IN THE MATTER BETWEEN:
DEPARTMENT OF EDUCATION – KWAZULU-NATAL Employer
SANTOSH MAHARAJ Employee
FINDINGS AND SANCTION OUTCOME
Case Number: ELRC335-20/21KZN
Date of Enquiry: 14 &15 April 2021
DATE OF AWARD; 28 April 2021
ELRC Arbitrator: Humphrey Ndaba
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
1. This enquiry was scheduled to be heard on the 14th & 15th April 2021.
2. The employer was represented by Nontobeko Magoso and the employee appeared on his own.
3. The employer led the learner as a witness through an intermediary. The employee testified on his own.
4. The matter was concluded on the 14th April 2021.
5. The employee requested a postponement in order to be represented by an attorney. The employee received a notice of the set down on the 20th March 2021 at his own email address he provided the employer. This email is firstname.lastname@example.org this email was successfully transmitted.
6. The postponement was refused because the employee or his attorney had ample time to apply for legal representation which is not automatic.
7. At the time of the hearing the attorney had not as yet applied for legal representation.
CHARGES AGAINST THE EMPLOYEE
8. The employee was charged with commission of an act of misconduct in terms of section 17 (1) (b) of the Employment of Educators Act, 76 of 1998 in that from 2019 to 2020 he sexually assaulted a learner and in regard to charge 2 the employee allegedly committed an act of misconduct in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 in that in May 2018 he informed a learner by the learner that he was madly in love with her.
9. Plea: the employee pleaded not guilty to charge 1 and 2.
SURVEY OF EVIDENCE
(Employer’s witness) Learner K
10. She testified that she is 15 years old and is a former leaner at Wood View Primary School.
11. She was constantly abused sexually by Maharaj for a period spanning over two years from the age of twelve when she was at a lower grade which started with a love letter in 2018 until sometime in March 2020 when her guardian found out about the affair from her cellular phone given to her by Maharaj.
12. He started with a letter of love proposal in 2018 which she rejected. She testified that he was persistent to an extent that he befriended her family, including inviting and taking her out with his family. She testified that Maharaj took her to Kamp’s Lodge, La Mercy Beach Hotel, Britannia Hotel and Wood View Primary School where he was a former educator.
13. She testified that after receiving the proposal, he continued to pass inappropriate remarks.
14. Maharaj took her to a hotel where they were going to have a discussion, when they arrived in the hotel room, he started touching her inappropriately, touching her breast and vagina on top of her clothes. He then started touching her underneath her clothes. She responded by stepping away and he threatened to tell her guardian that she allowed him to touch and get closer to her. He told her to sit at the edge of the bed and to remove her pants and shoes. He started using his hands, fingers and tongue to put into her vagina. She noticed that he was climbing on top of her. She jumped and moved away, put her pants up and they left. She testified that when all this happened, they were not in a relationship.
15. She testified further that she was scared to tell her guardian about the incident because Maharaj was a family friend and she used to fight with her guardian. She would believe him more than she can believe her because she thought she was untrustworthy. He drove her back to her house, told her not to tell her guardian and said it was a once off thing and will not happen again. This was in July 2019.
16. In July 2019, he took her to his house at a time his family was not there. He took her into his room and started touching her again and she said this should be the last time, but it continued. He said if she wanted it to be the last time, she must allow to have sex with him. He made her take off her clothes, lie on the bed and started to have sex with her. When he was finished, he made her to put her clothes and he left the room. He came back to the room and drove her home.
17. Afterwards he told her that he was not happy how she acted the first time. They continued for couple months to have sex on weekends. He will give her guardian an excuse to take her out of the house on a pretext of chess training and tournaments. He said he will fix issues with her guardian if they have sex more often and she agreed.
18. In one of the hotels she was noticed by the guards who later came knocking at the door, asked for an identity document which she did not have, and they were sent out of the lodge.
19. She testified that they had sex at Good View Primary School where he was an educator in his class. They put blankets on the floor at the back of the classroom.
20. He used to pick her up from school and leave her home before her guardian returned from work.
21. She did not tell anyone even her teachers, because when it happened, she will disassociate and try to forget about it.
22. He even gave her a cellular phone where he will contact her and that she must keep it secret from her guardian.
23. She testified that she confessed to her guardian after she found the cellular phone with suspicious messages from Maharaj.
SANTOSH MAHARAJ (Employee)
24. Maharaj testified that it would have not been possible to take the learner to places because he did not drive to the school with a car because his house is next to the school.
