The Applicant asked her to accompany him to Mokomene Greenside. When they arrived at the place, he went into the house and came out and they went back.
12. Before they arrived home the Applicant parked his vehicle at the back of Mokganya Primary School in the bush and wanted to sleep (have sex) with her. She refused and he started to threaten her and told her that she will fail her because she was her class teacher. He forced to have sex with her in his vehicle. He persisted to do that several times threatening her that she will fail if she refuses to have sex with him. She went to him when he called her to meet with him since she was afraid of failing at school and he was also threatening her.
13. She told her mother about it and her mother went to school to talk to the Applicant and the Principal. They took the matter to the circuit office. On 08 May 2017 she was requested to write a statement which she did. At this time her relationship with the Applicant was not like before. He treated her badly as compared to other learners and discriminated her.
14. She also reported the matter to the South African Police (SAPS) in March 2018. The Applicant was arrested and the police withdrew the case and nobody knew the reasons why it was withdrawn.
15. The matter was further reported to SACE. The Applicant continued to treat her badly in class and even stopped signing her books. He once came to class and spoke badly about her mother. He asked the learners if they wanted to be taught Economics by him or her mother and that if a person wants money she must go and work.
16. Reference was made to Page 5 of Bundle B, which is her statement dated 13 March 2019. She wrote the statement after the Applicant knocked her down with his vehicle on her way to school in the morning of 13 March 2019. On that day she was rushing to school to write Maths test which she missed the previous day on 12 March 2019. When she passed the railway, she met the Applicant’s vehicle and he pointed a finger at her and also made a signal cutting under his throat that he will kill her. When she arrived at the post office he met the Applicant’s vehicle again. It went up the speed hump and came directly towards her and the vehicle knocked her down on her right side and she fell down on his face.
17. She stood up and ran to next door at the Matshekgetshekge household looking for help. She then went out with one of the girls in that family who accompanied her to the police station. When she arrived there she used the back gate and the Applicant used the front gate. The Applicant again pointed her with the finger and said to him she was lucky as she should have died.
18. When they got inside the police station the Applicant told the police that he knocked her with his vehicle by mistake as his vehicle went out of control. The police went with her to her home and picked up her mother to take her to Botlokwa hospital. At the hospital she was checked by the doctor as she had bruises on both sides of her face. The doctor issued the medical certificate that appears on Page 6 of Bundle B, dated 13 March 2019, and that was the date on which she was knocked down by the Applicant’s vehicle.
19. She did not believe that it was a mistake that the Applicant knocked her off with his vehicle as the Applicant had pointed a finger at her twice when he met her for the first time and for the second time when they met at the police station. He believed that the Applicant indeed wanted to kill her.
20. He believed that the Applicant wanted to knock her down with his vehicle since on 12 March 2019 she went to SACE hearing but the Applicant did not come. At SACE hearing the people who attended were her, her mother, her sister Portia, Mr Nkuna and Zelda Maila. The other reason was that she opened a case against the Applicant with SAPS.
Mary Rarang Legodi testified under oath as follows:
21. She was Katlego Legodi’s mother.
22. Reference was made to Page 7 of Bundle B and she explained that it was her statement which she wrote asking that Katlego be removed from school she was attending at that time because she had a rape case at school and her life was no longer safe. He did not recall the date on which she wrote the statement. Her statement was received by Mr Moila, the Principal of Morebeneg High School.
23. In the letter she mentioned that Katlego’s life was no longer safe because the Applicant was always threatening her. Reference was also made to Page 8 of Bundle B, which is the statement she made on 13 March 2010 relating to the incident of that morning in which Katlego was knocked down by the Applicant’s vehicle.
24. Katlego left home in the morning at 06h00 on 13 March 2019 to write Maths Literacy. At 06h30 she was surprised when the police van came to her house with Katlego told her that Katlego was knocked off by the Applicant’s vehicle. She left with the police and Katlego to the hospital. As a result of the accident Katlego never got to school to write her Maths Literacy.
25. She raised the issue of the Applicant threatening Katlego with the Principal since Katlego failed in the first quarter and when she asked her what was disturbing her she started crying and explained that the Applicant was threatening her and told her that if she refused to have sex with her she will fail.
26. She then went to the school to see the Principal and asked him if he was aware of any relationship between the Applicant and Katlego. The Principal indicated that he knew nothing. The Principal called the Applicant and Katlego and they sat in the Principal’s office. She asked the Applicant why he was threatening Katlego that she will fail if she did not want to sleep with him. The Applicant said that he did not know anything about that but she could see in his face that he knew about it but could not admit in front of them. She was very angry and she stood up and started beating the Applicant.
27. She then took the matter to the circuit office and they called the Principal and requested him to arrange the SGB meeting, which was done. During the SGB meeting there was a lady who was an SGB member who said that the Applicant was requesting for an apology for what he has done and she asked apology for what as the Applicant told her and the Principal that he knew nothing about was Katlego was accusing her. The circuit office never phoned them until Katlego took further steps.
28. In the letter she wrote on 13 March 2019, she requested the Department to provide safety and protection to Katlego because she was knocked off by the Applicant’s vehicle and SACE refused that she drop out of school. SACE people came one day with the Principal to her place on a date that she could not remember as she lost her diary where she diarised events; and they asked her questions when did the incident start and gave them a date for the SACE hearing of 12 March 2019. She went with Katlego to the SACE hearing but the Applicant did not come.
Mpho Clay Moila testified under oath as follows:
29. He was the Principal at Morebeng Secondary School.
30. He referred to Page 9 of Bundle B which is the document dated 13 March 2019. He explained that there was a sequel of events that gave rise to that document. On 12 March 2019 whilst he was at school, he received a call from the Secretary of the South African Democratic Teachers Union (SADTU) Mononono Branch, Mr Kganakga who wanted to find out from him the whereabouts of the Applicant. He asked him why he was looking for the Applicant as he was on leave. Mr Kganakga said that he wanted the Applicant for the SACE hearing and was checking if he could assist to locate the Applicant. He told Kganakga that the Applicant was on leave and he would contact him should he hear anything.
31. The next day on 13 March 2019 he received a call from Ms Legodi reporting that her daughter Katlego Legodi was knocked down by the Applicant’s vehicle. She also reported that Katlego will not be at school as arranged to write her Maths test as she has been taken to hospital.
32. Subsequent to that call, he thought that the Applicant was on leave but heard that he has knocked down a learner and at the same time Mr Kganakga was looking for him for SACE hearing; and thought of calling him. He called Mr Kganakga that he could not locate the Applicant but has received news from Katlego’s mother that she was knocked down by the Applicant’s vehicle.
33. At 08h10 on the same date, he received a call on the 064 number from the Applicant who spoke with a high tone and said to him in vernacular “wena Clay why o ntshetse morago”…meaning why are you after me. He asked the Applicant why he was asking him why he was after him as he did not expect that kind of question from him since he was not after him at all and had no issues with him.
34. The Applicant asked him what did he tell Mr Kganakga, and he asked the Applicant what he said to Kganakga. The Applicant then continued and said to him in vernacular “ marete ago o ntshetse morago ebile o mphile batho ba SACE, o tlo nnyela”…meaning he called him by his male private parts and that he was after him and even gave him to SACE people.
35. He did not expect the Applicant to insult him like that as he was his colleague and after realising that he could not engage with him in those insults, he said to him in vernacular “tsamaya swine” ….meaning you go pig as what the Applicant said was quite unpleasant to him. The call was then dropped and the Applicant never called him back.
36. The Applicant’s insults made him feel that his human dignity was degraded by a fellow colleague calling him private parts with no good reason and on false allegations. He had to control himself not to lose his temper and avoided to confront him.
37. The reason why the Applicant alleged that he gave him SACE people could be because the SACE officials came to school to make an investigation and they sent a letter to him to make him aware. The Applicant was not at school on that day and for transparency, when the Applicant came back to school, he informed him that SACE officials where there and will set up an appointment to come for a full investigation since they showed him a clip of paper from Daily Sun newspaper which carried news that the Applicant was arrested for raping an 18 year old former pupil from Morebeng Secondary School. The SACE official told him that they believed there were some transgressions by the Applicant and would like to investigate.
Reference was made to Page 17 of Bundle B which is a Daily Sun article dated 20 March 2018 at 11:30. The article was read into record.
38. SACE officials indicated to him that they were there to identify the school of the teacher alleged to have raped a pupil and to arrange a date on which they will come back to meet the Applicant. SACE later sent him a letter by email indicating that on 30 January 2019, the SACE officials will come to the school for those investigations.
39. When SACE officials came for the first time they just said they wanted to identify the school and did not want see any one. When they came for the second time they wanted to see Katlego Legodi but she was not at the school and he arranged that the learner be picked up at home and subsequently they met with her. He could now make an inference from the newspaper article that it was Katlego that was mentioned as the learner but he did not ask her.
