Commissioner: Gail McEwan
Case No.: ELRC469-20/21 WC
Date of Award: 20 April 2021
SECTION 188A INQUIRY
THE DEPARTMENT OF EDUCATION WESTERN CAPE
Union/Employee’s representative: Gerhard Strydom
Telephone: 063 404 8025
Employer’s representative: Ghaatoon Khan
Employer’s address: Private Bag X9114
Telephone: 021 467 237
Email: : Ghaatoon.Khan@westerncape.gov.za.
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
(1) This matter was referred to the Education Labour Relations Council in terms of section 188A of the Labour Relations Act 66 of 1995 (LRA) as amended and was heard virtually via zoom on 6 April 2021 with the consent of the parties. The request for an inquiry by an arbitrator was made on the prescribed form which was signed by Strydom. The employer handed in a bundle of documents electronically and the arbitration hearing was digitally recorded. Stephanie Marks was present as an intermediary. In terms of a Collective agreement it was agreed that the use of intermediaries is compulsory when a child gives evidence in cases involving misconduct of a sexual nature. Written permission had been obtained from the parent of the minor child to testify. It was agreed that to protect the identity of the child she would only be referred to as “A”. Also present was Berenice Coetzee - the district social worker (as an observer) and Bianca Mankay was present as an Afrikaans interpreter.
(2) The Department of Education was represented by Ghaatoon Khan (Senior Labour Relations Officer). Gerhard Strydom (the employee) was initially present at the DOE offices in Cape Town when extra efforts had been made for an intermediary and an interpreter to travel to Malmesbury due to transport issues with the learner and the employers’ two witnesses and so the matter was heard virtually. Khan spoke to Strydom and explained that they did not have sufficient facilities for him to use and he should go to where he could join the inquiry virtually. We waited for Strydom to again log in and when he did he was in a car and the laptop being used was being flung around. The nephew was driving. I explained that they should pull aside in a safe spot before they had an accident. Strydom logged in again a little bit later and I started explaining what would be happening. Strydom began shouting that it was his constitutional right to be legally represented. I asked him to stop and settle down. Strydom then started shouting that he needed a postponement as his advocate was unable to be present on 6 April 2021. I explained that he needed to apply for legal representation as he had been advised to do in an email from the DOE dated 30 March 2021. Strydom became aggressive and continued to shout. Strydom said this was bullshit and he was leaving. I advised that in the event that he chose to leave, the inquiry would continue in his absence. Strydom shouted some more, announced he was leaving and logged out. The inquiry proceeded in his absence as Strydom was uncooperative and knowing of the consequences chose to leave the inquiry of his own accord.
(3) The purpose of this enquiry is to determine whether Strydom is guilty or not guilty on the following charge and if found guilty on a balance of probabilities to impose the appropriate sanction:-
It is alleged that you are guilty of misconduct in terms of section 17 (1) (b) of the Employment of Educators Act No. 76 of 1998 (the Act) in that you on or about 16 October 2020 sexually assaulted a grade 8 learner at the Westbank Secondary School by:
(a) Giving her a hug whilst touching her buttocks; and/or
(b) Touching / rubbing her breasts; and or
(c) Kissed her in the neck.
(4) 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
(5) Strydom worked as an educator teaching grade 8 Mathematics and earned R36 406.44 per month. Strydom started working for the employer in 1993.
SUMMARY OF EVIDENCE AND ARGUMENT
The employer’s version and testimony was as follows:-
(6) Learner A testified that she is fifteen years old and goes to the Westbank Secondary School where she is currently in grade 9. At the time of the incident she had been in grade 8. Strydom taught A mathematics in 2020 and he had been nice, normal, fine and then there was the lockdown. Before the lockdown Strydom liked to scold the learners and after the lockdown Strydom was better as he scolded the learners much less. Strydom liked A and sent her to collect his things, pour his water and talked to her. Strydom only did those things with A. It had been a Friday after lockdown when Strydom had asked A to pour him some water from the bottle into the glass. A had done what she had been asked. Strydom then told A to put the water bottle back. At the time Strydom had his back to the class and faced A as she was returning. Strydom gave A a hug and with his right hand had touched her buttocks with his hand. At the time A was outside of the classroom so A pushed Strydom away and gave him a look of displeasure as she made her way back into the classroom. It was the end of the school period and the bell rang. Strydom asked A to assist him with his “things” but he only had one bag. They walked down alone in the corridor and Strydom put his arm around the neck of A and rubbed her right breast. Strydom asked whether A had a phone number and where she lived. A said she would give her parents phone number and Strydom said that would not be necessary. A began to worry so Strydom told her to go but to pop into his class to see him. After lockdown the learners stayed in the classroom and the teachers moved around the various classrooms. A returned to her classroom and told her friend “Kelsey” (not her real name) that she felt uncomfortable with Strydom as he had touched her buttocks and breast. Kelsey told A to report what had happened to an adult. Strydom then sent two boys to call A to come to the classroom where Strydom was and on her arrival A observed that the class was unruly. Strydom was sitting at his desk with his mobile phone