Commissioner: Gail McEwan
Case No.: ELRC31-20/21 WC
Date of Award: 20 April 2021
In the ARBITRATION between:
SALIPSWU XOLANI MADALANE
THE DEPARTMENT OF EDUCATION WESTERN CAPE
Union/Employee’s representative: Xolani Madalane
Employer’s representative: Lazola Mbotoloshi
Employer’s address: Private Bag X9114
Telephone: 021 467 2850
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
(1) Arbitration was held on 25 November 2020, 5 February 2021 at the offices of the Department of Education in Cape Town and was held virtually on 30 March 2021 with the consent of the parties. The scheduled arbitration on 11 December 2020 did not take place as Madalane had been had been placed in quarantine. Present was Xolani Madalane (employee) who was represented by Fundile Lindani (SALIPSWU – South African Liberating Public Sector Workers’ Union). The Department of Education (DOE) (employer) was represented by Lazola Mbotoloshi (employee relations officer). The Certificate of Outcome declaring the matter unresolved at conciliation is on file and is dated 7 July 2020. These proceedings were digitally recorded, a Xhosa interpreter (Bianca Mankay) was present and the employer handed in a bundle of documents. Stephanie Marks was present as an intermediary as minor children would be giving evidence when held at the DOE offices in Cape Town. Written permission had been obtained from the parents of the minor children to testify. At the time of the incidents the children had not yet reached age 18. It was agreed that to protect the identity of the child she would only be referred to as leaner “A”.
THE ISSUE IN DISPUTE
(2) I am required to determine on a balance of probabilities whether the dismissal of Madalane was fair. Madalane confirmed that there were no procedural challenges in this dismissal. Madalane was charged with: (1) It is alleged that you are guilty of misconduct in terms of section 18(1)(a) of the Employment of Educators Act, no. 76 of 1998, to be read with section 28(2) of the SA constitution, in that during the first and/or second term of 2019, you made the following inappropriate remarks towards learner A, a learner at the Linge Primary School via Facebook messenger: (a) I love you, do you love me back? (b) I want to be in love with you; (c) Are you a virgin? (d) I want to be your virgin breaker; (e) Can you give me sex? (f) When will you agree to be my girlfriend? (g) I love sex; (h) I want to sleep with you. (2) It is alleged that you are guilty in terms of section 18(1)(q) in that on or about 11 May 2019, whilst on a choir camp you contacted learner A in the early hours of the morning (on or about 03h00), a learner associated with Linge Primary School and requested to meet you outside her room. (3) It is alleged that you are guilty of misconduct in terms of section 18(1)(r) of the Act, in that during May 2019 you assaulted grade 5 learners, learners associated to Linge Primary School by hitting them with a pipe on their hands. Madalane denied all the charges.
(3) I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
THE BACKGROUND TO THE DISPUTE
(4) Madalane started working for the employer on 13 January 2018 on a number of limited duration contracts; worked as an educator teaching English and technology to grade 5 learners; earned R31 971.00 per month and was summarily dismissed on 20 January 2020 for gross misconduct.
SUMMARY OF EVIDENCE AND ARGUMENT
The employer’s version and testimony was as follows:-
(5) Momaluwuethu Sishuba (mathematics educator grade 5) testified that Madalane used to be a colleague who also taught grade 5 learners. In May 2019 Sishuba was changing periods in the morning classrooms. Sishuba saw the learners in the classroom queuing whilst Madalane was busy hitting the learners on their palms using a solid plastic pipe. Sishuba noticed that many of the learners sitting in the classroom were crying. Sishuba took down the names of the learners she had seen being hit by Madalane who despite the presence of Sishuba had continued hitting those still in the que. Sishuba had tried to get Madalane to stop but her efforts were in vain. Madalane had been part of a workshop that was held at the school two to three months earlier covering the do’s and don’ts for educators. It had been made clear at the workshop that if you find an educator doing something wrong it is your duty to report the matter. Sishuba told Madalane that she had to report him to the principal and had taken a photograph of Madalane hitting the learners. Madalane had said to go ahead and report him. To protect the minor learners I will not mention them by name suffice to say that Sishuba had written down the names of nine learners who she saw Madalane hitting and handed in a list of those names at arbitration. Sishuba explained that these learners will not be testifying as they had not received the requisite parental consent. One of the learners was bleeding on the finger after he had been hit by Madalane. Learners in grade 5 are between the ages of 12 to 14. Sishuba had been in the classroom ready to teach the next lesson to grade 5A. Madalane had to move to a different classroom for his next period. The hit on the hand had been hard as evidenced by the number of learners who were crying, Madalane is aware that he was not allowed to hit learners. Madalane had never shown any remorse and Sishuba thought that Madalane would stop when he saw that she had taken a photograph. Madalane had hit hard on their palms and it was not simply a tap.
(6) In cross-examination Sishuba confirmed that she had not taken the learner whose finger was bleeding for treatment and had only told him to wash his hand and hold some paper over where it was bleeding. It was put to Sishuba that no child was bleeding and Sishuba said that he had not been bleeding profusely. Sishuba thereafter taught her class before writing a letter to the principal. More than ten learners had been involved and Sishuba had not personally reported the incident to the parents of those she had seen being hit hard. Sishuba was unaware whether the principal had called the parents. Sishuba confirmed she had seen Madalane hitting at least ten learners out of a class of thirty nine. Other learners in the class had been seen crying. It was put to Sishuba that not one learner had been crying as Madalane had only tapped them on their hands and he had only tapped the hands of two learners. Madalane disputed that Sishuba had spoken to him. Sishuba explained that Madalane was the “golden egg” or favorite educator of the principal. Madalane stated that educators were taken to labour relations officers but no-one at the school had known about the charges. Sishuba confirmed that the principal had received her letter, that she had then been called to see the principal and the SGB (School Governing Body). Sishuba had reported the matter to the principal as she had done what had been expected. Madalane conceded that he had tapped the learners. Madalane said he had a copy of the letter Sishuba had written to the principal. Sishuba confirmed she had sent the photograph taken to Zuiswe (surname unknown) at Labour Relations. In re-examination Sishuba confirmed that Madalane had hit hard with the pipe on the learners palms and it had not been a tap.
