Case Number: PSES283 -16/ 17 GP
Applicant: NAPTOSA obo V Knoetze
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Award Date: 3 March 2021
Arbitrator: Trevor Wilkes
Case Number: PSES283 -16/ 17 GP
Commissioner: Trevor Wilkes
Date of Award: 03 March 2021
In the MATTER between
NAPTOSA obo V Knoetze
Department of Education-Gauteng
Union/Applicant’s representative: Mr Pietersen
Respondent’s representative: Mr Ndhlovu
DETAILS OF HEARING AND REPRESENTATION
1. The matter was originally set down for Arbitration on 29 August 2018 at 9h00 at the Ekurhuleni South District Gauteng Department of Education, 2 Robin Close Avenue. Meyersdal.
2. The applicant was represented by Mr Pietersen a NAPTOSA official and Mr Ndhlovu a labour relations officer appeared for the respondent.
3. I explained that an adversarial approach would be taken because parties were represented by seasoned representatives.
4. Evidence in chief was explained, including documentary evidence as was the onus of proof and rights of cross examination.
5. There were a number of postponements for various reasons, but evidence was heard on 29 and 30 August 2018, 15 January 2019, and 17 July 2019. After a long pause the Council set the matter down for two days and on 3 February 2021 on which date the applicant closed his case, and the parties requested an opportunity to file closing argument by 15 February 2021 which was granted.
6. These arguments are in writing, on record and referred to where relevant but not repeated in the survey of evidence.
7. The proceedings were digitally recorded and were recorded on the Microsoft Teams platform.
8. The applicant had been appointed by the respondent on 2 January 2011. At the time of his dismissal, he was an educator at the Elspark Highschool.
9. He was dismissed on 22 July 2016 after a hearing for misconduct.
10. He sought retrospective reinstatement.
ISSUE TO BE DECIDED
11. I must decide whether the dismissal of the applicant was substantively fair and appropriate relief if any.
SURVEY AND EVALUATION OF EVIDENCE AND ARGUMENT
THE RESPONDENT’S CASE
12. Johanna Katharina Labuschagne laid the foundation for her evidence which was led as expert.
13. She had since retired but at the time had been in the employ of the respondent for 40 years, 15 of which involved crisis intervention as deputy chief education specialist in the ISS unit involving high risk acute phase learner incidents. During cross examination and on questions by the arbitrator, she expanded on this that she had taught in what had been the psychological unit, she had written a manual on sexual abuse in 1990 which she had revised twice, the last time in 2016, and another manual on abused children. She held a BA Degree and Higher and Further Diplomas in Education. She had experience in the criminal justice system for more than 10 years. But she conceded that she was not a psychologist. She continues to give papers locally, internationally and is frequently in the media. She had experience with all learners ranging in age from Grade RRR to Grade 12.
14. Her expertise was not challenged, and I have relied on it where relevant.
15. Her involvement was relevant to the first charge only. She had intervened when called upon by the principal of the Elsburg Highschool and had interviewed both principal and the involved learner’s mother on the first day. The principal had informed her that the child Reuben had ‘acted out’ in an incident involving alcohol and a sexual relationship had been alleged between Rueben and the applicant. Reuben’s mother gave her very little information.
16. 25 May 2015 she had then interviewed Reuben who at first was emotional and made very little disclosure and she offered to speak with him later if he elected to do so. At the time he had been in Grade 9 and 14 years old. Her view was that it was not uncommon for a juvenile to do so, because this type of scenario was not an incident but usually a series of events. After some time, she was called because Reuben was ready to speak to her. At this point she described it as a purposeful disclosure.
17. She referred to written authority which was not made available to me and raised the view that it was what she termed a textbook case. Whereas the alcohol incident involved Reuben being accidentally found out, it would involve a period of time for the child to disclose information in small doses to test the impact or threat to himself or the offender, whom they may at first want to protect due to the grooming process of the offender, before making a purposeful disclosure. In Reuben’s case he had taken some time to process this impact and begin the trust the interviewing officer or even the child’s own parent and in her view this ambivalence and piece meal disclosure should not be assessed as in the case of an adult.
