ELRC248-20/21GP
Award  Date:
4 March 2021
Case Number: ELRC248-20/21GP
Province: Gauteng
Applicant: M MOHOJE
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Education District offices in Sedibeng West
Award Date: 4 March 2021
Arbitrator: Monde Boyce
Case No ELRC248-20/21GP

In the matter between

GAUTENG DEPT OF EDUCATION EMPLOYER

and

M MOHOJE EMPLOYEE

________________________________________________________

ARBITRATOR: Monde Boyce

HEARD: 28 & 29 January 2021

CLOSING ARGUMENTS: 04 February 2021

DATE OF AWARD: 04 March 2021

____________________________________________________________________________________
AWARD
____________________________________________________________________________________

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:
[1] This matter was initially set down on 11 December 2020 at the Gauteng Department of Education District offices in Sedibeng West and was scheduled in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA). The hearing was however not concluded and proceeded on 28 and 29 January 2021. Mr Mokoena appeared for the employee while Mr Tsebe appeared for the employer. Parties made written closing arguments and I received closing arguments from the parties by the agreed date.

[2] Both parties submitted bundles of documents and the proceedings were digitally recorded and typed notes taken. To the extent that all learners who gave evidence during the hearing were over the age of eighteen years, I did not deem it necessary not to disclose their identities.

THE ISSUE TO BE DECIDED:
[3] I am required to decide whether the employee is guilty of the charges preferred against him by the department and to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:
[4] The applicant is currently employed as the educator at ED Mashabane Secondary School under Sedibeng West District. Three charges were preferred against him with the First harge being that of: (1) Sexually assaulting a learner, Miss Palesa Febana, (2) Conducting himself in an improper, disgraceful and unacceptable manner by being involved in relationship with Miss Palesa Febana and, (3) Conducting himself in an improper, disgraceful and unacceptable manner towards Miss Dimpho Ntsane, by asking her if she was a virgin, what type of panties she wore and if she had small or big breasts. The employee pleaded not guilty to the three charges and evidence was therefore led in respect of all the charges. The employer called four witnesses while the employee did not call a witness.

SURVEY OF EVIDENCE AND ARGUMENT:
Employer’s Evidence

[5] The First witness called by the employer was Miss Palesa Febana. She testified that she was a learner at ED Mashabane Secondary School. She knows the employee and that the employee is an educator at her school. She first knew him when she started attending school at the abovementioned school but got to know him closely when doing Grade 09 in 2018. By stating that she came to know him closely, she meant that the employee made her his favorite. Most leaners were afraid of the employee but was he (employee) was very friendly towards her and would call her to his office and joke with her.

[6] The employee, as per charge one, sexually assaulted her. Sometime in 2018 the employee had sent another learner to call her to his office. On arrival at the employee’s office, she found him sitting down at his desk. On seeing her, he stood up and walked to the door, checked if there were any other learners outside the office door, and locked the door. After having locked the door, he started kissing her and started undressing her, touching her breasts and her private parts. It was only the two of them in the office. He would send different learners to call her to his office. During that time, her relationship with the employee was fine.

[7] Between 2018 and 2019 she had an intimate relationship with the employee and the employee had told her that he loved her and wanted to be in a relationship with her. She initially did not think much of that until the employee kissed her in his office and started buying her lunch, calling her frequently and sending her messages. Page 20 and 21 of the employer’s bundle contains messages that she exchanged with the employee. In one of the messages the employee referred to her as “Babes”. This was not normal because the employee was her teacher and was not supposed to refer to her as “babes”. The text conversation between her and the employee took place during the night and in the morning on 23 June. It is not normal for a teacher to tell a learner that he misses her. The employee would assist her with assignments and classwork. Lebohang Kulukutu, Relebohile Nyambose and Skhalo Mohapi knew about the relationship between her and the employee. Skhalo was her boyfriend and the other two learners, Relebohile and Lebohang were her friends. She currently has a complicated relationship with her boyfriend Skhalo, and this happened after he (Skhalo) became aware of her relationship with the employee.

[8] Lebohang was aware of the lunch the employee used to buy for her and, after the employee had given her lunch money, she would eat her lunch with Lebohang. Relebohile came to know about her relationship with the employee after she (Relebohile) had inquired about the number of learners who always were always sent to call her to the employee’s office, and she had then told her about the relationship. Her mother, Gloria Febana also knew about the relationship. She (mother) initially did not know about the relationship but later found out when her boyfriend, Skhalo, managed to track her messages on his phone and found messages exchanges between her and the employee. Skhalo then told her mother who in turn confronted her. She ended up telling her mother about the relationship.

