ELRC955-19/20 WC
Award Date:
28 August 2021
Text
Commissioner: Gail McEwan
Case No.: ELRC955-19/20 WC
Date of Award: 28 August 2021
SECTION 188A INQUIRY
NAPTOSA obo LOGAN KLAASEN
(Employee)
and
THE DEPARTMENT OF EDUCATION WESTERN CAPE
(Employer)
Union/Employee’s representative: Faez Tassiem
Union/Employee’s address:
Telephone: 082 382 5142
Email: Logank@gmail.com; faezt@naptosa.org.za
Employer’s representative: Candice Hanekom
Employer’s address: Private Bag X9114
Cape Town
8000
Telephone: 021 467 237
Email: candice.hanekom@westerncape.gov.za;
Clayton.Vorster@westerncape.gov.za;
Lee-Ann.Bathgate@westerncape.gov.za
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
(1) This matter was referred to the Education Labour Relations Council in terms of section 188A of the Labour Relations Act 66 of 1995 (LRA) as amended and was scheduled for 7 December 2020 which case was postponed in a Ruling dated the same date. The matter was again scheduled for 5 March 2021 but was postponed in a ruling dated the same date. The matter started on 24 March 2021 at the offices of the Department of Education (DOE) in Cape Town. The matter was again postponed on 17 June 2021 in a ruling dated the same date. The inquiry by arbitrator was concluded on 17 August 2021. The request for an inquiry by an arbitrator was made on the prescribed form. The employer handed in a bundle of documents and the hearing was digitally recorded. Wynona Titus and later Stephanie Marks were present on different dates as an intermediary. In terms of a Collective agreement it was agreed that the use of intermediaries is compulsory when a child gives evidence in cases involving misconduct of a sexual nature. Written permission had been obtained from the parents of the minor children to testify. It was agreed that to protect the identity of the children they would only be referred to by a single letter of the alphabet. Also present on only one day was Bianca Mankay as an Afrikaans interpreter. It was agreed on 17 August 2021 to avoid a further postponement that Anwar Allie (assistant director DOE) would act as an Afrikaans interpreter. The Department of Education (DOE) was represented by Candice Hanekom and later by Clayton Vorster (Labour Relations Officers). Logan Klaasen (the employee) was present and was represented by Faez Tassiem (NAPTOSA).
(2) The purpose of this enquiry is to determine whether Klaasen is guilty or not guilty on the following charges and if found guilty on a balance of probabilities to impose the appropriate sanction:-
(i) It is alleged that you are guilty of misconduct in terms of section 17 (1) (b) of the Employment of Educators Act No. 76 of 1998 (the Act) in that you during the second term and/or third quarter of 2019 you sexually assaulted a grade 6 learner “A” at the Botrivier Primary School by touching her (a) upper leg; and or (b) stomach and/or (c) breasts
(ii) The second charge was withdrawn by the employer.
(3) I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
THE BACKGROUND TO THE DISPUTE
(4) Klaasen started working for the employer in January 2011; he works as an educator teaching grade 6 (natural science and technology) and earns R26 979.71 per month.
SUMMARY OF EVIDENCE AND ARGUMENT
The employer’s version and testimony was as follows:-
(5) Learner “A” (currently 14 years old and in grade 8 at the Botrivier Primary School) testified that in 2019 she had been in grade 6 and was at the time 12 years old. A knows Klaasen as he teaches at the school and lives in the same street as her grandfather. Klaasen taught A who did not like him as he kept touching the learners and had touched A inappropriately. Klaasen touched A on her thighs, breasts and around her body. A did not recall the exact dates but said that she sat at the back of the class and had been touched during the class. Klaasen would find excuses to ensure that A stayed late at school with excuses such as she needed to finish her work. A would be told to stay behind and once all the other learners had left Klaasen would then close and lock the door. Klaasen kept asking A why she did not want to talk to him. Once Klaasen got A to remain in the classroom he would start touching her thighs, breasts and around her body. A told Klaasen to stop touching her and that she wanted to go home. A had never asked Klaasen why he locked the door but after a while Klassen let her go home. This behavior happened more than once which left A feeling very uncomfortable. A never liked Klaasen touching her; whispering in her ears and then he sits up close next to her. When asked why A did not speak to Klaasen she refused to give a response. A explained that it was not allowed for Klaasen to touch her and she had never given him any permission to do this. Klaasen’s job was to teach the learners and not to touch them. A confided in her cousin, learner B, that Klaasen touches her and makes her stay late at school. A never told anyone else as she trusted B. These incidents took place in 2019. A knows the difference between truth and lies.
(6) In cross-examination A confirmed that Klaasen taught natural science and technology to grade 6 learners. Klaasen kept learners after school as he tells them they need to finish their work before they go home. It was put to A that Klaasen also does extra-mural activities such as chess playing. A explained that she did not play chess. It was put to A that Klaasen will say he had only kept her after school three to four times and A said that that sounded correct. A confirmed that she lives on a farm and had never stayed in the village. A said that her father takes her to school at about 06h00 and then fetches her at about 17h00 - although school closes at 14h00. A goes to B first and then goes to school. After school A goes to a friend C. A felt that at times Klaasen was a nice person and he explains the work. A was reminded that Klaasen will say he kept her late so she could catch up with her school work. A did not agree. It was put to A that Klaasen had chess practice from Monday to Thursday where the players congregate and practice that game. A confirmed she was only kept behind on Tuesdays and Fridays. The employee’s representative mentioned a few names of chess players none of whom were known to A. It was put to A that these chess players had been with Klaasen after school every day to practice playing chess. Again A did not agree. A was absent but disagreed that she had been absent a lot. A register of the first quarter of 2019 was shown to A and it was pointed out that in the first quarter she had been absent twenty eight days. A believed this could be correct. It was put to A that Klaasen kept her after school so that she could catch up on her work. A explained she got her work from another friend and disagreed that she was never alone in the classroom with Klaasen. It was put to A that Klaasen denies everything and A explained that that was not the truth. It was explained to A that Klaasen had thought that things at home had not been good so he had tried to talk to her. A had not been aware that Klaasen had spoken to her mother and if he had, her mother would have told her. A had not wanted to speak to her father. It was put to A that others will say that her father fetched her at 14h40 and not 17h00 as claimed. A agreed that she did not always work in class and had never seen anyone playing chess. A said that Klaasen was always wanting to talk to her. A disagreed that Klaasen would lock the door to stop her from sneaking out. A added that Klaasen had let others go but she was kept behind.
(7) In re-examination A confirmed that once everyone else had left she was left alone in the classroom with Klaasen, which is when he locked the door. In the event that there were problems at home these were never discussed with Klaasen. A generally spoke to B. When A was alone with Klaasen he touched her legs and held her so that she could not escape.
In answer to questions of clarification from me A explained that we were at arbitration as Klaasen touches the learners. The mother of A had said to open a case against Klaasen.