18. Reuben had told her it had commenced during a cricket tour arranged by the school when Reuben was 14 years old and continued later on the school’s premises. She described the grooming process in which the applicant had initiated a conversational approach giving Reuben permission to be called by his first name, had asked if he played with himself before, had a boyfriend, and then offered to play these games with the applicant. This conduct would constitute an offence in terms of Section 19 of the Sexual Offences Act.
19. These conversations evolved into physical contact after the tour. She was told that there had been several instances.at various times and places and that it involved oral sex behind the curtains of the school hall and gym equipment room. There had also been sexual intercourse in the applicant’s car where Reuben had been specific as to where the car had been parked at the time because a patrol car had stopped to enquire if all was in order. He was told by the applicant to lie down on the floor and told the patrolling car he had wanted time alone.
20. On 18 September 2015 Reuben had told her that he had told some of his friends and also his mother who had thought it was a joke until Reuben showed her messages on his cell phone. This led to Reuben’s mother going to see the principal about the text messages. Later she had also been summoned by the principal after Reuben had been involved in an incident elating to alcohol being consumed at school where Reuben had told her that the applicant had threatened suicide if the case proceeded.
21. Specifically, in relation to the charge she stated that because of the grooming involving non-contact exploitative talk about sex, then incidents of oral sex which would amount to non-penetrative sexual assault and because there had been penetrative sexual intercourse which involved a minor, it would be rape. There had on the account given to her by Reuben been sufficient ground to charge the applicant not only with sexual assault but also rape.
22. In cross examination she said that she had not spoken to the applicant as it would contaminate her report. She stated that according to her perception Reuben had a good understanding of what sexual intercourse and the other incidents involved and that sexual orientation was in her experience not relevant. During cross examination she elaborated that in children, this conduct would have a long term impact involving anger guilt which she also observed at the time.
23. This witness was objective, frank, to the point, demonstrated a clear degree of expertise and I had no reason not to rely on her evidence or opinion for that reason. She stated that in her view Reuben had been truthful.
24. As a finder of fact an arbitrator does not defer to the view proposed on facts by an expert and rely on it in vacuo. I can rely on those expert elements which underpin the probabilities such as that the piecemeal disclosure, following an accidental initial disclosure and the balance of more purposeful disclosures over a period of time does not make the allegations of a juvenile who has been the victim of such conduct unlikely. Furthermore, her views on the facts do not as will be seen below conflict with my own having heard the tested evidence of Reuben himself as well as other circumstantial evidence.
25. Magdalena Maria Margaretha Mountjoy stated that Rueben was the youngest of her sons and that during 2014 he was a learner in grade 9 at the Elspark secondary school.
26. During that time, she had addressed him because he was spending a lot of time on his cellphone and he had told her that he was in an emotional relationship with the applicant. Because she originally did not believe this, he had shown her a WhatsApp message in which the applicant had written to Rueben that if this had to come out, he would lose his work.
27. Because she was unhappy about the emotional relationship which Reuben had told her about, she had raised a complaint with the principal.
28. She approached the school principal, and, in a meeting, which followed between the principal, herself, Rueben and the applicant as well as a Mrs. Loots. The applicant had denied that anything had happened.
29. Later on 22 May 2015 she had been called back to the school after an incident involving alcohol and Reuben where she was told that Reuben and had explained that the had been an actual relationship between himself and the applicant.
30. Arrangements were then made for Reuben to be interviewed. She had taken Rueben to a specialized clinic and at some point, also to receive antidepressant medication as a result of Reuben’s suicidal tendencies which had developed.
31. She did not know of the full extent of the actual relationship between Reuben and the applicant until the day before she was requested to testify and because she had become aware thereof, she stated that she did not feel that Reuben had been safe at school and that he had been abused by a person who had the power over Reuben to do so.
32. During cross-examination she denied that Reuben had suffered from any psychological problem before this incident of which the applicant was allegedly aware, because no such indication had been given to her by the school or by Reuben until after the alcohol incident.
33. I found this witness to be particularly objective. She made no effort to implicate the applicant unnecessarily and stayed within the limits of what was in her personal knowledge, notwithstanding the subject matter of which she had become aware.
