ELRC375-19/20GP
Award Date:
06 September 2021
Text
Panellist: Themba Manganyi
Case No.: ELRC375-19/20GP
Dates of Hearing: 21 February 2020; 17 June 2021;
27 July 2021 & 10 August 2021
Date of Arguments: 11 August 2021
Date of Award: 06 September 2021
In the Inquiry by Arbitrator Hearing between
GAUTENG DEPARTMENT OF EDUCATION EMPLOYER
and
SADTU OBO P.I. SHONGWE EMPLOYEE
Employer’s representative: Ms Minah Ralioma
Employee’s representative: Mr Chris Nomandindi
Details of hearing and representation
1. The Inquiry by Arbitrator (S188A of the LRA) proceedings were conducted on 21 February 2020 at the Education Labour Relations Council’s Offices in Centurion, on 17 June 2021 at Tshwane North District in Wonderboom Junction, on 27 July 2021 and 10 August 2021 at Tshwane North District in Soshanguve. Ms Minah Ralioma (“Ralioma”), the LR Officer, represented the Employer, Gauteng Department of Education. Mr Chris Nomandindi (“Nomandindi”), the Official from SADTU, represented the Employee, Mr P.I. Shongwe (“Shongwe”).
2. Only the Employer submitted a bundle of documents. Parties were allowed to call and cross-examine witnesses. Minor witnesses testified with the aid of an intermediary and an interpreter. Closing arguments were submitted in writing on 11 August 2021 and I duly received same as agreed. The proceedings were digitally recorded and the recording thereof was retained by the Council.
Issue/s to be decided
3. I have to determine whether the two allegations that the Employer preferred against Shongwe have merit or not. In the event that I find that they have merit, I would be required to determine the appropriate sanction.
Rights and the nature of the process
4. All the rights commensurate with a fair process and the nature of the process were explained to the parties.
Allegations
5. The allegations against Shongwe were couched thus:
• Allegation 1: It is alleged that on 18 April 2018, you committed sexual misconduct in that you touched the buttocks of MM, a learner at Phakamonola Public School.
• Allegation 2: It is alleged that on 26 November 2018, you committed a sexual misconduct in that you touched the buttocks of PM, a learner at Phakamonola Public School.
In view of the above you are thus charged in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.
Pleadings
6. Shongwe pleaded NOT GUILTY to both allegations.
Survey of evidence and arguments
The Employer’s case
The Employer called seven (7) witnesses, including minors, and they all testified under oath. In summary, they stated as follows:
7. MM stated that in 2018 she was doing Grade 6 and that Shongwe used to teach her Social Science and Geography. She testified that in 2018 before break, Shongwe sent her to fetch his mug. After she had looked for the mug, she returned and Shongwe put his hand under her tunic and touched her buttocks. She reported the incident to Ms Johanna Manganye (“Manganye”) (the Security Officer at the school’s gate). Whilst she was with Manganye, Shongwe came and apologized and said he was playing with her. Manganye took her to Ms Etsane (“Etsane”) to report the incident since the Principal was not at the school.
8. Under cross-examination, she stated that she did not report the incident to her class teacher because she was a little afraid of her. She reported the incident to Johanna because she trusted Johanna. She was unrelenting that she was telling the truth about the incident. She denied the version that suggested that Johanna liked to listen to lies. She stated that she did not report the incident to her class teacher (Ms Maringa) because Maringa was rude to her.
9. PM testified that she was in Gr 5D at Phakamonola in 2018 and that Shongwe was her class teacher. She stated that during the fourth term of 2018, Shongwe called her to assist with the allocation of class marks using a pencil. She sat on the front desk whilst performing the allocated task. When she was done, she went to Shongwe’s table and Shongwe tried to put his hand under her tunic, but she moved and stood on the side of the other learner. She stated that the following day after this incident, Shongwe sent her to look for the class register inside the cupboard. She told Shongwe that she could not see the register. Shongwe came to the cupboard and he touched her buttocks. She hid herself with the cupboard doors. After the incident, she ran outside to the toilet. Another learner (BM) found her in the toilet crying and she told her (BM) that Shongwe touched her buttocks. BM told her that they have report the incident. She went with BM to report the incident to Ms Yvonne Simelane (“Simelane) and Ms Mbiza (“Mbiza”).
10. Under cross-examination, she confirmed that she heard BM’s statement as per the report on page 4 of the bundle. She reiterated that her incident occurred around November 2018. She stated that the other learners were in the classroom and some were outside when the incident happened. She stated that she was standing when the incident occurred.
