Commissioner: Gail McEwan
Case No.: ELRC132-120/21 WC
Date of Award: 5 May 2021
In the ARBITRATION between:
SADTU obo ABDUL GALANT
THE DEPARTMENT OF EDUCATION WESTERN CAPE
Union/Employee’s representative: Vusi Mahobe
Employer’s representative: Roy Jansen
Employer’s address: Private Bag X9114
Telephone: 021 467 2850
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
(1) Arbitration was held on 10 March 2021 and 20 April 2021 at the offices of the Department of Education in Cape Town. Present was Abdul Galant (employee) who was represented by Vusi Mahobe (SADTU). The Department of Education (DOE) (employer) was represented by Roy Jansen (senior labour relations officer). The Certificate of Outcome declaring the matter unresolved at conciliation is on file and is dated 23 October 2020. These proceedings were digitally recorded and an Afrikaans interpreter (Bianca Mankay) was present. Both parties handed in handed in a bundle of documents. Stephanie Marks was present as an intermediary as minor children would be giving evidence. 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 he 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 Galant was fair. Galant was charged with: “On or about 3 October 2019 you seriously assaulted learner “A”, a learner associated to Huguenot Primary School, with the intention to cause grievous bodily harm, by hitting the learner on the face and/or on the stomach with the fist (in terms of section 17(1)(d) of the Employment of Educators Act No. 76 of 1998 (EEA1998) or in the alternative to the same charge in terms of section 18(1)(r) of the same Act.)
THE BACKGROUND TO THE DISPUTE
(3) Galant started working for the employer on 1 January 1988; worked as an educator level 1; earned R33 340.60 per month and was summarily dismissed on 24 June 2020 for gross misconduct. SADTU confirmed that there were no procedural challenges in this dismissal. On the substantive side SADTU confirmed that there was no proof that Gallant assaulted a learner, there was no serious injury and no medical certificates to corroborate this allegation.
(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 employers’ version and testimony was as follows:
(5) Learner A testified that on 3 October 2019 A had been standing in line when he asked Galant if he could go to the toilet. Galant said that A could not go but he went anyway as it was urgent. A few friends had followed A to the toilets. Galant then arrived at the toilets and found A in the toilet cubicle, he punched A hard in the face twice. A had tried to block the punches from the fist of Galant by holding his hands together. Galant still managed to punch A twice in the face and then in his stomach. Galant then walked out saying he would show A. A responded that he would go and fetch his brother who would beat up Galant and in swear words had said Galant would be kicked in “his mothers’ private parts”. When the incident took place A was inside the toilet cubicle and Galant outside. A after being punched had started crying and ran out of the toilets heading towards the front gate through which he had to pass where the principals’ office is located. At the time there had been other learners in the toilet but when Galant arrived they had run away. A believed that when he ran out of the toilets there had been another learner standing drinking water from the tap. A ran out the toilet intending to go home to fetch his brother. A had wanted to get through the offices to get out of the school grounds by using the front gate. A tried to open the gate by scanning his hand but the scan was not working. The principal had come out and saw A running and crying and Galant was following him. A was stopped by the principal and Galant had caught up with him. Galant told the principal that A was running away as he had been naughty. A told Galant to tell the principal what he had done to him. Galant never responded and just walked away. Alone with the principal A told her what had happened. A told the principal and his parents about what had happened. A did not have a fight with others that day as he does not normally get into fights. The next day his parents went to see the principal as A had been requested to tell his parents to attend a meeting with her. A believed that Galant is an adult and should speak the truth. Galant knew that he had hit A. The cheeks of A had been very sore, were swollen and had turned a reddish purple colour in places as he had been hit very hard.