(7) Ronelle Raubenheimer (retired conveyancing attorney and chair of the disciplinary hearing) testified that she had started holding disciplinary hearings for the DOE in 2013. Raubenheimer explained that Madalane had pleaded guilty to charge 3 at the disciplinary hearing. Madalane had hit the learners with a plastic pipe on their hands. Madalane did not recall the number of learners he had hit but it had been confirmed that at least ten learners were hit. A recording of this plea from the disciplinary hearing was played. Madalane confirmed that it was his voice and that the recording was authentic. On the recording Madalane is heard pleading guilty to charge 3. Later in the disciplinary hearing Madalane had said that he then pleaded not guilty to charge 3. Raubenheimer confirmed that Madalane had explained that it had been his way of disciplining the learners and getting them to listen. Madalane had conceded that he had been wrong at law to hit the learners and Raubenheimer had said that it was irrelevant as to whether or not the hit had been hard or just a tap. Madalane had been aware of the rule regarding corporal punishment being prohibited. Madalane had known that what he was doing was wrong. Madalane had never understood the gravity of the charge and had got learners to do what was done with the use of corporal punishment. Raubenheimer had found that the employer could not be expected to again employ Madalane.
(8) In cross-examination Raubenheimer denied saying that if Madalane was only charged with charge 3 he could be forgiven. Raubenheimer had no opinion on the work performance of Madalane only that she had heard he claimed accolades about his work with the choir. There were no questions in re-examination
(9) Sipho Manentse (HOD of the school) testified that he worked at the same primary school as Madalane. There was an incident on 9 May 2019 in the class and it was noticed the some learners were not present. Those learners had been practicing for the choir in the computer room which was irregular. Subsequently those learners returned to the classroom and spoke about Madalane being attacked by learners from a different school. The learners had also said that Madalane wanted to have an affair with A. At the break Manentse had spoken to three learners and had taken down their names. The learners had told A not to agree to what Madalane had wanted. It was reported that Madalane had also asked A if she was still a virgin. At camp on 1 May 2019 the learners had seen Madalane kissing A. Manentse said that the matter would be investigated as it was very serious. Manentse had called Belile Tongo (educator) to witness what the learners had said. It turned out that the attack on Madalane had been from the learners at the school where he taught. Manentse had said he would expose Madalane and report this matter to the police (SAPS). Manentse reported what he had found out to the principal and had then written a letter. A in this situation got ill-treated and during the investigation was shouted at by the principal. Manentse had no issues with A and then things had changed. Madalane facing a disciplinary hearing had asked to use learners as witnesses and Manentse undertook to first speak to the DOE. Madalane said he could not disclose the names of the learners yet as the one he had in mind had wanted to see him fired.
(10) In cross-examination Manentse confirmed that he had not had any interaction with A and had only interacted with the three learners. Manentse had written down for the Commissioner the names of those to whom he had talked. The names will not be disclosed in this award to protect the identities of the minor children involved. Williams (a learner) had seen Madalane kissing A at camp very late at night. Madalane had been outside of the room where A was staying. Williams had followed A at the time whilst some learners were asleep and others were awake. It was reported to Manentse that the choir had been practicing until after mid-night. It was put to Manentse that Madalane had only come out at 03h00 when the learners were texting and A had sent a text message to Madalane. One of the learners had told A not to agree to what Madalane had wanted. It was put to Manentse that he was being dishonest. Manentse disagreed and explained Williams had said that Madalane had asked A whether she was a virgin. When this had been reported to Manentse and that Madalane had been attacked by learners he had not been at school. Reports were made about the behavior of Madalane both at the camp and beyond the camp. Madalane denied that he had ever been attacked. Manentse was adamant that the attack had happened. There were no questions in re-examination.
(11) Learner A (now 15 years old) testified that in 2019 she had been fourteen years’ old. A was at the Linge primary school where Madalane taught the choir. There had been incidents last year between A and Madalane. A had been told by the principal to join the choir or else the principal would chase her away to another school. A then went to the choir class taught by Madalane at the back. A had found that Madalane would watch her more than others in the choir and had given only her lots of compliments. A was unable to attend the choir camp as her mother was in Johannesburg and her granny could not afford the fees. A could not recall the exact dates of the camp. Madalane had said he would pay for A to attend the camp and they had left for the camp the next day at 07h00. Transport had been arranged by the school and once at camp they had sung and done some other things. A was wearing white jeans and Madalane had instructed her to change them in case they got dirty. A had said that it did not matter if her jeans got dirty. They sang again and were then shown to their rooms so that they could place their luggage where they would be sleeping. The girls went to practice singing at the hall before 03h00 during which Madalane had kept looking at A and giving only her compliments. They left the hall and went to their rooms where A had been playing with her phone. A received a message from Madalane sent to her via Facebook messenger. There were other girls in her room. The message from Madalane said to meet him outside of her room. A responded that she could not come outside and Madalane responded that she must come outside and meet Madalane in the hall. A was scared but went to the hall where she knocked on the door. Madalane answered the door and A asked what he had wanted from her. Madalane said he was looking for ear pieces for his phone. A was sent to get them and at the time it was about 03h30. On her return to the hall with the ear pieces Madalane had asked A to sit down next to him. A was afraid and had just wanted to leave. There was no-one else in the hall so A had run back to her room. The numerous Facebook messenger messages received from Madalane was where he had said that he loves her; had asked whether she was a virgin; Madalane had wanted to break her virginity; he loves sex and had wanted to sleep with A. In response to the message that Madalane loved A she had answered saying they she could not love him as he was her teacher. A was a virgin but did not understand why only she was being asked such questions. A had said no to any relationship with Madalane. Most of those messages had been sent whilst A was at the camp. A was not receiving messages any longer from Madalane. Before leaving the camp Madalane had confiscated the phone of A and had deleted all his messages. Madalane had never said why he had done that. It had been very traumatic for A and Madalane was no longer her teacher. The camp took place in 2019 and A did not trust Madalane with other female learners. A had told another learner B. A informed Ahkona Mabongo (educator grade 4) what had happened as the mother of A was in Johannesburg. A told Mabongo as she was trusted. After she had reported the matter A had not been treated very well at the school. A was especially not treated well by the principal. Other learners were told by the principal not to associate with A. Madalane and A never spoke again and A stopped talking about what had happened.
My note: A is petite and we had to stop several times during her leading evidence as she was upset and crying while relating her version. The intermediary took the required steps to soothe A. The upset continued when A was cross-examined and again the intermediary took the necessary steps to placate A.