11. BM stated that she was in Gr 5 in 2018 at Phakamonola and that Shongwe was her class teacher. She stated that PM was her class mate in 2018. She submitted that she did not know what happened between PM and Shongwe as she was not there. She stated that she went to Simelane with PM after PM had told her that Shongwe had touched her (PM) buttocks. She testified that Shongwe had also touched her buttocks on more than one occasion, but she was afraid to report the incident to her mom until her friend told her that she should report the incident to her mom. When she eventually told her mom, her mom told her that she should report the incident to her teacher. However, she did not know any friendly teacher at that time. When PM told her about her incident, she decided that she had to report Shongwe to prevent him from doing the same with other learners. She stated that they (PM and BM) found Simelane and Mbiza in Simelane’s classroom.
12. Under cross-examination, she stated that Simelane was a very friendly teacher and the learners could talk to her about everything. She confirmed that when Shongwe allegedly touched PM she was not there. She stated that she went to report the incident with PM because she knew that it was not for the first time that Shongwe did that. She could not remember how many times Shongwe touched her. She disputed that she hated Shongwe and that she considered Shongwe as a father.
13. Mr Thomas Hlengani Ngobeni (“Ngobeni”) testified that he was the Principal at Phakamonola. He stated that he wrote the report on page 1 of the bundle because there was an allegation that Shongwe touched MM on her buttocks. He stated that the allegation was reported to him by the HOD and the Deputy Principal (Ms Mathibela and Ms Etsane). According to the information that he got, MM went to the Security Officer (Johanna Manganye) at the gate to report that Shongwe touched her buttocks.
14. Under cross-examination, he confirmed that Etsane and Mathibela reported the incident to him. He stated that Johanna did not come to his office and that he did not see MM’s parents. It was put to him that according to the last paragraph on page 5 Johanna was a liar. He confirmed that Johanna never came to his office as he was not at the school during the time of reporting this incident. He submitted that Simelane’s report on page 4 was never brought to his attention. He further confirmed that the report on page 3 did not reach his office.
15. Etsane stated that she was the Deputy Principal at Phakamonola. She testified that allegation 1 on page 6 was reported to her by the Security Officer. She stated that when she was with Johanna, she told MM that she would call her parents. She compiled the report and handed the matter to the Principal who had just returned to school. She stated that PM’s matter was not reported to her and that she did not remember the details thereof, but the police officers came to the school regarding the matter.
16. Under cross-examination, she could not recall whether Shongwe sent MM to look for his cup or lunch box as the incident happened a long time ago. She refuted that there was a plot to frame Shongwe and stated that she did not have anything against Shongwe.
17. Simelane testified that she was an Educator at Phakamonola since 2017 as a reliever and she was made permanent in 2019. She stated that she authored the report on page 4 of the bundle and that she wrote the report because two girl learners (PM and BM) came to report to her that Shongwe had touched their buttocks. She stated that she was with Mbiza on 26 November 2018 when these learners came to her. She stated that PM was crying when she told her that Shongwe had touched her buttocks. BM stated that Shongwe always touched her buttocks.
18. Under cross-examination, she stated that her relationship with Shongwe was just collegial and that they consulted with each other on the subject that they both taught. She stated that she was not aware that there were issues between Shongwe and herself. She disputed that she used the school letterhead fraudulently to type her report on it.
19. Mbiza testified that she was an Educator at Phakamonola and that she wrote the statement on page 3 of the bundle. She stated that on 26 November 2018 she was with Simelane in her (Simelane) classroom when a group of girls came to the class. One of the learners (PM) was crying. Simelane asked her why was she crying and she said Shongwe touched her buttocks. She stated that the Principal was not at school on that day and Etsane was busy with schedules. She stated that only two learners (PM and BM) reported the incident to them (Mbiza and Simelane). She stated that BM reported that Shongwe touched her buttocks on several occasions.