(6) In cross-examination A confirmed that he had been in grade 5 in 2019. On 3 October 2019 A had been in line for the feeding scheme when Galant was in charge and responsible for the learners. A plus his friends had been the first to leave the line and others had also then left the line without permission. It was put to A that he had been responsible for leaving the line which led to others following him when Galant had not granted them permission to leave. A said he had urgently needed to go to the toilet. A was reminded that Galant had denied permission for him to go to the toilet yet he had left anyway. A was aware it was not right for him to leave the line but he had needed the toilet urgently. A thought that, thereafter if he had been in the wrong, Galant would have taken him to the principal. A was aware that what he did was wrong but held that Galant had no right to hit him. His friends Michael and Jonathan (surnames unknown) had run out of the toilets when Galant arrived. Mogamat Adams had been drinking water at the time and was still inside the toilet block but had not initially been mentioned by A as he was not a close friend. Adams had never said at the disciplinary hearing that he had seen Galant hit A. Galant had hit A and it was probable that Adams had seen this happen. The other friends had run away when Galant arrived and only Adams had been close by to see what happened as he had been getting a drink of water. Galant had used his fists to strike A in both the face (hit twice) and the stomach but whilst A had tried to soften the blows with his joined hands – Galant had still hit him hard. A had first been hit twice in the face and then in his stomach. At home the mother of A had immediately seen that there was something wrong so A had to tell her what happened. The red on his face started to show right away and got worse thereafter. A thought that the marks had shown when he was at the principals’ office although these had become clearer by the time A got home. The mother of A said she could see something was wrong with her son and A thought that the swelling had started when he was with the principal. A said he understood what an injury was but he had not required medical attention and the next day he had returned to school despite his cheek being red and swollen. A never went to a doctor as only his face had swelled and had been bruised. A believed that the matter had been very serious as he had been hurt as Galant hit him hard with his fist twice in the face and once in the stomach. The father of A hits him with a belt but those were never as sore as this had been. The face of A was not sufficiently sore for him to have to see a doctor. It was put to A that he was a learner that never respected authority at school. A explained that he had only wanted to go to the toilet and usually he did follow the rules. It was put to A that there were about four others in the toilet and that Galant had grabbed him by the shoulder to take him back to the line. A replied that there were no others in the toilet when he was hit by Galant other than Adams at the water. A said he got slapped and punched but Galant had never pulled him by his shoulders.
(6) In re-examination after A had been assaulted, when the principal had stood at her door – A had been crying but did not think the principal had looked him in his face. There had been marks on the cheek of A but that never required going to the doctor. The whole assault had been very serious for A.
(7) Mogamat Adams (now 14 and in grade 7 at the same school) testified that he knew A from School and Galant was a teacher at the same school but in a different class. About the incident Adams confirmed he remembered A came to the toilet followed by Galant. Adams heard a loud smack sound and saw A running away towards the offices. A returned to his class but had then been called out of class by another learner. Adams had been drinking water at the toilet when A followed by Galant arrived. After he heard the smack he looked towards the sound and saw that A was crying which is why he returned to his own class. Adams thought that Galant had smacked A but had not seen this happen. No other learner had been at the toilets at the time. The other learners who had been there had run away as soon as they saw Galant coming towards the toilets. Adams first saw A, then another learner and then Galant. Most of the learners ran out except one when Gallant arrived. Adams had seen Galant coming towards the toilets and then he was at the entrance door. When Adams looked up in response to the smack sound he had seen another learner who looked unsure if he should run. A had been in a toilet cubicle. Adams was far from where Galant stood with A little bit into the cubicle. Adams was unable to say whether the other learner had seen what happened.
(8) In cross-examination Adams confirmed he knew A as they were in the same class and were friends. Adams said he was supportive of A who had been through a difficult time. Adams was present at arbitration to support A and confirmed he had not seen any objects lying on the toilet floor on the day of the incident. When Galant arrived A had been in a toilet cubicle. Adams agreed that when the toilet door closed it will make a sound. Adams disputed that the sound he had heard was a toilet cubicle door closing as he had seen A standing in the doorway of the cubicle. Adams believed it was highly likely that the sound he heard had been when Galant had hit A. Only A, Galant and Adams had been in the toilets. There had been another learner present who may have been in a position to see Adams but was too far away to have seen Galant. A had been coming out of the cubicle and Galant had stood in front of the doorway.
(9) In re-examination Adams confirmed that he would not support A in the event he was lying.
(10) Mogamat Steyn (the 23 year old brother of A) testified that on 3 October 2019 he arrived home and was in the lounge when A came down the stairs. The side of As’ face was swollen and A never responded when Steyn tried to talk to him. Steyn thought that his brother was scared that he would take matters into his own hands. A was crying and their mother explained that there had been an incident at school with a teacher. A had gone to the toilet and Gallant had followed him, hit him in the face and in the stomach. The parents had been asked to go into see the principal. Steyn went with his mother to see the principal and in the office A had said what had happened. A said it was Galant who hit him and Galant had once taught Steyn. Steyn believed his brother. Another learner had witnessed Galant hitting A and others had run out when Galant arrived. In an incident involving Steyn when Galant had hit Steyn, Mitchell Solomons took Galant into a room and had tried to stop him. Solomons had died the previous year. That incident had not been reported in that Steyn would have got a hiding when he got home. Steyn believed his brother as he knew what Galant was capable of doing. Steyn and his mother had seen the principal and A was also present. A does not get into fights and generally does not complain about any of his teachers. The cheek on one side of A had been swollen.