40. The SACE investigation took place in January 2019, and then the incident of 13 March 2019 followed. He believed that the two incidents are linked as he testified that SADTU official was looking for the Applicant to attend the SACE hearing, he got a call from Katlego’s parent that she was attending a SACE hearing on 12 March 2019, and a request was made to allow her to write a test on 13 March 2019. He also called the Applicant to have a discussion with him about the SACE officials’ visit to the school for investigation purposes as it was already public knowledge that he was arrested for the rape case. He never discussed this rape issue with him and the incident of 13 March 2019 with the leadership of the school as it was a private matter between the Applicant and the investigators. He only informed the SGB members and reported also to the SMT members as he never discussed HR matters with staff.
41. The Respondent closed its case.
Employee’s Evidence
Ngoako Reuben Masipa testified under oath as follows:
42. He was working at Morebeng High School until 01 May 2019; thereafter he was transferred to Mmamolepe Secondary School until 22 January 2020.
43. He was conversant with an incident that took place on 13 March 2019. He was on sick leave as he was not feeling well. In the morning he dropped off his child at a place where the transport was to pick him up for school. He took the route to Soekmekaar to buy Panado. His sick leave was from 20 February 2019 to 30 March 2019. On 12 March 2019 he was not at school and he did not know that Katlego was going to write Maths Literacy test early or any arrangements to write the following day. He did not know that Katlego will be at the scene of the accident on that day.
44. When he was driving he saw the speed hump, he hit it and lost control of the vehicle. His vehicle hit the barracks fence and was stuck in the fence. He tried to reverse to take the vehicle out but failed as he realised that the front tyre was in the stones and was not able to get out.
45. When he approached the speed hump he came from east to west and on his left there was a person going the opposite direction. He could not identify the person but could see that the person was wearing school uniform. When he got out of the vehicle there was no one after he bumped into the barracks fence.
46. He did not hit any person after bumping into the speed hump. After he hit the fence he saw Katlego coming from the next door with another child of that house and he was going to the police station. He did not hit Katlego. He went to the police station and found two police officers and explained to them that he has hit the fence with his vehicle and it was stucked there. As he was speaking to the policemen Katlego came into the police station yard through the back of the charge office at the time he was explaining to the policemen in the charge office what has happened.
47. He used the front gate for the pedestrian which is next to the vehicle gate also in the front. There is no gate at the back of the police station.
48. There was no way he could utter words that Katlego alleged he did in front of the police officers. When he was busy explaining to the police what happened Katlego came in and started crying and said he nearly hit her with his vehicle. The policewoman comforted her and took her schoolbag down and told her to calm down so that she can be able to explain what happened to her. When she started explaining for the second time she said that he knocked her down with his vehicle and when asked where she said at the speed hump. The police officers then cut their conversation with him and went out with Katlego and told him to remain there.
49. It was around 06h30 where the incident happened and the distance from where the accident happened and Morebeng Secondary School is 1 to 2 kilo meters. The school starts at 08h00.
50. He denied that he intimidated Katlego with sign language to kill her. The allegations were false and he knew nothing about them. His vehicle windows are tinted and dark and therefore it is impossible to see a person inside or even see what the person does.
51. Reference was made to Page 2 of Bundle B which is a letter written by Katlego. He denied that he forced to sleep with her as indicated in the statement. He denied all the allegations against him in the statement but they came to his attention in 2017 and they were investigated by the Department but they never came to him until that date of the hearing and the allegations were now linked to the accident.
52. He denied that he threatened Katlego that she will fail if she refused to sleep with him as he was far away from people who are responsible for reports; therefore he could not make her fail.
53. The allegations on Page 2 and 3 of Bundle B are for June 2017 and are not in any way related to the accident of 13 March 2019.
54. He did not attend the SACE hearing as he was on sick leave and he did not know what transpired on the date of the hearing and therefore Katlego’s allegations that she thought he wanted to kill her because of SACE hearing are false.
55. He was arrested after the rape case was opened against him. On 12 March 2018 the Principal called him about 30 times but he missed his calls. He also saw other 2 unknown missed calls. He then returned the Principal’s missed calls and was advised that Captain Malatji was looking for him concerning the rape case and wanted him to call him (Captain) which he did and was informed that the rape case was opened against him in December 2019 and Katlego’s family and the Principal were putting pressure on him as if he didn’t know his job. He arranged to meet with Captain Malatji in Polokwane on 13 March 2018.
56. On 17 March 2018 he was arrested for the rape case and released on bail on 30 March 2018. The case was later withdrawn. In that case there were a number of non-existing witnesses who were supposed to make statements and they knew very well that the rape did not happen.
57. He denied that he discriminated Katlego due to the rape case and SACE hearing. At that time Katlego was a state witness and he was told very well that he must not speak to her. There was therefore no way in which he could threaten Katlego as he knew the implications was that he would forfeit his bail or go to jail and he did not want that to happen.
58. The SACE matter and the incident of 13 March 2019 were not related and this incident also is not related to his work as he did not knock off Katlego with his vehicle. If indeed Katlego was knocked off by him she could have sustained injuries in the right hand side according to her testimony and he would have seen her when he got out of the vehicle but she never showed on her body where she sustained injuries. Reference was made to Page 6 of Bundle B and he did not show where the vehicle knocked her off on her body. It was impossible for the vehicle to have knocked her off on the right hand side.
Virginia Makoma Ramabale testified under as follows:
59. She lives in Mokomene and was aware why she was called to come and testify about the incident that happened in Soekmekaar.
60. On that day she was from Wisani and standing in the eastern side going to the west and was behind the learner. She did not know the learner. The learner was running and shouting that she was afraid that the vehicle was nearby and knocked her off. She was referring to the blue car which was on the road in the right hand side.
61. She heard the sound as if the vehicle was hitting the hump, then the driver lost control and the vehicle went to the left hand side.
62. The learner ran to another house which she did not know and stood there and after 5 minutes she went out with another smaller child and went to the eastern side. The vehicle did not hit the learner but it entered into the fence and Katlego made a turn behind the vehicle. If she was knocked off by the vehicle she (witness) would have been the first person to call the police.
63. The driver of the vehicle was inside and after it hit the fence he went outside. He did not know the driver.
64. The two gates of the police station are in the front one for vehicles and another one for pedestrians.
65. The employee closed his case.
ANALYSIS OF EVIDENCE AND ARGUMENTS
66. In terms of Section 192(1) of the Labour Relations Act No 66 of 1995 [the "Act"]:
"In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal." In the present case the existence of the dismissal was a common cause issue
In terms of Section 192(2) of the Act: "If the existence of the dismissal is established, the employer must prove that the dismissal is fair."
67. The Applicant in this case is challenging only the substantive fairness of his dismissal in respect of the commission of the offence and the appropriateness of the sanction.
68. I have to determine on a balance of probabilities if the Respondent has been able to discharge the onus of proof that the Applicant committed the two offences and whether dismissal was an appropriate sanction under the circumstances.
69. The Applicant has been dismissed on two counts of misconduct, firstly for knocking down a Grace 12 learner Katlego Legodi with his vehicle on 13 March 2019 and secondly for threatening to kill her using cutting of throat sign language, thereby intimidating and victimizing her.
70. The Respondent led testimonies of three witnesses, Katlego Legodi, the learner; her mother Mary Legodi and the Principal of Morebeng Secondary School Mr Clay Moila. The Applicant led his own evidence and called one witness, Ms Virginia Ramabale.
71. In brief, Katlego gave evidence on how she was knocked down by the Applicant’s vehicle on 13 March 2019 on her way to school in the morning around 06h30 and the Applicant also threatened to kill her by showing her sign language of cutting a throat. She believed that the Applicant intended to kill her because she had opened a rape case against the applicant in 2017 and also reported the applicant to SACE. Therefore according to her the Applicant when knocking her down with his vehicle had all the intentions to kill her since after the accident when both of them went to the nearby police station to report the accident the Applicant further pointed a finger at her and told her that she was lucky she should have died. This having culminated from the bad treatment and unfair discrimination by the Applicant at school by not signing her school books and particularly in the class even uttering embarrassing words asking her class mates if they would want to be taught Economics by her mother or him.
72. It my considered view that Katlego’s evidence is more probable. I found her evidence coherent with no contradictions and inconsistencies and there was corroboration by her witnesses on some of the material facts. I found her to be a credible witness including her demeanour when she gave her evidence. Firstly, as a witness with first-hand knowledge of what transpired on 13 March 2019, I have no reason to reject her evidence that she was knocked down by the Applicant’s vehicle, manage to stand up and run for help next door and eventually reported to the police station. It is common cause that the Applicant saw the learner in uniform just before he hit the speed hump although he alleged that he could not recognise that it was Katlego. It later transpired that the learner he saw was Katlego and when they both arrived at the police station the Applicant reported the accident of hitting the barracks fence and Katlego reported that she was knocked down by the Applicant’s vehicle. There is no golden rule that if a person is knocked down by a vehicle that person cannot be able to stand up or run as argued by the Applicant. I believe it will only depend where the person sustained injuries and the extent of the seriousness of those injuries as a result of the accident.