(12) In cross-examination A could not recall exactly when the messages were sent and thought some were received before the camp and some at the camp. Before the camp the messages already received were shown to learner B. Learner B was also at the camp and A had spoken to her about the messages received during the camp. Learner B had seen all the messages while the phone of A was being charged. A did not recall the exact time of the message received and agreed that they had come out of the rehearsal at 03h00. There were food breaks during the camp and the messages had come in the early hours of the morning when A was at the camp. Madalane had messaged that he loved A while she was at the camp. Questions about a romance or a relationship had been received when A was at the camp. Before the camp and whilst A was at home she had received the messages about whether she was a virgin; that Madalane loved sex; that he loved A and that Madalane had wanted to sleep with A. The friends of A had seen the messages when they were at the camp. A agreed that most had seen the messages when her cell phone had been charging. A had not shared the bunk bed at camp with learner B. A had not been in bed when the phone was charging and some messages were received. Learner B had seen all the messages whilst at the camp. Madalane had taken A’s phone before leaving the camp and had deleted all of the messages. Leaner B has seen everything including when Madalane had been deleting the messages. Mostly the messages were before the camp whilst others were received at the camp. The earphones had belonged to Madalane so there had been no need for A to meet Madalane in the early hours of the morning outside. There was no relationship between A and Madalane as A did not love him. Madalane was older than A and although Madalane said he was in love with A she could not love him back. No-one had told A what to say at arbitration. It was put to A that she was not honest as Madalane had never sent any messages. A disagreed as she had seen Madalane take her phone and delete all the messages. A had told Madalane face to face that she would not be going to the camp. It was put to A that she had done this using Facebook messenger. A denied this and said that she told Madalane this after school. It was agreed that Madalane had said he would pay so A could go to the camp. A was aware that Madalane had also paid for some others to go to the camp. It was put to A that Madalane had paid for all learners in the choir who had no money after he had spoken to their parents. A was unsure about this. It was put to A that Madalane had come to her room at the camp at 03h00 to borrow a charger and that no ear pieces were involved. A explained that only Madalane had the keys to the hall and the kitchen. A was adamant that Madalane had deleted all the messages from her phone.
(13) In re-examination it was put to A that Madalane is denying that he sent her any messages. A confirmed that she received the messages and that Madalane had deleted them before they left the camp.
(14) Ahkone Mabongo (educator of grade 5) testified that on 15 May 2019 A had wanted her phone number as she had been hurt. It was reported that Madalane had stolen her phone number from Facebook and had sent her a number of messages. A had been uncomfortable about going to the camp but she was in the choir plus the choir had needed her. A had also explained that Madalane had paid for A to go to the camp. Madalane had also said that there was no need to pay him back the money to attend the camp. A was uncomfortable going to the camp at Strandfontein but was needed by her friends to sing. When at the camp, Madalane had asked A to meet him outside of her room at 03h00. Madalane had wanted to take A to the hall. Madalane had pretended that he was looking for ear pieces for his phone. A went out and was taken to the hall. Madalane had asked A to sleep on his lap which is when A ran away as she was very uncomfortable. Madalane had sent her more messages. The next day A wore tight white jeans and Madalane instructed her to change as everything showed as the jeans were very tight. Madalane had complimented A in front of others on a regular basis. A had wanted to leave the choir but had been told by the principal to sing or she would be transferred to another school. A was upset when they were about to leave the camp as Madalane had taken her phone and deleted all the messages as then she would not have any evidence. Madalane had told a few members of the choir that A wanted to have an affair with him and it had been the other way around. Learners had been angry with A as if this information came out there would be no choir leader. A had been told by the principal and the SGB (School Governing Body) that if this came out she would be expelled. A had been able to tell her granny what had happened and had asked Mabongo to tell her mother. Mabongo confirmed that she had come alone by taxi to arbitration and had not been with A. Mabongo was close to the learners and had taught A in grade 4. It was for this reason that A had reported what happened to Mabongo. The camp had been in Strandfontein and was only for members of the choir. Mabongo reported this matter to a social worker. The matter was not reported to the principal as she felt the principal was biased towards Madalane. All the educators at the school had before the incident attended training on the subject of “abuse no more” in terms of gender based violence. Mabongo informed the mother of A what had happened. Mabongo was shocked and disappointed with Madalane but had not spoken to him in this regard. A had been victimized by the principal and as a result A had no contact with other learners. The principal had publically called A a liar. The principal was close to Madalane and hence had taken it out on A. Messages had been sent to A from Madalane and there had been no phone calls. Mabongo believed that it is unfair to expect the DOE to allow Madalane back as an educator. Mabongo was not aware whether A had been manipulated in any way to say what she had testified. Madalane had stopped greeting Mabongo although she never held any grudges against him. In July 2020 Madalane had come to the school and told Mabongo that she was a witch and Madalane would get even with her. Currently Mabongo is acting HOD.
(15) In cross-examination Mabongo confirmed that A had sent her a message with the all the details and Mabongo had sent a written note with details to the social worker. Mabongo had conveyed all the things that are in the charges against Madalane. Mabongo had thereafter never asked A for her response. Mabongo was told that Madalane had sent messages to A before and after the camp. It was reported that Madalane had gone to the room where A was placed and had asked her to sneak out to meet him at 03h00. When A came out Madalane went with her to the hall. Madalane had asked A to sleep on his lap and that was when A ran away. Madalane had accused Mabongo of coaching A on what to say. Another learner C reported that he had seen Madalane kissing A. The mother of C does hair braiding which is how Mabongo came to learn about what C had seen. The messages between A and Madalane had been lost at the camp and Mabongo had been asked to tell the mother of A about what had happened. Mabongo had reported what A had said and had not been able to read the messages. When asked to leave her room A had come out and it was at 03h00.
(16) In re-examination Mabongo felt that it was highly unlikely that A would have been dishonest and had made up what she had said happened.
(17) At this time we had run out of time. The employer had no further witnesses and Madalane confirmed he would be calling two adult witnesses. It was agreed that arbitration would continue on 11 December 2020 at 09h00 at the same venue. On 11 December 2020 arbitration could not continue due to Madalane being in quarantine having come in contact with a person who had Cocid-19. Arbitration continued on 5 February 2021.