(11) In cross-examination Steyn confirmed that A had been at the same school since grade 1. The brothers had never got together during school hours. A had never come home with a letter saying he had been in a fight at school. At the time of the incident at school with Steyn, the principal had been Brunhilde Hartnick and Steyn had not reported what Galant had done to him. With A the colour on his check was a reddish blue. Steyn was present at arbitration to support his brother. Steyn knew Galant and the cheeks of A, being swollen and red, showed what Galant had done – hitting A in the face. There were no questions in re-examination.
(12) Bianca Reyners (administration clerk and secretary at the School) testified that on 3 October 2019 A had run past the office crying and Galant had been running after him. A had been crying hard and the principal had then come out of her office. A had looked like he had wanted to run through the gate but never got that far as he had been stopped by the principal. There were no further questions for this witness.
(13) Brunhilde Hartnick (principal) testified that Galant was an educator and she was present as Galant had administered corporal punishment to A. On 3 October 2019 Hartnick was in her office when she heard something and saw A running and trying to get out the gate. Galant had been running right behind A and explained that A had been rude. They were by then all together in a small group and A told Galant to tell Hartnick what had really happened about how Galant had hit A. Galant had not reacted other than to say he wanted to take A with him. Hartnick saw how upset A was so she took him into her office to try to calm him down. A said that Galant had hit him and had showed Hartnick his face pointing to his cheek on one side. A explained that he had not wanted to come to the principal but rather had wanted to get home to fetch his brother. The family of A lived in Tafelsig Mitchells Plain. Hartnick looked at the one side of the face of A and saw some swelling developing. Hartnick explained the procedure to A and that she was required to contact his parents. Shireen Hendricks (security) was asked to escort A back to his home with a letter which asked the parents to come in to see Hartnick. Hartnick told A not to discuss the matter with anyone. The next day the mother and brother came to see Hartnick who was unsure if there was a father in this family. Hartnick explained this had not been the first incident involving Galant. Referring to ER bundle pages 25 and 26 Hartnick confirmed that following a similar assault incident in May 2018 Galant had entered into a plea bargain agreement in terms of which Galant had been fined five thousand rand and sanctioned with a final written warning valid for a period of six months. On ER bundle page 27 the Employee Relations Department of the DOE had written a caution letter dated 5 October 2017 in which it had been stated that Galant had pushed a learner with his hand. Galant was cautioned not to repeat such misconduct. Referring to ER bundle pages 30 and 31 Hartnick confirmed that a further plea bargain had been entered into with Galant on 28 July 2017 in terms of which he was fined three thousand, five hundred rand and a written warning valid for a period of six months. That plea bargain had been because Galant had assaulted a learner by throwing a book into her face and pulling her. Galant had also shouted at the learner in a disgraceful manner. Hartnick believed that A had been assaulted due his state, his loud crying and Hartnick was aware of the prior record of Galant.
(14) In cross-examination Hartnick confirmed that she had been the principal of the school for thirteen years and Galant was already at the school when she arrived in 2008. In the period 2008 to 2017 Galant had not been charged for any assault on a learner. Hartnick said she could only speak on what had been reported to her. Hartnick knew Steyn from when he had attended the school. It was put to Hartnick that Steyn said Galant had hit him with a cane but had not reported it. Hartnick had rented a house from Galant in August 2015 to the second week in May 2017. Galant had told Hartnick that she had been a good tenant as she left the house in a better condition. The parents of Hartnick had stayed on in the house for a further eight weeks. It was put to Hartnick that thereafter it had ended in a sour relationship. Hartnick stated that thereafter they had entered into the plea bargains with Galant. Hartnick was not able to say from where A had come although he had said he came from the toilets. There had been a mark on his cheek with slight swelling. The next day the discoloring and swelling had been clearly visible. Hartnick stated that educators are expected to take care of learners and Galant had to control his class. The leaners cannot go wherever they want although some learners do exactly that. Afterwards Hartnick had found out that A had come from the feeding scheme line. The learners had gone to the toilets without permission and it was correct for Galant to have gone to fetch them. Hartnick was reminded that A had admitted that he had left that line without permission and had been on his way to the toilet. Hartnick explained that A had left the line without permission and after he had been smacked he had said he was going home to fetch his brother. Hartnick agreed that leaving the line was not okay but generally A was okay as a learner. Hartnick believed that Galant had hit A in the face and added that she could only speak to what she had seen. It was put to Hartnick that Galant had never beaten A, who had fabricated the whole story as he wanted to get rid of Galant. Hartnick explained that there was a rotation of educators for the feeding scheme line and Galant does this rotation so is on duty every couple of weeks. Nothing requiring disciplinary action had ever been reported about A and Galant had never taught A. Hartnick explained that in the event that Galant gets re-instated that as the principal she was expected to have good relationships with everyone. Hartnick pointed out that there had already been two cases against Galant and this misconduct could not happen again as the interests of the child came first.