34. Reuben Mountjoy, who was no longer a juvenile, testified in an open forum without the assistance of an intermediary, and was also cross examined directly, gave evidence that during 2014 he was 14 years old and in grade 9. At the time, the applicant was not a teacher of any subject of himself, although the applicant had taught him technology the year before during which time there had been no interaction between him and the applicant.
35. He described the initiation by the applicant of a social media conversation after he had made fun of another learner who had complained about this to the applicant.
36. He stated that the conversation continued and became more of a sexual nature and would include questions by the applicant as to whether he had played with his genitals.
37. And he described a conversation between his mother and himself when he had told her about the relationship with the applicant and shown her one of the messages on his cellphone from the applicant to the effect that the applicant would lose his work if the knowledge of this relationship should come out.
38. He did not disclose to his mother or anyone else the rest of the messages between himself and the applicant and that they were at the time of the arbitration, no longer available because the cell phone had been broken and replaced since. He had however told some of his closest friends early in 2015.
39. The result of showing his mother the message was that she had approached the school principal and after a meeting with the principal, he had told a Mrs. Loots that there had been an emotional relationship between the applicant and himself.
40. This he stated was his approach because he at that point was not ready to talk about it. But that since then he had realized that it was unacceptable conduct on the part of the applicant who should be prevented from doing it to someone else.
41. Although he was not aware of a warning letter issued to the applicant, he testified that at some point after the meeting between the principal and his mother the applicant had refrained from continuing with the conversations on social media with him.
42. He stated that he had not had any psychosocial issues at any point before. He became depressed as a result of what had happened between himself and the applicant during 2014 and that there had been no supportive intervention by the applicant nor had anything had been brought to the attention of the school or his parents in respect thereof.
43. In regard to the depression that developed after the occurrence of the events in 2014 he had been taken by his parents to a medical practitioner and had received prescription antidepressant drugs which had helped him.
44. I found this evidence to be a further indication that the relationship which the applicant had with Reuben had a serious impact on the Reuben which provides support for the inference that the relationship was not simply an emotional one.
45. Reuben gave specific evidence in regard to the first charge. He said that at some point he had met with the applicant and that they had oral sex on the netball field. In chief he gave testimony that the physical interaction which continued over a period of time between himself and the applicant included sexual intercourse.
46. During cross examination he expanded on the exact activities, stating that, there had been other incidents behind the curtains on the stage of the school hall during school hours and when the applicant had a free period. That at other times during the afternoon there had been sessions in a storeroom behind the athletics pavilion and a final session involving sexual intercourse in the applicant’s car somewhere in a field which was situated some distance away from his home and the school.
47. This incident had been interrupted by the community policing forum, where he had been instructed by the applicant to lie down on the floor and the applicant had told the patrol vehicle in question that he was alone, that he was fine and that he was just depressed.
48. He explained that there had been a delay in full disclosure of the exact extent of the relationship between himself and the applicant because he had not felt comfortable about speaking of it to anyone including his mother with whom otherwise, he had a very close relationship.
49. He described his relationship with his father as a normal father-son relationship but that his father would have been very angry with him had he realized what had occurred during 2014 and therefore he did not speak to his father about these things.
50. Also, during cross-examination, he conceded that when requested via the principal at the initial meetings for all of the social media text messages between himself and the applicant he had stated falsely that they had been deleted. He explained this because he felt unable at that point to make any further disclosure of what had occurred between himself and the applicant.
51. I found his evidence convincing. He readily conceded and explained the reason why he had initially partially disclosed the full extent of the relationship and .activities between himself and the applicant. This was borne out by the expert opinion of the witness called by the respondent.
52. Chizelle Nortman in respect of whom an intermediary and interpreter were arranged gave evidence using audio visual connection which could be observed by the parties, but she could not see the applicant. She gave evidence that she had been a learner at the high school Elspark during 2015 in her grade 8 where the applicant had been her technology teacher.
53. She stated that she had been passed on a WhatsApp text on her cellphone from another learner Enrique Ferreira who had informed her that the content of the message were the questions to expect in the paper according to the applicant.
54. She referred to a document in the respondent’s bundle and identified it as an extract from the WhatsApp message sent to her a few days before the technology exam by Ferreira.