The employee’s version and testimony was as follows:
(18) Xolisa Gongota (principal since 2015) testified that the incident happened in 2019. At the time Gongota had a good relationship with all the educators. Gongota was introducing some changes which were accepted by some and rejected by others. Mabongo was one of the educators that did not accept the changes and their relationship therefore was strained. While introducing some changes Gongota had worked with the circuit manager and workshops were held which is still an ongoing project. The changes involved the perception that the educators were not doing their jobs and cameras had been placed in the classrooms. Also it was undesirable for the learners to be running all over the school and in the street during learning time. The cameras were vandalized for which misconduct Mabongo and two others were disciplined and fined. Madalane was charged following the incident on 21 August 2019. The matter was reported to the circuit manager by Mabongo and Manentse who in turn reported it to the labour relations office. That office had first come to the school to carry out an investigation after which Madalane had been issued with the charge sheet. A social worker was called in for learner A. Gongota denied that she had called A a liar or that she had mistreated her. Gongota denied telling A that if she never joined the choir she would be transferred to a different school. Gongota had wanted to establish a school choir and had encouraged A to join. It was confirmed that a principal had no authority to expel a learner. Madalane had been an educator as well as the director of the choir. Gongota confirmed that there had not been any previous problems with Madalane. The assault on the learners had been reported to Gongota by Sishuba. Gongota explained that when Madalane had first been found guilty, Gongota would not have re-employed him. In the event that Madalane had been found not guilty then after he had gone through a rehabilitation programme - Gongota would then re-employ Madalane. Gongota denied that she had ever treated Madalane differently.
(19) In cross-examination Gongota explained that this was the first time she had ever received a subpoena to attend arbitration although she did not have it on her. Gongota confirmed that some educators who had vandalized the cameras had been dismissed, including Mabongo. Gongota had given Madalane a lift into town for his disciplinary hearing although other educators had used their own transport. Gongota was reminded that is was against the rules to transport witnesses or those facing disciplinary hearings to the head office. Gongota explained that other witnesses were transported by members of the SGB or parents to attend the disciplinary hearing for Madalane. Gongota was not aware that it was against policy to transport witnesses of Madalane to his disciplinary hearing. It was put to Gongota that Madalane had been found guilty of the first charge as confirmed in the minutes by the chair of the hearing. Gongota said in that instance she would not be able to again work with Madalane Gongota confirmed that she had heard rumours that Madalane had sent inappropriate messages to A but she had never asked Madalane whether he was guilty. Gongota had never seen those messages and it was put to her that she was therefore not in a position to say whether A was a liar. Referring to the second charge Gongota explained she had not been at the camp so was not in a position to say what had happened. Gongota had never spoken to Madalane regarding the charges he faced as the matter was being handled by the labour relations department. Gongota was reminded that in the third charge Madalane had been found guilty of assault with a pipe on more than ten learners. It was pointed out that Madalane had conceded that he had tapped the learners on their hands. Gongota confirmed assault on learners was not permitted and that Madalane had been aware of this prohibition. Gongota confirmed that even if Madalane described the incident of tapping the hands of the learners, this was still not permitted. It was put to Gongota that Madalane said he had permission to tap the learners and this was denied by Gongota. It was put to Gongota that the assault of more than ten learners had been a hard tap as evidenced by some in the classroom crying. Gongota explained that corporal punishment of any sorts was not permitted. Gongota explained that she could again work with Madalane if he was found guilty of assault. Gongota explained she had done this with other educators in similar circumstances. There were no questions in re-examination. In answer to a question of clarification from me Gongota explained that the cameras in the classroom had never been checked to see if this incident had been caught on camera.
(20) Christopher Vusile Ninzi (chair of the SGB (School Governing Body) testified that he had been chair of the SGB for three of the six years he had served on that body. SGB members are elected by the parents of learners at the school. Ninzi was aware of the extra-mural activities since grade six had been taken out which meant that the school choir could then compete with other schools. The choir sings and has activities. Ninzi was aware of the choir camp in 2019 and he as a representative of the SGB attended the camp to see how the learners fared. The camp was held in May 2019 at Strandfontein. The role of the SGB at the camp was to supervise the three parents present to do the catering and to ensure the safety of the learners. Madalane kept the keys to the hall and the kitchen. The hall had been locked at 03h00 and only one night was spent at the camp. The kitchen and hall had been locked at 03h00. No-one else had the keys to the hall. It was not true that everyone had access to the hall as it was locked when not in use. Ninzi opened the hall in the mornings and the hall had never been broken into by anyone. Ninzi had a phone plus a charger at the camp and another sharing the room had borrowed the charger in the same room shared with Thando (surname unknown). Ninzi was not usually involved in disciplinary hearings unless he was a party to the incident. Ninzi confirmed he was present to answer questions regarding the incident.
(21) In cross-examination Ninzi explained in regard to the second charge that he had held the keys to the Hall and kitchen. The choir finished practicing at 03h00 which is when Ninzi had locked the hall. There were four sharing the room which were Ninzi, Madalane, Mapazi (surname unknown) and Thando (surname unknown – guest of Madalane). It was put to Ninzi that it was possible that Madalane had taken the kays without his knowledge. The choir had been practicing and they had eaten at 23h00 after which the choir had continued to practice until 03h00. Madalane had left the room to look for a charger and had returned about three minutes later. Ninzi was reminded that at the disciplinary hearing he had said that Madalane had never sent the message to A. Ninzi explained he had done that in the best interests of the school and he stood by what he had said. Ninzi stated that Madalane had never sent those messages to A and had never assaulted the learners. In any event Ninzi stated that all the educators hit the learners. Ninzi had not actually seen Madalane hitting the learners. It was put to Ninzi that Madalane had been found guilty of assault on more than ten learners and of sending inappropriate messages to Madalane. Ninzi explained he had no knowledge of the issue concerning A. Other educators who administered corporal punishment were still at the school. Ninzi was shown the photograph taken by Sishuba. Ninzi recognized Madalane in the photograph with some learners. It was explained to Ninzi that when Sishuba saw what Madalane was doing she had told him to stop but he had not listened. Ninzi said he did not trust Sishuba as she had hit his child. It was put to Ninzi that the photograph corroborates that Madalane assaulted the learners. Ninzi felt it was part of a conspiracy to get rid of Madalane. It was put to Ninzi that he was the only witness who said that Madalane never tapped the learners. Ninzi held that all the educators use the pipe to scare the learners. It was put to Ninzi that Madalane had conceded he had hit the learners. In re-examination Ninzi confirmed that the doors to the bungalows where the learners were staying locked from the inside. Ninzi further confirmed that the hall was locked by 03h00. In answer to a question from me regarding the appropriateness of keeping learners awake past 03h00 in the morning Ninzi explained that the learners had been pushed hard to practice as they wanted to win the competition.
