IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the INQUIRY BY ARBITRATOR between
DEPARTMENT OF EDUCTION – GAUTENG PROVINCE EMPLOYER
MM KHOZA, as represented by SADTU EMPLOYEE
SECTION 188A IBA RULING
CASE NUMBER: ELRC414-19/20GP
LAST DATE OF INQUIRY: 22 February 2021
LAST CLOSING ARGUMENTS RECEIVED ON: 3 March 2021
DATE AWARD SUBMITTED: 30 March 2021 (Extension granted)
NAME OF COMMISSIONER: Coen Havenga
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
Details of hearing and representation
1. This process was set down in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (hereafter “the LRA”), and ELRC Collective Agreement 3 of 2018. The inquiry took place on 11 December 2020, at the ELRC offices in Centurion, and on 24 February 2021 via ZOOM.
2. The employer is the Gauteng Department of Education, represented by Ms Rasebotsa, N. The accused employee is Mr Khoza, MM (“Khoza”), represented by Mr Dube, M a SADTU official. Ms Mbhele, H, acted as interpreter, and the intermediary was Ms Shibisi, E.
3. The employer submitted the documents in Exhibit A.
Issue to be decided
4. I am required to determine whether Khoza is guilty of the charge levelled against him. Should I find him guilty of the charge, then I need to determine the appropriate sanction.
Background and charges
5. The Employer initially brought two charges against Khoza. However, the Employer subsequently withdrew the 1st charge, and continued with only one charge against him.
6. Khoza is charged in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998 with the misconduct of sexual assault in that during the period 2016 or any time incidental thereto, as an educator at Siyabonga Secondary School, he sexually assaulted a female learner (“the Complainant”) by raping her at the school premises.
7. Khoza pleaded not guilty to the charge.
Summary of evidence
8. The proceedings have been recorded digitally, and a summary of the Employer’s and Employee’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the inquiry and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses.
9. The matter relates to allegations of sexual assault on a learner who was a minor at the time of the alleged incident. In accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, the identity of the learner will not be disclosed. I will refer to the complainant minor as the Complainant in this award. The Complainant testified by making use of the assistance of an interpreter and an intermediary through the CCTV system at the ELRC’s offices in Centurion, as well as via ZOOM.
10. Elizabeth Motsamai (“Motsamai”) testified under oath that she is an IDSO with eleven schools under her supervision. Annexure C of Bundle A reflects a letter dated 18 January 2019 she wrote after the Complainant’s father requested that she be transferred to another venue for purposes of writing exams after she reported that she had been sexually abused at Siyabonga Secondary School by Khoza. She was made aware of the problem in November 2018.
11. She interviewed the parents and the Complainant, who disclosed a lot of information to her as motivation why she must write exams at another venue. Motsamai placed the Complainant in another school early in 2019. She referred the matter to the Department. The Complainant made allegations of sexual assault against Khoza, and also referred to a lot of other family issues.
12. Motsamai’s intervention was only in respect of securing another venue to write exams and a subsequent transfer to another school. Her first priority was to facilitate the writing of the exam. The Complainant told her that all the male educators, including Khoza, as well as the principal raped her during 2018. Ms Khoza, a psychologist, did interview the Complainant. The stepfather of the Complainant was incoherent. He said that the Complainant also tried to kill him and her mother. The police told Motsamai that the stepfather was a bit dodgy in terms of reporting the matter.
13. Under cross-examination Motsamai testified that the stepfather did not make a statement. The Complainant was transferred as a result of the allegations of rape. The Complainant said it happened in the sick room during school hours. She said they took turns in raping her. The issue fell outside of her authority, that is why she reported it upwards. She cannot say whether Khoza raped the Complainant or not. The Complainant did say that Khoza raped her. She mentioned other names as well.
14. The Complainant testified under oath that she is 17 years of age. In 2016 during the second term in grade 8 she received her report card and noticed something was wrong with her results. She went to the administration department to ask them to fix it, as the marks differed from the marks on her scripts. Khoza came in and took her report card and scripts. He went to the principal’s office with it. After some time the Complainant was called by Khoza and the principal. They told her that she had to have sex with them if she wanted her marks to be fixed. She refused.
15. She told them she wanted her correct marks. Khoza told her that she was a child and that he would not listen to her. She was told to come back the next morning. They threatened her by saying if she did not report the next morning, her parents would not see her again. She went back early the next morning before there were other people. She wanted to hide in the library so that they could not find her. The library was locked, and she went to find the caretaker to get the key. On her way to look for the caretaker she saw Khoza standing next to the administration office. He told her to go inside the principal’s office if she wanted to live.