55. During her evidence she compared this document to the questions contained in the question paper of the exam which followed.
56. As a result, her evidence was that she had been pleasantly surprised to see questions which came up in the exam.
57. She was taken through the question paper and stated why she could identify the correlation between what had been sent to her in the message and what was asked in the question paper and her evidence in this regard was that it is almost exactly the same because questions related to such things as nuclear power stations, coal power stations, wind turbines and in particular a question around the sketch plan of the playground which the learners had been required to draft.
58. During cross-examination to her, that the applicant had not sent a text message but had merely provided learners with a scope of what was required to be covered in the material in order to prepare for the exam, her response was that a scope would not contain specific questions but would refer to specific sections or chapters of a textbook by page number and learners were told to study that material. In this regard she stated that usually she did not recognize questions from what was given to the learners during such scope lessons which were not question specific.
59. She conceded that the applicant had not leaked a question paper to her personally.
60. In regard to the source of the text message she stated that the boy who sent a text message to her could not have known what was in the paper unless he was made aware of it.
61. For this reason, she deducted that the message must have come from the applicant as indicated to her by Ferreira. In this regard she conceded that Ferreira could have but probably did not forward to her what he had received from the source of the text message. She also conceded on this point that there was a possibility that Ferreira might have changed the message to some extent. She readily admitted that she had herself forwarded the message to other learners.
62. When cross-examined she elaborated on her evidence that the content of the text message also directed them as learners to the textbook very specifically where they would find the answer easily.
63. In this regard she readily conceded that there was at least one question where the answer appeared to be wrong.
64. She conceded that the document handed in by the respondent was not in exactly the same format that she had seen although the content correlated.
65. When it was put to her that the applicant had written a scope on the chalkboard for learners to copy down, she stated that she did not recall this.
66. I found this witness to be completely honest. She was objective and willing to concede in favour of the applicant when the correlation between the SMS and the question paper in her view was not exactly the same.
67. Nomasonto Malope stated that she was employed by Gauteng Department of Education as Senior Education Specialist for technology grades 7 to 9. Her role was a supportive one to teachers. Part of this role was to set question papers and the correlating memorandum for teachers to mark them.
68. She was referred to the bundle and stated that it included the relevant exam paper and memorandum.
69. The paper in question was collected by the principal 2 or 3 days before the exam. He is then responsible to make sufficient copies and remains responsible to keep it confidential between himself and the person delegated when copies are made.
70. She was referred to the WhatsApp message and confirmed that the correlations were striking and supported her evidence that the answers were leaked based on the content of the WhatsApp message.
71. She was taken through the paper and stated that, but for a slight variation in on sequence, the paper was probably leaked. Her evidence was that the second question required the learner to write a problem statement. Another question requiring that leaners list components and draw a sketch was very specific. Already in order for a learner to be able to anticipate a question they would have to go through an entire chapter and cover all topics to be able to answer each question which in her view would be impossible. She said there were therefore indications that the answers had been given to the learners and a teacher could not anticipate a question not set by themselves but the Gauteng Department of Education unless they arose from previous papers.
72. She pointed out that whereas a scope given by a teacher entailed informing students of the weight attached to various topics of the syllabus and which chapters to study. It is different to a memorandum of the paper designed to specifically provide a standard answer to the teacher who has to mark papers. She stated that the text message was not a scope but carried indications that the source of the message had seen the paper.
73. The witness was an objective one, her answers were frank, and I have accepted her evidence.
THE APPLICANT’S CASE
74. The applicant Vincent Knoetze stated that he was employed by the respondent as educator since 2011 and that he was at the Elspark high school until his dismissal. He held a university degree by way of a bursary and was skilled to teach mathematics, science, and technology and that had taught these subjects at Elspark.
75. He was a coach for Rugby, Cricket and cross-country and was also involved in cultural activities.
76. He stated that initially he had had difficulties with disciplining school pupils because he was 22 years old but had since gained experience and had very good control of his pupils with very few problems.
77. He stated that he had an open door policy and was supportive when pupils had approached him for support because there had been some difficulties at school with suicide etc.