(22) Hazel Moahloli (a learner who is now sixteen years’ old and at the time a friend of A) testified that she had been in grade 7 in 2019 and had been in the choir. Moahloli attended the camp at Strandfontein where they had gone to practice their singing. There had been three educators at the camp which total included Madalane. The choir had been treated very well. A is part of the choir and her friend. They were in the room getting ready for bed and Moahloli had seen the phone of A which contained some chats. Moahloli explained that A had been talking to her boyfriend as well as to Madalane. The chats were mainly greetings being sent back and forth. A had said “hi” to Madalane who had responded with a hello. A had said she was not going to the camp and Madalane had said he would pay for her to go to the camp. Moahloli had not seen A and Madalane together at the camp and had only seen the messages whilst A was charging her phone. Moahloli and others were in the room together and Moahloli could not recall their names. Moahloli had been in charge of the group, had the key to the room and kept it with her all the time. Madalane had also paid for Moahloli to go to the camp as well as others so that they could practice. Madalane had come to their room to borrow a charger from A. A had given Madalane the charger from inside the room and Madalane had been outside. Moahloli locked the door after this exchange and everyone went to bed. A thereafter had never left the room. Moahloli confirmed that this was the second time she had been called as a witness to what occurred at the camp. Moahloli alleged that the first time she was influenced by Mabongo but had at that time not been truthful and had lied even though she had been under oath. Mabongo had told Moahloli what to say as she wanted to get rid of Madalane. Some untruthful things she had said were about the messages seen on the phone belonging to A such as Madalane saying he loves sex and that Madalane loved A. Moahloli explained that she had never seen such messages and had only lied at the disciplinary hearing at the behest of Mabongo so that Madalane would be dismissed. Now at arbitration Moahloli said that she was being truthful. Moahloli confirmed that she had not been bribed into testifying today and she had never witnessed anything happening between A and Madalane.
(23) The employer had not been aware that this learner would be testifying at arbitration and were given time, as requested, to get the recording from the disciplinary hearing when Moahloli had testified. In the disciplinary hearing Moahloli had testified that they were at the camp to enjoy themselves. Moahloli had heard from another that A was dating Madalane. Moahloli had taken the key at the camp and had been told to keep it with her all the time. If a learner got out the room that person would only be let in again the following day. Moahloli had locked the room for the night and then later switched off the lights. Atinkosi Gabula and A were still awake when A said to Gabula to take a look at the chats on her phone. Moahloli was listening in and was unsure if what they were saying was true so she made a plan to look at the phone a little later when the phone was still charging. When Moahloli got to read the chats she had been shocked to see their contents. A saw what she was doing so had then showed her the chats between A and Madalane. Moahloli asked A whether she still wanted to date Madalane. Madalane had asked A whether she was still a virgin and A had responded with a “yes”. Madalane in a message had said he wanted to sleep with A. Madalane had knocked on the door of the room and called out for A. A left the room and went with Madalane. A returned later and then everyone went to sleep. Moahloli said she had seen some of the messages.
(24) In cross-examination Moahloli confirmed she is no longer a student and had stopped going to school in 2019. Moahloli came to arbitration with Ninzi and Gongota. They however had not told Moahloli what to say. Moahloli confirmed that what she heard on the recording from the disciplinary hearing was her speaking. Moahloli did not recall when Mabongo had told her to lie about what happened. Moahloli agreed at that time that she had been under oath and at the disciplinary hearing had said that she was telling the truth. It was put to Moahloli that she did not previously say that Mabongo had told her what to say in order to allegedly get rid of Madalane. Moahloli confirmed that she had not told the presiding officer at the disciplinary hearing that she was not telling the truth or that she had been told to lie. In 2019 Moahloli was 14 years’ old and was told to say that she saw a message from Madalane about whether or not A was a virgin; that Madalane loved sex and this has been her testimony at the disciplinary hearing. It was put to Moahloli that she had never been told to lie. Moahloli explained that she was not lying at arbitration. Mabongo according to Moahloli had also told another witness to lie. Moahloli had not reported to Gongota that Mabongo had told her to lie. It was put to Moahloli that she was not telling the truth and she had not reported Mabongo to Gongota. Moahloli respected the process that was being followed and it was put to her that the employer could not accept her very different versions. Moahloli was reminded that at the disciplinary hearing she has testified about Madalane loving sex, asking whether A was sill virgin and so forth.
(25) In re-examination Moahloli confirmed that in 2019 she was fourteen years’ old and was now sixteen. Moahloli felt that with age she now saw things differently. Moahloli saw the messages on the phone belonging to A and had told the truth at arbitration.
(26) Xolani Madalane testified that he is currently unemployed and had been a level 1 educator since 2018 – in total he had 2 years and four months’ service with the DOE. Madalane denied that he sent a message to A saying he wanted to be a virgin breaker and the other messages. Madalane was unsure why A would lie about him and thought at the time she already had a boyfriend. A had sent messages to Madalane via Facebook messenger and he explained that he had sent messages back to A. A had said in a message that she loved Madalane and he had responded that he loves all his learners. Madalane explained that he had paid for about twenty of the learners to attend the camp for choir practice. Madalane had never expected anything in return from A. The camp started on 1 May 2019 and they had to practice singing three songs for the competition they had entered and had eventually won. Two days were allocated for the camp to practice as the choir had to win the competition so had therefore worked into the early hours of the morning. Madalane denied that he only gave compliments to A and confirmed that the choir practice had ended at 03h00. Ninzi had come to lock up at 02h00 but Madalane wanted a further hour in which to practice. Ninzi had left and returned to lock up at 03h00. There were four learners in each of the rooms and unit 12 has bunk beds so could accommodate more learners. A fellow opera singer (Thando Zwane) had come to the camp to assist in coaching the learners in their singing abilities. Madalane was aware that A had brought her charger so he went to her room to request to borrow the charger for Zwane to use. At the time A had been charging her phone and Madalane said that he had never touched the phone belonging to A. In total there were sixty learners in the choir. A had joined the choir on 15 April 2019 and Madalane is aware that she also played basketball. A had only attended practices at the camp and not prior to the camp. Madalane had never been close to Mabongo, had never shared lunch breaks or borrowed money from her. Mabongo had been investigating Madalane as she said he was not qualified. Madalane is aware that other educators never liked him but he headed the choir and he had been involved in three other groups such as SAPS (South African Police Services), the army and T2P (a transformation platform).