20. Under cross-examination, she stated that the report that she wrote was directed to the SAPS and the District Office.
The Employee’s case
The Employee testified in defense of his case and also called three (3) minor witnesses. They all testified under oath and in summary, they stated that:
21. Shongwe testified that he was an Educator at Phakamonola. He stated that he did not touch MM and he was never alone with MM on 18 April 2018. He stated that MM was a disobedient and troublesome learner who did not do her homework. He testified that he did not know anything about the second paragraph on page 1 of the bundle. He averred that on 18 April 2018 whilst the learners were busy writing an assessment, he noticed that MM was uncomfortable and he approached her. He saw that MM was copying. He then took her answer sheet and gave her a blank one. After that, MM pushed him and she left the class without his permission. He stated that he knew Manganye as the Security Officer. After having read the first paragraph on page 5, he stated that he did not apologize to anyone. He stated that he did not talk to Manganye nor did he go to the gate. He denied that he has touched PM as alleged in allegation 2. He submitted that he could not have sent PM to fetch the class register as there was a dedicated class prefect who always did that.
22. Under cross-examination, he stated that he did not know why MM would accuse only him amongst the other male teachers and that he was not sure if the other male teachers go to MM’s class for lessons. He stated that MM has an attitude towards all the teachers. He stated that he did not know if Manganye hated him or not and that he did not go to Manganye to apologize. He stated that he did nothing when MM left the class because he had to invigilate other learners. He further submitted that he did not report to the Principal or the HOD that MM left his class. He confirmed that PM was in his class on 26 November 2018 and that she assisted with the allocation of marks. He stated that he did not have a healthy relationship with both Mbiza and Simelane. He suggested that MM and PM accused him of touching them because they were conspiring with Mbiza and Simelane. He stated that he did not have a toxic relationship with Manganye.
23. BB testified that he was 15 years old and that he attended school at Phakamonola in 2018 doing Gr 6. He stated that Shongwe was his Social Science teacher between Gr 4 – 6. He stated that he knows MM, PM and BM and that he attended the same school with them. He submitted that MM was a very naughty girl who always back chats with educators and that MM liked boys. He stated that MM used to wear very short skirts and would spread her legs. He testified that on 18 April 2018 Shongwe found MM busy cheating during the assessment in class. Shongwe took her cheating notes and gave her a clean sheet to write on, but MM left the class.
24. Under cross-examination, he stated that he cannot comment on the first allegation and he did not know whether it transpired or not. He submitted that it was wrong for a girl learner to wear a short skirt. He stated that when MM Left the class they continued with the assessment without MM. He narrated that when a learner misbehaves in class, the educator would call the learners parents and also inform the Principal. He stated that he did not know if Shongwe did the same with MM.
25. ON stated that she was in Gr 5 in 2018 at Phakamonola and that Shongwe was her class teacher. She confirmed that she knew MM, PM and BM. She stated that she did not know anything about allegation 2. She stated that on 26 November 2018, it was herself, ZN and PM assisting Shongwe with the allocation of marks. Shongwe was on the other side of the table. She stated that she did not see Shongwe touching PM and that PM never told her that Shongwe touched her on her buttocks. She stated that as the class prefect, she was the only person responsible for the class register.
26. Under cross-examination, she stated that because PM did not tell her that Shongwe touched her (PM) buttocks, that incident did not happen. She stated that BM came to fetch PM from the class and that PM was in a fine mood when she left the class. She stated that she did not know that PM reported the matter to the educators on the same day. She said that PM should have reported the incident to her as her prefect.
27. ZN stated that she was currently 14 years old doing Gr 8 and that she did Gr 5 in 2018. She stated that PM was her class mate in Gr 5 and that they were friends. She testified that it was not true that Shongwe touched PM on her buttocks and she further stated that PM was a naughty child. She stated that she was assisting with the allocation of marks together with PM and ON. She stated that whilst at the table, PM was in between her and ON and that Shongwe could not reach any of them with his hands. She testified that it was not possible that Shongwe could have touched PM on her buttocks. She stated that she was friends with PM and PM did not tell her about the allegation.
28. Under cross-examination, she stated that she was sure that Shongwe did not touch PM on her buttocks because PM did not tell her. She further stated that if something could happen to her and not tell her friends it would mean that the incident did not happen. She stated that MM was known by everyone at school because MM was forward and that the teachers knew that MM was disrespectful.
Closing arguments
29. As indicated herein above that the parties submitted their heads of arguments in writing, I do not propose to restate them in this award as they are a matter of record. I will only make mention of them in my analysis whenever necessary.
Analysis of evidence and argument
30. It is the requirement of section 138(7) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended, that a commissioner must issue an award with brief reasons. It therefore follows that what is contained herein is just a summation of the salient points that I deemed important for me to arrive at a reasonable decision in this matter. However, all the submissions were considered.
