Panellist: Themba Manganyi
Case No.: ELRC396-20/21GP
Dates of Hearing: 22 February 2021 & 20 May 2021
Date of Arguments: 27 May 2021
Date of Award: 13 June 2021
In the Inquiry by Arbitrator Hearing between
GAUTENG DEPARTMENT OF EDUCATION EMPLOYER
SADTU OBO MARIO MARSHAL MOKWENA EMPLOYEE
Employer’s representative: Mr Themba Shiphamele
E-Mail Address: firstname.lastname@example.org
Employee’s representative: Mr Kgosinkwe Mahuma
E-Mail Address: email@example.com
Details of hearing and representation
1. This matter was referred to the Education Labour Relations Council (“the Council”) as an Inquiry by Arbitrator process in terms of section 188A of the Labour Relations Act 66 of 1995 (“the LRA”), as amended.
2. The matter was set down for arbitration on 22 February and 20 May 2021 at Krugersdorp Circuit Office. Mr Themba Shiphamele, the LR Officer, represented the Employer, the Gauteng Department of Education. Mr Mashudu Mundwu, the SADTU Official, represented the Employee, Mr Mario Marshal Mokwena, on 22 February 2021 and Mr Kgosinkwe Mahuma, a SADTU Official, represented Mokwena on 20 May 2021. Ms Salome Seelamo, an HR Officer from the GDE, assisted with interpretation services.
3. The Employer submitted the only bundle of documents into evidence. Parties called witnesses and were allowed to cross-examine witnesses. Parties agreed to submit their closing arguments in writing on 27 May 2021. I received the closing arguments from the Council on 31 May 2021. The proceedings were digitally recorded and the recording thereof was retained by the Council.
Issue/s to be decided
4. I am required to determine whether Mokwena was guilty or not of the following charges:
• Allegation 1 – you are charged with misconduct in that during the year 2017 or anytime incidental thereto, as an educator, you conducted yourself in an improper, disgraceful and unacceptable manner, by smoking stupefying substance (CAT) in the class, whilst you knew or ought to have known that it was wrong to do so. (Charged in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended).
• Allegation 2 - you are charged with misconduct in that during the year 2017 or anytime incidental thereto, as an educator, you sexually assaulted a former Grade 9 female learner, Learner A, in that you had sexual intercourse with her at your house, whilst you knew or ought to have known that it was wrong to do so. (Charged in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended).
• Allegation 3 - you are charged with misconduct in that during the year 2017 or anytime incidental thereto, as an educator, you had a sexual relationship with a former Grade 9 female learner, Maxine Chrisjan, in that you made love to her on several occasions in your house, whilst you knew or ought to have known that it was wrong to do so. (Charged in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998, as amended).
• Alternative to allegation 3 - you are charged with misconduct in that during the year 2017 or anytime incidental thereto, as an educator, you had an intimate relationship with a former Grade 9 female learner, Maxine Chrisjan, in that you had sexual intercourse with her on several occasions at your house, whilst you knew or ought to have known that it was wrong to do so. (Charged in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998, as amended).
Survey of evidence and arguments
The Employer’s case
The Employer called Ms Gloria Henry (“Henry”), the Principal, Ms Nadia Chrisjan (“Chrisjan”) and Ms Maxine Chrisjan (“Maxine”) – who was no longer a minor during these proceedings and they all testified under oath. In summary, their evidence was as follows:
5. Henry stated that Chrisjan came to the school to report that Mokwena has raped her daughter, Maxine. She stated that Chrisjan came alone first and then she later returned with Maxine. However, Maxine refused to talk. She submitted that Maxine came to her house the following day with a written statement. She stated that Maxine told her that she and her friends befriended Mokwena. Mokwena bought them KFC, liquor and drugs. She stated that Maxine told her that Mokwena smoked CAT in class during the year 2017. With regard to allegation 2, she stated that she did not recall if Maxine mentioned Learner A to her. With regard to allegation 3, she stated that Maxine informed her that she (Maxine) would go to Mokwena’s house with her friends and Mokwena would buy them food, liquor and stupefying substances. Thereafter, she (Maxine) would have sexual intercourse with Mokwena. She was not sure whether Mokwena had sexual intercourse with the other girls.
6. Under cross-examination, she confirmed that she knew Mokwena long before he came to her school and that Mokwena was a dedicated educator, a pastor and that these allegations came as a shock to her. She stated that she knew Maxine’s family very well and that when they (Chrisjan and Maxine) came to her office, they were very nervous. She stated that at some stage Maxine has denied that Mokwena has raped her.