78. In regard to allegation one he denied the allegations of Reuben. He stated that Reuben had an ulterior motive to exaggerate his evidence. He said that he had only an innocent supportive texting teacher learner relationship with Reuben, but Rueben had had a different motive and became angry when Reuben’s romantic advance on the applicant was rejected or was motivated by an attempt to blame shift for Rueben’s role in ‘poisoning’ another female learner.
79. He said that he had known Reuben and his other brothers because he had at some stage taught all three of them. He stated that Reuben was the youngest and had a bad attitude towards teachers. He was inclined to stay on his cell phone and keep a distance to avoid arguments.
80. He had taught Reuben technology in grade 8 but had never interacted with him until after Ruben had encountered problems with another learner called Rowan.
81. He stated that he had interacted with Rowan when Rowan, after he had arrived late for a sports practice, had been required to change on the field where the applicant noticed that he had cuts on his arms. The applicant had decided to intervene by taking Rowan for a long walk during which Rowan had disclosed to him that there were personal difficulties, not at home but more personally. After Rowan had disclosed that he was having difficulty with sexual orientation he had referred Rowan to the school psychologist which had met with success because Rowan had brought to him a box full of blades & cigarettes and stated that he was wanting to change his life.
82. Later during a cricket tour Rowan had approached him. He was very upset stating that Reuben had threatened to tell the whole school that he and had been in a relationship with Reuben. He therefore decided to contact Reuben whom he began to speak with from that point. This conversation which took place on WhatsApp culminated in a conversation where he was speaking about taking their relationship to a new level which the applicant explained meant to begin dating.
83. It is this message which he explained was seen by Reuben’s mother and shown to him in the principal's office.
84. In regard to the second charge, the applicant stated that while he was absent due to medical unfitness during November 2015 he was called back to school by the principal and instructed to collect the paper and memorandum. This he did at which point he was asked about the content of the paper by the principal in a manner which he described arrogant and mocking.
85. No clear indication was given, and the implication of the applicant’s evidence was that this took place after the exam.
86. Upon his return from sick leave, he was informed that he had leaked the paper.
87. He knew Ferreira and his girlfriend Nortman and had taught both technology in 2015. He said that he had sent Ferreira a text message giving him the scope of the exam referring to structures and trusses and drafting.
88. He said he did not know the contents of the paper because he had been absent at the time. He only knew the curriculum.
89. His evidence was that he had completed the curriculum because there were progress markers involving tasks required from the leaners which had been achieved. In addition there had been time to do revision.
ANALYSIS OF EVIDENCE AND ARGUMENT
90. Sexual assault of learner during 2014 complainant was Reuben Montjoy in terms of section 18 (1) (I) of the Employment of Educators Act, 76 of 1998 as amended.
WAS THE RULE BREACHED
91. Because of the material impact on Mr Knoetze and his career as well as the learner and future learners, I have taken much trouble to assess the evidence carefully, fully, and sensitively to the witnesses. One whose career being seriously affected and the other being a child whose rights are paramount and whose evidence must be evaluated with specialized attention to his status at the time of the incident as a child witness.
92. I have considered the applicant’s admission that the applicant had conversations on WhatsApp or otherwise with more than one juvenile boy and involving their sexuality and related intimacy issues.
93. Specific messages were referred to in evidence. The evidence of Mrs Mountjoy was that they messages indicated that the applicant had indulged in an emotional relationship with Reuben.
94. I was not given the benefit of the content of the message in question itself. Neither was the date of the message canvassed. Given the evidence of Reuben on the date the message was discovered, a sexual relationship had already occurred.
95. A warning letter was also in the bundle stating this.
96. The applicant in chief put it in a very different light. He stated that his role toward Reuben had been supportive and when Rueben had asked to take it to a new level, he had told Reuben no. Reuben’s mother was cross examined and asked if she saw the history of the messages and she conceded that she did not.
97. The applicant told the arbitrator that he showed to Reuben’s mother that it was Reuben who asked for a relationship.
98. He admitted in his own evidence that there was a second message in which he had told Rueben he could go to prison if ‘This comes out’. It follows that he understood the seriousness. It would have been the simplest solution at the time for the applicant who was part of the same conversation to show the full conversation which is likely to have been on his own cell phone to clear the situation up but rather agreed to sign a written warning.