31. The Employer’s witnesses’ testimony was corroborative and consistent during their examination in chief and during cross examination. On the other hand, Shongwe brought in new versions in his evidence in chief that were never put to the Employer’s witnesses for them to respond to his versions. Over and above that, his witnesses’ testimony was only for character assassination of MM and PM. The parties were sensitized at the commencement of the proceedings that it was prudent to put a version so that it can be tested. However, the Employee dismally failed to put its version to the Employer’s witnesses.
32. With regard to allegation 1, it is common cause that MM left Shongwe’s class. The Employer’s version was that when MM left the class she went to Manganye to report that Shongwe touched her buttocks. Manganye went to report the incident to Etsane (the Deputy Principal) and Manganye wrote a report to this effect as per page 5. It was established that Ngobeni (the Principal) was not at school on that day. Therefore, in my view, for Manganye to have stated in her report that she took MM to the Principal, she was referring to Etsane and not Ngobeni. The Employee’s version was that MM unceremoniously left the class being angry after Shongwe found her copying during an assessment. This version was not put to MM to respond to. BB corroborated this version. However, I cannot attach any weight to this version as it was not tested when MM was on the stand. It is my view that if indeed it was true that Shongwe found MM with crib notes, the crib notes and the assessment question paper would have been brought as evidence in these proceedings. In my view, these documents were not presented as evidence because they were non-existent.
33. It is also worrisome that after a learner left the class during the assessment, the educator did nothing to reprimand the learner. Shongwe did not report MM to her parents, the Principal or the HOD. BB testified that when a learner misbehaves, the learner’s parents are called to the school. In the case of MM, this did not happen simply because there was nothing to reprimand MM for. I therefore find Shongwe’s version improbable on this score and I find him guilty as alleged.
34. With regard to allegation 2, PM stated that Shongwe touched her on her buttocks whilst she was at the cupboard. It is neither here nor there about the sitting arrangements of PM, ON, ZN and Shongwe whilst they were allocating marks at the table. This is so because the touching according to PM occurred at the cupboard. It was Simelane and Mbiza’s corroborative evidence that PM and BM came to them to report that Shongwe had touched PM on her buttocks. Their (Simelane and Mbiza) version was also corroborated by PM and BM. All the Employee’s witnesses testified that they did not observe Shongwe touching MM or PM. Shongwe only denied that these incidences occurred and his defense was that there was a plot against him.
35. It was Shongwe’s version that there was a conspiracy perpetrated against him by Simelane and Mbiza. In his view, Simelane was after his post since she was not permanently appointed in 2018. However, he did not state what Mbiza could have wanted to benefit out of his dismissal. The version that Simelane wanted his post was not put to her (Simelane) when she was on the witness stand. I therefore find that this is a fabricated defense version and that it has no basis.
36. It is to be expected that sexually harassed victims will not find it easy to report their harassment ordeal as and when they occur. In both these allegations, the victims reported their ordeal instantly to people that they trusted. Shongwe stated that he did not know if Manganye hated him or not, but confirmed that they did not have a toxic relationship. There was no evidence that was brought before me that suggested that in MM case, there was conspiracy perpetrated against Shongwe. The version that MM was an ill-disciplined child was not put to her. Even if that was the case, I cannot find any nexus connection between Shongwe’s conduct and her behaviour. I consequently find Shongwe guilty of allegation 2. Thus, I find that the Employer succeeded in discharging its burden of proof on a balance of probabilities.
Award
37. I find that Mr P.I. Shongwe is GUILTY of contravening the prescripts of section 18(1)(q) of the Employment of Educators Act 76 of 1998. In view of my guilty finding, I consider a dismissal sanction to be appropriate under the circumstances for the following reasons:
37.1. Shongwe pleaded not guilty to the allegations levelled against him and he did not show any remorse throughout the entire proceedings.
37.2. Shongwe was entrusted with the care of children and adolescents. Therefore, he should have acted with the utmost good faith in his conduct towards MM and PM as society must be able to trust him unconditionally with children.
37.3. His misconduct was not a once off occurrence and him not seeing any wrongdoing on his part, it would be difficult to rehabilitate him.
38. The Employee, Mr P.I. Shongwe is therefore dismissed on the charge as reflected in paragraph 5 with immediate effect from the Department of Education: Gauteng
39. I also find that Mr P.I. Shongwe is unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the Council must, in terms of section 120(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the finding of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005 that Mr P.I. Shongwe is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
40. I further find that the educator, Mr P.I. Shongwe as a consequence to the transgressions as referred to in paragraph 5 above is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.
