Case Number: ELRC 442-20/21 FS
Province: Free State
Applicant: Mr. M Nhlapo
Respondent: Department of Education: Free State
Issue: Unfair Dismissal - Misconduct
Award Date: 2 March 2021
Arbitrator: Shiraz Mahomed Osman
Arbitrator: SHIRAZ MAHOMED OSMAN
Case Reference No: ELRC 442-20/21 FS
Date of award: 02 MARCH 2021
In the arbitration between:
Mr. M Nhlapo Employee party
Department of Education – Free State Employer party
DETAILS OF HEARING AND REPRESENTATION
1. The present dispute between Mr. M Nhlapo (hereinafter referred to as the employee) and The Department of Education-Free State (hereinafter referred to as the employer) was referred to, Inquiry by Arbitrator in terms of Section 188A of the Labour Relations Act no.66 of 1995, as amended (the Act); read with Collective Agreement 3 of 2018. At the Inquiry by Arbitrator hearing, which was held at the Boardroom of the respondent, in Bloemfontein on, 23 February 2021, the employee failed to attend and the employer was represented by Mr. T Mokoena.
2. I was satisfied that the employee was aware of the date; time and venue of the said hearing, however failed to attend.
3. Indeed, the employee requested on, 29 January 2021, that the matter begin at 10h00. The employee still failed to attend. Council, contacted the employee who promised to be at the hearing at 12h00, but failed to present himself after all the indulgences granted to him.
4. Had the employee been serious about defending the allegations against him, then indeed, he would have made an attempt to attend his hearing, no matter what challenges he had faced in presenting himself.
THE CHARGES TO BE DECIDED:
5. I am to decide whether the employee, is indeed guilty of the following:
You have contravened section 17 (1) (c) of the Employment of Educators Act 76 of 1998 in that on or about August 2019, you had a sexual relationship with a learner (Manko Kalake) who was a learner at the school where you are employed.
You have contravened section 18 (1) (f) of the Employment of Educators Act 76 of 1998 in that on or about August 2019, you unjustifiably prejudiced the administration, discipline or efficiency of the Department and the school when you had unprofessional relationship with a learner (Manko Kalake) who was a learner at the school where you were employed
6. The employee is an educator and was charged in October 2020, as per the above allegations.
7. He was charged in terms of Sections 17 & 18 of the Employment of Educators Act no. 78, of 1998 (the EEA). He was charged for having a sexual relationship with a learner, Ms. Mamko Kalake, who is since deceased, as a result of her committing suicide. It must be noted at this stage, that the employer became aware of the allegation of sexual misconduct after the death of the learner, which information was brought to it’s attention by the deceased learner’s mother.
8. The employee is still employed as an educator.
9. The matter was referred to Council by the employer, in terms of Collective Agreement 3 of 2018; read with Section 188A, of the Act, an Inquiry by Arbitrator.
SURVEY OF EVIDENCE AND ARGUMENT
10. As per paragraphs 2; 3; & 4 above, I proceeded in the employee’s absence.
11. The employer was given the opportunity to submit an opening statement; call witnesses and submit an oral closing argument.
12. The employer called two witnesses, Ms. Fabia Charity Kalake (learner’s sister) and Ms. Martha Nono Mahlaba (learner’s mother).
13. The employer submitted a bundle of documents, including the deceased learner’s face book messenger conversation, with a friend named Ms. Y, for the purposes of this award, since, her age is not known. I am inclined to assume that she is approximately the same age as the deceased learner, and therefore requires her identity to be protected.
14. Moreover, I was mindful of Section 15 (4) of the Electronic Communication and Transaction Act 25 of 2005 when the employer handed up the “messenger “conversation of the deceased learner and her friend Ms. Y. The employer had indeed submitted that the documentation handed up was a printout of information existing in electronic form and was downloaded from the deceased learner’s electronic devise. In the absence of the employee there was no objection. See in this regard Trend Finance (Pty) Ltd and another v Commissioner for SARS and another  4 A11 SA 657 (c).
15. I am inclined to mention the learner’s name for the purposes of this award, since she is indeed, unfortunately, deceased.
16. Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Act. Should any of the argument not be reflected hereunder, then it does not mean that it was not considered.