25. No specific dates were given when the sexual acts were committed The evidence by the learner did not have time and venue, it just her word of mouth without corroboration.
26. The learner and her legal guardian had a bad blood between them and him. The legal guardian wanted him to marry the learner because of his inheritance from his late father. He refused to marry the leraner and the legal guardian then threatened him, saying she will make his life difficult and make sure that he loses his job. He did not take the threats seriously until August 2020 when a criminal case was opened against him.
27. He has people who may testify that learner is a trouble maker, during lunch time she was in class with boys having sex. He testified that he knew this because he had hired a private investigator.
28. The guardian is using a child because she knows the repercussions of sleeping with a child from his twenty years of experience as an educator. His wife and pastor could testify to his good character.
ANALYSIS OF EVIDENCE
29. Section 28(2) of the Constitution of the Republic of South Africa provides that the best interests of the child are of paramount importance in every matter concerning the child. See the case of Seatlers Agriculture High School v HOD Limpopo  JOL 10167 (T). In Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BLLR 761 (CC) The Constitutional Court held that section 28(2) of the Constitution imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Statutes must be interpreted and the common law developed in a manner which favours protecting and advancing the interest of children. Courts and arbitrators are bound to give consideration to the effect their decisions will have on children’s lives.
30. The Children’s Act 38 of 2005 overhauled the whole child-care system and contains a comprehensive response to child care and protection rights. The act is in fact the legislative mechanism that gives legal effect to the rights of children as provided for in the Constitution and other relevant international treaties. Furthermore, the Children’s Act has expressly provided for the meaning of, and protection of the rights of children. Simply put, the best interest of the child means considering the child before a decision affecting his or her life is made. Section 9 of the act provides as follows:
“In all matters concerning the care, protection and well-being of the child the standard of the child’s best interests is of paramount importance and must be applied. There are three broad categories of misconduct of a sexual nature towards learners of which educators can made themselves guilty namely;
• Sexual assault on a learner [section 17(1)(b) of the Employment of Educators Act, No 76 of 1998]
• Having a sexual relationship with a learner of the school where the educator is employed [section 17(1)(c) of the Employment of Educators Act, No 76 of 1998]
• Any other misconduct of a sexual nature, which would constitute misconduct under any of the categories of offences listed in section 18 of the Employment of Educators Act, No 76 of 1998.
Sexual Assault [Section 17(1)(b)]
There is a common misconception that sexual assault must necessarily involves contact with the genitalia. This is not correct.
Assault is defined in our law as the unlawful and intentional act which result in another person’s bodily integrity being impaired, or which inspires in another person a belief that such impairment of his bodily integrity is immediately to take place
Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victims is violated or threatened”.
Other forms of misconduct of a sexual nature [section 18]
31. Section 18 of the Employment of Educators Act provides for a number of offences of which educators can make themselves guilty. This include:
Failing to comply with or contravening any statute, regulation or legal obligation relating to education and the employment relationship (which would include a contravention of the SACE Code of Conduct) – section 18(1)(a)
Unjustifiably prejudicing the administration, discipline or efficiency of the employer – section 18(1)(f)
Misusing his position at a school to prejudice the interest of any person – section 18(1)(g)
While on duty, conducts himself in an improper, disgraceful or unacceptable manner – section 18(1)(g).
32. Misconduct of a sexual nature that does not constitute misconduct in terms of section 17, would generally constitute misconduct in terms of section 18. Examples may include kissing a learner with her consent, proposing love to a learner, having a sexual relationship with a learner of another school, grooming a learner.
33. In Emfuleni Local Municipality v SALGBC and others (JR 2525/11)  ZALCJHB 356 (handed down on 14 October 2015) the Court outlined the steps that the arbitrator should follow in evaluating conflicting versions before him / her as follows;
a) In misconduct disputes the employer need only show that, on all the evidence presented by both parties, its version is more probable than the employee’s version.
b) While the overall onus never shifts from the employer, the need to present or counter evidence may rest on different parties.
c) Once the employer has proved its allegations with evidence to a degree that its version requires an answer or rebuttal lest it be believed, the evidentiary burden shifts onto the accused employee to prove otherwise.
d) An employee is not entitled to the benefit of the doubt as to the convincing nature of his or her explanation. Or raising a particular defence, and evidentiary burden falls on the employee to establish that his or her version is likely. It is not necessary for the employer to adduce evidence to disprove positively a defence, especially if the defence is within the unique knowledge of the employee.
e) An employer must prove its own case on a balance of probabilities. If it does so, it therefore follows that the employee’s case is false.