(8) Learner B (aged 11 and cousin of A) testified that she knows Klaasen as she goes to the same school. B gets along very well with A and feels that they are like sisters as they tell each other everything. B had been in the class of Klaasen for about two weeks last year and then the school closed. B did not know why Klaasen was no longer at the school. B is aware that Klaasen keeps A after school and once the others have left he locks the door. B is aware that Klaasen touched the breasts of A but could not say how. This had only happened once and A had not wanted to return to school. B thought that A should tell her mother but A had wanted this to be kept a secret. B could not keep the secret as she was afraid and so had told Mrs. Daniels (principal). B had believed A and this had been the first time such a thing had happened. B was afraid so told Daniels in person in case it may happen again.
(9) In cross-examination B confirmed that Klaasen was at the school to teach and not to touch learners. The learners have to go to the classes to learn, listen and to be obedient. B had never heard that perhaps A was lazy or did not do her work. B knew about those learners who played chess. Klaasen had made an announcement that chess classes would be held from Mondays to Thursdays. It was put to B that Klaasen will say that he had never kept A alone with him. B was not aware of this. B told Daniels and not her mother or the mother of A as B believed that Daniels would be able to put a stop to this behavior. B did not like Klaasen and there were many stories circulating about him in the school from other learners. B said that when the girls are upstairs Klaasen looks up under their skirts. B had heard this from two other learners. It was put to B that A never said that she wanted to leave the school. In re-examination B confirmed that this was the first time she had heard what was happening to A and B believed what A had said.
(10) Josana Johnson (social worker) testified that for the past sixteen years she had been a social worker and had worked for the DOE in the past four years. The role of Johnson included the social and environmental barriers. Johnson works on the “abuse no more” project and gives emotional support on any social issues or barriers. Botrivier Primary School falls within circuit 3. Johnson knows A as she was referred to Johnson in 2019 via an email sent by the principal about alleged sexual abuse. Johnson held three sessions with A in which A claimed that Klaasen was touching her upper legs and breasts. A had not been in a very good space at the time. A had reported that in the last class for the day Klaasen had walked through the desks to get to her and told her to stay after the class was over. There had been no reason why Klaasen wanted A to stay late and once alone he touched her legs and breasts. A was fetched after school by her father. Johnson also saw B. B reported that Klaasen also touched her and other learners. A had felt very uncomfortable, had felt dirty and wanted to just get away. B had been afraid and came out with what had happened to A. It was unprofessional for an educator to touch a learner which Johnson saw as an abuse of power. A is shy and withdrawn having grown up on a farm. It was an offence to touch a learner on their upper leg or breasts in terms of the Sexual Offences Act (Act No. 23 of 1957, originally the Immorality Act, 1957). A was anxious and had not wanted to return to school or to be around men. A said she had nightmares after the incident and had always been consistent with her version of events. A was emotional and thought she had done something wrong.
(11) In cross-examination Johnson was unsure whether the matter had been reported to SAPS (South African Police Services). If A had an absenteeism problem this had never been brought to the attention of Johnson. It was put to Johnson that A was kept after school due to her absenteeism. The focus of Johnson had been on the incident and her job was to give emotional support to A. It was put to Johnson that A had not testified to the claims she had made as relayed by Johnson. Johnson confirmed she had three sessions with A and had not asked if this had happened more than once. Johnson had spoken telephonically to the parents of A. It was put to Johnson that Klaasen will say he kept A late about three to four times and it was after the last period for the day. It was further put to Johnson that from Monday to Thursday Klaasen ran chess classes. Johnson confirmed that B had told her about sports after school but had not mentioned chess. Johnson stated that A said that Klaasen had asked her to show him her breasts. Johnson had not received any other complaints about Klaasen and she had not been told Klaasen was allegedly looking up the skirts of learners.
(12) In re-examination Johnson confirmed that B had reported that Klaasen had also touched her.
In answer to questions of clarity from me Johnson explained that usually learners do between six to nine subjects. No-one had asked Johnson to look into the alleged absenteeism of A. Johnson felt that a sexual offence was committed against A on 1 November 2019.
(13) Deidre Daniels (acting principal) testified that in April 2021 she would have been at the school for two years. Allegations had been made to Daniels by the mother of D who reported Klaasen had touched her daughter. (This related to charge 2 which had been withdrawn by the DOE). Daniels phoned Juan Augulhus (labour Relations Officer). Daniels was told to send him the details and then an investigation had been carried out. Daniels had just wanted to do things correctly. Klaasen generally does what is required of him and is regarded as a good teacher. Daniels had never expected that Klaasen would misconduct himself. All educators are taught not to touch the learners. This is done regularly at staff meetings as is the prohibition on corporal punishment. This is all part of the programme “abuse no more”. This subject matter was covered when training had been provided by the HOD (head of department). Klaasen underwent that training. Daniels would not be able to trust Klaasen again as an educator. It is not permitted for an educator to touch the learners. Educators should be protecting the children.
(14) In cross-examination Daniels explained that she had not been aware that A was absent for twenty eight days in the first quarter of 2019 although had been aware that A had been absent. Denver Hess was the class teacher of grade 6 and Hess had said that A was absent asking whether Daniels had spoken to her mother. Daniels explained that thereafter Hess had never reported back. Hess taught technology whist Klaasen taught natural science and technology. This matter had not been reported to SAPS as no-one told Daniels to make such a report. Hanekom (ER representative) had claimed that Klaasen touched A on her breasts and upper thighs. Daniels denied that B had reported anything to her. Daniels was unaware of any other complaints about Klaasen. Daniels confirmed that Klaasen was responsible for chess; was the coordinator and coach in the sport. In re-examination Daniels confirmed that chess lessons were given in the afternoon by Klaasen.
The employee’s version and testimony was as follows:-
(15) Logan Klaasen testified he has been an educator for ten years and teaches natural science, technology and Afrikaans. Klaasen has additional duties which include chess coaching, coaching the under 9 rugby team and he is on the cultural committee. The learners from grades 3 to 9 practice chess on Mondays to Thursdays straight after school from 14h15 to 15h00. The chess competitions are held on Fridays and Saturdays. Klaasen teaches grades 5 and 6. As an educator Klaasen handles the discipline of learners who misbehave and he keeps some learners after school to enable them to catch up on the lessons. Learners stay behind if they do not finish the work or had been absent. Klaasen will speak to learners about their behavior and if then there is no change keeps them after school to catch up. A was often absent which is why she was kept after school to catch up on her work. Breaks were never used to address learners as the breaks are short and they need to have their break as is their Constitutional right. Others were also kept behind and not only A. The chess players were present on a daily basis and Klaasen said he was never alone with A. The bell rang at the end of each day and then the chess players and those being kept behind would arrive for the catch-up or to play chess. The intermediary classes ends first and then later the foundation phase end their school day. Klaasen coaches new players in chess whilst the others practice. There are three groups – learners catching up who can go as soon as they are done and the chess practices end by 15h00. Klaasen denied that he had ever been alone with A or touched her breasts, thigh and around her middle. A had said that Klaasen wanted to talk to her and Klaasen agreed as he wanted to discuss her absenteeism which resulted in her being behind in the class work. Klaasen confirmed he had never touched A.