ANALYSIS OF EVIDENCE AND ARGUMENT
17. At the outset, I must state that the evidence of both the employer’s witnesses is hearsay evidence, and not circumstantial evidence, as suggested by the employer. However, the circumstantial part of testimony lies in the fact that it was discovered when the deceased learner was admitted to hospital for a pill overdose, it was established that she was pregnant. I shall also discuss same later. Though, there was no application before me, to suggest why I should accept the hearsay evidence, of both, the sister and mother of the deceased learner, I shall indicate later in the award, the reasons for my acceptance, of such evidence. The employer relied on the suicide notes, written by the deceased learner, as well as her “messenger” messages directed to her friend, Ms. Y.
18. Ms. Kalake, the deceased learner’s sister, testified for the employer that, Mr. Mathandowane Nhlapo (Thons) was indeed an educator at the school, which she and her sister attended. On, 18 January 2020, her sister Ms. Mamko Kalake, had committed suicide by swallowing her mother’s heart medication. They found the suicide notes, presented at the Arbitration from the deceased learner’s school bag, written in her late sister’s handwriting. One was addressed to Ms. Y, the deceased learner’s friend whilst, the second was addressed to Thons, the educator.
19. She testified that the suicide note written to Ms. Y indicated that she, Ms. Y, must not disclose their relationships with the educators to anybody, after her death. That she should keep the secret till her death. She sought that Ms. Y read the letter in private and deliver the letter addressed to Thons. In her suicide note addressed to Ms. Y, the deceased learner indicated she was heartbroken, and therefore was taking her life.
20. Ms. Kalake, continued to testify that her deceased sister had addressed a suicide not to Thons, implicating him in a relationship with her. She was grateful for the having a “very great thing” with Thons. The deceased learner was leaving Thons so that he could have a great life without her. She mentioned that Thons had told her “I love you Kalake”. Apparently, she was not convinced that it was the truth. The deceased learner had apparently become aware that Thons had had a girlfriend and that they were planning to build a future together. She had told Thons that if he ever hurt her, she would kill herself. She admitted that she was aware that she was not supposed to have a relationship with him, she told him. Ms. Kalake testified that her sister was 16 years old, at that time.
21. The suicide note went on to inform Thons that she thought she had a future with him and dreamed that they could have had a family together. She thought that Thons would now be better off without her. Indeed, she had loved him. She ended her note to Thons with: From the person you’ve been playing with all along”.
22. The notes above, suggest that there was indeed an intimate relationship between the deceased learner and Thons, the educator, who had broken her heart by informing her that he had had a girlfriend. She suggests that she wanted to have a family with him, thus alluding to her pregnancy. But, when she realised that Thons had a girlfriend, she decided to take her life.
23. The “messenger” conversation, which excerpts, were read into the record suggested as follows: that the deceased learner and Ms. Y, both had relationships with educators. She informed Ms. Y that one of the educators at school was aware of their relationships with the educators.
24. It emerged from Ms. Kalake’s testimony that she was not told first hand by her sister about her pregnancy, but that her deceased sister had told her other sister, Mampe, that she was pregnant. Indeed, this evidence is not direct evidence but again I shall address same later on. The deceased learner, revealed the name of her unborn child to Ms. Y, as “Warona”.
25. Ms. Mahlaba, the deceased learner’s mother, testified for the employer, that, she knew Mr. Nhlapo and that he commonly known as Thons. She was a hawker at the school. Ms. Malaba, testified that her deceased daughter slipped and fell and was taken to hospital, where it was confirmed that she had taken an overdose of her medication and that her daughter was pregnant. Indeed, she confirmed that her daughter, Fabia, had found the two suicide notes mentioned above in her late daughter’s school bags when she had intended to return the school text books. She ahd gathered that her daughter and Thons had had a relationship. Ms. Y, her late daughter’s friend, could not be traced, as she had no fixed abode.
26. Ms. Mahlaba testified that her daughter would often refuse money from her and that her late daughter would tell her that she was provided for by Thons. Indeed, that had stopped after she informed her daughter of her disapproval of being provided for by Thons. After, she had lsot her daughter she took the suicide notes to the school and the Police.