34. In Compass Group Southern Africa (Pty) Ltd v CCMA and others (JR 633/16) (handed down on 9 February 2018) the Court pointed out that once the employer provides prima facie proof of the misconduct as alleged, the evidentiary burden shifts to the employee to prove his own defence. If the employee then fails to put up a defense or fails to prove his defence, the employer’s prima facie proof of misconduct becomes conclusive proof and the employer has then discharged the overall onus that always rested with it.
35. The Court in Combined Transport Services (Pty) Ltd v Buhle Zamokwakhe Miya and others (DA 15/2014)  ZALAC 57 (handed down on 25 November 2016) reaffirmed the applicability of the “balance of probabilities” test in employment law disputes, when it held that a proper assessment of evidence requires the attachment of more weight on the evidence that is consistent and/or more credible. Further that the test herein is “balance probability”, dictating that a more probable version should be accepted, as opposed to a “beyond reasonable doubt” test, which is the test applicable to criminal cases.
36. In Rustenburg Platinum Mines v UASA obo Pietersen (JR 641/2016) (handed down on 27 February 2018) the Court held that the standard of proof in labour disputes is that of a balance of probabilities and to require direct evidence in sexual harassment cases as the Commissioner sought to do in that matter, is to set the standard of proof too high and is insurmountable, which constituted a reviewable irregularity on the part of the Commissioner.
37. In this matter, the learner gave detailed evidence commencing with a love letter in 2018. She stated that Maharaj took her to a hotel where he inappropriately touched her vagina and breast. She could not remember the date of the offence, time and name of the hotel. In 2019, the employee took her to his house. The employee had sex with her monthly for a few months. This happened during weekends. She did not tell anyone. She mentioned the following hotels i.e. Kamps Lodge, La Mercy Beach Hotel and Britannia as places where they had sex. She was also caught in March 2020 when her guardian found inappropriate messages in her phone.
38. In my view supported by the case law referred to above, this detailed evidence by the learner constitute prima facie evidence. The learner further stated that she could not remember specific dates because it was never her intention to report Maharaj. The whole beans were spilled when her guardian picked inappropriate messages on her phone in March 2020.
39. I now assess the prima facie evidence with the evidence of Maharaj. Maharaj deny all the allegations made by the learner. He further submitted that he was a victim of the learer and her guardian. They have hatched a plan to destroy him as a person. The witness could not provide specifics to her claim. She could not remember the time and dates of the incidents. The witness was of no good character. She had sex with other pupils in the classroom.
40. In my assessment despite the fact that the witness could not remember dates and times of the incidents overall, she specified some of the hotels, the classroom and home incident. She was steadfast, credible and reliable as a witness. Where she could not remember she was candid and frank about it. She had nothing against Maharaj. They were both caught by the guardian and she had to tell what transpired including her discomfort at some of the conduct of Maharaj.
41. Whereas Maharaj did not traverse in detail vital allegations save that he made bare denials of all allegations raised.
42. The bulk of cross-examination and examination in chief by Maharaj constituted an attack to the character of the learner and her guardian rather than furnishing a plausible version why the learner was fabricating detailed allegations against him. I find Maharaj to have been evasive and unreliable as a witness.
43. In the circumstances, I am persuaded that the employer has proved both charges on a balance of probabilities.
44. In De Beers Consolidated Mines Ltd v CCMA & others  9 BLLR 838 (LAC) the Court held the following:
“ It is appropriate to pause and reflect on the role that trust plays in the employment relationship. Business risk is predominantly based on the trustworthiness of company employees. The accumulation of individual breaches of trust has significant economic repercussions. A successful business enterprise operates on the basis of trust. In De Beers Consolidated Mines Ltd v CCMA & others  9 BLLR 995 (LAC) para 22, the court per Conradie JA, held the following regarding risk management:
‘Dismissal is not an expression of moral outrage: much less is it an act of vengeance. It is, or should be a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of employer’s enterprise’
In this matter, the employee was in loco parentis. He owed the child a duty of care. At the arbitration, he failed to show remorse but insisted on his innocence. He went further to rub salt to the wound by attacking the character of the witness.
45. In my view the employer has no option but to ensure that schools were safe for children by eliminating all possible risks which could harm learners.
46. In the circumstance a dismissal sanction will go a long way to ensure safety at schools.
47. I make the following award
48. The employee Santosh Maharaj should be dismissed immediately with effect from the date of this award.
49. There is no order as to costs.
28 April 2021