7. Chrisjan (Maxine’s mother) stated that the incident was reported in 2020 because she did not know about it in 2017. She only became aware of the incident when Maxine’s boyfriend assaulted her (Maxine) because she slept with Mokwena. She stated that she was a very strict person and that she locked her gates around 18h00. She submitted that Maxine did not tell her anything about what happened between her and Mokwena. She only found out about these allegations from Maxine’s boyfriend who was accusing her of sleeping with Mokwena.
8. Under cross-examination, she stated that Maxine was not doing drugs prior to 2018. However, in 2017 Maxine was smoking dagga. She stated that Maxine used to come home immediately after school. She confirmed that Maxine never told her anything about her sexual encounters with Mokwena. She stated that she has not noticed any change in Maxine’s behaviour. She submitted that she did not know Mokwena until her other daughter who also attended at Randfontein Secondary School told her that Mokwena was a very nice person.
9. Maxine stated that her friend came to knock at her bedroom window telling her to come out. When she went out, she found her friend and Mokwena in his car drunk. They drove to KFC and then later they went to Mokwena’s house. When they got there, Mokwena called her into his bedroom and told her that he wanted to sleep with her. She told Mokwena that it was wrong, but he forced her to sleep with him. At first, she was not comfortable, but she got used to sleeping with him. She stated that she could not remember how many times she slept with Mokwena, but it could be four or five times. She stated that she was with two of her friends and when Mokwena called her into his bedroom, her friends were in the sitting room. She stated that she did not know what happened between Mokwena and Learner A when Mokwena called Learner A to his bedroom. With regard to allegation 1, she stated that her friend saw Mokwena using CAT in his class and she and her friend told Mokwena that he must give them money so that they would not report her.
10. Under cross examination, she stated that at first she did not tell Henry the truth. When she went back home, her boyfriend beat her up again and the boyfriend told her to write everything down. She conceded that she would not have written the letter if her boyfriend did not beat her up. She stated that she used to sleep with Mokwena around 19h00 and 20h00. She stated that Mokwena used to give her money in his class. She stated that she found two aunties at Mokwena’s house.
The Employee’s case
Mokwena testified in his defense under oath. He also called Mr Leonard Marais (“Marais”) and Ms Peggy Max (“Max”) and they testified under oath. In summary, their evidence was as follows:
11. Mokwena testified that he did not do drugs or smoke cigarettes. He stated that during 2016 to 2018 he was always with Marais who was assisting him with choreography. He stated that in 2018, there was a guy who approached him accusing him of approaching his girlfriend and he wanted money from him. He testified that Maxine and Learner A once appeared before him as a herdsman for taking drugs and for fighting.
12. Under cross-examination, he stated that Maxine was not telling the truth, but it could be that she wanted to solicit money from him to sponsor her drug addiction. He refuted that it was only him that was accused by learners. He stated that other educators are also accused of other similar matters. He stated that Maxine was formulating a story, but he did not know what her motive was. He stated that there was no opportunity that he could have slept with Maxine as he was commuting from Potchefstroom and Randfontein. He only started staying in Randfontein around August 2018 and that he was not staying alone.
13. Marais testified that he met Mokwena around 2017 when he used to assist him with choreography at school. He stated that Mokwena does not drink or smoke. He stated that he never found Mokwena’s character being out of line. He testified that when Mokwena informed him about the allegations that were leveled against him, he thought that the allegations cannot be true because Mokwena was a father figure and that the allegations were unbelievable.
14. Under cross-examination, he stated that he would not be able to tell if a person was a sex pest. He confirmed that it was possible that a person who he holds in high esteem could be a sex pest in his absence. He confirmed that he would not know if Mokwena has slept with Maxine and Learner A.
15. Max stated that Mokwena started to stay at her place around August 2018. She stated that she was a pensioner and she was selling Tupperware and she was also an Insurance Agent. She testified that Mokwena informed her of the allegations that were leveled against him. She stated that she did not allow visitors at her place and that two young ladies once came to her place for Mokwena to assist them with their school work. However, Mokwena chased them away. She stated that she locked her gates at 20h00 and the young ladies came around 16h00. She stated that Mokwena was a very sweet and humble person and that she did not believe that Mokwena could have committed the misconducts that are leveled against him.
16. Under cross-examination, she confirmed that pastors are human too, but she did not know if pastors are controlled by their feelings. She disputed that there could be things that happens in her house without her seeing them, because she was mostly at home. She stated that Mokwena did not drink or smoke.