Council Panellist
Themba Manganyi
Case No.: ELRC375-19/20GP
Dates of Hearing: 21 February 2020; 17 June 2021;
27 July 2021 & 10 August 2021
Date of Arguments: 11 August 2021
Date of Award: 06 September 2021
In the Inquiry by Arbitrator Hearing between
GAUTENG DEPARTMENT OF EDUCATION EMPLOYER
and
SADTU OBO P.I. SHONGWE EMPLOYEE
Employer’s representative: Ms Minah Ralioma
Employee’s representative: Mr Chris Nomandindi
Details of hearing and representation
1. The Inquiry by Arbitrator (S188A of the LRA) proceedings were conducted on 21 February 2020 at the Education Labour Relations Council’s Offices in Centurion, on 17 June 2021 at Tshwane North District in Wonderboom Junction, on 27 July 2021 and 10 August 2021 at Tshwane North District in Soshanguve. Ms Minah Ralioma (“Ralioma”), the LR Officer, represented the Employer, Gauteng Department of Education. Mr Chris Nomandindi (“Nomandindi”), the Official from SADTU, represented the Employee, Mr P.I. Shongwe (“Shongwe”).
2. Only the Employer submitted a bundle of documents. Parties were allowed to call and cross-examine witnesses. Minor witnesses testified with the aid of an intermediary and an interpreter. Closing arguments were submitted in writing on 11 August 2021 and I duly received same as agreed. The proceedings were digitally recorded and the recording thereof was retained by the Council.
Issue/s to be decided
3. I have to determine whether the two allegations that the Employer preferred against Shongwe have merit or not. In the event that I find that they have merit, I would be required to determine the appropriate sanction.
Rights and the nature of the process
4. All the rights commensurate with a fair process and the nature of the process were explained to the parties.
Allegations
5. The allegations against Shongwe were couched thus:
• Allegation 1: It is alleged that on 18 April 2018, you committed sexual misconduct in that you touched the buttocks of MM, a learner at Phakamonola Public School.
• Allegation 2: It is alleged that on 26 November 2018, you committed a sexual misconduct in that you touched the buttocks of PM, a learner at Phakamonola Public School.
In view of the above you are thus charged in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.
Pleadings
6. Shongwe pleaded NOT GUILTY to both allegations.
Survey of evidence and arguments
The Employer’s case
The Employer called seven (7) witnesses, including minors, and they all testified under oath. In summary, they stated as follows:
7. MM stated that in 2018 she was doing Grade 6 and that Shongwe used to teach her Social Science and Geography. She testified that in 2018 before break, Shongwe sent her to fetch his mug. After she had looked for the mug, she returned and Shongwe put his hand under her tunic and touched her buttocks. She reported the incident to Ms Johanna Manganye (“Manganye”) (the Security Officer at the school’s gate). Whilst she was with Manganye, Shongwe came and apologized and said he was playing with her. Manganye took her to Ms Etsane (“Etsane”) to report the incident since the Principal was not at the school.
8. Under cross-examination, she stated that she did not report the incident to her class teacher because she was a little afraid of her. She reported the incident to Johanna because she trusted Johanna. She was unrelenting that she was telling the truth about the incident. She denied the version that suggested that Johanna liked to listen to lies. She stated that she did not report the incident to her class teacher (Ms Maringa) because Maringa was rude to her.
9. PM testified that she was in Gr 5D at Phakamonola in 2018 and that Shongwe was her class teacher. She stated that during the fourth term of 2018, Shongwe called her to assist with the allocation of class marks using a pencil. She sat on the front desk whilst performing the allocated task. When she was done, she went to Shongwe’s table and Shongwe tried to put his hand under her tunic, but she moved and stood on the side of the other learner. She stated that the following day after this incident, Shongwe sent her to look for the class register inside the cupboard. She told Shongwe that she could not see the register. Shongwe came to the cupboard and he touched her buttocks. She hid herself with the cupboard doors. After the incident, she ran outside to the toilet. Another learner (BM) found her in the toilet crying and she told her (BM) that Shongwe touched her buttocks. BM told her that they have report the incident. She went with BM to report the incident to Ms Yvonne Simelane (“Simelane) and Ms Mbiza (“Mbiza”).
10. Under cross-examination, she confirmed that she heard BM’s statement as per the report on page 4 of the bundle. She reiterated that her incident occurred around November 2018. She stated that the other learners were in the classroom and some were outside when the incident happened. She stated that she was standing when the incident occurred.