99. I find it difficult to understand why something like that would be said, even if it were said by Reuben to the applicant, without some sort of context and the applicant has not provided an adequate context for a conversation like that to have been taking place at all between teacher and 14-year-old child.
100. This is an unsettling element in the evidence of the applicant himself. While it is understandable that a schoolteacher should be available to give guidance and counselling it does not appear to me to be appropriate for these kinds of guidance and counselling sessions to escalate to the level where relationships with one another are being discussed.
101. The applicant was aware of the services of a school employed counsellor because he had referred Rowan to the school psychological counsellor and has not explained why he did not do the same in the case of Reuben. His indication that he told someone called Helene appears to be an afterthought. Had Reuben not told his mother it may never have surfaced.
102. Rather his evidence appears to be an attempt to explain the objective evidence given by Reuben’s mother who had seen the WhatsApp message.
103. The only objectively clear indication at that stage was that there had been a threat to the applicant’s employment. That has not been challenged by the applicant. It follows that it is clear that the applicant even at that stage had already in his conversation overstepped the mark of teacher pupil relationship.
104. In this regard, the applicant also testified that Rueben’s mother had been advised to go to the SAPS. This is a further indication that what had been discovered was more serious than the applicant has testified and provides support for Reuben’s account.
105. Also the conversation with Rueben is likely to have been extensive given that as the applicant admits that Rueben had asked to ‘take the relationship to the next level’.
106. More importantly it is supported by the expert evidence given to me by Mrs Labuschagne, that the applicant had indulged in a process of grooming Reuben.
107. In this regard the applicant admitted it in a question directly put by the arbitrator that he had similar conversations with more than one boy.
108. His version continued that after the conversation with Mrs Loots, she had indicated that Reuben’s story had coincided with his during the meeting in the principal’s office.
109. The applicant’s representative’s argument that there is a contradiction in the respondent’s case because Loots arrived at a different conclusion does not hold water because Loots did not testify, nor has any basis been laid for Loots view to be taken into account. The only “expert whose opinion is before me and in respect of whom a basis has been laid is Mrs. Labuschagne and her evidence was very convincing.
110. Moreover, the evidence of Mrs. Mountjoy had been that Mrs. Loots had later said there had been more than an emotional relationship between the applicant and Reuben.
111. The applicant’s bundle contains a letter from Mrs. Loots containing the statement that ‘Vandag 30 Oktober 2014 was daar ‘n incident met Reuben waarin drankmisbruik ter sprake is. Die seun het egter genoem hy will selfmoord pleeg as gevolg van die “seksuele verhouding” wat he met Mnr. Knoetze gehad het’.
112. It follows that according to the disclosure of Reuben to Mrs. Loots a short period after the warning letter there was not merely an emotional relationship in question.
113. The crux of this matter is that the evidence of the applicant and Reuben are mutually exclusive in regard to the nature fo the relationship.
114. The overriding consideration is that the evidence of the child is to be considered completely differently from the evidence of an adult. See the article by Nicci Whitear -Nel published in the Journal of Psychology in Africa Vol 919 (2009) “South African Law of Evidence as it Applies to the Child Witness: A Critical Evaluation”. https://doi.org/10.1080/14330237.2009.10820260.
115. Because the psychosocial emotional and intellectual development of a child is a process towards maturity as an adult. In this context I was not at all persuaded that Reuben’s evidence should be rejected and in particular the disclosures that he made as a child to the various role players at the time of the evidence.
116. The overall impression of the applicant's version in regard to the first charge is not convincing particularly seen in the light of the evidence which confronted him.
117. One very significant aspect considered was the motive of Rueben to falsely implicate the applicant. His evidence was that Reuben was blame shifting to avoid having ‘poisoned’ girl at school. There is no evidence of poison but only alcohol. Moreover, it is highly unlikely that the applicant would be singled out of several teachers to shift the blame to for this reason.
118. The other motive he suggested was that Reuben had reacted in this manner because the applicant did not agree to begin to date Reuben.