Analysis of evidence and argument
17. This is an award in terms of section 138(7) of the LRA. Therefore, it is not my intention to regurgitate all the submissions that were made during these proceedings. Only the salient points would be reiterated. However, it should not be construed that I did not consider all the submissions as they have been considered. As indicated in par. 3 above, parties agreed to submit heads of arguments in writing, I have considered same when writing this award.
18. The allegations leveled against Mokwena occurred around 2017 and the charges against him are in terms of section 17 & 18 of the Employment of Educators Act 76 of 1998 (“the Act”), as amended. Where an educator is guilty of misconduct in terms of section 17 of the Act, the sanction of dismissal is mandatory. The arbitrator has no discretion to impose any other sanction, irrespective of mitigating circumstances. Educators are entrusted with the care of children and adolescents. Therefore, they must act with the utmost good faith in their conduct towards learners as society must be able to trust educators unconditionally with children. If educators breach this trust, dismissal is generally the most appropriate sanction. It was not in dispute that Mokwena was conversant with the prescripts of Section 17 of the Act.
19. It is common cause that Maxine was a minor at the time of these allegations. However, during these arbitration proceedings, she was nineteen years old. Hence, she testified without the aid of an intermediary and thus, her identity will not be concealed in this award.
20. Chrisjan reported the sexual harassment allegation to Henry in January 2020 after it was brought to her attention by Maxine’s boyfriend. When she went back the Henry with Maxine for Maxine to confirm the allegations, Maxine did not want to talk. Instead, Maxine wrote a statement and handed it to Henry on a Saturday accusing Mokwena of sexual assault. Maxine stated that she was afraid to talk when she was in Henry’s office with her mother and that the reason that she wrote the statement was that her boyfriend assaulted her. Her boyfriend, according to Maxine, dictated to her what to write on the statement. It is common cause that Maxine was assaulted by her boyfriend when she was pregnant. I therefore find that the statement was written under duress. I must also mention that the said statement was not submitted into evidence. Therefore, I will not attach any weight to it.
21. According to Maxine, Mokwena had sexual intercourse with her in 2017 on four or five occasions at Mokwena’s rented accommodation. On one occasion, Mokwena had sexual intercourse with her and then took Learner A into the bedroom whilst she was left in the sitting room drinking whiskey, but she did not know what transpired between Mokwena and Learner A. Learner A was not called to testify in these proceedings. I therefore find that allegation 2 is based on hearsay. Thus, I cannot find Mokwena guilty on this charge.
22. The evidence that Mokwena started staying at Max’s in August 2018 was not disputed. Chrisjan’s evidence during her evidence in chief and under cross examination was consistent. She only found out about the sexual harassment from Maxine’s boyfriend in 2020 and that Maxine has never told her anything about the sexual harassment. It was her evidence that she was a very strict parent and that she locked her gates around 18h00. She further stated that Maxine arrived home after school at around 14h30. She stated that she never observed any behavioural change on Maxine except that she used to smoke dagga.
23. Maxine stated that she used to sneak out in the evening to go to Mokwena. It is probable that she could have sneaked out without her mother observing her. However, the difficulty would have been the access to Mokwena’s residence. Max testified that she personally locked her gates at 20h00. Mokwena and Max acceded that Maxine once came to Mokwena’s residence with another young female, but it was during the day and Mokwena chased them away. It could have been during this once occasion that Maxine observed Mokwena’s compound. I find it improbable that Maxine would go to such troubles to sneak out of her mother’s place and sneak in to Max’s place on four or five occasions and back at her mother’s house without being observed. It is my considered view, based on a balance of probabilities, that Mokwena did not commit the misconduct leveled against him in allegation 3.
24. Henry, Marais and Max lead evidence on Mokwena’s character. They all said that he was a humble gentleman who did not smoke or drink alcohol. They also said that he was a God fearing person. From my observation of Mokwena, he came across as a respectful and humble individual. I am alive to the fact that people can act out of character and conceal that fact with distinction. However, from the evidence that was presented before me, I cannot find that it could have been the case with Mokwena.
25. It is trite in law that he who alleges has the burden of proof. The Employer had the burden of proof in case and it is my finding that the Employer did not succeed to discharge its burden of proof. Consequently, I find as follows:
26. I find Mr Mario Marshal Mokwena NOT GUILTUY of all the charges that were preferred against him.
27. I order the Employer, the Gauteng Department of Education, to uplift Mr Mokwena’s precautionary suspension and to reinstate the terms and conditions of his employment contract prior to his precautionary suspension with immediate effect.
Arbitrator: Themba Manganyi