(15) In re-examination Hartnick explained that with two prior warnings and this last hearing, if Galant came back to her school she would not be able to trust him any longer. Hartnick added that it was not correct for Galant to assault learners.
The employee’s version and testimony was as follows:-
(16) Abdul Galant (educator level 1) testified that he had been at the Huguenot Primary School for thirty years. On 3 October 2019 Galant was on duty at the line for the school feeding scheme. After breakfast the learners line up again and are escorted back to the class rooms. There are between fifty to sixty learners in the line. Galant saw some boys running away from the line towards the toilets. Galant called out to those learners saying they had to return to the line but the instruction was ignored and they kept running. Galant went towards the toilets and banged on one of the doors saying the learners needed to leave. Some who had run away returned to the line and Galant saw A peeping out from behind of one of the cubicle doors. A was told by Galant to go back to join the line. A had kept the door closed so Galant had to push the door open. Once the door was open Galant reached in and grabbed A by his shoulder and pulled him while telling him again to re-join the line. A said he would not so Galant pulled him by the shoulder out of the cubicle and told him to go to the line. A said he would report that Galant had hit him to which Galant told A to stop lying. A got free of the hold that Galant had on him and ran towards the offices shouting he was going to fetch his brother who would kick Galant in “sy ma’s se Poes” (mothers private parts). A was trying to get to the exit and Galant told him to sit down. The principal came out to see what the noise was about. There were some four to five little ones (aged seven to nine) that were in the toilets. Galant told A that there were security cameras that were recording everything that was going on. When the principal approached Galant he told her that A was being naughty and was being dishonest. Galant told A to return to his class room. Galant never liked learners who thought that they could do anything they liked. Galant had to push the toilet cubicle door open which had caused A to stagger backwards. It was at this point that Galant had grabbed him by his shoulder. A said he would report that Galant had hit him, A started crying and had left the toilet area. There were no smack sounds when Galant had been in the toilet area. A ran towards the offices, the principal came out and then they were all together. Galant confirmed that there had been no marks on the face of A and that there are cameras in the foyer area where they were then standing with the principal. Galant was aware of where the cameras were placed as he was the safety coordinator. In answer to a question from me Galant confirmed that we would not be viewing any camera footage at arbitration. Galant told the principal that A had been naughty. A often runs out of classes and does not like to be reprimanded. Galant had only grabbed A by his shoulder and denied he had hit A in the face or on his stomach. There had been no serious injury, marks, blood or broken bones which required medical attention. Steyn had testified at arbitration that Galant had hit him with a cane which incident Galant did not recall and doubted because he never hit anyone with a cane. Galant has known Hartnick now for twelve years being from 2008 to 2020. At school they had a good relationship up to 2017. Hartnick rented a house in Gordons Bay on which money was outstanding to Galant. As a result of the money outstanding Hartnick had sworn at Galant after which their relationship became strained. Galant and Hartnick had shared an intimate relationship and in 2013 Galant was with Hartnick who supported Galant. The relationship ended and Galant believed that the charge against him was fabricated by Hartnick. Hartnick wanted Galant out of the way once their relationship went bad. Both Hartnick and Galant are married. The school is in Tafelsig which is a sub-economic area. The area is riddled with poverty, drugs, gangsters and crime. In general some learners listen whilst other did not listen. There are also gangs operating within the school. There are fights at the school. With A Galant had not seen any medical reports so it was doubted that there had been any serious injury. Galant has unfairly in his view got a prior disciplinary record which he admitted he had not disputed and had paid what he had been fined. In mitigation Galant held that he was not guilty of the current charges nor had he been guilty of the other allegations made against him. Galant is seeking re-instatement in a different school as he did not think he could again work with Hartnick. This past year Galant felt he had lost everything but knows he is not guilty of any of the charges. Other educators who had been dismissed were supporting Galant.