73. It is common cause that Katlego did sustain injuries on her face as confirmed by the doctor’s undisputed medical certificate brought in evidence by the Respondent. The inference by the Applicant is that her injuries should not have been in the face in the manner Katlego testified he fell is not justifiable. Katlego did not testify that she sustained injuries in the legs although she fell on the ground and more so that she was able to stand up and run leaving her school back at the scene. She testified that she got her school bag from police officers when they came back from hospital, bringing the probability that the police found her school back at the scene when they went to do investigations of the accident as reported by both Katlego and the Applicant.
74. I am also convinced that the Applicant’s sign language gestures under the throat shown to Katlego were meant to threaten to kill her as she so reasonable believed, and her death nearly materialized when the Applicant later knocked her down with his vehicle and furthermore told her when they arrived at the police station that she was lucky she should have died. This falls within the definition of intimidation by instilling fear into her in the form of body gestures.
75. Both Katlego and the Applicant gave different versions in terms of how they entered the police station, Katlego testifying that she entered at the back entrance and the Applicant denying that there is a back entrance at the police station because the entrances are only in the front with two gates for the pedestrians and another one for vehicles. I find this contradiction of the location of the entrances of the police station not so very immaterial since it is common cause that after the accident both of them went to the police station and they met there.
76. The Respondent called Katlego’s mother as a witness to corroborate Katlego’s evidence that she was knocked down by the Applicant’s vehicle on 13 March 2019. Her testimony was that when she was at home in the morning of that day, the police came with Katlego and told her that Katlego came to the police station to report that the Applicant knocked her down on the road on her way to school. She then went to hospital with her and the police where she was treated for abrasions on her right and left side of her face with no fractures observed from X-rays according to the medical certificate submitted in evidence.
77. I have however not admitted the evidence of Katlego’s mother about one lady of the School Governing Body having said during the SGB meeting that the Applicant had apologised for what he did to Katlego as that is hearsay evidence since the said woman was not called as a witness.
78. Although the testimony of Katlego’s mother’s was objected as hearsay because the police officer who told her that Katlego was knocked off by the Applicant vehicle was not called as a witness, I would not find that her evidence is hearsay as it was not new evidence but was also corroborated by Katlego’s evidence that she was knocked down by the Applicant’s vehicle. Katlego’s mother also testified that she had injuries which supported the fact that she must have been involved in an accident.
79. The Principal testified mainly on charge 3 of which the Applicant was not found guilty of. As correctly argued by the Applicant I will not deal with his evidence in relation to this charge as it is irrelevant for this dismissal dispute. I find the relevant part of his evidence in relation to the telephonic report by Katlego’s mother to him that she will not be able to come to school anymore in that she was hit by the Applicant’s vehicle and taken to hospital strengthening the Respondent’s evidence and credibility of Katlego’s evidence in terms of the accident of that morning. His evidence in this regard is not hearsay evidence as argued by the Applicant as he was merely testifying on the report that he received not on the accident itself as he did not witness it himself. If he was testifying about the accident, definitely his evidence would have been hearsay evidence and found to be inadmissible.
80. A lot of unrelated evidence was led by Katlego, her mother as well as the Principal in relation to the rape charge and subsequent SACE case and the Applicant also gave testimony in relation to this piece of evidence. It was therefore a common cause issue that there was a rape case opened against the Applicant by Katlego and also the SACE hearing held against the Applicant. I take note that the Applicant was not charged and found guilty for rape of Katlego since Katlego testified that the case was later withdrawn for reasons unknown to her. I will however find this evidence of rape and SACE case very relevant to the charge as explained below.
81. The Applicant denied the commission of the offence and testified that he did not knock off Katlego with his vehicle but he lost control of the vehicle at the speed hump and it swerved and hit the fence of police barracks. He furthermore denied that he neither threatened to kill Katlego nor intimidated her by showing her the cutting of throat sign language. The Applicant did not dispute that the gestures Katlego alleged he showed to her were universally used to indicate you will kill a person and that would be a reasonable belief but he however disputed that he ever showed the gestures to Katlego as alleged. The Applicant called a witness to corroborate his evidence about what happened at the accident scene and this witness came to testify that she was an eye witness and her testimony was that Katlego was never hit by the Applicant’s vehicle.
82. The Applicant testified that when he approached the speed hump there were no people around but he only saw a person on the left going the opposite direction wearing school uniform as he drove from the east to the west and even after the accident when he got out of the vehicle there was no one.
83. However, his witness testified that she walking behind Katlego and quite at a close range when the Applicant’s vehicle was approaching from east to west. Why could the Applicant only see the person in school uniform and not see this witness when she was there at all times of the accident and witnessed what happened until the Applicant left to the police station. Even under cross-examination the Applicant reiterated that there was no one at the scene except a person wearing school uniform and after the accident he did not see anyone but saw Katlego coming from next door house. It is therefore questionable how this witness could have been there all the time and witnessed the accident if the Applicant did not see her but saw only Katlego but then the Applicant is able to bring her as a witness of the accident in these arbitration proceedings. I also take not that it is also common cause that this witness did not testify at the Applicant’s disciplinary hearing. Although arbitration hearings are de novo proceedings, what transpired at the disciplinary process cannot be disregarded.
84. The evidence of this witness, Virginia Ramabale seems to have been couched to be precisely in accordance with what the Applicant testified about in these proceedings, especially the direction from east to west using exactly the same words used by the Applicant, and the evidence regarding the two police station gates for vehicles and the other one for pedestrians in the front. This witness does not stay in that area of the accident but she testified that she stays in Mokomene a distance from Soekmekaar. It is therefore questionable how she knew the Soekmekaar police station gates with so much observation that she could testify with certainty that there is no back gate at the police station. When questioned why she did not testify at the Applicant’s disciplinary hearing she answered that the Applicant did not know her at that stage and the manner in which she said she got to come to testify in these arbitration proceedings is much to be desired; in that her testimony is that she overheard the Applicant who was a total stranger to her conversing with two other people at the queue at Capitec Bank about his dismissal from work because of the accident and she suddenly intervened in the discussions and told the Applicant she was at the scene of the accident and saw what happened. I therefore find this piece of evidence untruthful as I have already indicated above that the Applicant testified that there was no one at the scene except the person wearing school uniform.
85. Based on the above reasoning, I cannot accept Ms Ramabale’s testimony and find no probability in her evidence that Katlego made a turn behind the vehicle and just started running and shouting and said the vehicle nearly knocked her down. It is also questionable how she knew with such confidence that the driver lost control of the vehicle. It can only be the driver that would know that he lost control. My final conclusion with regard to this witness is that she was never at the scene of the accident but was just secured to come and corroborate the Applicant’s evidence as if she was an eye witness to make the Applicant’s version more probable and credible.
86. I find that the Applicant’s testimony lack substance and I therefore reject it. He was defensive and evasive in answering most of the questions under cross-examination and wanted to narrate a long defence against the allegations even irrelevant facts and I had to call him to order several times and requested him to answer the questions. I find it unlikely that he saw a learner walking along the road and all of a sudden Katlego who appeared from next door and went to police station and falsely accused him that he knocked her down with his vehicle.
87. Katlego knew the Applicant’s vehicle and could not have mistaken it to anyone else’s as confirmed by the Applicant himself in his evidence. Although Katlego did not dispute the testimony of the Applicant that his car windows were tinted and dark and someone could not be seen inside, her undisputed testimony was also that she could see the Applicant since his vehicle window was open.
88. The Applicant gave a bare denial about the allegations against him by Katlego and submitted that he did not even recognise her when he was driving alongside that road. It is common cause that Katlego was walking along the road next to moving vehicles and it is irreconcilable that the Applicant did not recognise her. Katlego was her student and I believe that even in tinted windows, the driver can see people from the outside clearly as it appeared that the person in uniform was walking alongside the vehicle road.
89. Taking into account his evidence that on that road there were 3 speed humps, therefore it is improbable to hit the speed hump speeding in the manner in which the Applicant explained it as the 3 speed humps were near to each other. The Applicant was aware of those speed humps and as in his testimony it was the last speed hump one would have been expected him to have reduced the speed at the third one. The Applicant did not give any reasonable explanation why he chose to even speed at the speed humps so near to each other.
90. The Applicant alleged that Katlego was the one that had issues with him because him because since 2017 to 2018 Katlego opened about 6 cases against him for reasons unknown to him. I find this piece of evidence to be fabricated. On the other hand, I find that the Applicant was angry at Katlego indeed because of the rape case she opened for which he was arrested, the report to SACE and being called to a hearing. In actual fact the evidence of Katlego of the 2017 events on how the Applicant started demanding to have sex with her and threatening her that she will fail, leading to Katlego opening the rape case becomes more relevant here in answering the question why could the Applicant act in the manner he did when he saw Katlego on the road.