16. When she entered the principal’s office, the principal was also present. They told her to take of her panty. She wore a skirt. They told her to lie on top of the principal’s desk. The principal then first undressed himself. He took off his pants. He then put his penis inside her vagina and raped her. He put his hand on her mouth so that she could not scream for help. While the principal raped her, Khoza took pictures with his phone. When the principal was done, Khoza continued to rape her while the principal took pictures of Khoza raping her. They did not use condoms. Before she left, they told her that they would kill her if she told anyone about the rape. She then left.
17. Afterwards she could not concentrate in class. The next day they gave her a pill to swallow but did not tell her what it was for. She received her corrected report at lunch time. Thereafter they raped her every morning for the entire week. The principal’s name is Gavin Mofokeng. One day when she had her period, Khoza raped her in the sick room. The principal was not present then. The principal and Khoza continued to rape her the next year when she was in grade 9. She thought that they would stop, but they did not. Even when she lost her mother, they continued raping her.
18. She was scared of them and she could not tell her father. She had suicidal thoughts. In grade 10 her father noticed that she was not well. She asked her father if she could change schools, but she did not tell him why. Later she got tired of hiding the truth and told her father. Her father took her to the police where she made a statement. The matter was not investigated. The police did take her to the clinic. At the clinic they checked her vagina, took blood samples, and said that they would do tests. They also did a pregnancy test which was negative. The police then sent her to the Teddy Bear Clinic. Because of transport problems she only had one session with a social worker.
19. She went back to school. In November 2018 she met Motsamai and told her everything. She then wrote exams at another venue. In grade 11 she went to George Khoza School. She was 13 years old and in grade 8 when the rape started. They raped her countless times in the principal’s office. It happened early in the mornings while other staff and learners were not yet there. It was painful. She thinks that the pill they gave her was the so-called morning-after pill. Khoza and Mofokeng were friends, and they shared everything, even raped her together. While the one was busy raping her, the other would take pictures and videos. In the sick room only Khoza raped her. She did not tell anyone earlier because she was scared about what they would do to her. When it became too much and she had suicidal thoughts, she decided to tell her father. She met with Motsamai because she wanted to transfer. She told her what Khoza, and Mofokeng did to her. Motsamai said that she would assist her.
20. Annexure F in Bundle A proves that she visited the Dobsonville Victim Support Centre on 29 October 2018. The police did not charge Khoza. They only referred her to the Teddy Bear Clinic for counselling. She lost her trust in men and was hurt by what happened to her.
21. Note: At this stage, the intermediary advised that the Complainant was emotionally drained and exhausted to the extent that it would not be in the best interest of the minor witness to continue with cross-examination immediately. Based on the professional opinion of the intermediary, and in consideration of the provisions of section 28 of the Constitution, the matter was adjourned to another day for continuation.
22. Under cross-examination the Complainant testified that she did not tell Motsamai that all the male educators raped her. She does not agree with Motsamai’s evidence in that regard. She did not scream for help because Khoza and Mofokeng threatened her with her life. Khoza was not teaching her at the time. She could not ask Khoza for help when Mofokeng raped her because Khoza was taking pictures. The sick room is next to the staff room. Khoza would send a learner to call her.
23. Mishack Khoza (“Khoza”) testified under oath that he has been an educator at Siyabonga Secondary School from 2013 to date. He did not rape the Complainant. He never took her report card, and never took it to the principal. He did not teach her. The Complainant is lying.
24. Under cross-examination Khoza testified that he has a professional relationship with the principal. Her never knew her before she made the allegations. She is a chronic liar. He denies that he took advantage of her request to have her marks fixed. He cannot explain why she selected him out of all the male educators to accuse falsely. He cannot explain why she requested a transfer.
25. Gavin Mofokeng (“Mofokeng”) testified under oath that he is the principal of Siyabonga Secondary School. He denies all the allegations made against him.
26. Under cross-examination Mofokeng testified that he could not explain why the Complainant would falsely accuse him. He denies that he was not cooperative in the investigation because he knew that he would be implicated. He did not query her transfer because he was told by Labour not to interfere. He was not present when the Complainant was raped.
Summary of arguments
27. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered the arguments, together with the other evidence, oral and documentary, presented by the parties during the inquiry, as reflected in the record of the hearing.
Analysis of evidence and argument
28. This inquiry was conducted in terms of the principles contained in section 188A, as well as Schedule 8 of the LRA, in respect of the fairness of disciplinary action. In applying those principles, the following factors were considered:
a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) If the rule or standard was contravened, whether or not –
i. The rule was a valid or reasonable rule or standard;
ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
iii. The employer has consistently applied the rule or standard.
iv. Dismissal would be an appropriate sanction for the contravention of the rule or standard.