(16) In cross-examination Klaasen confirmed he taught A natural science and technology. Between 14h15 and 15h00 Klaasen coached the chess players in grades 3 to 9. There were about fourteen in this group which comprised of ten experienced players from grades 6 to 9. The other four players in the group needed to be coached. In the catch-up group there were about four learners. Klaasen explained that the catch-up learners write from the board and he then had time to coach the chess players who needed assistance. When those catching up on work are finished they bring their books to Klassen who checks and then signs off, after which those learners may leave. Klaasen only keeps behind those when in his last class taught the subject matter is relevant as it is then already on the board. Klaasen could not recall which grade six learners were in his last class of the day. Klaasen was reminded that A said that Klaasen kept her behind on Tuesdays and Fridays. Klaasen denied that he ever kept back learners on a Friday as school ended early and then there were the chess competitions taking place. Klaasen denied that he kept A back alone with him and explained that chess was an intensive game that requires continuous practice. It was clarified that Klaasen coached four of the ten chess players and at times some of those ten also needed his attention. It was put to Klaasen that forty five minutes was too short a time to cover all fruitfully. It was further put to Klaasen that the fourteen chess players plus the catch up learners was too large a number to give each proper attention as needed. Klaasen was reminded that A said she had never seen any chess players when Klaasen had kept her back after school. It was put to Klaasen that his version is that he coaches chess players from Monday to Thursday which begs the question when he coaches the under 9 rugby team. Klaasen explained that with regards to the rugby he mainly did the administrative work whilst two other teachers coached the players. It was put to Klaasen that therefore he is not in chess practice every day. Klaasen explained that rugby is coached on Wednesdays between 14h15 and 15h00. Klassen explained that the only reason he kept A behind was because she needed to catch up on the work and this was despite A saying that she was not behind in her school work. It was put to Klaasen that he kept A behind to talk to her. Klaasen said he wanted to speak to A about her absenteeism which sometimes happened in class time. Klaasen denied that he kept A behind so he could touch her as charged. Klaasen explained that the grandfather of A lived in the same street as Klaasen so he knew A from there and then they saw each other at school. Klaasen had known A for about four years and was unaware if she made up stories. It was put to Klaasen that there had never been any need to keep A behind after school as A caught up the work missed from her friends. Klaasen denied that he had an agenda for keeping A behind after school.
(17) In re-examination Klaasen confirmed that learners are kept behind daily to catch-up on their work. Klaasen denied the allegations made by A and confirmed that nothing untoward ever happened in his classrooms.
(18) In answer to questions from me Klaasen confirmed the school was double storied and denied he used to look up to see under the skirts of the female learners. Klaasen lives with the mother of his two year old daughter and is thirty five years old. Klaasen denied that the absences of A were because she did not like him touching her and other learners.
(19) Learner Z testified he was a learner at the Botrivier Primary School in 2019 and is now fifteen years old. Z was in grade 7 in 2019 and is now in grade 9. Klaasen used to teach Z who lives in the same street as Klassen. Klaasen coached Z in chess and they also played at Klaasens’ home. Z started playing chess in grade 5 and had attended practices from Mondays to Thursdays. The chess competitions were held on Fridays and Saturdays. The practices started straight after school at 14h30 and sometimes continued into the late afternoon beyond 15h00. Those in the chess group were from grades 3 to 9. Sometimes there were others in the classroom that did not play chess and had to finish catching up on their school work. It was not the same learners who stayed behind every day. Z only knew A in passing and had seen A once in the classroom after school. Klaasen handled the chess players and assisted the younger ones. Klaasen checks the books of the learners catching up before they can leave. A and Klaasen were never alone in the classroom and it is always the chess players who are the last to leave. They went to chess competitions in a bus provided by the school. In grade 6 Z had played rugby and that was supervised by another teacher and Klaasen.
(20) In cross-examination Z confirmed he went to chess practice once school was out between 14h00 and 14h30. About fourteen learners were in the chess class and Z thought that the learners were both big and some little ones. Z thought that there were maybe nine seniors and five juniors. Z did not pay too much attention to the front row which is where those catching up on their work sat and copied the work from the board. A sat in the second row - behind the first desk. Z confirmed he knew why he was giving evidence as NAPTOSA had explained to him that A had accused Klaasen of touching her. Z explained that had Klaasen touched A he would not have seen anything.
(21) In re-examination Z confirmed that on the day when he was in the front row there had always been others in the room. Z and others drive together with Klaasen in the bakkie.
(22) In answer to questions from me Z confirmed he had not been coached about what to say at these proceedings. Z was at chess practice every day and when on the school bus Klaasen was always present. Z further confirmed that he and A were never in the same class with Klaasen.
(23) It was agreed that closing arguments would be sent to the Council and me by no later than 17h00 on 23 August 2021. A closing argument was 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 Klaasen committed the offences for which he had been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties. Klaasen faced one charge as follows: “It is alleged that you are guilty of misconduct in terms of section 17 (1) (b) of the Employment of Educators Act No. 76 of 1998 (the Act) in that you during the second term and/or third quarter of 2019 you sexually assaulted a grade 6 learner “A” at the Botrivier Primary School by touching her (a) upper leg; and or (b) stomach and/or (c) breasts.”
(25) Klaasen taught natural sciences and technology (but later added the subject of Afrikaans). It is the version of Klaasen that in the final class of the day if there were any learners not finished with their work, he would keep them after school from about 14h15 to 15h00 for them to catch up on the work. A agreed that it might be correct that Klaasen had kept her after school about three to four times and only on Tuesdays and Fridays. According to Klaasen this would only happen if in the last class he taught, for the day, that student was behind in her work then they would remain after school and copy from what was already written on the board. From this evidence I find on a balance of probabilities that A was kept after school by Klaasen on about three to four occasions but the period or exact date(s) when this took place were not made clear by either party.
(26) The testimony of Klaasen was one of outright denial that he committed the acts as charged. There are some similarities in his evidence when compared to the other evidence put before me. Klaasen was not where the chess players and catch-up learners were on every day from Monday to Thursday as evidenced by his coaching of rugby on Wednesdays and corroborated by his own witness – Z. Klaasen himself in cross-examination explained that rugby is coached on Wednesdays between 14h15 and 15h00 although he mainly did administrative work. Nothing was said regarding the involvement of Klaasen extramurally with the cultural affairs committee. Klaasen said he wanted to speak to A about her absenteeism which sometimes happened in class time. Klaasen only keeps behind those when in his last class taught the subject matter is relevant as it is then already on the board. This begs the question how A would catch up on her school work caused by her absences from school? I believe that A was kept behind for other reasons as when absent it would not only have involved the last class taught by Klaasen. It is difficult to say what was happening if A was even leaving the class during the lessons as alleged by Klaasen. A was adamant that she caught up on any school work missed from her friends so there was no valid reason to keep A behind after school. A had said that Klaasen wanted to talk to her and Klaasen agreed as he wanted to discuss her absenteeism which resulted in her being behind in the class work. A managed to catch up on whatever school she missed through her friends as evidenced by A being in grade 8 two years after the incidents. I find on a balance of probabilities that the reason Klaasen kept A after school was not for her to catch up on her school work.
