Case Number: ELRC710-19/20EC
Province: Eastern Cape
Applicant: TEMBALETHU MAKAPELA
Respondent: Department of Education Eastern Cape
Venue: Magistrates Court in Engcobo
Award Date: 1 March 2021
Arbitrator: Jonathan Gruss
Panellist/s: Jonathan Gruss
Case No.: ELRC710-19/20EC
Date of Award: 1 March 2020
In the DISCIPLINARY ENQUIRY between:
TEMBALETHU MAKAPELA (Employee)
DEPARTMENT OF EDUCATION : EASTERN CAPE
Applicant’s representative: Absent
Respondent’s representative: Mr Mlahleni
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set-down for an enquiry by arbitrator as provided for in terms of Clause 32 of the ELRC Dispute Resolution Procedures read with clause 3 of ELRC Collective Agreement 3 of 2018. The enquiry takes the form of a Section 188A of the Labour Relations Act, Act 66 of 1995 enquiry by arbitrator. The enquiry was scheduled for 19 February 2021 for 10h00 and at the Magistrates Court in Engcobo. The accused employee, Tembalethu Makapela did not attend the enquiry nor was he represented. The employer, Department of Education: Eastern Cape was represented by Mr Mlahleni, an Employee Relations Officer (ERO).
2. At the commencement of the proceedings, Mr Nkuhlu from the District Office indicated that he received an SMS the preceding day (Thursday, 18 February 2021) at 18h25 and the SMS read “I am Mr Makapela, I will not be able to go to the office tomorrow 19 February 2021 because I am going to court.” Mr Mlahleni submitted that he also received a phone call the preceding day in the afternoon from the employee’s attorney indicating that his client will be attending his criminal case at the Dalisile Police Station on 19 February 2021. He suggested to the applicant’s attorney that after the court appearance, the applicant must attend the scheduled enquiry in that the attendance at court was only for the matter to be transferred to the Regional Court for trial. This information, Mr Mlahleni indicated that he obtained from the investigating officer and the response given to him by the applicant’s attorney was that he would not be doing two cases on one day.
3. There was no formal application filed with ELRC requesting a postponement and considering the fact that the employee was aware, latest 9 February 2021 of the scheduled hearing date, he and his attorney had ample time to file a formal application requesting a postponement. Attempts were made to make telephonic contact with the employee and he appeared to be uncontactable. In order for a disciplinary enquiry to be postponed, it is incumbent on the employee to arrange a postponement with the ELRC and thereby obtain a new hearing date. This was not done. The enquiry only commenced at 11h00 allowing the employee ample time to attend his enquiry. The enquiry was initially scheduled for a virtual hearing utilising zoom platform on 19 November 2020 and thereafter on 22 January 2021. On 19 November 2020, the employee failed to participate in that he did not login and on 22 January 2021, he failed to appear at the enquiry that was physically held at the Magistrates’ Court in Ngcobo. Accordingly, having satisfied myself that the employee was properly notified of the enquiry date for 19 February 2021, considering that he did not apply for postponement with the ELRC and arrange a new date with the ELRC and he did not attend and participate on two separate scheduled hearing dates, I therefore decided to proceed with enquiry on a default basis.
4. The employee was charged with five charges of misconduct.
4.1 Charge 1: Contravening section 17(1) (f) of the Employment of Educators Act 76 of 1998 as amended by causing a learner to perform any of the acts contemplated in paragraph (a) to (e) in that on or about August 2019 he allegedly caused a learner to use alcohol and thereafter molested him and he continued to commit this horrendous act in his place of residence several times to learner “A” 17 year old learner at Bhashee Primary Junior School where he was employed as an educator.
4.2 Charge 2 Contravention of section 17(1) (b) of the Employment of Educators Act as amended, by commit an act of sexual assault on a learner in that on or about 16 August 2019 and on 3 and 4 September 2019 he committed a serious act of misconduct wherein it was reported that he sexually molested a grade 8 learner, learner “Ä” who was 17 years old at Bashee Primary Junior School where he is employed.
4.3 Charge 3: Contravened section 18(1) (g) of the Employment of Educators Act as amended by using his position in the school to promote or prejudice the interest of any person by forcing him to drink alcohol so that he may sexually molest the learner by the name of “A”.