[9] She had expected the employee, as an adult, to show her the way but he instead kissed her and took naked pictures of her. And this did not sit well with her, and the relationship led to her losing focus. She has since developed anger issues and easily got angry to the point of beating other learners for no reason. She at one stage beat Relebohile Nyambose who got injured, and this incident was reported to the school. She did not display this behaviour before her relationship with the employee. Her performance at school has since dropped.

[10] The second witness, Miss Gloria Febana, testified that Miss Palesa Febana is her daughter. She had discovered text messages exchange between her daughter and the employee. Palesa had told her that she no longer wanted to go to school and when she asked her why, she told her that there was a teacher who was touching her breasts and her body and that he was forcing her to kiss him. She had asked her if she had reported the incident to the school and her answer was in the negative. She (Gloria) decided to report the incident to the school. Palesa had also told her that the employee had asked for her naked pictures. There was a time when she was called whilst at work and informed that Palesa had drank poison. She went to the school and on arrival, found Palesa having been placed in an isolation room. She was not aware of the relationship between her daughter and the employee before seeing the smses . The incident had negatively affected her daughter who has a tendency of beating other children and displaying signs of depression. She would like her daughter to receive counselling.

[11] Miss Dimpho Ntsane was called as the employer’s third witness. She testified that she attends school at ED Mashabane Secondary School. She knows the employee and that the employee had taught her Mathematics in Grade 9. She had given a statement about what the employee did to her as shown on page 14 of the bundle. In 2018 the employee would often send her to his office to fetch something. The employee had asked her if she tells her mother everything, and she had responded that she did not. The employee further asked her if she had a boyfriend and if she was a virgin, and she had responded that she had a boyfriend was a virgin. The employee then further asked the type of panties she was wearing and had asked about the size of her breasts. The incident happened while she was in the employee’s office and happened on two occasions. She did not feel right and was scared. When the employee was asking her the questions, he was touching her on her buttocks and attempted to undress her. She had run out of the office of the employee and had then told Thato and Seakale Mthombeni about the incident. She was crying and shaking and was hurt by the incident. During cross questioning and on being asked about why she took long to report the incidents, she responded that she was afraid because the employee had threatened to kill her.

[12] The fourth witness, Miss Thato Mfene, testified that between 2018 and 2019 she was a learner at ED Mashabane Secondary School. She knows the employee and also knows the employee as being commonly called Butiki. Other learners also know the employee as Butiki. She did have a frosty relationship with the employee because he wanted to have a relationship with her friend Inocentia (commonly referred to as Ino) and she was against that. She knows Dimpho Ntsane and they were friends in 2014. She was in class when Dimpho sent somebody else to call her. When she went to Dimpho, she found her at the steps and Dimpho told her about being sexually harassed by the employee. She told her that the employee had asked her about the type of panties she was wearing and had asked her to wear a skirt because she had beautiful legs. She had told Dimpho to report the incident. Dimpho did report the incident and had initially told her that she had reported the incident to Miss Mayike. She however later found out that Dimpho did not report the incident and she decided to report the incident to Mr Sam Mokoena.

[13] She knows Palesa Febana and was aware of the relationship between Palesa and the employee. She initially did not know until she saw the text messages exchange between the employee and Palesa and that the employee would buy Palesa lunch. She was aware of the visits by Palesa to the employee’s office and most learners knew about the visits. She suspected that there was something untoward that the employee was doing with Palesa because the door in his office would be locked every time Palesa visited the employee’s office.

Employee’s Evidence
[14] The employee, Mr Brian Mohao Mohoje, testified that in respect of allegation No.1, he, as an educator, went beyond his job description to help learners with their studies. Miss Palesa Febana was one of the learners he assisted and became close to when he had assisted her with challenges she had at home. He never kissed Miss Palesa Febana as alleged since he, for the longest of time, been sensitive to kissing because of the false teeth. He avoids kissing because of the false teeth. He also has an open door policy and colleagues would bring learners to his office for discipline and there was no way he could have locked himself with the learner, Miss Palesa Febana in his office without anybody noticing that. The wooden door to his office does not lock. He denied that he touched or kissed Miss Palesa Febana on her body and private parts. He has children of his own and would not have done what he is alleged to have done. Educators are warned when they assume their positions not to have any intimate relationships with learners.