It was at this point that it came out that Madalane was never a permanent employee and had only been given a number of temporary contracts which had been renewed every six months. Madalane had a B. Tech degree in music. Madalane is registered with SACE and qualified to teach English. Madalane also had a diploma that enabled him to teach music. At this point we had run out of time and arbitration was adjourned. Arbitration continued on 30 March 2021.
(27) Madalane testified that he no longer had the cell phone with the messages on as that phone was stolen when he had been robbed on 16 June 2019. Madalane had kept the same number, had lodged a case with SAPS and could not find the case number. The robbery had been reported to the Nyanga Police Station and the employer had never asked for the case number. Leeann Bathgate (deputy director Labour Relations) had phoned Madalane in August 2019 to ask for the messages but his phone had already been stolen. Madalane had attempted to get the police case number but that book had been archived and could not be found. Madalane admitted that he had tapped the hands of the learners but denied that anyone had been bleeding. Madalane had seen Sishuba with her phone at the time but was unaware that any photographs had been taken. Madalane explained that the class had been writing a test that day and he needed to fetch more copies from the office. The learners had been instructed to revise their notes for the English test. On his return Madalane had found papers being thrown around everywhere with some learners jumping on the desk tops. In response to instill discipline Madalane had tapped them on their hands. Madalane saw a flashlight and Sishuba said she was going to report him to the principal. Madalane had tapped the hands of ten to eleven learners. Madalane is aware that this is not allowed and he said he would not do that again. Madalane had used Google to ascertain that he could use detention, send learners to the principal, and phone the parents and such like rather than to touch the learners. Madalane had not chosen any of those options as he had taken the easy way out by tapping their hands. Madalane gave a virtual demonstration of how he had tapped the learners by using his pen with a slight tap on his hand. Madalane confirmed that no one had been bleeding and no one cried. Madalane had previously tapped the learners. Madalane had a seven year old daughter who he beats and scolds and sends her to her room. Madalane confirmed that he had never beaten the learners. When Madalane received the message about A loving him he had thought it had been a compliment so has not seen anything wrong with the message. Madalane had spoken to the basketball coach who told him not to respond but to rather ignore such messages.
(28) In cross-examination Madalane confirmed that ten or eleven learners had been tapped on their hands. It was put to Madalane that the principal (who had been his witness) had testified that Madalane knew that any form of corporal punishment was prohibited. Referring to Circular 0012/2019 (ER bundle page 30 regarding the prohibition on corporal punishment) Madalane confirmed that in terms of the examples listed under assault what he had done fell within the example of “any physical act which may cause discomfort or pain to the learner.” Madalane agreed he had caused discomfort to the learners but denied that his actions amounted to assault. It was put to Madalane that he had confirmed he beats his own daughter and therefore it was difficult to believe that he would not do the same to the learners. It was pointed out to Madalane that he could be arrested by the police for beating his daughter and Madalane objected in that it was his private business. Madalane agreed that he was aware that corporal punishment was prohibited and it was put to Madalane that he said he took the easy way out which was not the truth. Madalane was reminded that his version about the test was not believable as this had been the end of the school period and therefore there would not have been any time to have written any tests. Madalane was reminded that Sishuba had arrived, saw what Madalane was doing and had told him she was going to report his misconduct. Madalane insisted that there had been a test and Sishuba was not correct in her testimony. Madalane corrected himself and explained that the learners had being doing an assessment and had not physically been writing a test. Madalane had been unaware that he was not allowed to tap the learners and had only read the circular in this regard after his disciplinary hearing. Madalane was reminded that at his disciplinary hearing he had said he had no regrets or remorse as he had tapped the learners. Madalane explained he had wanted to stop the learners from jumping on the desks. Madalane agreed he had been in the wrong. Madalane stated that he had never looked up to Sishuba and did not respect her at all. It was put to Madalane that Sishuba had arrived in the classroom, told him to stop and yet he had still continued assaulting the learners. Madalane stated that he never saw it as disrespect if he continued to hit the learners in the presence of Sishuba. The age of the learners was confirmed as abut ten to eleven years’ old. It was put to Madalane that some learners had shown their pain in that they cried. Madalane had not apologized to any of the learners and denied that anyone had cried. It was put to Madalane that case law confirms that assault is a very serious offence. Madalane explained that he had not been aware at the time that it was wrong to have tapped the learners. It was put to Madalane that he had hit the learners as it came naturally / easily to him as he did this to his own daughter. This was denied by Madalane. Madalane was reminded that at his disciplinary hearing he had said he had received permission from the parents to assault the learners. Madalane had no recollection of saying this but added that he had spoken to the parents and therefore had their permission. Madalane conceded that he never had permission to tap the learners on their hands. It was put to Madalane that he was there to protect the learners but had hit them. Madalane agreed that he had been wrong.