91. I find that the reasons why the Applicant ran over Katlego with his vehicle are these: Katlego opened the rape case with the assistance of her mother when she told her mother after she confronted her about failing and telling her mother what the Applicant was doing to her. It is clear that the Applicant abused his position as a teacher; violated Katlego’s rights as a learner to have sex with her and threated her that if she did not agree she will fail. Ordinarily most leaners under the circumstances are very vulnerable and indeed it is reasonable to accede reluctantly so to have sex with the teacher because she clearly would not want to fail.
92. According to the Applicant’s testimony he was very angry that Katlego was used by other people to report him as Katlego was merely a child. Katlego is still a learner and her mother had a parental duty to ensure that she is safe- guarded at school and her well-being and rights as a learner are not violated by her own teachers, hence she stood up to go to the school to confront the Applicant when Katlego alleged that the Applicant was sexually abusing her. I therefore believe that Katlego’s mother was by all means correct to even ask that her daughter be removed from the school as she had lost trust in her daughter’s safety at the school due to the reported abuse of her rights by the Applicant.
93. Any person in the position of the Applicant will therefore likely victimise the complainant for raising her voice especially under the circumstances that a rape case was even opened against him and it was also in the newspapers and was a matter of public knowledge. Furthermore SACE came to investigate the reported allegations of rape and eventually charged him although he did not attend to the SACE disciplinary hearing since he alleged that he was on sick leave. These kind of allegations normally have a tendency of damaging ones’ reputation whether true or not and I understand that the Applicant was angry when Katlego’s mother stood up for her hence as he testified that Katlego was only a child and used by other people to open cases against him.
94. I doubt the evidence that the Applicant’s vehicle lost control. Instead I have a considered view that when the Applicant saw Katlego near the speed hump he decided to hit her clearly with the intention to kill her as Katlego testified that when she passed the railway, the Applicant passed with his vehicle and pointed a finger at her showing her that he will kill her by using the cutting of throat sign language.
95. In considering which evidence is more probably on a qualitative assessment than the other, I find that Katlego’s evidence is a more probable version than the Applicant looking at the improbabilities of the Applicant’s version before me. Surely Katlego had visible injuries which eventually forced the police officers to take her to hospital after picking up her mother at home. The big question is what caused her those injuries. The probability is great that she was knocked down by the vehicle as she had testified. It was common cause that the only vehicle in the vicinity was that of the Applicant. And Katlego happened to be at the scene of the accident. Therefore the probable conclusion is that the vehicle that knocked her off is that of the Applicant. I doubt that Katlego could have caused herself injuries when he saw the Applicant’s vehicle in order to lay criminal charges against him. It could have been a coincidence or even planned action that the Applicant met her at the railway and the Applicant as he was angry, a day after SACE hearing then decided to knock her off with his vehicle. It was still very early in the morning and it looks like there were no people as yet in the street. This could have probably been a hit and run accident.
96. I take note that Katlego vehemently denied that the Applicant lost control of the vehicle and hit the barracks fence. The Applicant’s evidence in this regard was corroborated by the evidence of the witness whose evidence I have already rejected. The Applicant has not brought any other supporting evidence or documentary evidence to show that he was indeed involved in that accident in the manner he testified and that was reported at the police station.
97. The Applicant argued that Katlego has not been able to prove the charge of assault from her evidence. I definitely disagree with this assertion. A person commits assault by intentionally inflicting or threatening to inflict physical injury on another person and of course the conduct need does not result in an injury. I therefore find that the proven act of misconduct by the Applicant in knocking Katlego with his vehicle is an act of assault and in this case it resulted in bruises on her face due to her fall on the ground.
98. The above shows why the background of the 2017 incidents, SAPS rape case and SACE hearing in relation to Katlego and the applicant were relevant and cannot be said to be unrelated to the incident of 13 March 2019. It is of course a culmination of events that have impounded in relation to the relationship between the two of them.
99. The Applicant argued that when the accident happened on 13 March 2019 he was not on duty as he was still on sick leave from 20 February 2019 until the end of March 2019 and it was also common cause that the accident took place far away from school and outside working hours. Unfortunately the Applicant raised this in his evidence in chief and did not give the Respondent an opportunity to deal with it in its evidence in chief trough oral evidence. The version was also not put to any of the Respondent’s witnesses. According to the minutes of the pre-arbitration hearing signed by both parties this was not recorded as an issue in dispute that required evidence. The issue in dispute was recorded as the commission of the misconduct only. The Respondent did respond to this allegation in the closing argument and cited Saal v De Beers Consolidated Ltd 2000, 2 BALR 171 to justify that the misconducted committed by the Applicant fell under the Respondent’s jurisdiction as it is disruptive to the Respondent’s business or affected the Respondent’s reputation and the Respondent has a direct interest in the wellbeing of educators and learners; and that the learner assaulted by the Applicant was a witness in the rape case that started when both the learner and the educator were at that times attached to the Respondent.
100. I will not make a finding on this argument since I was not presented with evidence by both parties in this regard. I can only mention that there is a legal principle that an employee can be charged for misconduct committed outside the workplace even if it’s not during working hours provided the employer is able to prove that there is a direct interest with the employer’s business and the offence committed has an impact on the employer’s good name and reputation.
101. Indeed as both parties have argued, I am faced with two mutually destructive evidence and in deciding on this matter, I am guided by the judgement of Assmang Ltd (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation, Mediation and Arbitration and others (2015) 36 ILJ 2070 (LC) in which the Labour Court deliberated exactly on this point. The matter was set for review after the CCMA Commissioner, on being faced with two conflicting versions, took the view that there was no basis on which to discredit either of the versions, that the evidence was therefore evenly balanced, and that the Respondent had failed to discharge the onus. The CCMA commissioner found that when considering the totality of the evidence, the employer had not proved the fairness of the dismissal, as: "This was due to the fact that where evidence of both sides is evenly balanced [the employer] cannot be deemed to have succeeded to discharge its onus". The court noted that because the commissioner simply found that there was no basis on which to discredit either of the two versions, he found against the employer.
102. Accordingly, I have weighed up or balanced the probabilities of both versions as well as their credibility of parties’ witnesses and found the Respondent’s version more probable based on the reasons stated above.
103. Based on the above findings, I find that the Respondent has been able to discharge its onus of proof on a balance of probabilities that the Applicant committed the two offences. The next question is determination of whether dismissal was an appropriate sanction under the circumstances. The answer is yes. The employee knew about the standards required of a teacher in terms of the EEA but nevertheless breached them. He had the role and responsibility to safe guard and keep the learners safe even outside the workplace or outside the working hours but he failed to do so. The Applicant cannot be trusted anymore.
I therefore find that dismissal was appropriate under the circumstances even if it was the Applicant’s first offence. The offence he committed is a very serious one and unfortunately it also resulted in the learner’s injuries.
104. I consequently find that the Applicant’s dismissal is substantively fair.
AWARD
105. I find that the dismissal of the Applicant is substantively fair.
106. The Applicant’s claim is hereby dismissed.
Panellist:
GRACE MAFA-CHALI
Province: Limpopo
Applicant: Ngoako Reuben Masipa
Respondent: Department of Education: Limpopo
Issue: Unfair Dismissal - Misconduct
Venue: Via Zoom
Award Date: 1 December 2020
Arbitrator: Grace Mafa-Chali
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case Reference: PSES905-19/20 LP
Date: 01 December 2020
In the matter between:
Ngoako Reuben Masipa Applicant
And
Department of Education – LIMPOPO Respondent
ARBITRATION AWARD
THE DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearing was held on virtual platform (Zoom App) on 21 October 2020 at 09h00 and finalised on 18 November 2020 at 09h00. The Applicant was in attendance and represented by SADTU Full-Time Shopsteward, Mr Thobja Monyai. The Respondent was represented by Adv Rudzani Makhema, Labour Relations Practitioner. The proceedings were electronically recorded.
ISSUES TO BE DECIDED
2. I must decide whether the dismissal of the Applicant was substantively fair or not.
3. If so, to determine the appropriate relief.
BACKGROUND TO THE ISSUES
4. The Applicant was employed as an educator at Morebeng Secondary School in Sekgosese Central District, in Limpopo Province since 01 January 2005.
5. He was charged with misconduct in terms of Section 17(1) (d) and Section 18(1) (t) and (u) of the Employment of Educators Act 76 of 1998 (EEA). The charges related to allegations that on 13 March 2019 he intentionally knocked down a learner Katlego Legodi with his motor vehicle and she suffered some bodily injuries as a result of the assault and he furthermore on the same date threatened to kill the said learner using sign language thereby intimidating or victimising her. He was also charged with the third charge of verbal insult of the School Principal of Morebeng Secondary School on the same date by saying insulting words about his private parts for calling the South African Council of Educators (SACE). He attended the disciplinary hearing on 22 July 2019 and was found guilty of only charges 1 and 2 and not guilty on charge 3 relating to insults to the Principal; and was subsequently dismissed on 01 October 2019. The Applicant appealed against the dismissal sanction in February 2020 and the appeal outcome confirmed his dismissal.