29. The LRA does not prescribe the standard of proof to be used in labour matters. It is however universally accepted that the standard of proof that is applicable in disciplinary hearings, and therefore inquiries by arbitrators of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
30. All the allegations in the charge against the employee, as well as the evidence, documentary and otherwise, deduced in support thereof by the employer, and the evidence deduced by the employee in defense, were considered and weighed against the abovementioned standard of proof.
31. It is not disputed by Khoza that the actions he had been charged with constitute misconduct. He merely denied committing such misconduct, i.e., sexual assault in that during the period 2016 or any time incidental thereto, as an educator at Siyabonga Secondary School, he sexually assaulted a female learner (“the Complainant”) by raping her at the school premises.
32. I am mindful of the fact that the Applicant was charged sexual misconduct. It is a natural response in matters relating to the sexual assault that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.
33. In respect of the allegations of raping the Complainant, Khoza disputes the version of the witnesses, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept.
34. Khoza’s defence in respect of the alleged repeated rape of the Complainant is a blanket denial of any wrongdoing. He submits that it is all a fabrication of lies.
35. I find Khoza’s version that the Complainant for some unknown reason decided to falsely accuse him, improbable. He failed to present any substantial evidence that would prove a fabrication. He merely made unsupported allegations in that respect. I find it highly improbable that a child of 13 years would be able to fabricate such an elaborate, detailed version of events.
36. The Complainant was consistent in her testimony. She did not contradict herself. She came across as a reliable witness. Her emotional testimony never appeared to be feinted. Any contradiction between her testimony and that of Motsamai, cannot be attributed to the Complainant and should not impact on the Complainant’s credibility. She denied that she told Motsamai that all the male educators raped her.
37. The Complainant provided a lot of detail in respect of what Khoza did to her. She described in detail how pictures and videos were taken, where she was raped, that condoms were not used, that she was given a pill to swallow afterwards and how she was threatened to keep her silent. I find it highly improbable that such a young child would fabricate such an elaborate version, and then randomly choose Khoza to accuse him of rape, while he did not even teach her. I find it improbable that a fabricated version would even involve the principal.
38. I find it improbable that the Complainant would disadvantage herself with a false version by requesting a transfer during the exams if nothing happened to her. Her explanation as to why she waited so long before she spilled the beans, is reasonable, considering her young age at the time. She feared for her life, and only when she became suicidal, she had the courage to tell her father.
39. It is not in dispute that she visited the Dobsonville Victim Support Centre, as well as the Teddy Bear Clinic. It is improbable that she would go to that lengths to simply falsely accuse Khoza randomly. Khoza argues that the Complainant is a chronic liar, but also testified that he did not know her before the allegations. It then begs the question how he would know she is a chronic liar.
40. I find no probable reason why the Complainant would fabricate evidence against Khoza. Khoza could not provide any substantial evidence that the alleged conspirator had anything to gain by falsely implicating him.
41. The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows: “Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The Complainant’s version has been materially the same throughout the inquiry. I find it improbable that she would make up such a detailed version of events without any reason. Khoza’s version that it is a fabrication is not plausible.
42. Therefore, with consideration of all the relevant cautionary rules I find that the Employer provided evidence that proves on a balance of probabilities that Khoza committed the misconduct of sexual assault in that during the period 2016 or any time incidental thereto, as an educator at Siyabonga Secondary School, he sexually assaulted a female learner (“the Complainant”) by raping her at the school premises, thus contravening section 17(1)(c) of the Employment of Educators Act 76 of 1998. There is therefore evidence before me that proves that Khoza contravened a rule or standard regulating conduct in, or of relevance to, the workplace.
43. The accused employee, Khoza, is found guilty of the one charge.
44. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.
45. Khoza as educator engaged in a sexual assault on a learner which is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behavior does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of sexual relationship with or assault on learners at a school, and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the Complainant being a child of 13 years old to be repeatedly raped by an educator.
46. Section 17(1) of the Employment of Educators Act in any event states that dismissal is the mandatory sanction for the offence Khoza has been found guilty of. Having considered all the facts before me, including but not limited to, the gravity of the offence, the position of trust the Applicant was employed in, and the years of service of the Applicant I find that the sanction of dismissal is fair and appropriate in the circumstances.
47. I find that summary dismissal is an appropriate sanction in the circumstances.
48. In terms of section 188A(9) of the LRA I recommend that the employee, Mr Khoza, MM, be dismissed summarily.