Panellist/s: Jonathan Gruss
Case No.: ELRC602-19/20EC
Date of Award: 27 April 2020
In the DISCIPLINARY ENQUIRY between:
LOUIS ARMSTRONG PEPPING (Employee)
DEPARTMENT OF EDUCATION : EASTERN CAPE
Applicant’s representative: Absent
Respondent’s representative: Mr Dalasile
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set-down for an enquiry by arbitrator as provided for in terms of Clause 32 of the ELRC Dispute Resolution Procedures read with clause 3 of ELRC Collective Agreement 3 of 2018. The enquiry takes the form of a Section 188A of the Labour Relations Act, Act 66 of 1995 enquiry by arbitrator. The enquiry was scheduled for 1 February 2021 at 10h00 and District Office in Lusikisiki and also virtually on 24 February 2021 and on 9 April 2021. The accused employee, Louis Armstrong Pepping did not attend the enquiry on 1 February 2021 nor virtually thereafter. The employer, Department of Education: Eastern Cape was represented by Mr Dalasile, a Chief Education Specialist: Labour Relations. Written closing arguments were submitted by the employer on 16 April 2021.
2. There was no formal application filed with ELRC requesting a postponement by the employee. The enquiry proceeded against the employee, Mr Pepping in that although he was notified of the proceedings via email he failed to attend and as a consequence thereto, the enquiry proceeded on a default basis.
2. The employee was charged with three (3) counts of misconduct.
2.1 Charge 1: Contravening section 17(1) (b) of the Employment of Educators Act 76 of 1998 as amended by sexually assaulting a learner, in that on or about 1 September 2019, he sexually assaulted and raped a learner “A” a grade 1 at Khotso JSS.
2.2 Charge 2 Contravention of section 18(1) (a) of the Employment of Educators Act as amended, in that he failed to comply with or contravene the Act, or any other statute, regulation or legal obligation relating to education and employment relationship, in that his actions of sexually assaulting learner “Ä” contravened the Code of Conduct as stipulated in the South African Council for Educators Act, No 31 of 2000.
2.3 Charge 3: Contravened section 18(1)(f) of the Employment of Educators Act as amended, in that he unjustifiably prejudiced the administration discipline or efficiency of the Department of Basic Education, and office of the state or the school or adult learning centre, in that his actions against learner “A” brought the good name of the Department of Basic Education into disrepute.
3. A not guilty plea was entered on behalf of the employee as relates to the three (3) charges.
SURVEY OF EVIDENCE AND ARGUMENT
4. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
ANALYSIS OF EVIDENCE
5. Ms Mangqxabeni testified under oath to the following effect:
5.1 “A” after the incident is no longer staying with her great-grandmother as a consequence to the rape and trauma she was sent away. The time of the incident “A” was 6 years old and she is now 8 years old.
5.2 On 1 September 2019 “A” was sent by her uncle at about 14h00 to go to the shop. After she did not return, she requested one of the older children who was staying with them to find “A” in that she had not returned. She sent Olona to go search for “A” and this was about 18h00. When they found “A” there was a problem in that “A” was crying and Mr Pepping allegedly told her not to inform anyone as to what occurred. She did not ask any questions but noticed that the child was bleeding, blood was running down her legs. She then took the child to the neighbour’s house and placed her on the bed. She herself started to cry in that she was new to the area could not understand what was happening.
5.3 Alona the child of the house where “A” was brought up, identified “Papa” as the person who had raped “A”. “A” also identified “Papa” as the person who raped her. The accused employee, Mr Pepping is known in the area as “Papa”. She followed them to “Papa’s house “and she told them that they must phone “A” grandmother to report what happened. When the residents confronted “Papa” asking for an explanation as to what happened, at first he said that he will do so in court and when pressed to explain by the angry residents he said that he did not know what came over him and he would speak about it in court. Thereafter, Alona and the grandmother took “A” to the hospital.
5.4 Papa, Mr Pepping is as a person they know who works at the college, at the District Office who is a school inspector (EDO). As a result of the rape, “A” is not coping and subsequent to incident “A” grandmother had passed away. The child is now staying with her great-grandmother’s sister in Cape Town. As a consequence to the incident, they no longer trust educators. As a consequence to the rape, “A” had to undergo an operation due to injuries sustained.
6. Ms Olona testified under oath to the following effect.
6.1 He confirmed that “A” is in Cape Town with her mother. Her grandmother sent “A” to live in Cape Town in that she was scared that by not taking “A” out of the area, the child would be reminded of the incident and could be stigmatised. “A” was raped by Papa on a Sunday this was when she was sent by her uncle to buy something for him. The child was away for a long time and she was sent by her grandmother to search for “A”. She found “A” outside the homestead, the child was crying and shivering claiming that she was getting cold. She enquired from the child why she was crying and that she reported to her that she had been raped by the old man who said to her that he would give her eggs. “A” told this person that she did not want eggs. Papa then dragged “A” to his house and with a knife he threatened her with a knife should she make a noise. “A” reported to her that she remained quite in that she was scared of the big knife.