(29) Madalane confirmed that A was in a primary school. It was put to Madalane that the messages (as contained in the first charge) sent by Facebook messenger were inappropriate. Further that A had no reason to lie. Madalane stated that A was lying although they had communicated by Facebook messenger. It was put to Madalane that he claims he lost his phone; he lost the police case number; said no-one asked him to produce evidence and that this made no sense as such proof could have been obtained from the various service providers. Madalane said he had written to Facebook to retrieve his messages but was told that it would not be possible. It was put to Madalane that A no longer had proof of the messages as after the camp Madalane had deleted all those messages. Madalane disagreed. It was correct that Madalane had paid one hundred rand for A to go to the camp and it was put to Madalane that therefore she had no reason to lie. Madalane disagreed and explained that Mabongo was close to A and they had all instigated these allegations as they did not want Madalane at the school anymore. It was put to Madalane that Gabula had testified at arbitration that she had seen those messages and was shocked. Madalane was asked if he had interfered so that the parents of Gabula never gave their permission for her to testify at arbitration. Madalane countered that he did not recall such a conversation and they (the parents of Gabula) must be called to arbitration to give evidence in that regard. It was put to Madalane that A is fourteen years old and at law he was prohibited from having a relationship with a minor. Madalane agreed. Madalane was reminded that he claims he lost his phone; never reported inappropriate messages received to the principal and the truth was that Madalane had sent the messages to A and not the other way around. Madalane confirmed he had phoned A as he wanted to speak to her parents about the camp. Madalane was reminded that it was alleged that at the camp at 03h00 he had asked A to meet him at the hall. Madalane agreed that he was told by the SGB that they had no money for the camp so Madalane had phoned a friend from overseas who had agreed to pay for the camp. Madalane explained he needed sixty learners in the choir. Madalane agreed that he had been found guilty of all three charges at his disciplinary hearing. If A had sent the message to Madalane saying she loves him – it was put to Madalane that anyone receiving such a message from a fourteen year old would have reported the matter to the principal. Further that the principal would then deal with the parents so the version of Madalane is highly improbable. Madalane countered that he was unaware that he had to report the messages to the principal but now he knows. Madalane was reminded that the evidence at this arbitration was that he was the favorite of the principal and she was fond of him. It was put to Madalane that if he were close to the principal he would have no reason not to have informed her about the messages. Madalane was reminded that this had been a work related issue which should have been addressed with the principal. It was put to Madalane that since 5 February 2021 he had not returned to SAPS to see if he could retrieve the case number and that it is doubted that his phone had been stolen as alleged. Madalane explained that he had been to SAPS and had tried to retrieve those messages from the stolen phone. Since the last arbitration date Madalane had not returned to SAPS. After the call from Bathgate in August 2019 Madalane confirmed he has not tried again to retrieve the case number from SAPS. It was put to Madalane that Raubenheimer had said that Madalane had never understood the gravity of the offences he had committed.
(30) In re-examination Madalane confirmed that at the time of the incident he had not understood the difference between the tap and assault. Madalane now saw that the tap is seen as an assault. Madalane had spoken to the parents who never saw anything wrong with his methods of discipline but Madalane now sees he was wrong and will in future abide by the law.
In answer to questions of clarity from me Madalane confirmed that his friend paid R2000.00 and it cost R100.00 per learner to attend the camp. Twenty seven learners had paid (R2700.00) and Madalane had contributed R3300.00. Madalane could not explain the discrepancies in the costs. Madalane explained they had arrived at camp at 10h00 and had met at the hall at 11h00. Madalane had wanted to win the competition as it could then go on his curriculum vitae which would allow him to get better jobs. The competition was SASCE – South African Schools Coral Eisteddfod. Madalane is seeking reinstatement and to be found not guilty of any of the charges.
(31) It was agreed that closing arguments would be submitted to me by no later than 17h00 on 9 April 2021 (extra time given due to the Easter holidays). The closing argument was received from the employer on time. The union had a bereavement and applied or an extension to submit their closing argument by close of business on 14 April 2021. The closing argument from the union was received on 15 August 2021, the contents of which have been noted.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
(32) I am required to determine on a balance of probabilities whether the dismissal of Madalane was fair. Madalane confirmed that there were no procedural challenges in this dismissal. The procedure followed by the employer aligns with the provisions of Schedule 8 – Code of Good Conduct: Dismissals of the LRA. Consequently the dismissal is found to be fair on procedural grounds.
(34) Madalane admitted that he and A had communicated by Facebook messenger. It was the evidence of Madalane that A had sent messages to him via Facebook messenger and he explained that he had sent messages back to A. It is totally inappropriate that an educator should be doing this let alone with a learner aged fourteen years old. Madalane should not have communicated at all with any leaner regardless of their age via this channel. It is the content of those messages which is disputed. Initially A had been unable to attend the camp as her granny was unable to afford the costs – her mother being in Johannesburg. Prior to the camp A had not been a member of the choir but it appears was coerced into joining the camp by Gongota and then the fee for the camp was paid for by Madalane. A had confided in Mabongo about the contents of those communications which then compelled Mabongo to advise the mother of A and to report the matter to a social worker in that Gongota was not trusted sufficiently to have handled the situation correctly. It is improbable that a fourteen year old made up the existence of the messages and their contents given her emotion and evident disgust whilst testifying at arbitration. Moahloli according to the testimony she had given at the disciplinary hearing had read the messages and had been shocked at their contents which lends credence to the version of A regarding the message contents. The recording of the evidence led by Moahloli at the disciplinary hearing was played during arbitration and Moahloli agreed that it was her voice and what was heard is exactly what she had said. Moahloli confirmed the contents of the messages that she had read whilst at the camp directly from the cell phone of A which had been charging which corroborated the version of the message contents as given by A. Moahloli had initially been a witness for the employer at the disciplinary hearing but at arbitration having dropped out of school she became a witness for Madalane and in so doing attempted to reverse her evidence given at the disciplinary hearing. There is also the evidence of Mabongo which corroborates the message contents as given by A and corroborated at the disciplinary hearing by Moahloli. Madalane having either deleted those messages from his phone or had his phone stolen seemed smug that at arbitration as he had brought Moahloli as a surprise witness to attempt to erase the damming evidence she had given against Madalane at his disciplinary hearing. A testified at the end of the camp Madalane had taken her phone and erased all the messages that were exchanged between her and Madalane. I have no reason to doubt the version of A. Madalane seems not to understand the law very well. The giving of false evidence under oath is punishable by law and is called perjury – which offence is what Moahloli has done. Perjury is a serious crime and carries a hefty penalty – imprisonment or a fine. This is a labour dispute held in terms of the LRA where the onus is on a balance of probabilities. In criminal law the onus is beyond reasonable doubt. That being said it is most probable that the testimony given by Moahloli at the disciplinary hearing is correct and is accepted. There is nothing at law that prescribes that the evidence must be in writing or in the form of the original messages. When the testimony of A corroborated by Mabongo whom A had told and then again corroborated by the testimony of Moahloli as given originally after she had read the messages is on a balance of probabilities the most likely version. Madalane conceded that him and A had communicated using Facebook messenger. In the circumstances I find on a balance of probabilities that Madalane made the following inappropriate remarks towards learner A via Facebook messenger: (a) I love you, do you love me back? (b) I want to be in love with you; (c) Are you a virgin? (d) I want to be your virgin breaker; (e) Can you give me sex? (f) When will you agree to be my girlfriend? (g) I love sex; (h) I want to sleep with you. Madalane is consequently found guilty of charge 1. The contents of the messages wreaked havoc on the emotional state of A. This is totally repulsive.