6. The Applicant challenged only the substantive fairness of the dismissal in so far as the commission of the offence and the appropriateness of the dismissal sanction are concerned. Procedural fairness was not challenged.
7. The Respondent contended that the dismissal of the Applicant was substantively fair in that it has been proven during the disciplinary hearing that he committed the offences which are dismissible offences in terms of the EEA.
8. At the conclusion of the arbitration process, both parties requested to submit written closing arguments on 25 November 202 and they both obliged. I have considered them in my analysis of the evidence and arguments hereunder.
9. Parties submitted their bundles of documents. The Respondent’s bundle was marked Bundle “B” and the Applicant’s bundle was marked Bundle “A”. The Applicant’s Bundle of documents also contained the minutes of the Pre-Arbitration hearing signed on 24 February 2020.
SURVEY OF SUBMISSIONS AND ARGUMENTS
Respondent’s Evidence
Katlego Cathrine Legodi testified under oath as follows:
10. She made the statement of Page 1 of Bundle B at school on 08 May 2017 after her mother visited the school to confront the Applicant about the things he was doing to her. In started in March 2016 when she was in Grade 11 that the Applicant threatened her. He asked her for her cell number at school and she refused and when he asked it again she gave it to him thinking that he wanted to communicate with him about school issues.
11. The Applicant started calling her to come and meet him. For the first time he refused and when he called her for the second time to meet him at the bus stop she went there. It was on a Sunday around 5pm. The Applicant asked her to accompany him to Mokomene Greenside. When they arrived at the place, he went into the house and came out and they went back.
12. Before they arrived home the Applicant parked his vehicle at the back of Mokganya Primary School in the bush and wanted to sleep (have sex) with her. She refused and he started to threaten her and told her that she will fail her because she was her class teacher. He forced to have sex with her in his vehicle. He persisted to do that several times threatening her that she will fail if she refuses to have sex with him. She went to him when he called her to meet with him since she was afraid of failing at school and he was also threatening her.
13. She told her mother about it and her mother went to school to talk to the Applicant and the Principal. They took the matter to the circuit office. On 08 May 2017 she was requested to write a statement which she did. At this time her relationship with the Applicant was not like before. He treated her badly as compared to other learners and discriminated her.
14. She also reported the matter to the South African Police (SAPS) in March 2018. The Applicant was arrested and the police withdrew the case and nobody knew the reasons why it was withdrawn.
15. The matter was further reported to SACE. The Applicant continued to treat her badly in class and even stopped signing her books. He once came to class and spoke badly about her mother. He asked the learners if they wanted to be taught Economics by him or her mother and that if a person wants money she must go and work.
16. Reference was made to Page 5 of Bundle B, which is her statement dated 13 March 2019. She wrote the statement after the Applicant knocked her down with his vehicle on her way to school in the morning of 13 March 2019. On that day she was rushing to school to write Maths test which she missed the previous day on 12 March 2019. When she passed the railway, she met the Applicant’s vehicle and he pointed a finger at her and also made a signal cutting under his throat that he will kill her. When she arrived at the post office he met the Applicant’s vehicle again. It went up the speed hump and came directly towards her and the vehicle knocked her down on her right side and she fell down on his face.
17. She stood up and ran to next door at the Matshekgetshekge household looking for help. She then went out with one of the girls in that family who accompanied her to the police station. When she arrived there she used the back gate and the Applicant used the front gate. The Applicant again pointed her with the finger and said to him she was lucky as she should have died.
18. When they got inside the police station the Applicant told the police that he knocked her with his vehicle by mistake as his vehicle went out of control. The police went with her to her home and picked up her mother to take her to Botlokwa hospital. At the hospital she was checked by the doctor as she had bruises on both sides of her face. The doctor issued the medical certificate that appears on Page 6 of Bundle B, dated 13 March 2019, and that was the date on which she was knocked down by the Applicant’s vehicle.
19. She did not believe that it was a mistake that the Applicant knocked her off with his vehicle as the Applicant had pointed a finger at her twice when he met her for the first time and for the second time when they met at the police station. He believed that the Applicant indeed wanted to kill her.
20. He believed that the Applicant wanted to knock her down with his vehicle since on 12 March 2019 she went to SACE hearing but the Applicant did not come. At SACE hearing the people who attended were her, her mother, her sister Portia, Mr Nkuna and Zelda Maila. The other reason was that she opened a case against the Applicant with SAPS.
Mary Rarang Legodi testified under oath as follows:
21. She was Katlego Legodi’s mother.
22. Reference was made to Page 7 of Bundle B and she explained that it was her statement which she wrote asking that Katlego be removed from school she was attending at that time because she had a rape case at school and her life was no longer safe. He did not recall the date on which she wrote the statement. Her statement was received by Mr Moila, the Principal of Morebeneg High School.
23. In the letter she mentioned that Katlego’s life was no longer safe because the Applicant was always threatening her. Reference was also made to Page 8 of Bundle B, which is the statement she made on 13 March 2010 relating to the incident of that morning in which Katlego was knocked down by the Applicant’s vehicle.
24. Katlego left home in the morning at 06h00 on 13 March 2019 to write Maths Literacy. At 06h30 she was surprised when the police van came to her house with Katlego told her that Katlego was knocked off by the Applicant’s vehicle. She left with the police and Katlego to the hospital. As a result of the accident Katlego never got to school to write her Maths Literacy.
25. She raised the issue of the Applicant threatening Katlego with the Principal since Katlego failed in the first quarter and when she asked her what was disturbing her she started crying and explained that the Applicant was threatening her and told her that if she refused to have sex with her she will fail.
26. She then went to the school to see the Principal and asked him if he was aware of any relationship between the Applicant and Katlego. The Principal indicated that he knew nothing. The Principal called the Applicant and Katlego and they sat in the Principal’s office. She asked the Applicant why he was threatening Katlego that she will fail if she did not want to sleep with him. The Applicant said that he did not know anything about that but she could see in his face that he knew about it but could not admit in front of them. She was very angry and she stood up and started beating the Applicant.
27. She then took the matter to the circuit office and they called the Principal and requested him to arrange the SGB meeting, which was done. During the SGB meeting there was a lady who was an SGB member who said that the Applicant was requesting for an apology for what he has done and she asked apology for what as the Applicant told her and the Principal that he knew nothing about was Katlego was accusing her. The circuit office never phoned them until Katlego took further steps.
28. In the letter she wrote on 13 March 2019, she requested the Department to provide safety and protection to Katlego because she was knocked off by the Applicant’s vehicle and SACE refused that she drop out of school. SACE people came one day with the Principal to her place on a date that she could not remember as she lost her diary where she diarised events; and they asked her questions when did the incident start and gave them a date for the SACE hearing of 12 March 2019. She went with Katlego to the SACE hearing but the Applicant did not come.
Mpho Clay Moila testified under oath as follows:
29. He was the Principal at Morebeng Secondary School.
30. He referred to Page 9 of Bundle B which is the document dated 13 March 2019. He explained that there was a sequel of events that gave rise to that document. On 12 March 2019 whilst he was at school, he received a call from the Secretary of the South African Democratic Teachers Union (SADTU) Mononono Branch, Mr Kganakga who wanted to find out from him the whereabouts of the Applicant. He asked him why he was looking for the Applicant as he was on leave. Mr Kganakga said that he wanted the Applicant for the SACE hearing and was checking if he could assist to locate the Applicant. He told Kganakga that the Applicant was on leave and he would contact him should he hear anything.
31. The next day on 13 March 2019 he received a call from Ms Legodi reporting that her daughter Katlego Legodi was knocked down by the Applicant’s vehicle. She also reported that Katlego will not be at school as arranged to write her Maths test as she has been taken to hospital.
32. Subsequent to that call, he thought that the Applicant was on leave but heard that he has knocked down a learner and at the same time Mr Kganakga was looking for him for SACE hearing; and thought of calling him. He called Mr Kganakga that he could not locate the Applicant but has received news from Katlego’s mother that she was knocked down by the Applicant’s vehicle.
33. At 08h10 on the same date, he received a call on the 064 number from the Applicant who spoke with a high tone and said to him in vernacular “wena Clay why o ntshetse morago”…meaning why are you after me. He asked the Applicant why he was asking him why he was after him as he did not expect that kind of question from him since he was not after him at all and had no issues with him.
34. The Applicant asked him what did he tell Mr Kganakga, and he asked the Applicant what he said to Kganakga. The Applicant then continued and said to him in vernacular “ marete ago o ntshetse morago ebile o mphile batho ba SACE, o tlo nnyela”…meaning he called him by his male private parts and that he was after him and even gave him to SACE people.