in his hand. Strydom asked A to go and fetch some water but the water bottle was already on his table. A poured some water in his glass and Strydom asked A to sit next to him in a chair that was pulled up close to the table. A sat down and Strydom showed her some photographs of shoes (vellies) and some traditional Xhosa dresses which were very pretty. Strydom asked A which colour shoes she liked the best and she responded that the dark brown ones looked nicer than the rest. Strydom told A that he also liked those ones and said he would purchase that pair. Strydom explained that he wanted to fetch A after school and she should stand in the road to wait for him. The road to Darling passes the farm where A lived but she did not respond to Strydom. Strydom had finished drinking his water so leaned over and hugged A who gave a hug back. A at that time had been standing ready to leave and as Strydom hugged her he again touched her buttocks. Strydom said he will miss A and A responded “okay” as she wanted to get away from him. A approached Mrs. Solomon who taught A the subject Life Orientation and reported how Strydom had hugged her, grabbed her buttocks and Solomon said A would need to leave that class. Strydom called A after the second break after she had already changed classes with Ms. Roman. Two boys had been sent to call A and although reluctant to go to Strydom A felt a little better as there was another girl present. On her arrival Strydom asked A to pour him some water to which A had responded that she could not as she was too busy. Strydom then gave A a hug and A hugged him back. Strydom bent over and told A that he loved her and then unexpectedly Strydom had kissed A on her neck. A immediately walked away and went to the class where Vertozel Joseph was teaching Social Science. A approached Joseph as she felt comfortable in telling her what happened. Joseph took A aside, helped wash her face and then they went to the office of the principal. However the principal was not there at the time so they agreed to see him first thing on the Tuesday. On the Tuesday A went to school and went with Joseph to see the principal where she told him what had happened. Thereafter A went to hide in the class of Solomon. Another learner had told A that Strydom was aware that she was bunking his class. Strydom then arrived and asked A why she was bunking. A just said no and went to the back of the class and then it seemed that Strydom was only explaining the class work to A. A felt very uncomfortable as she had to pass the classroom where Strydom was on her way to a different class – that of Joseph. A had been worried about who would teach her mathematics but another mathematics teacher called Steel Strydom (A was unsure if he was related to the other Strydom) and A joined his class. A heard that Strydom would ask others about her whereabouts so A told Kelsey not to say a word. Thereafter Strydom never bothered A and she kept well away from him. The principal called in a social worker (Coetzee) who suggested that A change to a different class. After that A never saw Strydom much. A had never felt right and no-one had ever done those things to her before like touching her buttocks. It was when Strydom touched her breast that A knew something was very wrong. A explained that teachers are not allowed to touch learners. After the kiss A had felt sad, was uncomfortable and she had cried. A stated that Strydom is a married man and has a wife. A had nothing else against Strydom. At this time we took a break as the learner was crying hard and the intermediary took A for a walk. After a fifteen minute break A confirmed that she knew the difference between truth and lies. A knows she always had to be honest as that it what it states in the Bible. When a person lies they go straight to hell. A confirmed that everything she had said at arbitration was one hundred percent truthful.
(7) Vertozal Joseph (Educator level 1) testified that she had been at Westbank Secondary School for a period of two years and teaches Life Orientation, Afrikaans and Geography. Joseph taught A when she had been in grade 8D. Joseph only interacted with Strydom when at school although he lived in the same street as her family. A had been distraught when she approached Joseph so she took A to where they could speak privately. Once calmed down A had said that Strydom asked A to carry his bag and whilst doing this Strydom had put his arm around A’s shoulder and touched her breast. A had also been called later to pour water into a cup for Strydom and then he told A to watch him while he drank the water. Strydom had again called A to ask her which shoes he should buy for himself. A had approached Joseph who then arranged to take A to see the principal but he had not been in his office at that time. Joseph told A they would go the principal on the Monday so he could listen to her version. On Tuesday they returned to the principal when the Form 22 (Reporting of abuse or deliberate neglect of child (Regulation 33) (Section 110 of the Children‘s Act 38 of 2005)) had been completed. Coetzee (social worker) had been called and A had received counselling. A was thereafter called by Strydom but she had not responded. The principal moved A to the class of Joseph as they only had different teachers in Mathematics. Joseph was monitoring the situation and a few days later a different learner reported that Strydom wanted that learner to sit with him. Joseph told that learner that the classes could not be swopped as it was too close to the examinations. Joseph was disgusted with what A said she had to go through and A had trusted Strydom. Joseph was aware that at about age seven A had been molested by a close friend of a family member. Joseph explained that A did not have a mother and she was broken just as A had been broken. A at the time had been very emotional, had been traumatized and kept asking why this had happened to her. Joseph could only hug A.