119. I find it highly unlikely that Rueben would go to this extent to harm the applicant if as the applicant has said his role had been supportive, merely innocent counselling and guidance as teacher to pupil.
120. The manner in which Reuben made disclosure indeed conforms in every way to the ‘textbook’ case described by Mrs Labuschagne. Partially at first when discovered accidentally in the alcohol incident and then more purposefully later when the child had an opportunity to evaluate the impact on himself and the applicant.
121. As indicated earlier, I found the demeanour of Reuben when he testified utterly convincing. It had a ring of truth to it. In particular the evidence around why he had not shown other sexting messages when he was asked about it in the meeting between his mother the applicant and the principal. This is once again consistent with the expert view that there had been a partial disclosure.
122. I was completed persuaded by the respondent’s evidence which I find has been supported by the unconvincing manner in which the applicant testified that the applicant had indulged in a full intimate and very sexual relationship with Rueben when Rueben was 14 years old.
123. I find it far more likely as has been explained by the first witness called by the respondent who is an expert with considerable experience that Rubens belated disclosure of the full interaction between the applicant and Reuben involved more than an emotional relationship, but it also extended to a sexual one.
124. On the basis of the evaluation of evidence as outlined above, I find that the respondent has established that there had been a sexual assault of Reuben Mountjoy a learner during 2014 by the applicant. The respondent has discharged the onus of proving breach of the rule.
125. The applicant when the issues were narrowed placed the appropriateness of the sanction in dispute.
126. I have applied the approach which has become the norm regarding a consideration of sanction at arbitration laid down in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (CCT 85/06)  ZACC 22;  12 BLLR 1097 (CC).
1. ‘In approaching the dismissal dispute impartially, a commissioner will consider the totality of circumstances. He or she will necessarily consider the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must consider the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.
2. To sum up. In terms of the LRA, a commissioner must determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.’
127. The evidence which I have accepted has shown not only a sexual assault by conduct by far more serious. The mitigating circumstances of the applicant notwithstanding, the respondent’s operational response by dismissing an educator for this conduct is by all standards a completely reasonable one.
128. Prejudicing Administration of Dept Basic Education by leaking Grade 8 Technology paper to Henrique Ferreira 16 to 23 November 2015 in terms of section 17 (1) (D) of the employment of educators act 76 of 1998 as amended.’
BREACH OF THE RULE
129. It was not successfully challenged by the applicant that the information received by Nortman from Ferreira bore a striking correlation to the eventual questions and answers of the exam which forms the subject matter of this arbitration.
130. Rather the evidence of Miss Mazibuko, the author of the paper, renders it more than likely that the source of the text to Nortman was privy to information which goes far beyond the scope which was permissibly given to students in the classroom.
131. It follows that it is likely that the source of these messages had a prior knowledge of the information.
132. The only objective circumstance connecting the applicant is his admission that he had sent two messages to Ferreira and that Ferreira a learner is not likely himself to have had access to the paper in advance.
133. The respondent has not rebutted the evidence of the applicant that he was absent in the relevant period. He had no onus to produce the medical certificate which was in possession of the respondent who could very easily have cleared this up. During cross examination he had been quite persuasive that he could make it available although it never surfaced.
134. The timing of the receipt of the text message was not clear and of greater concern to me was that the document handed in by the respondent purporting to be the content of the text message was not in the form of an original WhatsApp message but a typed document undated containing no indications of whether it had been sent by WhatsApp from whom and to whom.
135. I have accepted the evidence of Nortman who said she had received such a text from her boyfriend who according to her said it emanated from the applicant at some stage prior to the exam.
136. However, from the evidence before me, there is no direct evidence that the applicant had sent this text message in that form to Ferreira except for the word of Nortman whose evidence was hearsay, making it essential for the respondent to call Ferreira or at the very least hand in his statement with an application in terms of Section 3 of the Law of Evidence Amendment Act 45 of 1988. An inference can be drawn that the obvious witness, Ferreira’s evidence would not support the respondent.
137. It was never challenged that the applicant's responsibility before an exam was to provide all of the learners with what is called a breakdown of the syllabus or curriculum prior to the exam and all indications are that the applicant had done so.