[15] Regarding allegation No.2, he denied having conducted himself in any ungraceful manner as alleged and did not have any love relationship with Miss Palesa Febana. When he met her the first time, she appeared like a neglected child and her uniform was a bit untidy. He had started interviewing her to understand what her problem was and because of her situation, tried to assist her. It may have appeared that he had a relationship with her but that was not the case. He disputed that he had a relationship with Miss Palesa Febana as she alleged. That she bought her lunch maybe partially correct because there were instances where he gave her left over lunch but had never given her money. He believed that while Miss Febana may have told her friend about her buying her food, she may merely have done that to show off or boast to her friends. He is one of the most feared educators at the school and even fellow educators would approach him for assistance with issues of discipline.

[16] Regarding the allegations made by Miss Dimpho Ntsane,he denied having asked her if she was a virgin. Miss Ntsane came to report that another male learner had touched her bum. He admitted to having asked what size she was and had also asked her why boys developed a tendency of touching her bums. He did not ask what size her panties were. He did ask what was special about her and why boys were constantly touching her bums. While he had asked her what size she was, he did not refer to the size of her breasts but had just merely asked her what size she was after she had reported the incident of Boys touching her bum. While he believed it may have been a bit improper for him to ask about what size she was, that was not meant in any malicious way, and he had soon after discussed the incident with one of her colleagues, Miss Mayiko. It is not permissible for an educator to ask learners about their virginity and their sexuality. Regarding the messages contained on page 20 and 21, the first time he saw the sms exchange was when the copy of such messages was given to him by the employer representative, Mr Tsebe.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[17] Section 138(7) of the LRA provides that: “A commissioner must, within 14 days of the conclusion of the arbitration proceedings-

(a) the commissioner must issue an arbitration award with brief reasons, signed by that commissioner.

In that regard I do not intend repeating evidence led in my analysis, save for focusing on salient points that would explain the reason for the decision I arrive at. The charges preferred against the employee emanated from alleged inappropriate and disgraceful conduct on his part involving learners at his school. In respect of charges No.1 and 2, it is my finding that the employee is, on a balance of probabilities, guilty of these charges. Miss Febana described her relationship with the employee and what would happen when she visited his office. While the employee disputed that anything untoward happened between him and Miss Febana, and while he denied having any love relationship with Miss Febana, evidence presented points to his possible having been engaged in a relationship that is more than that he led me to believe he had with this learner.

[18] Firstly, evidence that Miss Febana frequently visited the employee’s office was confirmed by Miss Febana herself and Miss Thato Mfene. The employee did not deny that Miss Febana visited his office. Secondly, the evidence of both Miss Febana and Mfene was that the employee bought Miss Febana lunch and gave her money for lunch. The employee’s version in this regard differed insofar as his version was that he shared his lunch with the concerned learner. Thirdly, Miss Febana testified that the employee treated her differently from other learners and that she was his favorite. The employee did not so much deny this version but explained that his closeness to Miss Febana was because he was assisting her with what he believed to be problems at her home and what appeared to be a problematic relationship between Miss Febana and her mother. Fourthly, supporting her claim that there was a love relationship between the employee and Miss Febana, reference was made to sms text messages between the employee and Miss Febana. While the employee denied that the text messages may have been from him, the evidence of both Miss Febana and Miss Mfene points to the employee having engaged in the sms conversation. The person Miss Febana chatted with was “Butiki”. The learners who testified confirmed knowing the employee as Butiki and the employee himself did not deny that he also went by the name “Butiki”. It was therefore, in my view, no coincidence that the person Miss Febana was chatting to was Butiki, the very employee charged of having sexually abused her and of having a love relationship with.

[19] Furthermore, it appears that the learner, Miss Febana had no intention of telling her mother about the relationship and that she only did so when her boyfriend, on discovering the messages, phoned and called her (Palesa) mother. The reaction of Miss Febana’s mother, Gloria, was to confront Miss Febana who admitted to having a relationship with the employee. Miss Febana reported the employee to the school soon after she became aware of it. In my considered view, the chain of events that led to Miss Febana’s mother finding out about the relationship and reporting the employee at the school and the manner the whole thing unfolded strongly points to the likelihood that the employee had a relationship with the employee as alleged. It does not appear that Miss Febana intended falsely implicating the employee. Miss Febana had no reason to falsely implicate the employee. There was no history of animosity between her and the employee before their engaging in a love relationship, and before the relationship was discovered through the text messages exchanged between Miss Febana and the employee.