6.2 When they returned there was blood flowing down “A” legs. She then called her grandmother in, in that the child was bleeding and claimed to have been raped. Lorna their neighbour then took “A” to see whether blood was coming from. “A” identified the man who raped her as the man with the birthmark on his face. She also identified the house where he stays. She herself knows this person as “Papa”.
7. Ms Lorna Phikiso testified under oath to the following effect.
7.1 She is the neighbour of “A” and knows her. Currently, “A” is not doing well in that she was raped.
7.2 On 1 September 2019, Sunday, the grandmother who stays next to her knocked at the door of the house and Olana was carrying “A”. She could see that “A” was injured and there was blood on her panties. The child said to her that “Papa” had hurt her. She then called another neighbour to witness as to what had occurred. She, her siblings and two other neighbours went to “Papa’s” place. When they arrived, “Papa” was about to leave. They then asked him why he raped the child. His response was they must go to court. “A” was left at her house with the child’s grandmother while they went to confront “Papa” Nosisa then suggested to her that the child could identify the person that raped her. “A” was then fetched and brought to “Papa” house. She pointed at “Papa” as the person who raped her. “A” was crying and shivering she was not stable and then the commotion started in that the boys wanted to beat “Papa” up. The grandmother then came from the car and said that the police must be called. They then took “A” to hospital. She accompanied “A” to hospital.
7.3 At “Papa” house they managed to enter the house this was after they searched for “Papa” and they then took the keys of the house out of “Papa’s” pocket. In the house, they discovered blood on the bedsheet and there was a big knife next to the bed. “Papa’s” underwear was lying next to the bed.
8. Ms Nosisa Sapho testified under oath to the following effect.
8.1 She knows “A” and knows what happened to her.
8.2 On Sunday, 1 September 2019 at approximately 17h00 the weather changed and it started to rain. She then went outside to take the washing off washing line. She noticed people looking at Mr Pepping’s residence. Shortly thereafter she went and fetched water from the river.
8.3 Lorna called and requested her to come and witness in that there was a child claiming to have been raped by “Papa”. She undressed “A” and noticed blood on her underwear. She then suggested to Lorna that they must go to Mr Epping’s place and see what happened. They then called the local headman and as they approached Mr Pepping’s house he was busy locking the door of his house. They enquired from him as to what he did to the child and he responded by asking which child. He then said that they must go to the court. She then phoned the police and they started beating Mr Pepping up. There was a man wearing a white cap, he did not agree with them beating Mr Pepping. This person then said that they should fetch the child. This man said that Mr Pepping had an agreement with the child. However, as this man arrived, they had already sent to fetch “A” and on her arrival, she identified Mr Pepping (Papa) as the person who raped her. She wanted to see and observe “A” reaction when she sees Papa, “A” became disturbed.
8.4 The headman said they should go inside the house and see if there is any evidence. When they arrived at Mr Pepping’s house they wanted to see inside the house and the house was locked. Mr Pepping told her that he has lost his keys. Nonkoliso found the keys inside Papa’s pocket. Papa then tried to run away as they were about to enter the house. They grabbed him and hit him on his back. Papa then uttered that he did not know what happened to him. Inside the house, they noticed Papa’s underwear next to the bed and there was also a lot of blood on the sheets on Papa’s bed.
9. Ncediswa Soqinase testified under oath to the following effect.
9.1 She knows “A” in that she is her granddaughter and her mother is her daughter.
9.2 On 1 September 2019 at approximately 15h00 she received a telephone call from Avelile, her son and he reported to her that “A” had been raped. She then immediately went to the place where the incident occurred with her motor vehicle. When they arrived, she inquired as to the whereabouts of “A”. Nosiswa came holding “A”. When she saw the condition of “A” she decided to take her to hospital.
9.3 There were pieces of the child’s clothing torn and the police took the child’s panties. The following day they had to take “A” back to hospital and as a consequence thereto the child was transferred to Mthatha hospital where she had to undergo an operation.
10. The evidence against Mr Pepping is largely circumstantial, based on hearsay evidence and documentary evidence. The proceedings were adjourned for virtual hearings on 24 February 2021 and on 9 April 2021 so that the employer could tender forensic evidence of DNA linking Mr Pepping to the rape. Unfortunately, both the South African Police Service as well as a National Prosecuting Authorities were not prepared to assist and disclose the forensic evidence. Accordingly, the employer was unable to present forensic evidence.