4.4 Charge 4: Contravened section 18(1) (q) of the Employment of Educators Act as amended, in that whilst on duty he conducted himself in an improper, disgraceful and unacceptable manner in that whilst he was supposed to act in the loco parentis he preyed on a vulnerable 17 year old learner by the name of “A”.
4.5 Charge 5: Contravened section 18(1)(f) of the Employment of Educators Act as amended, in that he unjustifiably prejudiced the administration discipline or efficiency the school in that on or about 16, 17, 18 of September 2019, social media carried articles about his alleged serious misconduct at Bashee PJS thus tarnishing the image of the Department of Education and that of Bashee PJS. That on or about August to September 2019, he had sexually molested a learner “A” without his consent as he had caused the learner to be drunk at Bashee PJS.
5. A not guilty plea was entered on behalf of the employee as relates to the five charges.
SURVEY OF EVIDENCE AND ARGUMENT
6. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
ANALYSIS OF EVIDENCE
7. Ms Nomfuyo Mahlutshana testified under oath to the following effect:
7.1 She is the principal at Bashee Primary Junior School and had been the Principal for the last 11 years. The employee, Mr Makapela is an educator employed at her school.
7.2 On 10 August 2019 she received information from the department head, Mr Mente that there was a soccer game and a learner by the name of learner “C” was found to be drunk and this learner was reprimanded. She then called the learner to her office and the learner reported to her that one of the administration clerk’s, Mr Nxasana told him that there was alcohol in the vehicle and he should get into the vehicle. The learner report further that Mr Makapela and Mr Petela were also with them drinking alcohol in the vehicle. She in turn reported this information to her deputy principal.
7.3 She then spoke to learner “B”, learner Ä” and learner “C”, they all explained that they were molested and were all given alcohol to drink. The employee, Mr Makapela is the life orientation skills teacher and he allegedly informed the learners that he wanted to teach them life orientation. A leaner by the name of “A” said to he was given alcohol to drink and this made him drowsy. The employee molested learner “Ä” and Mr Petela an educator molested learner “B” and Mr Nxasana molested learner “C”. She assured them all that she would take the matter further and she informed the School Management Team (SMT) as well as the school governing body (SGB) of the allegations. The parents of the concerned learners were invited to the school and they were informed of the allegations.
7.4 They called the concerned educators and employee, Mr Makapela when confronted by the SMT concerning the allegation admitted that he gave learner “A” alcohol to consume and that he perform sexual acts with the learner. The educator was also called to appear before the SGB and he again admitted that he gave the learner alcohol and perform sexual acts with him. This made the SGB angry. She then reported the incident to the Circuit Manager as well as to the District Manager.
7.5 When the allegations of molestation came to the attention of the learners’ parents as well as the SGB, social media post went viral about the incidents concerning the three educators. This led to the District Director requesting her to arrange a meeting between him, educator Mr Makapela, the two other educators and the SMT. The education development officer (EDO) responsible for the school also attended the meeting. At the meeting employee, Mr Makapela was asked to explain the contents of the letter that was given to him by the principal.
7.6 The following Monday, school gates were locked, parents and the community were angry as to what had happened. She was accused of bringing perverts to the school and not protecting the learners. The media became aware as to what occurred and this resulted in SABC as well as ETV coming out to the school to report the incidences of molestation. This resulted in the school having to close for period of nine weeks and the parents of the school no longer trusting the educators.
7.7 The employee, Mr Makapela as well as the two other educators signed a written letter wherein the following was recorded in Xhosa as it relates to the employee, Mr Makapela “Teacher Makapela admitted that he had indeed committed the offence of giving learners liquor during school hours and admitted that he sexually molested them in that he was asking for forgiveness and this was denied because of the seriousness of the act.” The same admissions were made by the two other educators. Before the employee signed the letter written in handwriting, she read the letter to him.
8. Learner Ä” testified under oath to the following effect (the services of an intermediary was utilised):
8.1 He is a learner at Bashee PJS and the educator, Mr Makapela was an educator at his school. He was born on 11 December 2002.