(17) In cross-examination Galant explained that he is an honest person. It was put to Galant that when having an affair with Hartnick he had not been honest to his wife. Referring to EE bundle page 26 (an invoice from a hotel in Durbanville) it was put to Galant that this was not proof of his relationship with Hartnick. Further it was put to Galant that Hartnick had never been referred to EE bundle page 26. Galant was reminded that there had been a circular stating that it was prohibited to deny a learner access to a toilet. It was put to Galant that A had testified that he had asked Galant if he could go to the toilet. According to this testimony Galant had told A that he could not go so he had just run to the toilet. SADTU and Galant did not recall this testimony. It was put to Galant that he had not previously said that there was the group of younger learners at the toilets at the time of the incident. Galant explained he was in charge of the feeding scheme line and some learners had left the line without permission. Once A had left the line then others had followed. Galant was sure that there were a group of younger learners at the toilets at the time of the incident. At the time Galant explained his focus was on A and he did not properly look to see who else had been in the toilets. It was put to Galant that his focus had been on bullying A. Galant denied this and explained that there had been other younger learners in the toilets whilst the friends of A had left as soon as Galant arrived. Galant was just not sure who the other learners were by name. It was put to Galant that the other learners were not important as he had been focused on getting to A. Galant explained that he had to push the toilet door open where he had seen A hiding. Galant confirmed that he was aware that he is not allowed to touch learners. It was put to Galant that he had been told that if he was disciplined again the employer would call for his dismissal. Galant explained that A ran out of the toilets so Galant went after him as he was heading for the offices and the front exit. It was put to Galant that he had not put his version to Hartnick. Galant was reminded that when both were in front of the principal A had told Galant to tell her what Galant had done to A but Galant had walked away. Galant said A was being dishonest and it was put to him then that Hartnick was also being dishonest. It was put to Galant that when A left the toilet he had been crying and Galant disagreed. Galant agreed that he was upset with A and the others who had left the food scheme line. Galant had never taught A although Galant had seen A many times out of the class room but other than that they had no interaction. Galant explained that A did not like being reprimanded. When they had been in the toilet Galant had told A to return to his class. It was put to Galant that Adams had heard a “smack”, it was established that nothing had fallen over and Galant held that it could have been a door that Adams had heard. Galant was reminded that Adams had not been challenged in this regard. Galant stated that A had fabricated the story and that he had never hit a learner. Galant was unaware of the incident to which Steyn had referred as Galant had never hit him with a cane or at least did not recall. Witnesses to the incident in the toilet according to Galant included Nathan Peters who will be called as a witness at arbitration. Referring to ER bundle page 14 Gallant was reminded that at his disciplinary hearing he had said that Peters was following Galant and was therefore behind him. Gallant explained that Mogamat Latief had followed him and had seen the incident happening. Galant further explained that his focus had been on A and he had not seen the others in the toilet. Galant had only seen them when A ran out of the toilet area. It was put to Galant that A was upset as he did not like the way he had been assaulted by Galant.
(18) In re-examination Galant confirmed that if a child cries it did not mean that he had been assaulted and he had never assaulted A. Galant had gone to fetch A but A had not returned to the line. The school policy states when a learner may go to the toilet. Galant confirmed that he is an honest person. Referring to EE bundle page 26 – an invoice from the Protea Hotel for accommodation on 27 November 2013; Galant confirmed Hartnick had paid for the room and as he was the last to leave the hotel he had collected the invoice. Galant confirmed he had not become angry when the learners had left the line. Gallant explained that A never listens and had not wanted to carry out the instruction to return to the line. Galant is seeking retrospective re-instatement into a different school. Galant is married and has four children.
(19) Nathen Peters (now thirteen years old) testified he was eleven years old in 2019 and he was present at arbitration to tell the truth regarding what he saw on 3 October 2019. Peters knew A and Rafiek (surname unknown) as they all went to the same school. On 13 October 2019 the learners had been standing in line for the school feeding scheme. They had eaten and were lining up to return to their respective classrooms. A plus some other learners ran out of the line and had not asked permission to go to the toilet. Galant had run after the learners and at the time Peters was in the line. Galant was looking angry as the learners never listened to him. Galant had said that when the learners were done eating they needed to stand in a line. A plus some others ran away to the toilet ignoring what Galant had instructed everyone to do. Peters knew Galant was angry and called them back loudly but the learners never listened. Peters followed Galant to the toilet and Tariek and Deacon (surnames unknown) did the same. In the toilet Peter saw Galant and few of the younger learners and A together with those who had followed him. A had run into a toilet cubicle as Galant entered the toilets. A never came out of the cubicle and Galant went to fetch A from the cubicle. Galant took A by the shoulder and told him to come. A threatened Galant that he would fetch his brother, who would kick Galant in his private parts. Peters explained that a learner cannot threaten a teacher. A left the bathroom and ran towards the offices. A was unhappy and faked tears by spitting on his fingers and rubbing his eyes to make it look like he was crying. Galant told A not to take him for a fool. A also said he would go to the office to report that Galant had hit him. Galant had never hit A and had only grabbed him by his shoulders. There are lots of fights taking place at school and Peters had been in fights about two to three times. Peters never heard a smack, and had not seen Adams in the toilets.