(35) It was conceded by Madalane that at approximately just after 03h00 he had contacted A to borrow a charger for an operatic friend “Thando” who had been assisting with the choir practices. When at the camp, Madalane had asked A to meet him outside of her room at 03h00 according to the testimony of A. Madalane testified that he was aware that A had brought her charger to the camp so he went to her room to request to borrow it. This begs the question as to how Madalane knew this one learner out of sixty had a charger with her at the camp. It was confirmed by Ninzi (who shared a room with Madalane plus others) that Madalane had left the room just after 03h00 to look for a charger and had returned about three minutes later. It was completely uncalled for to have messaged a fourteen year old learner at just after 03h00 in the morning for any reason whatsoever. There is no valid reason why Thando could not have waited for day break to charge his phone as he was going to sleep at that time and was not going to be using his cell phone. Whether Madalane had been looking for a charger or ear phones is irrelevant as having, wrongly in my view, kept all learners awake until after 03h00 to then further disturb them for any reason is reprehensible and should not have happened. Learners of that age or thereabout need their sleep and lack of sleep may result in unintended consequences. To have kept the learners practicing until the early hours of the morning in order to win the choir competition shows poor judgement on the part of Madalane who was running the camp with the assistance of three parents and three other educators. Someone should have put a stop to this but failed to do what was in the best interests of the children at the camp. Madalane should have known better. In the circumstances I find on a balance of probabilities that Madalane is guilty of the second charge in that whilst on a choir camp you contacted learner A in the early hours of the morning (on or about 03h00) and requested to meet Madalane outside her room.
(36) Madalane conceded that he had “tapped” the palms of the hands of at least ten learners. There is a photograph that corroborates that Madalane had done this taken by Sishuba. Although a little blurred Madalane agreed that it was him in the photograph. A solid plastic pipe was used which fact adds gravity to this misconduct. At arbitration Sishuba handed in a list of those ten learners that she could recall as having been hit by Madalane. We were referred to Circular 0012/2019 (ER bundle page 30 regarding the prohibition on corporal punishment) where Madalane confirmed that in terms of the examples listed under assault that what he had done fell within the example of “any physical act which may cause discomfort or pain to the learner.” This circular was sent out on 9 March 2019 and it was not disputed that training was given on the same subject. It is reprehensible (meaning that a type of behavior is very bad and morally wrong) that Madalane had assaulted the learners in this manner. As arbitration proceeded Madalane brought down the number of learners assaulted to only two yet I have a list of ten learners which Madalane had previously conceded that he had assaulted all ten or even maybe eleven. The version given by Madalane that the learners were to write an English test is not credible in that it was the end of the period; the next teacher had arrived to take over the class and if Madalane, as claimed, had to go to the office to collect more test sheets or similar it shows poor planning on the part of Madalane as he should have had everything ready with sufficient quantities that were needed to run his class at that time. The version of Madalane again changed from writing a test to only doing an assessment. This however did not change the established fact that Madalane had assaulted ten learners if not more. The question of whether or not Madalane had parental consent to administer corporal punishment is irrelevant as the rules are clear that any form of corporal punishment is strictly prohibited. In the circumstances I find on a balance of probabilities that Madalane is guilty of the third charge in that Madalane assaulted grade 5 learners by hitting them with a pipe on their hands.
(37) Looking holistically at the Linge Primary School there appears to be a degree of toxicity in the school. They have a principal that favours Madalane as evidenced by her giving Madalane a lift to his disciplinary enquiries when it would be reasonable to expect her to stand back and let the process take its course. It was not disputed that it had been Mabongo who brought in the social worker to see A. It is a sad state of affairs that, when a learner needs assistance, the principal is not trusted to be able to handle the matter. It seems probable that learners were called in singularly to see the principal and as a result A was left feeling isolated. Then there are allegations from Ninzi (as chair of the SGB) who without hesitation testified that he does not like Sishuba as she hit his daughter but then states all the educators hit the learners. This should be stopped immediately if true. Then educators are disciplined for vandalism of the cameras installed in the classrooms. What sort of example does this set for the learners? Sixty learners are permitted to go to a choir camp along with three parents doing the catering and three educators. It is unreasonable to keep young learners up until after 03h00 in the morning.
(38) Throughout arbitration Madalane showed a serious lack in judgement as evidenced by his having been communicating with a young learner through the means of Facebook messenger. That shows serious conduct unbecoming of an educator. The reason the choir competition had to be won was so that Madalane could place it on his curriculum vitae to prospectively obtain better job opportunities. For this selfish reason Madalane arranged the choir camp and kept learners awake practicing until after 03h00. It is reprehensible that Madalane, as admitted would text a learner and go to her room on the pretext of getting a charger to loan. In any event the charger had been in use at the time by A as evidenced by her and Moahloli. Initially Madalane pleaded not guilty to all the charges. As the evidence came out Madalane changed his plea and admitted to the Facebook messages (just not the contents); admitted to having to gone to the room of A at the camp after 03h00 and finally admitted to assaulting at least ten learners and also admitted to having done this in the past. These are serious examples of a lack of proper or any judgement on the part of Madalane. Further, after Madalane had finished with his evidence and in a response to clarification sought from me, Madalane said that he wanted to be found not guilty of all the charges. Once Madalane admitted to the misconduct as charged it was naïve and hopeless for him to expect me to find him not guilty of all the charges.
(39) Taking all circumstances into account I find on a balance of probabilities that Madalane is guilty of serious misconduct as charged / admitted and that his dismissal is fair on substantive grounds. The dismissal of Madalane if found to be fair on both procedural and substantive grounds. The decision to dismiss Madalane is one that a reasonable decision maker would make taking into account the best interests of the child. I further find that Madalane is not suitable to work again with children in terms of the Children’s Act.
(40) The dismissal of Xolani Madalane is found to be fair on both procedural and substantive grounds. Consequently this case is dismissed.
(41) The ELRC is further directed to send a copy of this award to the South African Council for Educators (SACE) for the revoking of the SACE certificate for Madalane.