(27) It was the version of Klaasen that because he coached chess from Mondays to Fridays the chess players (ten experienced players and four novices) he could not have touched A because the chess players were present and would have seen this. However Z, who was the witness of Klaasen, testified that those catching up with work would be in the front row and even if Klaasen had touched A he would not have seen anything. Z also testified that he played rugby in grade 6 (he is currently in grade 7) which rugby had been supervised by Klaasen and another teacher. This then creates doubt over the testimony of Z that he played chess every day as then he would not have been able to be coached in rugby as well by Klaasen in 2019. It is improbable that Klassen would have fourteen chess players (four of whom are novices); about four catch-up learners all being supervised by him whilst also coaching rugby / doing administrative work at the same time on at least one day of the week. The principal testified that Klaasen is a good teacher but this then begs the question why he had so many learners having to stay late to catch up on a class he had just given in the last period and also had for instance A creeping out during the class Klaasen was actually giving? I find on a balance of probabilities that the chess players are unable to give any evidence of what Klaasen was doing whilst they were playing chess when Klassen was dealing with the catch-up group.
(28) The evidence of A was that Klaasen even touched her during a class whilst she was purposefully sitting at the back to avoid this. Klaasen would walk to the back and then with his back to the class inappropriately touch A or whisper in her ear to stay after school. It is unknown why A did not scream when this happened as then the other learners in the class would have known that something was wrong. No dates were given by A when Klaasen was alleged to have been touching her but after carrying out three interviews with A, Johnson put the date as being 1 November 2019. This single date cannot be correct as A confirmed that she was held back after school on three to four occasions. The date as given by Johnson also conflicts with the charge as the period is referred to as being during the second term and/or third quarter of 2019. According to A Klaasen would keep her after school and hold her around her body and touch her thighs and beasts as soon as they were alone together. A said she was touched on her thighs and breasts and around her body by Klaasen. It is not expected for A to have physically demonstrated the trauma she had undergone about two years’ previously. The fact that A testified she was touched deliberately, without her permission is sufficient to make a finding that Klaasen broke the critical rule of not touching any learners as taught in the “abuse no more” initiative. Both Klaasen and A agreed that Klassen kept wanting to talk to A which caused A discomfort and resulted in her just keeping quiet. If there was a problem at home which was causing A to be absent there are social workers who would look into this claim. This never happened and Klaasen persisted in trying to talk to A. A disagreed that Klaasen kept her behind to catch up on her work as she did this through a friend from whom she copied the work. The absenteeism of A seemed to be a problem for Klaasen and I have noted that the absenteeism records put into evidence related predominantly to the first quarter of 2019. Hess, the class teacher, never reported back to Daniels as to whether the absenteeism of A had become a problem. A was able to keep up with her school work as evidenced by her two years later being in grade 8. It is highly improbable that Klassen kept A after school due to her absenteeism as then, according to Klaasen, she could only catch up on the last class that he held on a given day, which would not have covered the days when A had been absent. According to Johnson, A had not been in a very good space at the time; A had felt very uncomfortable, had felt dirty and wanted to just get away. A is shy and withdrawn. A was anxious and had not wanted to return to school or to be around men. A said she had nightmares after the incident and had always been consistent with her version of events. At the time A was twelve years old. A was emotional and thought she had done something wrong. Based on the observations of a social worker something was happening and Johnson testified that A had been consistent in what she had told Johnson. There is no reason for A to have made all this up especially when it manifested in her feeling traumatized. In the circumstances I find on a balance of probabilities that Klaasen did not have a valid reason for keeping A back after school. There being no reason to keep A behind it is probable that Klaasen wanted to get A alone and in all probabilities did sexually molest A by touching her on her thighs, breasts and around her body. Klaasen is still not permitted to hold A around her body even if A was trying to escape. As already stated the chess players would not have noticed what was happening. At times when alone with A Klaasen would lock the door and then there was no-one present to have assisted A even if she had screamed.
(29) I found A to be consistent in her evidence and without any hesitation she was very firm in her answers both whilst leading her evidence and again when being cross-examined. A, from her demeanour whilst giving her evidence, showed her distaste of what had happened to her. This too is confirmed by the evidence of Johnson that A was having nightmares; had been repulsed about had happened and believed that perhaps she had done something wrong. A very strongly said that Klaasen did not have her permission to touch her and that Klaasen was there to teach and not to touch the learners. Although learners (plural) referred to more than just A, the only other evidence was from learner B who testified to hearsay evidence of what she had heard which was uncorroborated and will not be taken into account. Johnson testified that when she had seen B it was reported to her that Klaasen had also touched her plus others. This evidence is not credible as when B testified she failed to mention that it was alleged that Klaasen had also touched her plus others. In the event that B had said this to Johnson one would imagine that Johnson would not have only held a single discussion with B. In her evidence Daniels never mentioned that she had sent an email to Johnson as claimed. In fact in her leading evidence Daniels never even mentioned A once. It is unclear what type of investigation was carried out and by whom. It had been Hanekom who reported to Daniels that Klaasen had been touching A. Hanekom never led any evidence as to whether this claim was correct and how she arrived at such a conclusion. The evidence of Daniels was strictly about wanting to do “things right” but perhaps Daniels failed to do the “right things”.
(30) Sexual assault on a learner falls under section 17(1) (b) of the Employment of Educators Act No 76 of 1998. Assault is defined in our law as the unlawful act which results in another person’s bodily integrity being impaired or which inspires in another person a belief that such impairment of her bodily integrity is immediately to take place. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in the light of the circumstances. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act and all other circumstances surrounding the conduct, including threats which may or may not have been accompanied by force will be relevant. In this case I have taken into account that Klaasen had touched A on her thighs, breasts and around her body when keeping her after school and even during class. Klaasen had no valid reason to keep A behind after school and if A was avoiding talking to Klaasen or just keeping quiet then Klaasen had other means to address any perceived problems but chose to persist in his futile attempts to get A alone “so they could talk” when clearly A was not going to speak to Klaasen.
(31) The Constitutional Court held that section 28(2) of the Constitution imposes a duty on all of those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Courts and arbitrators are bound to give consideration to the effect their decisions will have on the lives of children, not only in the life of the child who is a victim of sexual misconduct but also the lives of learners in general who have the right to be protected against sexual abuse from educators.
(32) Where an educator is found guilty of misconduct in terms of section 17 (1) (b) of the Act, the sanction of dismissal is mandatory. The arbitrator has no discretion to impose any other sanction irrespective of mitigating circumstances. Courts in all jurisdictions have always viewed any form of sexually inappropriate behavior on the part of educators towards children in the most serious light, justifying summary dismissal. Klaasen has been found guilty of the charge in terms of section 17 (1) (b) against him and is summarily dismissed with immediate effect from the date of this award. In terms of my findings Klaasen is found to be unsuitable to ever work again with children in terms of the Children’s Act.
AWARD
(33) The employee, Logan Klaasen is found guilty of the charge against him for which a mandatory sanction of summary dismissal is imposed with effect from the date of this award. Klaasen is found unsuitable to ever work again with children in terms of the Children’s Act.
(34) Klaasen has the right to take this award on review to the Labour Court.