[20] A question arises as to why Miss Febana would tell a lie that she had a relationship with the employee. The employee did not provide a plausible explanation for why it would b said that he had sexually abused Miss Febana and that he had a love relationship with her. I do not believe that Miss Febana was the only learner who may have had problems at home necessitating his (employee) intervention. Miss Febana was the only learne, as far as evidence goes, he had a close relationship with. She was the only learner, according to evidence led, she shared lunch with. There were no other learners the employee had text conversations with and in the manner he did, and it was not his evidence that he shared his lunch with any of the other learners. That Miss Febana brought up the claims against the employee because he had refused to share lunch with her does not hold water. Also, Miss Gloria Febana, the learner’s mother, in my view, had no reason to lie or to falsely implicate the employee. She did not know the employer, and even if she did, there appeared to be no history of animosity between her and the employee prior to Miss Gloria Febana reporting the inappropriate relationship between her daughter and the employee. In any event, any parent reading the sums exchange as shown on pages 20 and 21 of the employer’s bundle would conclude that there was indeed inappropriateness in the manner the employee conducted himself.

[21] Regarding charge No.3 it is again my finding that the applicant is guilty of this charge. I do not find the claims by Miss Ntsane, as far as evidence goes, to be farfetched. It does appear that the employee sexually harassed the learner. A clear indication pointing to this conclusion not being misplaced is the employee’s own admission that he did ask the learner what size she was. I am not persuaded by the explanation the employee gave for what gave rise to this inappropriate remark. According to the employee, he made this remark when the learner came to his office to report male learners who were touching her bum, and he had then asked what size she was. By his own admission, the employee accepted that the remark may have been inappropriate.

[22] My conclusion after having considered Miss Ntsane’s evidence is that the employee did engage in the inappropriate conduct as alleged. Reference was made by both Mss Ntsane and the employee to the remark about size, with the employee’s version being that he asked Miss Ntsane what size she was, and Miss Ntsane’s version being that the employee had asked about the size of her bra and whether she had small or big breasts. Having heard evidence, it is my finding that high likelihood exists that the employee indeed touched Miss Ntsane’s breasts and bum while asking her questions of a sexual nature. The employee battled to explain the context that the question he asked about what size she arose. It is my finding that the employee, contrary to the explanation he sought to give on why he made the remarks, possible was asking about the size of Miss Ntsane’s breasts as alleged.

[23] Evidence by Miss Ntsane was that she told Miss Thato Mfene about what the employee did to her. While I had to treat Miss Mfene’s evidence with caution, given that from the very onset during her evidence in chief, she did not mince her words about her frosty relationship with the employee after he (employee) tried to have a relationship with her friend, Innocentia who she commonly referred to as Ino, I found her version to have corroborated that of Miss Ntsane insofar as Miss Ntsane having reported what the employee did and her having advised her to report the incident.

[24] I must mention that this hearing involves misconduct about an educator. Educators are entrusted with ensuring the wellbeing of learners that parents place at his care. His primary responsibility as an educator is that of maturing the learners and to make them become better persons. By his own admission, the employee is aware of the code of professional conduct prohibiting any abuse or inappropriate relationships with learners. To that extent, any inappropriate conduct, inappropriate relationships between learners including those of a sexual nature, irrespective of whether the learners are 18 year or above the age of 18 is frowned upon. To the extent that such relationships and conduct are viewed seriously, the South African Council of Educators (SACE) Code of Professional Ethics provides that educators respect the dignity, beliefs and constitutional rights of learners and in particular children, which includes the right to privacy and confidentiality. The Code goes on to explicitly state that educators must refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school. The list is exhaustive. It therefore goes without saying that where an educator is found guilty of an offence of any inappropriate or sexual relationship with a learner or learns, the harshest of sanction be imposed and as such sanction as would dissuade educators, charged with the responsibility of looking after the welfare of learners, from engaging in such practices.

[25] An individual who enters the teaching profession enters a noble profession and responds to a noble calling. It is, in that regard, not unreasonable to expect that educators conduct themselves and display as such behaviour as would assert the noble calling. In that regard, it would not be untoward, and it cannot be said to be unreasonable to expect that where an educator is found guilty of having a sexual relationship with a learner, any display of behaviour that undermines the rights and dignity of a learner, dismissal should result. I find the employee to have displayed and engaged in such conduct as to warrant that he be barred from remaining in the teaching profession.

[26] In the premises, I make the following award:

AWARD

[27] I find the employee, Mr Brian Mohao Mohoje, guilty of all three charges that were preferred against him and I, as a consequence, impose a sanction of summary dismissal effective from 12 March 2021.

[28] The Secretary of the Council must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE.

[29] The employee, Mr Mohoje, has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and to do so within the prescribed timeframe.

__________________________________
Monde Boyce
Panelist: ELRC
ADDRESS
261 West Avenue
Centurion
Gauteng 
0046
BUSINESS HOURS
8h00 to 16h30 - Monday to Friday
Copyright Education Labour Relations Council. 2021. All Rights Reserved. Created by 
ThinkTank Creative