Case : ELRC381-20/21KZN
Date of Award: 17 March 2021
Panelist : Vuyiso Ngcengeni
Province : KwaZulu Natal
Employee : Nyameko Makaula
Employer : Department of Education – KwaZulu Natal
Issue : Enquiry by Arbitrator
Venue : Kokstad
Employee : Cell - 072 352 4937
Email : email@example.com
Employer representative: Ms N Magoso
Telephone : 039 579 8473
Email : Nontobeko.Mazibuko@kzndoe.gov.za
IN THE SECTION 188A INQUIRY BY ARBITRATOR
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was scheduled before me on the 19th of February 2021. It sat in the Employer’s premises at Kokstad.
2. The matter was held under the auspices of the Education Labour Relations Council (the Council) in terms of s188A of the Labour Relations Act of 1996 as amended (LRA) in conjunction with Collective Agreement 3 of 2018 which allows for such cases to be held accordingly.
3. The Employee was present and he represented himself, whilst the Employer was represented by Ms N Magoso.
4. Since the matter involves an underage child, there was also an intermediary, and that was Ms N Mkhize.
5. The hearing was conducted in English, there was an isiZulu interpreter. The hearing was electronically recorded.
6. The hearing was heard and concluded on the same day.
7. The name of the child is not disclosed in terms of clause 5.3 of Collective Agreement 3 of 2018, as at the time of the award, she was 15 years old. I will therefore refer to her as “the Learner”.
ISSUE TO BE DETERMINED
8. I am required to determine whether the Employee is guilty of the charge stated below: -
8.1 You are hereby given a notice of a disciplinary hearing in terms of Schedule 2 clauses 5 and 7 of the Disciplinary Code of the Employment of Educators Act 76 of 1998 (the Act) as amended to answer to the charge below
• You committed an act of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, 76 of 1998 (the Act) in that you sexually assaulted the Learner by the name (name withheld): when you raped her on 19 to 20 July 2020.
9. The Employee does not deny having had sex with the Learner, but denies that he raped her.
BACKGROUND TO THE DISPUTE
10. The Employee is employed at Indawana Primary School (the school) as a level 1 Educator, and he has been employed since the 18th of April 2011. The learner is also based at the same school. The school is within the Harry Gwala district in KZN.
11. The incident took place on the night of the 19th of July 2020. The Employee was then put on precautionary leave (Suspended) and he is still on suspension.
12. The Employer referred this matter to the Council for an Enquiry by Arbitrator on October 2020 and it was set down accordingly on the 19th of February 2021.
SURVEY OF EVIDENCE AND SUBMISSIONS
The Learner testified under oath as follows:-
13. She knows the Employee as a Teacher at the school and he taught her isiXhosa and Social Science.
14. On the 19th of July 2020 whilst she was at her home, outside the house, she saw someone with a torch approaching the gate. It was already dark.
15. She approached the gate and saw the Employee. the Employee promised to give her R50.
16. He then told her to accompany him to go to a local shop, KwaMdladla to get the change. They went together to the shop and found the gate closed.
17. The Employee then suggested that they go to his room to look for loose money. They went the Employee’s residence and went inside the room.
18. She told him that she wanted to go home, and he told her that she would not go home. He lifted her up and put her on the bed.
19. He made her lie on the bed, undressed her and himself and then raped her, multiple times during night.
20. She was not in a sexual relationship with him.
21. In the next morning, she went home and reported the matter to her grandmother, Ms Zandile M (Zandile) told a number of people within the community, they then reported to the local Chief and then to the Police Station.
22. She was examined by the doctor on the same day.
23. The Employee raped her as she did not agree to have sex with him.
24. After the event, it was hard for her, but she has since been well and does not have flashbacks of the incident.
25. The reason for her to accompany the Employee was because he said he was going to give her money. Upon arrival at his place, he started counting the money and it amounted to R 102.00.
26. He then raped her and in the morning, told her not to tell anyone.
27. It was the first time that the Employee had had sex with her.
28. Under cross examination- She did not see other people at the Employee’s residence. She did not scream during the rape. He did not force her to have sex with him. She disputes that she undressed herself and that she voluntarily lay on the bed. She admitted to having taken the money, R 102 and that he accompanied her in the morning to her home.
Mrs Zandile M (Zandile) testified on behalf of the Employer as follows
29. She is the grandmother of the Learner.
30. The Learner went missing on a Sunday, the 19th of July 2020 and she came back in the next morning.
31. She asked her where did she sleep and she said she slept at the Employee’s place. The Learner also told her that the Employee had forced her to have sex with him, and that he gave her money and told her not to tell anyone.
32. There is no way that the Employee, old as he is, can have consent to have sex with a 15 year old child.
33. After the incident, the learner was sick, she stayed alone and did not play with her friends, she was peeing herself when asleep, she was scared of getting out of the yard and was crying every day.