Gail McEwan
ELRC Arbitrator
Case No.: ELRC955-19/20 WC
Date of Award: 28 August 2021
SECTION 188A INQUIRY
NAPTOSA obo LOGAN KLAASEN
(Employee)
and
THE DEPARTMENT OF EDUCATION WESTERN CAPE
(Employer)
Union/Employee’s representative: Faez Tassiem
Union/Employee’s address:
Telephone: 082 382 5142
Email: Logank@gmail.com; faezt@naptosa.org.za
Employer’s representative: Candice Hanekom
Employer’s address: Private Bag X9114
Cape Town
8000
Telephone: 021 467 237
Email: candice.hanekom@westerncape.gov.za;
Clayton.Vorster@westerncape.gov.za;
Lee-Ann.Bathgate@westerncape.gov.za
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
(1) This matter was referred to the Education Labour Relations Council in terms of section 188A of the Labour Relations Act 66 of 1995 (LRA) as amended and was scheduled for 7 December 2020 which case was postponed in a Ruling dated the same date. The matter was again scheduled for 5 March 2021 but was postponed in a ruling dated the same date. The matter started on 24 March 2021 at the offices of the Department of Education (DOE) in Cape Town. The matter was again postponed on 17 June 2021 in a ruling dated the same date. The inquiry by arbitrator was concluded on 17 August 2021. The request for an inquiry by an arbitrator was made on the prescribed form. The employer handed in a bundle of documents and the hearing was digitally recorded. Wynona Titus and later Stephanie Marks were present on different dates as an intermediary. In terms of a Collective agreement it was agreed that the use of intermediaries is compulsory when a child gives evidence in cases involving misconduct of a sexual nature. Written permission had been obtained from the parents of the minor children to testify. It was agreed that to protect the identity of the children they would only be referred to by a single letter of the alphabet. Also present on only one day was Bianca Mankay as an Afrikaans interpreter. It was agreed on 17 August 2021 to avoid a further postponement that Anwar Allie (assistant director DOE) would act as an Afrikaans interpreter. The Department of Education (DOE) was represented by Candice Hanekom and later by Clayton Vorster (Labour Relations Officers). Logan Klaasen (the employee) was present and was represented by Faez Tassiem (NAPTOSA).
(2) The purpose of this enquiry is to determine whether Klaasen is guilty or not guilty on the following charges and if found guilty on a balance of probabilities to impose the appropriate sanction:-
(i) It is alleged that you are guilty of misconduct in terms of section 17 (1) (b) of the Employment of Educators Act No. 76 of 1998 (the Act) in that you during the second term and/or third quarter of 2019 you sexually assaulted a grade 6 learner “A” at the Botrivier Primary School by touching her (a) upper leg; and or (b) stomach and/or (c) breasts
(ii) The second charge was withdrawn by the employer.
(3) I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
THE BACKGROUND TO THE DISPUTE
(4) Klaasen started working for the employer in January 2011; he works as an educator teaching grade 6 (natural science and technology) and earns R26 979.71 per month.
SUMMARY OF EVIDENCE AND ARGUMENT
The employer’s version and testimony was as follows:-
(5) Learner “A” (currently 14 years old and in grade 8 at the Botrivier Primary School) testified that in 2019 she had been in grade 6 and was at the time 12 years old. A knows Klaasen as he teaches at the school and lives in the same street as her grandfather. Klaasen taught A who did not like him as he kept touching the learners and had touched A inappropriately. Klaasen touched A on her thighs, breasts and around her body. A did not recall the exact dates but said that she sat at the back of the class and had been touched during the class. Klaasen would find excuses to ensure that A stayed late at school with excuses such as she needed to finish her work. A would be told to stay behind and once all the other learners had left Klaasen would then close and lock the door. Klaasen kept asking A why she did not want to talk to him. Once Klaasen got A to remain in the classroom he would start touching her thighs, breasts and around her body. A told Klaasen to stop touching her and that she wanted to go home. A had never asked Klaasen why he locked the door but after a while Klassen let her go home. This behavior happened more than once which left A feeling very uncomfortable. A never liked Klaasen touching her; whispering in her ears and then he sits up close next to her. When asked why A did not speak to Klaasen she refused to give a response. A explained that it was not allowed for Klaasen to touch her and she had never given him any permission to do this. Klaasen’s job was to teach the learners and not to touch them. A confided in her cousin, learner B, that Klaasen touches her and makes her stay late at school. A never told anyone else as she trusted B. These incidents took place in 2019. A knows the difference between truth and lies.
(6) In cross-examination A confirmed that Klaasen taught natural science and technology to grade 6 learners. Klaasen kept learners after school as he tells them they need to finish their work before they go home. It was put to A that Klaasen also does extra-mural activities such as chess playing. A explained that she did not play chess. It was put to A that Klaasen will say he had only kept her after school three to four times and A said that that sounded correct. A confirmed that she lives on a farm and had never stayed in the village. A said that her father takes her to school at about 06h00 and then fetches her at about 17h00 - although school closes at 14h00. A goes to B first and then goes to school. After school A goes to a friend C. A felt that at times Klaasen was a nice person and he explains the work. A was reminded that Klaasen will say he kept her late so she could catch up with her school work. A did not agree. It was put to A that Klaasen had chess practice from Monday to Thursday where the players congregate and practice that game. A confirmed she was only kept behind on Tuesdays and Fridays. The employee’s representative mentioned a few names of chess players none of whom were known to A. It was put to A that these chess players had been with Klaasen after school every day to practice playing chess. Again A did not agree. A was absent but disagreed that she had been absent a lot. A register of the first quarter of 2019 was shown to A and it was pointed out that in the first quarter she had been absent twenty eight days. A believed this could be correct. It was put to A that Klaasen kept her after school so that she could catch up on her work. A explained she got her work from another friend and disagreed that she was never alone in the classroom with Klaasen. It was put to A that Klaasen denies everything and A explained that that was not the truth. It was explained to A that Klaasen had thought that things at home had not been good so he had tried to talk to her. A had not been aware that Klaasen had spoken to her mother and if he had, her mother would have told her. A had not wanted to speak to her father. It was put to A that others will say that her father fetched her at 14h40 and not 17h00 as claimed. A agreed that she did not always work in class and had never seen anyone playing chess. A said that Klaasen was always wanting to talk to her. A disagreed that Klaasen would lock the door to stop her from sneaking out. A added that Klaasen had let others go but she was kept behind.
(7) In re-examination A confirmed that once everyone else had left she was left alone in the classroom with Klaasen, which is when he locked the door. In the event that there were problems at home these were never discussed with Klaasen. A generally spoke to B. When A was alone with Klaasen he touched her legs and held her so that she could not escape.
In answer to questions of clarification from me A explained that we were at arbitration as Klaasen touches the learners. The mother of A had said to open a case against Klaasen.