35. He did not expect the Applicant to insult him like that as he was his colleague and after realising that he could not engage with him in those insults, he said to him in vernacular “tsamaya swine” ….meaning you go pig as what the Applicant said was quite unpleasant to him. The call was then dropped and the Applicant never called him back.
36. The Applicant’s insults made him feel that his human dignity was degraded by a fellow colleague calling him private parts with no good reason and on false allegations. He had to control himself not to lose his temper and avoided to confront him.
37. The reason why the Applicant alleged that he gave him SACE people could be because the SACE officials came to school to make an investigation and they sent a letter to him to make him aware. The Applicant was not at school on that day and for transparency, when the Applicant came back to school, he informed him that SACE officials where there and will set up an appointment to come for a full investigation since they showed him a clip of paper from Daily Sun newspaper which carried news that the Applicant was arrested for raping an 18 year old former pupil from Morebeng Secondary School. The SACE official told him that they believed there were some transgressions by the Applicant and would like to investigate.
Reference was made to Page 17 of Bundle B which is a Daily Sun article dated 20 March 2018 at 11:30. The article was read into record.
38. SACE officials indicated to him that they were there to identify the school of the teacher alleged to have raped a pupil and to arrange a date on which they will come back to meet the Applicant. SACE later sent him a letter by email indicating that on 30 January 2019, the SACE officials will come to the school for those investigations.
39. When SACE officials came for the first time they just said they wanted to identify the school and did not want see any one. When they came for the second time they wanted to see Katlego Legodi but she was not at the school and he arranged that the learner be picked up at home and subsequently they met with her. He could now make an inference from the newspaper article that it was Katlego that was mentioned as the learner but he did not ask her.
40. The SACE investigation took place in January 2019, and then the incident of 13 March 2019 followed. He believed that the two incidents are linked as he testified that SADTU official was looking for the Applicant to attend the SACE hearing, he got a call from Katlego’s parent that she was attending a SACE hearing on 12 March 2019, and a request was made to allow her to write a test on 13 March 2019. He also called the Applicant to have a discussion with him about the SACE officials’ visit to the school for investigation purposes as it was already public knowledge that he was arrested for the rape case. He never discussed this rape issue with him and the incident of 13 March 2019 with the leadership of the school as it was a private matter between the Applicant and the investigators. He only informed the SGB members and reported also to the SMT members as he never discussed HR matters with staff.
41. The Respondent closed its case.
Employee’s Evidence
Ngoako Reuben Masipa testified under oath as follows:
42. He was working at Morebeng High School until 01 May 2019; thereafter he was transferred to Mmamolepe Secondary School until 22 January 2020.
43. He was conversant with an incident that took place on 13 March 2019. He was on sick leave as he was not feeling well. In the morning he dropped off his child at a place where the transport was to pick him up for school. He took the route to Soekmekaar to buy Panado. His sick leave was from 20 February 2019 to 30 March 2019. On 12 March 2019 he was not at school and he did not know that Katlego was going to write Maths Literacy test early or any arrangements to write the following day. He did not know that Katlego will be at the scene of the accident on that day.
44. When he was driving he saw the speed hump, he hit it and lost control of the vehicle. His vehicle hit the barracks fence and was stuck in the fence. He tried to reverse to take the vehicle out but failed as he realised that the front tyre was in the stones and was not able to get out.
45. When he approached the speed hump he came from east to west and on his left there was a person going the opposite direction. He could not identify the person but could see that the person was wearing school uniform. When he got out of the vehicle there was no one after he bumped into the barracks fence.
46. He did not hit any person after bumping into the speed hump. After he hit the fence he saw Katlego coming from the next door with another child of that house and he was going to the police station. He did not hit Katlego. He went to the police station and found two police officers and explained to them that he has hit the fence with his vehicle and it was stucked there. As he was speaking to the policemen Katlego came into the police station yard through the back of the charge office at the time he was explaining to the policemen in the charge office what has happened.
47. He used the front gate for the pedestrian which is next to the vehicle gate also in the front. There is no gate at the back of the police station.
48. There was no way he could utter words that Katlego alleged he did in front of the police officers. When he was busy explaining to the police what happened Katlego came in and started crying and said he nearly hit her with his vehicle. The policewoman comforted her and took her schoolbag down and told her to calm down so that she can be able to explain what happened to her. When she started explaining for the second time she said that he knocked her down with his vehicle and when asked where she said at the speed hump. The police officers then cut their conversation with him and went out with Katlego and told him to remain there.
49. It was around 06h30 where the incident happened and the distance from where the accident happened and Morebeng Secondary School is 1 to 2 kilo meters. The school starts at 08h00.
50. He denied that he intimidated Katlego with sign language to kill her. The allegations were false and he knew nothing about them. His vehicle windows are tinted and dark and therefore it is impossible to see a person inside or even see what the person does.
51. Reference was made to Page 2 of Bundle B which is a letter written by Katlego. He denied that he forced to sleep with her as indicated in the statement. He denied all the allegations against him in the statement but they came to his attention in 2017 and they were investigated by the Department but they never came to him until that date of the hearing and the allegations were now linked to the accident.
52. He denied that he threatened Katlego that she will fail if she refused to sleep with him as he was far away from people who are responsible for reports; therefore he could not make her fail.
53. The allegations on Page 2 and 3 of Bundle B are for June 2017 and are not in any way related to the accident of 13 March 2019.
54. He did not attend the SACE hearing as he was on sick leave and he did not know what transpired on the date of the hearing and therefore Katlego’s allegations that she thought he wanted to kill her because of SACE hearing are false.
55. He was arrested after the rape case was opened against him. On 12 March 2018 the Principal called him about 30 times but he missed his calls. He also saw other 2 unknown missed calls. He then returned the Principal’s missed calls and was advised that Captain Malatji was looking for him concerning the rape case and wanted him to call him (Captain) which he did and was informed that the rape case was opened against him in December 2019 and Katlego’s family and the Principal were putting pressure on him as if he didn’t know his job. He arranged to meet with Captain Malatji in Polokwane on 13 March 2018.
56. On 17 March 2018 he was arrested for the rape case and released on bail on 30 March 2018. The case was later withdrawn. In that case there were a number of non-existing witnesses who were supposed to make statements and they knew very well that the rape did not happen.
57. He denied that he discriminated Katlego due to the rape case and SACE hearing. At that time Katlego was a state witness and he was told very well that he must not speak to her. There was therefore no way in which he could threaten Katlego as he knew the implications was that he would forfeit his bail or go to jail and he did not want that to happen.
58. The SACE matter and the incident of 13 March 2019 were not related and this incident also is not related to his work as he did not knock off Katlego with his vehicle. If indeed Katlego was knocked off by him she could have sustained injuries in the right hand side according to her testimony and he would have seen her when he got out of the vehicle but she never showed on her body where she sustained injuries. Reference was made to Page 6 of Bundle B and he did not show where the vehicle knocked her off on her body. It was impossible for the vehicle to have knocked her off on the right hand side.
Virginia Makoma Ramabale testified under as follows:
59. She lives in Mokomene and was aware why she was called to come and testify about the incident that happened in Soekmekaar.
60. On that day she was from Wisani and standing in the eastern side going to the west and was behind the learner. She did not know the learner. The learner was running and shouting that she was afraid that the vehicle was nearby and knocked her off. She was referring to the blue car which was on the road in the right hand side.
61. She heard the sound as if the vehicle was hitting the hump, then the driver lost control and the vehicle went to the left hand side.
62. The learner ran to another house which she did not know and stood there and after 5 minutes she went out with another smaller child and went to the eastern side. The vehicle did not hit the learner but it entered into the fence and Katlego made a turn behind the vehicle. If she was knocked off by the vehicle she (witness) would have been the first person to call the police.
63. The driver of the vehicle was inside and after it hit the fence he went outside. He did not know the driver.
64. The two gates of the police station are in the front one for vehicles and another one for pedestrians.
65. The employee closed his case.
ANALYSIS OF EVIDENCE AND ARGUMENTS
66. In terms of Section 192(1) of the Labour Relations Act No 66 of 1995 [the "Act"]:
"In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal." In the present case the existence of the dismissal was a common cause issue
In terms of Section 192(2) of the Act: "If the existence of the dismissal is established, the employer must prove that the dismissal is fair."
67. The Applicant in this case is challenging only the substantive fairness of his dismissal in respect of the commission of the offence and the appropriateness of the sanction.
68. I have to determine on a balance of probabilities if the Respondent has been able to discharge the onus of proof that the Applicant committed the two offences and whether dismissal was an appropriate sanction under the circumstances.
69. The Applicant has been dismissed on two counts of misconduct, firstly for knocking down a Grace 12 learner Katlego Legodi with his vehicle on 13 March 2019 and secondly for threatening to kill her using cutting of throat sign language, thereby intimidating and victimizing her.