(20) In cross-examination Peters confirmed he had been present at the disciplinary hearing of Galant but could not recall what he had said. Referring to ER bundle page 17 Peters was reminded that at the hearing he had admitted that he could not have seen what happened as he had been behind Galant. A was inside the cubicle when Galant had grabbed him by the shoulder and told A not to take Galant for a fool. Peters explained that A had not cried when Galant had grabbed him by the shoulder. Referring to ER bundle page 16 Peters was reminded that he had previously said that when grabbed by Galant A had started to cry. It was put to Peters that it was unknown if Peters had told the truth previously or was now telling the truth. Peters explained that whilst he said A started to cry A was really faking crying. At the time there had been three to four people in the toilets as it was the break for the younger learners. Galant got very angry and A had broken loose from Galant. Peters agreed that this meant that Galant had been holding onto A tightly. In re-examination Peters explained that Galant got angry as the learners were disrespecting him. When the parents of Peters became angry they would pinch him.
(21) Mogamat Latief testified that he was eleven in 2019 but was now thirteen. On 3 October 2019 Latief had eaten at the school feeding scheme and afterwards went to join the line. A ran to the toilet with a few friends and Galant told them to come back to the line. When no-one listened Galant followed the learners to the toilets. Latief had followed Galant. Inside the toilet there were a few foundation learners. A was in the cubicle and Galant pushed his way inside. Galant grabbed A by the shoulder and told him to return to the line. Other learners had already gone back to the line. Everyone then left the bathroom. Latief never saw Rafiek in the toilets. Latief never heard a smack sound and heard Galant saying that he should not be taken for a fool. A had pretended to start crying. Latief recalled that A was involved in fights at school about three times.
(22) In cross-examination Latief confirmed that A was standing inside the cubicle. Galant had grabbed A by the shoulder as A was not listening. The reason why Galant had grabbed A by the shoulder was because A did not want to come out of the cubicle. It was put to Latief that it was entirely possible that he had not seen Galant punch A in the face and stomach. Further that it was possible that Latief had missed when Galant had assaulted A. Latief was sure that Galant had not hit A. There were no questions in re-examination.
(23) It was agreed that closing arguments would be submitted to me by no later than 17h00 on 30 April 2021. Three extra days were given as the DOE were moving premises. Closing parties were received from both parties the contents of which have been noted.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
(24) I am required to determine on a balance of probabilities whether the dismissal of Galant was fair. SADTU confirmed that there were no procedural challenges in this dismissal. Galant was charged with: “On or about 3 October 2019 you seriously assaulted learner “A”, a learner associated to Huguenot Primary School, with the intention to cause grievous bodily harm, by hitting the learner on the face and/or on the stomach with the fist (in terms of section 17(1)(d) of the Employment of Educators Act No. 76 of 1998 (EEA1998) or in the alternative to the same charge in terms of section 18(1)(r) of the same Act). On the substantive side SADTU confirmed that there was no proof that Gallant assaulted a learner, there was no serious injury and no medical certificates to corroborate this allegation.
(25) The testimony led by A was consistent and was corroborated by Hartnick and Steyn who relayed the same sequence of events as originally told to them by A at a time when things were fresh in his mind. The evidence of Hartnick was that A had been crying hard whilst trying to run home to fetch his brother. Hartnick had on 3 October 2019 observed a mark on the face of A which by the next day was seen more clearly with the swelling on one side of the face of A accompanied by some discolouration. This negates the evidence of Peters and Latief that A was faking his crying having spat on his fingers and rubbed his eyes to make it look like he was crying. It is highly improbable that A had done all this as claimed by Peters and Latief whilst running away from the toilets in the direction of the front exit and offices. I accept on a balance of probabilities that A had genuinely been crying after he had run away from the toilets that day.