(8) Learner B (aged 11 and cousin of A) testified that she knows Klaasen as she goes to the same school. B gets along very well with A and feels that they are like sisters as they tell each other everything. B had been in the class of Klaasen for about two weeks last year and then the school closed. B did not know why Klaasen was no longer at the school. B is aware that Klaasen keeps A after school and once the others have left he locks the door. B is aware that Klaasen touched the breasts of A but could not say how. This had only happened once and A had not wanted to return to school. B thought that A should tell her mother but A had wanted this to be kept a secret. B could not keep the secret as she was afraid and so had told Mrs. Daniels (principal). B had believed A and this had been the first time such a thing had happened. B was afraid so told Daniels in person in case it may happen again.
(9) In cross-examination B confirmed that Klaasen was at the school to teach and not to touch learners. The learners have to go to the classes to learn, listen and to be obedient. B had never heard that perhaps A was lazy or did not do her work. B knew about those learners who played chess. Klaasen had made an announcement that chess classes would be held from Mondays to Thursdays. It was put to B that Klaasen will say that he had never kept A alone with him. B was not aware of this. B told Daniels and not her mother or the mother of A as B believed that Daniels would be able to put a stop to this behavior. B did not like Klaasen and there were many stories circulating about him in the school from other learners. B said that when the girls are upstairs Klaasen looks up under their skirts. B had heard this from two other learners. It was put to B that A never said that she wanted to leave the school. In re-examination B confirmed that this was the first time she had heard what was happening to A and B believed what A had said.
(10) Josana Johnson (social worker) testified that for the past sixteen years she had been a social worker and had worked for the DOE in the past four years. The role of Johnson included the social and environmental barriers. Johnson works on the “abuse no more” project and gives emotional support on any social issues or barriers. Botrivier Primary School falls within circuit 3. Johnson knows A as she was referred to Johnson in 2019 via an email sent by the principal about alleged sexual abuse. Johnson held three sessions with A in which A claimed that Klaasen was touching her upper legs and breasts. A had not been in a very good space at the time. A had reported that in the last class for the day Klaasen had walked through the desks to get to her and told her to stay after the class was over. There had been no reason why Klaasen wanted A to stay late and once alone he touched her legs and breasts. A was fetched after school by her father. Johnson also saw B. B reported that Klaasen also touched her and other learners. A had felt very uncomfortable, had felt dirty and wanted to just get away. B had been afraid and came out with what had happened to A. It was unprofessional for an educator to touch a learner which Johnson saw as an abuse of power. A is shy and withdrawn having grown up on a farm. It was an offence to touch a learner on their upper leg or breasts in terms of the Sexual Offences Act (Act No. 23 of 1957, originally the Immorality Act, 1957). A was anxious and had not wanted to return to school or to be around men. A said she had nightmares after the incident and had always been consistent with her version of events. A was emotional and thought she had done something wrong.
(11) In cross-examination Johnson was unsure whether the matter had been reported to SAPS (South African Police Services). If A had an absenteeism problem this had never been brought to the attention of Johnson. It was put to Johnson that A was kept after school due to her absenteeism. The focus of Johnson had been on the incident and her job was to give emotional support to A. It was put to Johnson that A had not testified to the claims she had made as relayed by Johnson. Johnson confirmed she had three sessions with A and had not asked if this had happened more than once. Johnson had spoken telephonically to the parents of A. It was put to Johnson that Klaasen will say he kept A late about three to four times and it was after the last period for the day. It was further put to Johnson that from Monday to Thursday Klaasen ran chess classes. Johnson confirmed that B had told her about sports after school but had not mentioned chess. Johnson stated that A said that Klaasen had asked her to show him her breasts. Johnson had not received any other complaints about Klaasen and she had not been told Klaasen was allegedly looking up the skirts of learners.
(12) In re-examination Johnson confirmed that B had reported that Klaasen had also touched her.
In answer to questions of clarity from me Johnson explained that usually learners do between six to nine subjects. No-one had asked Johnson to look into the alleged absenteeism of A. Johnson felt that a sexual offence was committed against A on 1 November 2019.
(13) Deidre Daniels (acting principal) testified that in April 2021 she would have been at the school for two years. Allegations had been made to Daniels by the mother of D who reported Klaasen had touched her daughter. (This related to charge 2 which had been withdrawn by the DOE). Daniels phoned Juan Augulhus (labour Relations Officer). Daniels was told to send him the details and then an investigation had been carried out. Daniels had just wanted to do things correctly. Klaasen generally does what is required of him and is regarded as a good teacher. Daniels had never expected that Klaasen would misconduct himself. All educators are taught not to touch the learners. This is done regularly at staff meetings as is the prohibition on corporal punishment. This is all part of the programme “abuse no more”. This subject matter was covered when training had been provided by the HOD (head of department). Klaasen underwent that training. Daniels would not be able to trust Klaasen again as an educator. It is not permitted for an educator to touch the learners. Educators should be protecting the children.
(14) In cross-examination Daniels explained that she had not been aware that A was absent for twenty eight days in the first quarter of 2019 although had been aware that A had been absent. Denver Hess was the class teacher of grade 6 and Hess had said that A was absent asking whether Daniels had spoken to her mother. Daniels explained that thereafter Hess had never reported back. Hess taught technology whist Klaasen taught natural science and technology. This matter had not been reported to SAPS as no-one told Daniels to make such a report. Hanekom (ER representative) had claimed that Klaasen touched A on her breasts and upper thighs. Daniels denied that B had reported anything to her. Daniels was unaware of any other complaints about Klaasen. Daniels confirmed that Klaasen was responsible for chess; was the coordinator and coach in the sport. In re-examination Daniels confirmed that chess lessons were given in the afternoon by Klaasen.
The employee’s version and testimony was as follows:-
(15) Logan Klaasen testified he has been an educator for ten years and teaches natural science, technology and Afrikaans. Klaasen has additional duties which include chess coaching, coaching the under 9 rugby team and he is on the cultural committee. The learners from grades 3 to 9 practice chess on Mondays to Thursdays straight after school from 14h15 to 15h00. The chess competitions are held on Fridays and Saturdays. Klaasen teaches grades 5 and 6. As an educator Klaasen handles the discipline of learners who misbehave and he keeps some learners after school to enable them to catch up on the lessons. Learners stay behind if they do not finish the work or had been absent. Klaasen will speak to learners about their behavior and if then there is no change keeps them after school to catch up. A was often absent which is why she was kept after school to catch up on her work. Breaks were never used to address learners as the breaks are short and they need to have their break as is their Constitutional right. Others were also kept behind and not only A. The chess players were present on a daily basis and Klaasen said he was never alone with A. The bell rang at the end of each day and then the chess players and those being kept behind would arrive for the catch-up or to play chess. The intermediary classes ends first and then later the foundation phase end their school day. Klaasen coaches new players in chess whilst the others practice. There are three groups – learners catching up who can go as soon as they are done and the chess practices end by 15h00. Klaasen denied that he had ever been alone with A or touched her breasts, thigh and around her middle. A had said that Klaasen wanted to talk to her and Klaasen agreed as he wanted to discuss her absenteeism which resulted in her being behind in the class work. Klaasen confirmed he had never touched A.