11. The victim, “A” did not testify in that according to the employer she was still struggling to overcome what happened to her and was mentally fragile. The only documentary evidence tendered in the enquiry is the report by authorised medical practitioner on completion of medico-legal examination held on 1 September 2019 and it records therein that the following observations were noted from the general examination of “A”. The examination identified an inflamed hymen and red colouring and tearing. There was also perianal area tearing and tearing on the outer part of the virginal. The hymen was recorded as inflamed and there was swelling. Based on the evidence by all of the employer’s witnesses there can be no dispute that “A” forced his penis into “A” vagina and due to the fact that she was only six years old child he was unable to tear of break the hymen but instead tore the outer lips of the vagina. He therefore raped and sexually assaulted “A”. The fact that she had to undergo an operation at the Mthatha Hospital serves as confirmation that assault was serious. The evidence of blood running down “A” leg and blood on her panties is conclusive proof that she was raped and sexually assaulted. The only question that remains is whether Mr Pepping who is also known as Papa is the perpetrator that raped and sexually assaulted “A”. The evidence led as recorded by the witnesses is that “A” identified Mr Pepping who is also known as Papa as the person who raped and sexually assaulted her. She also identified Mr Pepping’s house where the rape incident occurred. Furthermore, when the witnesses who testified entered Mr Pepping’s room they noticed blood on the sheets, Mr Pepping’s underwear were lying on the floor and a knife that was described to the witnesses by “A” as the instrument used to threaten her was also present. When Mr Pepping was confronted by the witnesses as well as by members of the community his response was that he did not know what came over him. This in my view can be viewed as an admission by Mr Pepping that he was involved in the rape and sexual assault of “A” and could not explain himself. The inherent probabilities can only favour one conclusion, is that Mr Pepping is guilty of raping and sexually assaulting “A”. Therefore he is guilty on this charge. As it relates to charge number 2 and 3, these charges amount to unfair splitting of charges in that the specific set of facts, the rape and sexual assault on “A” as describing all three charges as relates to charge 2 and 3, several types of misconduct is derived from the single action and therefore they must be regarded as a single disciplinary complaint. The charges amount to duplication of charges. Therefore charge 2 and 3 are a duplication. I therefore find the employee not guilty on charges 2 and 3.
12. Clause 5.1.2 and 5.16 of ELRC Collective Agreement 3 of 2018 provides that an arbitrator arbitrated the dispute in terms of this collective agreement must, in light of the evidence presented, and with reference to the following, direct what action, if any shall be taken against the educator with reference to the SACE Code of Professional Ethics for educators in the centre provided for in the Employment of Educators Act, including the mandatory sanction of dismissal is prescribed for certain forms of misconduct by the Employment of Educators Act.
13. The charge of rape and sexual assault on a learner are extremely serious in nature and fall under the class of transgressions “serious transgression” as provided for in section 17 of the Employment of Educators Act 76 of 1998 as amended. Section 17(1) specifically provides that should an employee be found guilty of transgression set out in section 17 an employee must be dismissed.
14. Therefore having found the employee guilty of a section 17 (1)(b) transgression, I’m by law obligated to pronounce on a sanction of dismissal.
15. Section 120 of the Children’s Act, Act 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by a children’s court; any other court in any criminal or civil proceedings which that person is involved; or any forum established or recognised by law on any disciplinary proceedings concerning the conduct of that person relating to a child. A finding may be made by forum of its own volition or on application. Evidence as to whether a person is unsuitable to work with children may be heard by the court or the forum either in the course of or at the end of the proceedings.
16. Section 122 of the Children’s Act further provides that the relevant administration to forum must notify the Director-General in writing of any finding in terms of section 120 that a person is unsuitable to work with children. The director-general must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the registrar regardless of where the appeal proceeding has been instituted or not.
17. The Code of Professional Ethics as prescribed by the South African Council of Educators Act 31 of 2000 prescribed that educators who are registered or provisionally registered with the South African Council for Educators:
17.1 Acknowledge the noble calling of their profession to educate and train the learners of our country;
17.2 Acknowledge that the attitude, dedication, self-discipline, ideals, training and conduct of the teaching profession determine the quality of education in this country;
17.3 Acknowledge, uphold and promote basic human rights, as embodied in the Constitution of South Africa.
17.4 Commit themselves therefore to do all within their power, in the exercising of their professional duties, to act in accordance with the ideals of their profession, as expressed in this Code and
17.5 Act in a proper and becoming way such that their behaviour does not bring the teaching profession into disrepute
18. Clause 3.6.; 3.8 and 3.9 of the Code of Professional Ethics under the heading, CONDUCT: The educator and the learner prescribes that an educator: refrains from improper physical contact with learners; refrains from any form of sexual harassment (physical or otherwise) of learners; and refrains from any form of sexual relationship with learners at a school.
19. The Employee, Louis Armstrong Pepping (Persal Number 50655736) is found guilty of contravening Section 17 (1) (b) of the Employment of Educators Act, 76 of 1998 as amended that on 1 September 2019 2019 he sexually assaulted and raped a learner “A” a grade 1 learner at Khotso JSS.
20. The Employee, Louis Armstrong Pepping (Persal Number 50655736) is therefore dismissed on the charge as reflected in paragraph 19 with immediate effect from the Department of Education: Eastern Cape.
21. I find that the educator, Louis Armstrong Pepping as provided for in terms of Section 120 of the Children’s Act, Act 38 of 2005 as amended, as a consequence to the transgressions as referred to in paragraph 19 above, is unsuitable to work with children.
22. I further find that the educator, Louis Armstrong Pepping as a consequence to the transgressions as referred to in paragraph 19 above is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000.
23. In terms of Section 122 of the Children’s Act, Act 38 of 2005, as amended, the General Secretary of the ELRC shall send a copy of this award to the Director-General of the Department of Social Development.
24. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.
Name: Jonathan Gruss