(26) It is not disputed that A left the line without the permission of Galant to go to the toilets and had been followed by a few others. Galant shouted to them to get back in the line and had run after them. Further it was not disputed that some had seen Galant heading for the toilets so they had gone back to the line. I have noted that both Peters and Latief also left the line to follow Galant for reasons not known and hence were behind Galant at the time of the interaction between Galant and A. It was agreed that A was in a cubicle and that Galant had to push his way into the cubicle to get to A. Galant then being in the actual doorway of the cubicle makes it impossible for anyone to have heard a door closing / being slammed shut. The movement of the door inwards being pushed by Galant resulted in A staggering backwards inside the toilet cubicle. On the version of Galant he had grabbed the shoulder of A to physically return him to join the line. Galant admitted that he is aware that he may not touch a learner so even if he only grabbed A by the shoulder he broke the rule that educators may not touch learners. The more likely version is that Galant hit A twice in his face with his fist and then once in the stomach. This version is supported by the swollen side of the face of A accompanied by some discolouration. In the event that A had to struggle to get free of Galant this would mean that Galant was holding onto A tightly. Whatever the case may be A managed to break free from Galant and run towards where he had been stopped by Hartnick. Galant told Hartnick that A had been naughty although this did not explain the emotional distress of A as observed by Hartnick. A had told Galant to tell Hartnick what he had actually done to him, at which time Galant had walked away. This evidence was not disputed. Adams was the only credible person in the toilet when the incident happened. On the version of Adams he had been drinking water when he heard a smack sound. There was nothing in the toilets at the time that could explain the sound Adams heard and it is highly likely that this was when Galant punched A. In the circumstances as listed above I find on a balance of probabilities that Galant assaulted A.
(27) The evidence of Galant was that he had run after A towards the front exit and had told A that everything that was happening was being captured on the cameras placed around the school. Galant was the safety coordinator at the school so was aware where the cameras had been placed. It is therefore astonishing that such footage was not retrieved to be screened at arbitration or at his disciplinary hearing if such footage would vindicate Galant. It was agreed that Galant did not teach A and that their interactions were limited to when Galant had to rotationally control the learners at the school feeding scheme. Galant testified that A was trying to get rid of him. No evidence was adduced that would support this claim given their minimal interactions. Galant then claimed that it had been Hartnick who had wanted to get rid of him. One invoice from a local hotel does nothing to prove that Hartnick and Galant had been in an illicit extramarital intimate relationship. This version was also not put to Hartnick. Again there was no evidence adduced that Hartnick had wanted to get rid of Galant. I have noted that the three previous warnings of Galant were issued at a time when Hartnick was the principal and those acts of assault were not referred as a dispute to the ELRC. I therefore find no evidence that there was a plot by either A or Hartnick to get rid of Galant.
(28) This was not a first offence for Galant. On 28 July 2017 Galant entered into plea bargain in terms of which he was fined three thousand, five hundred rand and sanctioned with a written warning valid for a period of six months. That plea bargain had been because Galant had assaulted a learner by throwing a book into her face and pulling her. Galant had also shouted at the learner in a disgraceful manner. The Employee Relations Department of the DOE had written a caution letter dated 5 October 2017 in which it had been stated that Galant had pushed a learner with his hand. Galant was cautioned not to repeat such misconduct. Following a similar assault incident in May 2018 Galant had again entered into a plea bargain agreement in terms of which Galant had been fined five thousand rand and sanctioned with a final written warning valid for a period of six months. Despite the fines and warnings issued progressive discipline seemed to have no effect on Galant as he kept on with the assault of learners. I have noted that Galant did not challenge the fines and the warnings with which he had been sanctioned which he could have done by referring an alleged unfair labour practice dispute to the ELRC. I would have expected Galant to have done this if as claimed he was not guilty of the previous charges for which he had been fined accompanied by warnings to desist from assaulting learners.