27. Section 3 of the Law of Evidence Amendment Act, 45 of 1998 provides the following in relation to the admissibility of hearsay evidence: Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless:-
A) Each party against whom the evidence is to be adduced agrees to the admission of the evidence at such proceedings; or
B) The person whose credibility the probative value of such evidence depends, himself testifies at the proceedings; or
C) The Court, having regard to:-
• nature of the proceedings;
• the nature of the evidence;
• the purpose for which the evidence was tendered
• the probative value of the evidence
• the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;
• any prejudice to a party which the admission of such evidence might entail;
• any other factor which should in the opinion of the court be taken into account;
• is of the opinion that such evidence should be admitted in the interest of justice
28. I am of the humble opinion that the respondent without making any suggestions to the above, regard, and having given an explanation for it’s witness, Ms. Mamko Kalake, not being present, as she had committed suicide, had made the foregone conclusion that it’s hearsay evidence would be accepted or given the weight that it deserves. It is before me that the witness is not present; neither was there an agreement between parties to accept hearsay evidence, since the employee failed to attend the proceedings. The nature of the evidence goes to the core of the dispute, which is intended to show that the employee, Mr. Nhlapo (Thons) had had a sexual relationship with the deceased learner. Therefore, the probative value of the hearsay evidence has to be significant. However it is the only evidence that the employer has, as well as the testimony of Ms. Mahlaba. Indeed, the employee would suffer prejudice, if this evidence was admitted without it being cross examined, In any event, the employee failed to attend the hearing and waived his right to be heard or challenge the testimony against him. There are compelling reasons, to suggest that the hearsay evidence is in the interest of justice.
29. In Southern Sun Hotels (Pty) Ltd v SACCAWU and another  21 ILJ 1315 the Court held that the test with regard to the admissibility of hearsay evidence was whether it was in the interest of justice to admit such hearsay evidence.
30. In the present instance, the educator is charged with a serious allegation of having a sexual relationship with a learner, who subsequently took her life as a result of the relationship. Children have a Constitutional Right to be protected from maltreatment; neglect; abuse or degradation. See Section 28 (1) (d) of the Constitution of the Republic of South Africa. Moreover, Section 28 (2) provides that: a child’s best interests are of paramount importance in every matter concerning the child. I am bound by this Constitutional imperative, in view of the employer’s responsibility to provide education to children.
31. In Swiss South Africa (Pty) Ltd v Louw NO and others  lLJ 395 (LC) the Court held that depending on the circumstances of each particular case hearsay evidence may accordingly be admitted to the proceedings before the CCMA. Commissioners are nonetheless required to deal with the disputes with the minimum of legal formalities and with some flexibility as provided for in Section 138 of the LRA.
32. I am of the opinion that the present circumstance requires that I admit the hearsay evidence tendered by the employer, in view of the gravity of the misconduct.
33. In the absence of the deceased learner, the only testimony that the employer can rely on is the hearsay evidence along with the testimony of Ms. Mahlaba who corroborates the suspicion of a relationship between her late daughter, and Mr. Nhlapo. The circumstantial evidence that emanates from this is that Mr. Nhlapo fathered the child that the late learner bore and it only became known to others whilst she was on her death bed. It is nonetheless confirmed by the deceased learner in her conversation with Ms. Y. The only plausible inference is that Mr. Nhlapo had had a sexual relationship with the deceased learner which led to her pregnancy and subsequent death, when she found out that Mr. Nhlapo had had a girlfriend.
34. In Duncan Manufacturing v MEIBC and Others (2010) LC 131 the Court held that in assessing circumstantial evidence the arbitrator should always consider the cumulative effect of all the items of evidence before him/her. In assessing the inference to be drawn from the fact the Commissioner should look at the totality of the evidence and weigh it on a balance of probabilities. The inference must be drawn through a careful survey of the connection between the facts and their relationship to the offence alleged to have been committed by the employee.
35. The totality of the circumstantial evidence weighs against the applicant and are as follows:
The employee was in a sexual relationship with the deceased learner
The deceased learner’s suicide letter was addressed to the employee
The deceased mentions herself and Ms. Y’s relationships with two educators
The deceased learner’s mother testified that her child would refuse money as she was taken care of by the employee
The deceased learner was found to be pregnant on her death bed
The deceased learner’s pregnancy is mentioned in her suicide note
36. In the present instance, I am persuaded that the totality of circumstances weigh against the employee and in all probability the employee had made the deceased learner, pregnant.
37. For the reasons above, I find the applicant guilty of having a sexual relationship with the deceased learner.
38. In terms of Section 17 (1) of the EEA, an educator must be dismissed if he or she is found guilty of -
(c) having a sexual relationship with a learner of a school where he or she is employed
39. There is no discretion for the Arbitrator to consider any other alternative sanction, short of dismissal.
40. Therefore, dismissal is the statutory sanction.
41. The employee is found guilty of Charge 1.
42. Dismissal is an appropriate sanction.
Signed at Kimberley on this 02 day of March 2021
SHIRAZ MAHOMED OSMAN