(8) Vincent Paramore (principal) testified that Strydom worked at his school where A was a learner. Joseph reported the incident to Paramore in that Strydom had made indecent advances towards A. Paramore undertook to complete the Form 22 and handed the matter over to the DOE. Subsequently Coetzee had set up meetings with A. A reported that Strydom would send her out of the class to fetch his things. Strydom had also touched the breast and buttocks of A as well as giving her a kiss. The incidents happened after lockdown and Strydom knows that educators are not permitted to touch learners. All educators have been trained on the “Abuse no More” initiative which took the form of a workshop held at the school at which Strydom had been present. After the incident Paramore had arranged more workshops to remind Educators what was expected of them and that they were not permitted to touch learners. Strydom is also aware of all policies in this regard. A had been very uncomfortable and after the incidents Strydom can no longer be trusted to be amongst learners.
(9) The employer submitted a four page closing argument, the contents of which have been noted.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
(10) I am required to determine on a balance of probabilities whether Strydom committed the offences for which he had been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties. Strydom faced one charge. Strydom, if found guilty in terms of section 17 (1) (b) of the Act then the mandatory sanction which is summary dismissal will be applied.
(11) The learner who gave testimony was consistent despite her emotions. It was evident that it was painful for her to again be saying exactly what Strydom had done. I have no reason not to believe this evidence and in the absence of Strydom I have no other version on which to base my findings. The version of the learner matched what she had previously told the two educators who also testified.
(12) The behavior of Strydom was brazen as it was done mostly in full view of others which impaired the dignity of the learner. The behavior of Strydom included touching the buttocks, breast, wrapping his arm around her shoulder, telling her he loved her and finally kissing her on her neck. Strydom had also asked this learner for her address presumably so he could visit her and to stand on the road to wait for him for reasons unknown. This learner is fifteen years’ old and it is a disgrace that whilst at school, which is supposed to be a safe place, she was sexually assaulted by Strydom. The learner was not there to pour water into a glass for Strydom; or to carry his bag; or to tell him which shoes he should purchase. This was demeaning for the learner in the full view of others. This conduct is disgraceful. There is no doubt that Strydom conducted himself in an improper, disgraceful and unacceptable manner, in that he sexually assaulted a grade 8 learner of the Westbank Secondary School.
(13) Sexual assault on a learner falls under section 17(1) (b) of the Employment of Educators Act No 76 of 1998. Assault is defined in our law as the unlawful act which results in another person’s bodily integrity being impaired or which inspires in another person a belief that such impairment of her bodily integrity is immediately to take place. Strydom is hence on a balance of probabilities guilty of sexual assault on the learner involved.
(14) The test to be applied in determining whether such conduct has the requisite sexual nature is an objective one, viewed in the light of the circumstances. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act and all other circumstances surrounding the conduct, including threats which may or may not have been accompanied by force will be relevant. Strydom grabbed the buttocks of the learner; touched her right breast; asked for her phone number and address; asked for the learner to stand in the road to wait for him to fetch her and finally said he loved her after which he kissed her on her neck. The actions of Strydom were in these circumstances, on a balance of probabilities, of a sexual nature and completely disgraceful.
(15) The Constitutional Court held that section 28(2) of the Constitution imposes a duty on all of those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Courts and arbitrators are bound to give consideration to the effect their decisions will have on the lives of children, not only in the life of the child who is a victim of sexual misconduct but also the lives of learners in general who have the right to be protected against sexual abuse from educators. I find on a balance of probabilities that Strydom is guilty of the charge against him and that his actions were of the nature of a sexual assault.
(16) Where an educator is found guilty of misconduct in terms of section 17(1) (b) of the Act, the sanction of dismissal is mandatory. The arbitrator has no discretion to impose any other sanction irrespective of mitigating circumstances. Courts in all jurisdictions have always viewed any form of sexually inappropriate behavior on the part of educators towards children in the most serious light, justifying summary dismissal. Strydom has been found guilty of the charge against him in terms of section 17 (1) (b) and Strydom is summarily dismissed with immediate effect from the date of this award. In terms of my findings Strydom is found to be unsuitable to ever work again with children in terms of the Children’s Act.
(17) Gerhard Strydom is found guilty of the charge against him for which a mandatory sanction of summary dismissal is imposed with effect from the date of this award. Strydom is found unsuitable to ever work again with children in terms of the Children’s Act. The ELRC is kindly requested to send a copy of this award to SACE (South African Council of Educators) so that his Certificate as an Educator may be revoked.
(18) Strydom has the right to take this award on review to the Labour Court.