138. The respondent is not provided any further documentation and no onus rests on the applicant to produce the content of the text message that he sent to Nortman which according to the applicant contained only a repetition of the scope or breakdown given to all other learners.
139. Therefore, there is no direct causal nexus between the applicant and this document.
140. It was common cause that the applicant did not draw the exam paper in question but that it had been drawn by the district of the respondent responsible to do so.
141. This exam paper was delivered to the school via the principal who had delegated the responsibility to heads of department to make copies of the paper and to keep them safe three days prior to the exam.
142. There was no evidence that the paper was made available to the applicant at any point before the exam and it was not challenged when the applicant stated he had not handled the exam paper in question.
143. The poor relationship between the applicant and the principal was not sufficiently canvassed by the applicant’s representative when the witnesses for the respondent was called but they did not include the principal and it is not entirely unlikely that the applicant might have informed his representative of this. I was therefore not convinced by the argument of the respondent that the applicant was tailoring his defense in this regard.
144. I accept that a teacher may have a motive to ensure good results if he entertained doubts that he had conveyed the full content of the syllabus to his class. But the respondent also did not persuasively rebut the applicant’s evidence that he had competed the syllabus. Nortman’s evidence was too remote that he had not always optimized the teaching time available and she conceded that she had no personal knowledge of the timing and content of the syllabus at the time.
145. The difficulty with the case is that the respondent did not challenge the exact dates that the applicant was booked off and whether therefore he had access to the paper at some point between when it had been brought to the school by the principal and the exam. The opportunity for the applicant to see and distribute information in relation to the exam beforehand has therefore not been established.
146. I was not persuaded that the respondent has established that the applicant leaked the Grade 8 Technology paper to Henrique Ferreira on 23 November 2015.
147. The consideration of a sanction becomes academic. It follows that the dismissal for this rule seen by itself might have been substantively unfair. However, this outcome is overshadowed by the sanction in respect to the first charge.
RECOMMENDATION IN RESPECT OF THE FIRST RULE
148. Unfortunately, based on the facts which have been presented and I have accepted, more particularly that of the expert Mrs Labuschagne, Mrs Mountjoy and Reuben, I am obliged to recommend that the future conduct of the applicant may require specific attention. In response to a question by the arbitrator and therefore on his own evidence, the applicant had taken the cell phone numbers of more than one boy whom he stated, had personal issues including some involving sexuality, in circumstances where he was not performing the role of psychologist or counsellor officially.
149. According to expert opinion this type of conduct of finding and befriending vulnerable boys, and then engaging in a protracted dialogue may amount to what has been explained to me as grooming until the relationship becomes overtly sexual.
150. All of these elements have been proved.
151. See Journal of Child Sexual Abuse, 19:371–386, 2010, Copyright © Taylor & Francis Group, LLC, ISSN: 1053-8712 print/1547-0679 online, DOI: 10.1080/10538712.2010.495047.
PROCEDRIAL FARINESS DOUBLE JEOPARDY
152. The applicant argued that he had been charged twice for the same or similar incident of misconduct which he submitted was an infraction of the principle of double jeopardy.
153. He relied in this regard thereon that the written warning which was issued to Mr Knoetze by the previous Principal of Hoërskool Elspark which was valid for six months.
154. He has himself correctly conceded that a second disciplinary process might be justified if the employer is able to present:
a. New, significant and relevant evidence that renders the initial decision unfair to the employer or
b. Evidence that the initial penalty was grossly irrational in the light of the evidence produced and or that the presiding officer did not apply his mind, which is clearly not the case in this instance.
155. The warning issued to the applicant during 2014 was limited to the partial disclosure by Reuben and therefore related only to communication on social media involving an emotional relationship between learner and educator. The disciplinary enquiry which followed after a full disclosure by the learner at a later stage cannot amount to double jeopardy because it involved sexual assault.
156. The further disclosures of Reuben and the consequent charges went well beyond those which formed the basis of the written warning initially issued to the applicant.
157. There has been no double jeopardy.
158. The dismissal of the applicant was substantively and procedurally fair.
159. If it has not yet been done the Council is requested to ensure that the award be brought to the attention of the relevant authority who, after the input from the applicant may update any relevant records kept.