34. Under cross examination – The learner no longer suffers from the conditions she mentioned in her evidence in chief.
35. Aggravation: - The Employee contravened the Code of Conduct and Ethics of SACE, the Children’s’ Act, the Constitution and also put the Department into disrepute. The trust relationship between the Employer and the Employee is irretrievable. He cannot be trusted with any children. The offence is a serious one and it warrants a dismissal.
The Employee’s case
The Employee testified under oath as follows-
36. On the 19th of July, he is not sure of the time, he went and asked the Learner to go with him to Kwa Mdlala store and he promised to give her money.
37. They found the store already closed and since he had promised to give her money, she asked that they go together to his room.
38. Upon arrival, he counted the money and it was R 102.00, and he gave it to her.
39. He asked her to go on top of the bed and she did. They slept and had sex, and in the next morning he accompanied her home.
40. He was then arrested by the Police but after appearing three times at the court, he was found not guilty.
41. Under cross examination – He is 47 years old. He knows that rape is not allowed. He is aware of the provisions of the Act and that having a sexual intercourse with a learner is a dismissible offence. He apologizes for what he did and he believes that it was just a moment of madness. He does not agree that he destroyed the Learner’s future, because the Learner said she is now ok and was not traumatized. He agrees that he contravened South African Council of Educators (SACE) provisions, as well as the Act and the Children’s Act. He asks for leniency.
42. Mitigation: - He pleads that he should not be dismissed. He is a breadwinner at home and has kids, some of whom are at university. He made a mistake and asks that the Employer should sympathize with him. If he commits the same in the future, then he should be dismissed. He also has bills to pay and he agrees that he should be punished, but pleads that he should not be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
43. Section 17(1)(b) of the Act says “An educator must be dismissed if he or she is found guilty of— (a) …;
(b) committing an act of sexual assault on a learner, student or other employee;”
44. Although the charge consists of two elements, and those are the fact that the Employee is charged for having had sex with the Learner.
45. The Employee has pleaded guilty to the charge, but said he does not plead guilty to having raped her.
46. It is my view that what the Employee disputes, which is that of rape, is immaterial as it is written as a manner of elucidating what happened and is not the main charge. The main charge is that of him having had sex with the Learner.
47. To the extent that the Employee consented to having had sex with the Learner, and that he is aware of the SACE’s code of conduct; the Act and the Children’s Act, it therefore follows that the Employee was aware at the time that he committed the offence and the severity and the consequences thereof.
48. I do not intend to repeat the evidence as presented by the parties in relation to the charge, since at its core, it is not in dispute.
49. It is common cause that the Employee knew the learner and I can also venture to say that he knew her very well, based on the reasons that will become clear below.
50. The Employee taught the Learner two subjects, and that would have afforded him an opportunity to interact with her on multiple occasions on each week, when the school is not closed.
51. Bearing the aforementioned in mind, I can also mention that he probably had understanding of the Learner’s financial condition and perhaps, her conduct when coming to finance.
52. In view of the above, I am of the view that the Employee planned the events of the 19th of July 2020. His claim that what transpired was just a momentary lapse which he does not know where it came from is implausible.
53. The fact that he went to the gate of the Learner’s home at night, and requested her, young as she is, to accompany him to the local shop has all the hallmark of a well-planned activity.
54. I am even tempted to believe that he actually knew that the shop they went to was already closed, and I say this because although he said he had promised to give her R50.00, he ended up going with her to his house and giving her R 102.00, and this contradicts his earlier claim that he wanted a loose money to give to her.
55. He always knew that he had the loose money, hence on their way back from the shop, he directed the Learner to go with him to his house.
56. It is very clear to me that the Employee took advantage of the Learner’s condition, enticed her with R 50.00, upon arriving at his house he doubled his initial offer so that the Learner could find it difficult to reject his evil motives.
57. An offence of a sexual misconduct as the one which the Employee is charged with is viewed in very serious light, hence the Act treats it as a dismissible offence.
58. I have taken note of the Employees pleadings in his mitigation. However, when I closely look at the manner in which he planned and executed his plan, I do not believe that such necessitates a deviation from the mandatory sanction, in terms of section 17 (1) of the Act.
59. I am thus more persuaded by the Employer’s aggravating circumstances in this case and I also share the same sentiment, that it would serve justice for the Learner to have the Employee barred from ever getting close to children, particularly as an Educator employed by the Employer.
60. In the analysis, the Employee’s employment is terminated with effect from the date in which he would have received this award.
61. The Employee, Mr Nyameko Makaula, is guilty of the charge.
62. The employee’s employment is terminated with immediate effect, without notice.
63. The Employer, the Provincial Department of Education KwaZulu Natal, must notify the Employee of his dismissal / termination of services
Panelist / Commissioner