(16) In cross-examination Klaasen confirmed he taught A natural science and technology. Between 14h15 and 15h00 Klaasen coached the chess players in grades 3 to 9. There were about fourteen in this group which comprised of ten experienced players from grades 6 to 9. The other four players in the group needed to be coached. In the catch-up group there were about four learners. Klaasen explained that the catch-up learners write from the board and he then had time to coach the chess players who needed assistance. When those catching up on work are finished they bring their books to Klassen who checks and then signs off, after which those learners may leave. Klaasen only keeps behind those when in his last class taught the subject matter is relevant as it is then already on the board. Klaasen could not recall which grade six learners were in his last class of the day. Klaasen was reminded that A said that Klaasen kept her behind on Tuesdays and Fridays. Klaasen denied that he ever kept back learners on a Friday as school ended early and then there were the chess competitions taking place. Klaasen denied that he kept A back alone with him and explained that chess was an intensive game that requires continuous practice. It was clarified that Klaasen coached four of the ten chess players and at times some of those ten also needed his attention. It was put to Klaasen that forty five minutes was too short a time to cover all fruitfully. It was further put to Klaasen that the fourteen chess players plus the catch up learners was too large a number to give each proper attention as needed. Klaasen was reminded that A said she had never seen any chess players when Klaasen had kept her back after school. It was put to Klaasen that his version is that he coaches chess players from Monday to Thursday which begs the question when he coaches the under 9 rugby team. Klaasen explained that with regards to the rugby he mainly did the administrative work whilst two other teachers coached the players. It was put to Klaasen that therefore he is not in chess practice every day. Klaasen explained that rugby is coached on Wednesdays between 14h15 and 15h00. Klassen explained that the only reason he kept A behind was because she needed to catch up on the work and this was despite A saying that she was not behind in her school work. It was put to Klaasen that he kept A behind to talk to her. Klaasen said he wanted to speak to A about her absenteeism which sometimes happened in class time. Klaasen denied that he kept A behind so he could touch her as charged. Klaasen explained that the grandfather of A lived in the same street as Klaasen so he knew A from there and then they saw each other at school. Klaasen had known A for about four years and was unaware if she made up stories. It was put to Klaasen that there had never been any need to keep A behind after school as A caught up the work missed from her friends. Klaasen denied that he had an agenda for keeping A behind after school.
(17) In re-examination Klaasen confirmed that learners are kept behind daily to catch-up on their work. Klaasen denied the allegations made by A and confirmed that nothing untoward ever happened in his classrooms.
(18) In answer to questions from me Klaasen confirmed the school was double storied and denied he used to look up to see under the skirts of the female learners. Klaasen lives with the mother of his two year old daughter and is thirty five years old. Klaasen denied that the absences of A were because she did not like him touching her and other learners.
(19) Learner Z testified he was a learner at the Botrivier Primary School in 2019 and is now fifteen years old. Z was in grade 7 in 2019 and is now in grade 9. Klaasen used to teach Z who lives in the same street as Klassen. Klaasen coached Z in chess and they also played at Klaasens’ home. Z started playing chess in grade 5 and had attended practices from Mondays to Thursdays. The chess competitions were held on Fridays and Saturdays. The practices started straight after school at 14h30 and sometimes continued into the late afternoon beyond 15h00. Those in the chess group were from grades 3 to 9. Sometimes there were others in the classroom that did not play chess and had to finish catching up on their school work. It was not the same learners who stayed behind every day. Z only knew A in passing and had seen A once in the classroom after school. Klaasen handled the chess players and assisted the younger ones. Klaasen checks the books of the learners catching up before they can leave. A and Klaasen were never alone in the classroom and it is always the chess players who are the last to leave. They went to chess competitions in a bus provided by the school. In grade 6 Z had played rugby and that was supervised by another teacher and Klaasen.
(20) In cross-examination Z confirmed he went to chess practice once school was out between 14h00 and 14h30. About fourteen learners were in the chess class and Z thought that the learners were both big and some little ones. Z thought that there were maybe nine seniors and five juniors. Z did not pay too much attention to the front row which is where those catching up on their work sat and copied the work from the board. A sat in the second row - behind the first desk. Z confirmed he knew why he was giving evidence as NAPTOSA had explained to him that A had accused Klaasen of touching her. Z explained that had Klaasen touched A he would not have seen anything.
(21) In re-examination Z confirmed that on the day when he was in the front row there had always been others in the room. Z and others drive together with Klaasen in the bakkie.
(22) In answer to questions from me Z confirmed he had not been coached about what to say at these proceedings. Z was at chess practice every day and when on the school bus Klaasen was always present. Z further confirmed that he and A were never in the same class with Klaasen.
(23) It was agreed that closing arguments would be sent to the Council and me by no later than 17h00 on 23 August 2021. A closing argument was 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 Klaasen committed the offences for which he had been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties. Klaasen faced one charge as follows: “It is alleged that you are guilty of misconduct in terms of section 17 (1) (b) of the Employment of Educators Act No. 76 of 1998 (the Act) in that you during the second term and/or third quarter of 2019 you sexually assaulted a grade 6 learner “A” at the Botrivier Primary School by touching her (a) upper leg; and or (b) stomach and/or (c) breasts.”
(25) Klaasen taught natural sciences and technology (but later added the subject of Afrikaans). It is the version of Klaasen that in the final class of the day if there were any learners not finished with their work, he would keep them after school from about 14h15 to 15h00 for them to catch up on the work. A agreed that it might be correct that Klaasen had kept her after school about three to four times and only on Tuesdays and Fridays. According to Klaasen this would only happen if in the last class he taught, for the day, that student was behind in her work then they would remain after school and copy from what was already written on the board. From this evidence I find on a balance of probabilities that A was kept after school by Klaasen on about three to four occasions but the period or exact date(s) when this took place were not made clear by either party.
(26) The testimony of Klaasen was one of outright denial that he committed the acts as charged. There are some similarities in his evidence when compared to the other evidence put before me. Klaasen was not where the chess players and catch-up learners were on every day from Monday to Thursday as evidenced by his coaching of rugby on Wednesdays and corroborated by his own witness – Z. Klaasen himself in cross-examination explained that rugby is coached on Wednesdays between 14h15 and 15h00 although he mainly did administrative work. Nothing was said regarding the involvement of Klaasen extramurally with the cultural affairs committee. Klaasen said he wanted to speak to A about her absenteeism which sometimes happened in class time. Klaasen only keeps behind those when in his last class taught the subject matter is relevant as it is then already on the board. This begs the question how A would catch up on her school work caused by her absences from school? I believe that A was kept behind for other reasons as when absent it would not only have involved the last class taught by Klaasen. It is difficult to say what was happening if A was even leaving the class during the lessons as alleged by Klaasen. A was adamant that she caught up on any school work missed from her friends so there was no valid reason to keep A behind after school. A had said that Klaasen wanted to talk to her and Klaasen agreed as he wanted to discuss her absenteeism which resulted in her being behind in the class work. A managed to catch up on whatever school she missed through her friends as evidenced by A being in grade 8 two years after the incidents. I find on a balance of probabilities that the reason Klaasen kept A after school was not for her to catch up on her school work.