(29) On 18 September 2019, the Constitutional Court of South Africa ruled that the common law defence of ‘reasonable and moderate chastisement’ was unconstitutional, effectively banning all corporal punishment of children. The Children’s Institute, the Peace Centre and Sonke Gender Justice were the respondents in the case, represented by the Centre for Child Law, while the Global Initiative, the Parent Centre and the Dullah Omar Institute for Constitutional Law, Governance and Human Rights, were amici curiae (meaning as a friend of the court), represented by the Legal Resource Centre. The Court found that: “The right to be free from all forms of violence or to be treated with dignity, coupled with what chastisement does in reality entail, as well as the availability of less restrictive means, speak quite forcefully against the preservation of the common law defence of reasonable and moderate parental chastisement. There is, on the material before us, therefore, no justification for its continued existence, for it does not only limit the rights in sections 10 and 12 of the Constitution, but it also violates them unjustifiably.” The judgment highlighted the research which shows that all corporal punishment is potentially harmful and part of a wider circle of violence, and recognised South Africa’s “history of widespread and institutionalised violence”. It found that, in light of the existence of alternative non-violent methods to achieve the same goal of raising a responsible member of society, it was in children’s best interests to abolish the defence of ‘reasonable and moderate chastisement’.
(30) The Western Cape Department of Education (WCDE) ‘Abuse no More’ Protocol defines “corporal punishment” as any deliberate act against a child that inflicts pain or discomfort used to punish or contain him/her. This includes, but is not limited to, spanking, slapping, pinching, paddling or hitting a child with a hand or an object, denying the child’s use of the toilet, denying meals, drink, heat and shelter, pushing or pulling a child by force, forcing the child to do exercise.” Galant could reasonably have been expected to be aware of the protocols of the ‘Abuse no More’ initiative of the Department to eliminate all forms of corporal punishment. Corporal punishment is not allowed at any South African School and is as such expressly prohibited. Section 10(1) of the South African Schools Act, 1996 (Act 84 of 1996) provides that no person may administer corporal punishment at a school against a learner. A person who contravenes this provision is guilty of a criminal offence, and, if convicted, can receive a sentence that can be imposed for assault. Circular 0012/2019 of the WCDE gives the following forms of assault which are not limited to the examples of forms of assault which are those of corporal punishment that are prohibited: (a) Any physical act which may cause discomfort or pain to the learner; (b) Using a stick/belt/cane or any object to threaten learners; (c) Intention to inflict bodily harm; (d) threatening of a learner; (e) Shaking a learner; (f) any forms of torture; (g) Kicking; (h) Pinching; (i) Pulling of ears or any other body parts; (j) poking of someone with a finger; (k) Any verbal onslaught, use of vulgar language, swearing, name-calling, (l) Insulting a learner with racial and/or sexual undertones. The law is clear that no forms of corporal punishment may be administered at schools in South Africa.
(32) Regarding the seriousness of the assault A put it very succinctly when he testified that the assault had been serious to him. It is the gravity of the offence of which I have found Galant guilty that makes this specific incident serious. There are no prescripts that only make an assault serious if medical attention is sought. By hitting A twice in the face with his fist and once in the stomach there was a potential to have caused grievous bodily harm - as an adult punching a child in this manner could have resulted in a multitude of injuries which fortunately for Galant did not happen in this instance. Had that been the case then Galant would indeed not just be facing dismissal but would have to face criminal charges as well. I have taken into account that A tried to block the punches by holding his hands together and raising his arms. Yet despite this defensive action Gallant still managed to punch A twice in the face as evidenced by its swelling and discoloration. This was a serious assault and what else could have been gained by Galant by punching A in this manner other than to inflict pain. The actions of Galant were both legally and morally reprehensible.
(33) Looking holistically at the circumstances of this assault there is no doubt that Galant is guilty of the charge against him. In terms of section 17 (1) (d) of the Employment of Educators Act 76 of 1998 which states “An educator must be dismissed if he or she is found guilty of seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee” the sanction of dismissal is mandatory. Section18 (r) of the same Act states: Misconduct which refers to a breakdown in the employment relationship and an educator commits misconduct if he or she assaults, or attempts to or threatens to assault, another employee or another person. Serious assault of a leaner in both sections quoted above as listed in the charge faced by Galant and the alternative to the charge both carry a mandatory sanction of dismissal. Galant due to his prior disciplinary record was fully aware of the consequences of assaulting a learner and has only his own misconduct to blame for the position in which he now finds himself. I find on a balance of probabilities that the dismissal of Galant was substantively fair. There were no procedural challenges in this dismissal and the procedure followed by the employer aligns with the provisions of Schedule 8 – Code of Good Practice: Dismissals of the LRA and the dismissal of Galant if therefore found to be fair on procedural grounds.
(34) The dismissal of Abdul Galant is found to be fair on both procedural and substantive grounds. Consequently this case is dismissed.
(35) The ELRC is further directed to send a copy of this award to the South African Council for Educators (SACE) for the revoking of Abdul Galant SACE certificate as he is not fit to again work with children.