8.2 During 2019 he was in grade 8. During August 2019 he was watching a soccer match and Mr Makapela came up to him and requested him to accompany him to the car. Mr Nxasana an educator was also in the vehicle. They both told him that they were not straight and were gay. His response to them was that he was thirsty and he wanted water. He was given water when he drank the water he noticed that the water was mixed with liquor. Mr Nxasana told him that Mr Makapela that feeling for him. He ignored what was said to him.
8.3 The following Friday, Mr Nxasana called him after school and told him that he and learner “C” must accompany them to Mr Makapela’s residence. They first offloaded building material at Mr Nxasana’s residence before proceeding to Mr Makapela’s house. At that stage, they were consuming alcohol whilst in the vehicle and when they arrived at Mr Makapela’s house there was no chair or place for them to sit in Mr Makapela’s room. Mr Makapela took out liquor and they continue to drink. He was then told by Mr Makapela to undress and take off his pants. It was at that point, Mr Makapela started to molest them. Mr Makapela then took a blanket and covered them both (He and Mr Makapela). Mr Makhapela molested him by forcing his penis into his rectum. He did not consent to this. When Mr Makapela finished he took out KFC for them to eat.
8.4 When he was taken to Mr Makhapela’s house he was unaware as to what was going to happen. When Mr Makapela raped him he was under the influence of alcohol and had he not been under the influence of alcohol he would not have allowed Mr Makapela to do to him what he did. This molestation (rape) only happen once and this did not occur thereafter.
8.5 During August 2019, nothing sexual happened and he only consumed alcohol that Mr Makhapela had given him. The rape happened only once in September 2019. He only consumed alcohol with Mr Makhapela twice during August 2019.
9. As it relates to the charges that the employer preferred against the employee, Mr Makapela, I find the Charge1 and Charge 2 are similar in nature although charge 1 speaks about causing a learner to use alcohol or consumer stupefying substance whereas Charge 2 speaks about act of sexual assault on learner “A” by the employee, Mr Makapela. As it relates to Charge number 3 and 4 they are also duplicate charges of charge 1 and 2. Charge 5 relates to unjustifiably prejudiced the administration, discipline and efficiency concerning social media articles published concerning the allegations as relates to the rape (molestation) of learner “A” and the consumption of alcohol . There was no evidence presented that the employee caused the leak or he publicised or conveyed the message or information that caused unjustifiable prejudice to the administration and the school. Therefore, for purposes of this enquiry I shall only deal with charge 1 and 2 and charge 5 although the transgressions as dealt with in charge 1 and 2 may have unjustifiably prejudiced the administration, discipline and efficiency of the school. There’s no evidence that the employee was the source of the information leak. Therefore, I find him not guilty on charge 5.
10. I only have the learner “A” and Ms Mahlutshana’s evidence and as it relates to the incidences as reported, there evidence is corroborative. The learner “A” came over as a reluctant witness and had to be prompted to elaborate as it relates to the incidence of molestation. Only when he was asked to explain what he meant by him being molested that he explicitly indicate that Mr Makapela inserted his penis into learner “A” anus whilst the blanket was covered over him and Mr Makapela by Mr Makapela. I could see that learning “A” was embarrassed by the incident and he played down the frequency when he was molested. This is understandable, it is not unusual for victims to feel guilty as if they were wilful participants whereas what was actually happening was that learner “A” was being groomed by Mr Makapela. Ms Mahlutshana testified that during the period when learner “A” was molested, she noticed a change in learner “A” behaviour. The question I asked, why would learner “A” fabricate that he was sexually molested and raped by Mr Makapela. However, the admission letter signed by the employee as testified by Ms Mahlutshana indicates that the incident happened as testified by learner “A”. The employee admitted to the transgressions hoping that he would be forgiven and this would save him his job.
11. Accordingly, based on the evidence submitted I’m satisfied that the probabilities favours only one conclusion is that employee, Mr Makapela supplied and caused learner “A” to consume alcohol with the intention of being able to sexually assault him. Further, I’m satisfied that the probabilities favours only one conclusion and that Mr Makhapela sexually assaulted (rape) learner “A” when he inserted his penis into learner “A” anus. Therefore I find that he is guilty of serious misconduct as relates to charge 1 and 2.