(27) It was the version of Klaasen that because he coached chess from Mondays to Fridays the chess players (ten experienced players and four novices) he could not have touched A because the chess players were present and would have seen this. However Z, who was the witness of Klaasen, testified that those catching up with work would be in the front row and even if Klaasen had touched A he would not have seen anything. Z also testified that he played rugby in grade 6 (he is currently in grade 7) which rugby had been supervised by Klaasen and another teacher. This then creates doubt over the testimony of Z that he played chess every day as then he would not have been able to be coached in rugby as well by Klaasen in 2019. It is improbable that Klassen would have fourteen chess players (four of whom are novices); about four catch-up learners all being supervised by him whilst also coaching rugby / doing administrative work at the same time on at least one day of the week. The principal testified that Klaasen is a good teacher but this then begs the question why he had so many learners having to stay late to catch up on a class he had just given in the last period and also had for instance A creeping out during the class Klaasen was actually giving? I find on a balance of probabilities that the chess players are unable to give any evidence of what Klaasen was doing whilst they were playing chess when Klassen was dealing with the catch-up group.
(28) The evidence of A was that Klaasen even touched her during a class whilst she was purposefully sitting at the back to avoid this. Klaasen would walk to the back and then with his back to the class inappropriately touch A or whisper in her ear to stay after school. It is unknown why A did not scream when this happened as then the other learners in the class would have known that something was wrong. No dates were given by A when Klaasen was alleged to have been touching her but after carrying out three interviews with A, Johnson put the date as being 1 November 2019. This single date cannot be correct as A confirmed that she was held back after school on three to four occasions. The date as given by Johnson also conflicts with the charge as the period is referred to as being during the second term and/or third quarter of 2019. According to A Klaasen would keep her after school and hold her around her body and touch her thighs and beasts as soon as they were alone together. A said she was touched on her thighs and breasts and around her body by Klaasen. It is not expected for A to have physically demonstrated the trauma she had undergone about two years’ previously. The fact that A testified she was touched deliberately, without her permission is sufficient to make a finding that Klaasen broke the critical rule of not touching any learners as taught in the “abuse no more” initiative. Both Klaasen and A agreed that Klassen kept wanting to talk to A which caused A discomfort and resulted in her just keeping quiet. If there was a problem at home which was causing A to be absent there are social workers who would look into this claim. This never happened and Klaasen persisted in trying to talk to A. A disagreed that Klaasen kept her behind to catch up on her work as she did this through a friend from whom she copied the work. The absenteeism of A seemed to be a problem for Klaasen and I have noted that the absenteeism records put into evidence related predominantly to the first quarter of 2019. Hess, the class teacher, never reported back to Daniels as to whether the absenteeism of A had become a problem. A was able to keep up with her school work as evidenced by her two years later being in grade 8. It is highly improbable that Klassen kept A after school due to her absenteeism as then, according to Klaasen, she could only catch up on the last class that he held on a given day, which would not have covered the days when A had been absent. According to Johnson, A had not been in a very good space at the time; A had felt very uncomfortable, had felt dirty and wanted to just get away. A is shy and withdrawn. A was anxious and had not wanted to return to school or to be around men. A said she had nightmares after the incident and had always been consistent with her version of events. At the time A was twelve years old. A was emotional and thought she had done something wrong. Based on the observations of a social worker something was happening and Johnson testified that A had been consistent in what she had told Johnson. There is no reason for A to have made all this up especially when it manifested in her feeling traumatized. In the circumstances I find on a balance of probabilities that Klaasen did not have a valid reason for keeping A back after school. There being no reason to keep A behind it is probable that Klaasen wanted to get A alone and in all probabilities did sexually molest A by touching her on her thighs, breasts and around her body. Klaasen is still not permitted to hold A around her body even if A was trying to escape. As already stated the chess players would not have noticed what was happening. At times when alone with A Klaasen would lock the door and then there was no-one present to have assisted A even if she had screamed.
(29) I found A to be consistent in her evidence and without any hesitation she was very firm in her answers both whilst leading her evidence and again when being cross-examined. A, from her demeanour whilst giving her evidence, showed her distaste of what had happened to her. This too is confirmed by the evidence of Johnson that A was having nightmares; had been repulsed about had happened and believed that perhaps she had done something wrong. A very strongly said that Klaasen did not have her permission to touch her and that Klaasen was there to teach and not to touch the learners. Although learners (plural) referred to more than just A, the only other evidence was from learner B who testified to hearsay evidence of what she had heard which was uncorroborated and will not be taken into account. Johnson testified that when she had seen B it was reported to her that Klaasen had also touched her plus others. This evidence is not credible as when B testified she failed to mention that it was alleged that Klaasen had also touched her plus others. In the event that B had said this to Johnson one would imagine that Johnson would not have only held a single discussion with B. In her evidence Daniels never mentioned that she had sent an email to Johnson as claimed. In fact in her leading evidence Daniels never even mentioned A once. It is unclear what type of investigation was carried out and by whom. It had been Hanekom who reported to Daniels that Klaasen had been touching A. Hanekom never led any evidence as to whether this claim was correct and how she arrived at such a conclusion. The evidence of Daniels was strictly about wanting to do “things right” but perhaps Daniels failed to do the “right things”.
(30) Sexual assault on a learner falls under section 17(1) (b) of the Employment of Educators Act No 76 of 1998. Assault is defined in our law as the unlawful act which results in another person’s bodily integrity being impaired or which inspires in another person a belief that such impairment of her bodily integrity is immediately to take place. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in the light of the circumstances. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act and all other circumstances surrounding the conduct, including threats which may or may not have been accompanied by force will be relevant. In this case I have taken into account that Klaasen had touched A on her thighs, breasts and around her body when keeping her after school and even during class. Klaasen had no valid reason to keep A behind after school and if A was avoiding talking to Klaasen or just keeping quiet then Klaasen had other means to address any perceived problems but chose to persist in his futile attempts to get A alone “so they could talk” when clearly A was not going to speak to Klaasen.
(31) The Constitutional Court held that section 28(2) of the Constitution imposes a duty on all of those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Courts and arbitrators are bound to give consideration to the effect their decisions will have on the lives of children, not only in the life of the child who is a victim of sexual misconduct but also the lives of learners in general who have the right to be protected against sexual abuse from educators.
(32) Where an educator is found guilty of misconduct in terms of section 17 (1) (b) of the Act, the sanction of dismissal is mandatory. The arbitrator has no discretion to impose any other sanction irrespective of mitigating circumstances. Courts in all jurisdictions have always viewed any form of sexually inappropriate behavior on the part of educators towards children in the most serious light, justifying summary dismissal. Klaasen has been found guilty of the charge in terms of section 17 (1) (b) against him and is summarily dismissed with immediate effect from the date of this award. In terms of my findings Klaasen is found to be unsuitable to ever work again with children in terms of the Children’s Act.
AWARD
(33) The employee, Logan Klaasen is found guilty of the charge against him for which a mandatory sanction of summary dismissal is imposed with effect from the date of this award. Klaasen is found unsuitable to ever work again with children in terms of the Children’s Act.
(34) Klaasen has the right to take this award on review to the Labour Court.
Gail McEwan
ELRC Arbitrator
ELRC 302 -20 /21 NW
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