70. The Respondent led testimonies of three witnesses, Katlego Legodi, the learner; her mother Mary Legodi and the Principal of Morebeng Secondary School Mr Clay Moila. The Applicant led his own evidence and called one witness, Ms Virginia Ramabale.
71. In brief, Katlego gave evidence on how she was knocked down by the Applicant’s vehicle on 13 March 2019 on her way to school in the morning around 06h30 and the Applicant also threatened to kill her by showing her sign language of cutting a throat. She believed that the Applicant intended to kill her because she had opened a rape case against the applicant in 2017 and also reported the applicant to SACE. Therefore according to her the Applicant when knocking her down with his vehicle had all the intentions to kill her since after the accident when both of them went to the nearby police station to report the accident the Applicant further pointed a finger at her and told her that she was lucky she should have died. This having culminated from the bad treatment and unfair discrimination by the Applicant at school by not signing her school books and particularly in the class even uttering embarrassing words asking her class mates if they would want to be taught Economics by her mother or him.
72. It my considered view that Katlego’s evidence is more probable. I found her evidence coherent with no contradictions and inconsistencies and there was corroboration by her witnesses on some of the material facts. I found her to be a credible witness including her demeanour when she gave her evidence. Firstly, as a witness with first-hand knowledge of what transpired on 13 March 2019, I have no reason to reject her evidence that she was knocked down by the Applicant’s vehicle, manage to stand up and run for help next door and eventually reported to the police station. It is common cause that the Applicant saw the learner in uniform just before he hit the speed hump although he alleged that he could not recognise that it was Katlego. It later transpired that the learner he saw was Katlego and when they both arrived at the police station the Applicant reported the accident of hitting the barracks fence and Katlego reported that she was knocked down by the Applicant’s vehicle. There is no golden rule that if a person is knocked down by a vehicle that person cannot be able to stand up or run as argued by the Applicant. I believe it will only depend where the person sustained injuries and the extent of the seriousness of those injuries as a result of the accident.
73. It is common cause that Katlego did sustain injuries on her face as confirmed by the doctor’s undisputed medical certificate brought in evidence by the Respondent. The inference by the Applicant is that her injuries should not have been in the face in the manner Katlego testified he fell is not justifiable. Katlego did not testify that she sustained injuries in the legs although she fell on the ground and more so that she was able to stand up and run leaving her school back at the scene. She testified that she got her school bag from police officers when they came back from hospital, bringing the probability that the police found her school back at the scene when they went to do investigations of the accident as reported by both Katlego and the Applicant.
74. I am also convinced that the Applicant’s sign language gestures under the throat shown to Katlego were meant to threaten to kill her as she so reasonable believed, and her death nearly materialized when the Applicant later knocked her down with his vehicle and furthermore told her when they arrived at the police station that she was lucky she should have died. This falls within the definition of intimidation by instilling fear into her in the form of body gestures.
75. Both Katlego and the Applicant gave different versions in terms of how they entered the police station, Katlego testifying that she entered at the back entrance and the Applicant denying that there is a back entrance at the police station because the entrances are only in the front with two gates for the pedestrians and another one for vehicles. I find this contradiction of the location of the entrances of the police station not so very immaterial since it is common cause that after the accident both of them went to the police station and they met there.
76. The Respondent called Katlego’s mother as a witness to corroborate Katlego’s evidence that she was knocked down by the Applicant’s vehicle on 13 March 2019. Her testimony was that when she was at home in the morning of that day, the police came with Katlego and told her that Katlego came to the police station to report that the Applicant knocked her down on the road on her way to school. She then went to hospital with her and the police where she was treated for abrasions on her right and left side of her face with no fractures observed from X-rays according to the medical certificate submitted in evidence.
77. I have however not admitted the evidence of Katlego’s mother about one lady of the School Governing Body having said during the SGB meeting that the Applicant had apologised for what he did to Katlego as that is hearsay evidence since the said woman was not called as a witness.
78. Although the testimony of Katlego’s mother’s was objected as hearsay because the police officer who told her that Katlego was knocked off by the Applicant vehicle was not called as a witness, I would not find that her evidence is hearsay as it was not new evidence but was also corroborated by Katlego’s evidence that she was knocked down by the Applicant’s vehicle. Katlego’s mother also testified that she had injuries which supported the fact that she must have been involved in an accident.
79. The Principal testified mainly on charge 3 of which the Applicant was not found guilty of. As correctly argued by the Applicant I will not deal with his evidence in relation to this charge as it is irrelevant for this dismissal dispute. I find the relevant part of his evidence in relation to the telephonic report by Katlego’s mother to him that she will not be able to come to school anymore in that she was hit by the Applicant’s vehicle and taken to hospital strengthening the Respondent’s evidence and credibility of Katlego’s evidence in terms of the accident of that morning. His evidence in this regard is not hearsay evidence as argued by the Applicant as he was merely testifying on the report that he received not on the accident itself as he did not witness it himself. If he was testifying about the accident, definitely his evidence would have been hearsay evidence and found to be inadmissible.
80. A lot of unrelated evidence was led by Katlego, her mother as well as the Principal in relation to the rape charge and subsequent SACE case and the Applicant also gave testimony in relation to this piece of evidence. It was therefore a common cause issue that there was a rape case opened against the Applicant by Katlego and also the SACE hearing held against the Applicant. I take note that the Applicant was not charged and found guilty for rape of Katlego since Katlego testified that the case was later withdrawn for reasons unknown to her. I will however find this evidence of rape and SACE case very relevant to the charge as explained below.
81. The Applicant denied the commission of the offence and testified that he did not knock off Katlego with his vehicle but he lost control of the vehicle at the speed hump and it swerved and hit the fence of police barracks. He furthermore denied that he neither threatened to kill Katlego nor intimidated her by showing her the cutting of throat sign language. The Applicant did not dispute that the gestures Katlego alleged he showed to her were universally used to indicate you will kill a person and that would be a reasonable belief but he however disputed that he ever showed the gestures to Katlego as alleged. The Applicant called a witness to corroborate his evidence about what happened at the accident scene and this witness came to testify that she was an eye witness and her testimony was that Katlego was never hit by the Applicant’s vehicle.
82. The Applicant testified that when he approached the speed hump there were no people around but he only saw a person on the left going the opposite direction wearing school uniform as he drove from the east to the west and even after the accident when he got out of the vehicle there was no one.
83. However, his witness testified that she walking behind Katlego and quite at a close range when the Applicant’s vehicle was approaching from east to west. Why could the Applicant only see the person in school uniform and not see this witness when she was there at all times of the accident and witnessed what happened until the Applicant left to the police station. Even under cross-examination the Applicant reiterated that there was no one at the scene except a person wearing school uniform and after the accident he did not see anyone but saw Katlego coming from next door house. It is therefore questionable how this witness could have been there all the time and witnessed the accident if the Applicant did not see her but saw only Katlego but then the Applicant is able to bring her as a witness of the accident in these arbitration proceedings. I also take not that it is also common cause that this witness did not testify at the Applicant’s disciplinary hearing. Although arbitration hearings are de novo proceedings, what transpired at the disciplinary process cannot be disregarded.
84. The evidence of this witness, Virginia Ramabale seems to have been couched to be precisely in accordance with what the Applicant testified about in these proceedings, especially the direction from east to west using exactly the same words used by the Applicant, and the evidence regarding the two police station gates for vehicles and the other one for pedestrians in the front. This witness does not stay in that area of the accident but she testified that she stays in Mokomene a distance from Soekmekaar. It is therefore questionable how she knew the Soekmekaar police station gates with so much observation that she could testify with certainty that there is no back gate at the police station. When questioned why she did not testify at the Applicant’s disciplinary hearing she answered that the Applicant did not know her at that stage and the manner in which she said she got to come to testify in these arbitration proceedings is much to be desired; in that her testimony is that she overheard the Applicant who was a total stranger to her conversing with two other people at the queue at Capitec Bank about his dismissal from work because of the accident and she suddenly intervened in the discussions and told the Applicant she was at the scene of the accident and saw what happened. I therefore find this piece of evidence untruthful as I have already indicated above that the Applicant testified that there was no one at the scene except the person wearing school uniform.
85. Based on the above reasoning, I cannot accept Ms Ramabale’s testimony and find no probability in her evidence that Katlego made a turn behind the vehicle and just started running and shouting and said the vehicle nearly knocked her down. It is also questionable how she knew with such confidence that the driver lost control of the vehicle. It can only be the driver that would know that he lost control. My final conclusion with regard to this witness is that she was never at the scene of the accident but was just secured to come and corroborate the Applicant’s evidence as if she was an eye witness to make the Applicant’s version more probable and credible.
86. I find that the Applicant’s testimony lack substance and I therefore reject it. He was defensive and evasive in answering most of the questions under cross-examination and wanted to narrate a long defence against the allegations even irrelevant facts and I had to call him to order several times and requested him to answer the questions. I find it unlikely that he saw a learner walking along the road and all of a sudden Katlego who appeared from next door and went to police station and falsely accused him that he knocked her down with his vehicle.