12. Clause 5.1.2 and 5.16 of ELRC Collective Agreement 3 of 2018 provides that an arbitrator arbitrated the dispute in terms of this collective agreement must, in light of the evidence presented, and with reference to the following, direct what action, if any shall be taken against the educator with reference to the SACE Code of Professional Ethics for educators in the centre provided for in the Employment of Educators Act, including the mandatory sanction of dismissal is prescribed for certain forms of misconduct by the Employment of Educators Act.
13. Both charges are of extremely serious in nature and fall under the class of transgressions “serious transgression” as provided for in section 17 of the Employment of Educators Act 76 of 1998 as amended. Section 17(1) specifically provides that should an employee be found guilty of transgression set out in section 17 an employee must be dismissed.
14. Therefore having found the employee guilty of a section 17 (1) (f) and section 17 (1)(b) transgression, I’m by law obligated pronounce on a sanction of dismissal on both charges.
15. From my calculation learner “A” would have turned 16 years of age on 11 December 2019 and when the act of sexual assault occurred, learner “A” was 15 years of age and had sexual act being consented, this is not what I am saying, learner having been under the age could not have legally consented thereto. Furthermore, Section 17(1)(c) makes it a dismissible transgression to having a sexual relationship with a learner of the school where he or she is employed.
16. Section 120 of the Children’s Act, Act 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by a children’s court; any other court in any criminal or civil proceedings which that person is involved; or any forum established or recognised by law on any disciplinary proceedings concerning the conduct of that person relating to a child. A finding may be made by forum of its own volition or on application. Evidence as to whether a person is unsuitable to work with children may be heard by the court or the forum either in the course of or at the end of the proceedings.
17. Section 122 of the Children’s Act further provides that the relevant administration to forum must notify the Director-General in writing of any finding in terms of section 120 that a person is unsuitable to work with children. The director-general must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the registrar regardless of where the appeal proceeding has been instituted or not.
18. The Code of Professional Ethics as prescribed by the South African Council of Educators Act 31 of 2000 prescribed that educators who are registered or provisionally registered with the South African Council for Educators:
16.1 Acknowledge the noble calling of their profession to educate and train the learners of our country;
16.2 Acknowledge that the attitude, dedication, self-discipline, ideals, training and conduct of the teaching profession determine the quality of education in this country;
16.3 Acknowledge, uphold and promote basic human rights, as embodied in the Constitution of South Africa.
16.4 Commit themselves therefore to do all within their power, in the exercising of their professional duties, to act in accordance with the ideals of their profession, as expressed in this Code and
16.5 Act in a proper and becoming way such that their behaviour does not bring the teaching profession into disrepute
19. Clause 3.6.; 3.8 and 3.9 of the Code of Professional Ethics under the heading, CONDUCT: The educator and the learner prescribes that an educator: refrains from improper physical contact with learners; refrains from any form of sexual harassment (physical or otherwise) of learners; and refrains from any form of sexual relationship with learners at a school.
20. The Employee, Tembalethu Makapela (Persal Number 53538234) is found guilty of contravening Section
17 (1) (f) of the Employment of Educators Act, 76 of 1998 as amended that during August 2019 he caused
learner “A” to use alcohol and therefore after sexually molesting him. He is also found guilty of contravening section 17 (1) (b) of the Employment of Educators Act, 76 of 1998 as amended by commit an act of sexual assault on learner “A” when he sexually molested a grade 8 learner “A”.
21. The Employee, Tembalethu Makapela (Persal Number 53538234) is therefore dismissed on both charges as reflected in paragraph 13 with immediate effect from the Department of Education: Eastern Cape.
22. I find that the educator, Tembalethu Makapela as provided for in terms of Section 120 of the Children’s Act, Act 38 of 2005 as amended, as a consequence to the transgressions as referred to in paragraph 13 above, is unsuitable to work with children.
23. I further find that the educator, Tembalethu Makapela as a consequence to the transgressions as referred to in paragraph 13 above is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000.
24. In terms of Section 122 of the Children’s Act, Act 38 of 2005, as amended, the General Secretary of the ELRC shall send a copy of this award to the Director-General of the Department of Social Development.
25. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.
Name: Jonathan Gruss