87. Katlego knew the Applicant’s vehicle and could not have mistaken it to anyone else’s as confirmed by the Applicant himself in his evidence. Although Katlego did not dispute the testimony of the Applicant that his car windows were tinted and dark and someone could not be seen inside, her undisputed testimony was also that she could see the Applicant since his vehicle window was open.
88. The Applicant gave a bare denial about the allegations against him by Katlego and submitted that he did not even recognise her when he was driving alongside that road. It is common cause that Katlego was walking along the road next to moving vehicles and it is irreconcilable that the Applicant did not recognise her. Katlego was her student and I believe that even in tinted windows, the driver can see people from the outside clearly as it appeared that the person in uniform was walking alongside the vehicle road.
89. Taking into account his evidence that on that road there were 3 speed humps, therefore it is improbable to hit the speed hump speeding in the manner in which the Applicant explained it as the 3 speed humps were near to each other. The Applicant was aware of those speed humps and as in his testimony it was the last speed hump one would have been expected him to have reduced the speed at the third one. The Applicant did not give any reasonable explanation why he chose to even speed at the speed humps so near to each other.
90. The Applicant alleged that Katlego was the one that had issues with him because him because since 2017 to 2018 Katlego opened about 6 cases against him for reasons unknown to him. I find this piece of evidence to be fabricated. On the other hand, I find that the Applicant was angry at Katlego indeed because of the rape case she opened for which he was arrested, the report to SACE and being called to a hearing. In actual fact the evidence of Katlego of the 2017 events on how the Applicant started demanding to have sex with her and threatening her that she will fail, leading to Katlego opening the rape case becomes more relevant here in answering the question why could the Applicant act in the manner he did when he saw Katlego on the road.
91. I find that the reasons why the Applicant ran over Katlego with his vehicle are these: Katlego opened the rape case with the assistance of her mother when she told her mother after she confronted her about failing and telling her mother what the Applicant was doing to her. It is clear that the Applicant abused his position as a teacher; violated Katlego’s rights as a learner to have sex with her and threated her that if she did not agree she will fail. Ordinarily most leaners under the circumstances are very vulnerable and indeed it is reasonable to accede reluctantly so to have sex with the teacher because she clearly would not want to fail.
92. According to the Applicant’s testimony he was very angry that Katlego was used by other people to report him as Katlego was merely a child. Katlego is still a learner and her mother had a parental duty to ensure that she is safe- guarded at school and her well-being and rights as a learner are not violated by her own teachers, hence she stood up to go to the school to confront the Applicant when Katlego alleged that the Applicant was sexually abusing her. I therefore believe that Katlego’s mother was by all means correct to even ask that her daughter be removed from the school as she had lost trust in her daughter’s safety at the school due to the reported abuse of her rights by the Applicant.
93. Any person in the position of the Applicant will therefore likely victimise the complainant for raising her voice especially under the circumstances that a rape case was even opened against him and it was also in the newspapers and was a matter of public knowledge. Furthermore SACE came to investigate the reported allegations of rape and eventually charged him although he did not attend to the SACE disciplinary hearing since he alleged that he was on sick leave. These kind of allegations normally have a tendency of damaging ones’ reputation whether true or not and I understand that the Applicant was angry when Katlego’s mother stood up for her hence as he testified that Katlego was only a child and used by other people to open cases against him.
94. I doubt the evidence that the Applicant’s vehicle lost control. Instead I have a considered view that when the Applicant saw Katlego near the speed hump he decided to hit her clearly with the intention to kill her as Katlego testified that when she passed the railway, the Applicant passed with his vehicle and pointed a finger at her showing her that he will kill her by using the cutting of throat sign language.
95. In considering which evidence is more probably on a qualitative assessment than the other, I find that Katlego’s evidence is a more probable version than the Applicant looking at the improbabilities of the Applicant’s version before me. Surely Katlego had visible injuries which eventually forced the police officers to take her to hospital after picking up her mother at home. The big question is what caused her those injuries. The probability is great that she was knocked down by the vehicle as she had testified. It was common cause that the only vehicle in the vicinity was that of the Applicant. And Katlego happened to be at the scene of the accident. Therefore the probable conclusion is that the vehicle that knocked her off is that of the Applicant. I doubt that Katlego could have caused herself injuries when he saw the Applicant’s vehicle in order to lay criminal charges against him. It could have been a coincidence or even planned action that the Applicant met her at the railway and the Applicant as he was angry, a day after SACE hearing then decided to knock her off with his vehicle. It was still very early in the morning and it looks like there were no people as yet in the street. This could have probably been a hit and run accident.
96. I take note that Katlego vehemently denied that the Applicant lost control of the vehicle and hit the barracks fence. The Applicant’s evidence in this regard was corroborated by the evidence of the witness whose evidence I have already rejected. The Applicant has not brought any other supporting evidence or documentary evidence to show that he was indeed involved in that accident in the manner he testified and that was reported at the police station.
97. The Applicant argued that Katlego has not been able to prove the charge of assault from her evidence. I definitely disagree with this assertion. A person commits assault by intentionally inflicting or threatening to inflict physical injury on another person and of course the conduct need does not result in an injury. I therefore find that the proven act of misconduct by the Applicant in knocking Katlego with his vehicle is an act of assault and in this case it resulted in bruises on her face due to her fall on the ground.
98. The above shows why the background of the 2017 incidents, SAPS rape case and SACE hearing in relation to Katlego and the applicant were relevant and cannot be said to be unrelated to the incident of 13 March 2019. It is of course a culmination of events that have impounded in relation to the relationship between the two of them.
99. The Applicant argued that when the accident happened on 13 March 2019 he was not on duty as he was still on sick leave from 20 February 2019 until the end of March 2019 and it was also common cause that the accident took place far away from school and outside working hours. Unfortunately the Applicant raised this in his evidence in chief and did not give the Respondent an opportunity to deal with it in its evidence in chief trough oral evidence. The version was also not put to any of the Respondent’s witnesses. According to the minutes of the pre-arbitration hearing signed by both parties this was not recorded as an issue in dispute that required evidence. The issue in dispute was recorded as the commission of the misconduct only. The Respondent did respond to this allegation in the closing argument and cited Saal v De Beers Consolidated Ltd 2000, 2 BALR 171 to justify that the misconducted committed by the Applicant fell under the Respondent’s jurisdiction as it is disruptive to the Respondent’s business or affected the Respondent’s reputation and the Respondent has a direct interest in the wellbeing of educators and learners; and that the learner assaulted by the Applicant was a witness in the rape case that started when both the learner and the educator were at that times attached to the Respondent.
100. I will not make a finding on this argument since I was not presented with evidence by both parties in this regard. I can only mention that there is a legal principle that an employee can be charged for misconduct committed outside the workplace even if it’s not during working hours provided the employer is able to prove that there is a direct interest with the employer’s business and the offence committed has an impact on the employer’s good name and reputation.
101. Indeed as both parties have argued, I am faced with two mutually destructive evidence and in deciding on this matter, I am guided by the judgement of Assmang Ltd (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation, Mediation and Arbitration and others (2015) 36 ILJ 2070 (LC) in which the Labour Court deliberated exactly on this point. The matter was set for review after the CCMA Commissioner, on being faced with two conflicting versions, took the view that there was no basis on which to discredit either of the versions, that the evidence was therefore evenly balanced, and that the Respondent had failed to discharge the onus. The CCMA commissioner found that when considering the totality of the evidence, the employer had not proved the fairness of the dismissal, as: "This was due to the fact that where evidence of both sides is evenly balanced [the employer] cannot be deemed to have succeeded to discharge its onus". The court noted that because the commissioner simply found that there was no basis on which to discredit either of the two versions, he found against the employer.
102. Accordingly, I have weighed up or balanced the probabilities of both versions as well as their credibility of parties’ witnesses and found the Respondent’s version more probable based on the reasons stated above.
103. Based on the above findings, I find that the Respondent has been able to discharge its onus of proof on a balance of probabilities that the Applicant committed the two offences. The next question is determination of whether dismissal was an appropriate sanction under the circumstances. The answer is yes. The employee knew about the standards required of a teacher in terms of the EEA but nevertheless breached them. He had the role and responsibility to safe guard and keep the learners safe even outside the workplace or outside the working hours but he failed to do so. The Applicant cannot be trusted anymore.
I therefore find that dismissal was appropriate under the circumstances even if it was the Applicant’s first offence. The offence he committed is a very serious one and unfortunately it also resulted in the learner’s injuries.
104. I consequently find that the Applicant’s dismissal is substantively fair.
AWARD
105. I find that the dismissal of the Applicant is substantively fair.
106. The Applicant’s claim is hereby dismissed.
Panellist:
GRACE MAFA-CHALI