11. BM stated that she was in Gr 5 in 2018 at Phakamonola and that Shongwe was her class teacher. She stated that PM was her class mate in 2018. She submitted that she did not know what happened between PM and Shongwe as she was not there. She stated that she went to Simelane with PM after PM had told her that Shongwe had touched her (PM) buttocks. She testified that Shongwe had also touched her buttocks on more than one occasion, but she was afraid to report the incident to her mom until her friend told her that she should report the incident to her mom. When she eventually told her mom, her mom told her that she should report the incident to her teacher. However, she did not know any friendly teacher at that time. When PM told her about her incident, she decided that she had to report Shongwe to prevent him from doing the same with other learners. She stated that they (PM and BM) found Simelane and Mbiza in Simelane’s classroom.
12. Under cross-examination, she stated that Simelane was a very friendly teacher and the learners could talk to her about everything. She confirmed that when Shongwe allegedly touched PM she was not there. She stated that she went to report the incident with PM because she knew that it was not for the first time that Shongwe did that. She could not remember how many times Shongwe touched her. She disputed that she hated Shongwe and that she considered Shongwe as a father.
13. Mr Thomas Hlengani Ngobeni (“Ngobeni”) testified that he was the Principal at Phakamonola. He stated that he wrote the report on page 1 of the bundle because there was an allegation that Shongwe touched MM on her buttocks. He stated that the allegation was reported to him by the HOD and the Deputy Principal (Ms Mathibela and Ms Etsane). According to the information that he got, MM went to the Security Officer (Johanna Manganye) at the gate to report that Shongwe touched her buttocks.
14. Under cross-examination, he confirmed that Etsane and Mathibela reported the incident to him. He stated that Johanna did not come to his office and that he did not see MM’s parents. It was put to him that according to the last paragraph on page 5 Johanna was a liar. He confirmed that Johanna never came to his office as he was not at the school during the time of reporting this incident. He submitted that Simelane’s report on page 4 was never brought to his attention. He further confirmed that the report on page 3 did not reach his office.
15. Etsane stated that she was the Deputy Principal at Phakamonola. She testified that allegation 1 on page 6 was reported to her by the Security Officer. She stated that when she was with Johanna, she told MM that she would call her parents. She compiled the report and handed the matter to the Principal who had just returned to school. She stated that PM’s matter was not reported to her and that she did not remember the details thereof, but the police officers came to the school regarding the matter.
16. Under cross-examination, she could not recall whether Shongwe sent MM to look for his cup or lunch box as the incident happened a long time ago. She refuted that there was a plot to frame Shongwe and stated that she did not have anything against Shongwe.
17. Simelane testified that she was an Educator at Phakamonola since 2017 as a reliever and she was made permanent in 2019. She stated that she authored the report on page 4 of the bundle and that she wrote the report because two girl learners (PM and BM) came to report to her that Shongwe had touched their buttocks. She stated that she was with Mbiza on 26 November 2018 when these learners came to her. She stated that PM was crying when she told her that Shongwe had touched her buttocks. BM stated that Shongwe always touched her buttocks.
18. Under cross-examination, she stated that her relationship with Shongwe was just collegial and that they consulted with each other on the subject that they both taught. She stated that she was not aware that there were issues between Shongwe and herself. She disputed that she used the school letterhead fraudulently to type her report on it.
19. Mbiza testified that she was an Educator at Phakamonola and that she wrote the statement on page 3 of the bundle. She stated that on 26 November 2018 she was with Simelane in her (Simelane) classroom when a group of girls came to the class. One of the learners (PM) was crying. Simelane asked her why was she crying and she said Shongwe touched her buttocks. She stated that the Principal was not at school on that day and Etsane was busy with schedules. She stated that only two learners (PM and BM) reported the incident to them (Mbiza and Simelane). She stated that BM reported that Shongwe touched her buttocks on several occasions.
20. Under cross-examination, she stated that the report that she wrote was directed to the SAPS and the District Office.
The Employee’s case
The Employee testified in defense of his case and also called three (3) minor witnesses. They all testified under oath and in summary, they stated that:
21. Shongwe testified that he was an Educator at Phakamonola. He stated that he did not touch MM and he was never alone with MM on 18 April 2018. He stated that MM was a disobedient and troublesome learner who did not do her homework. He testified that he did not know anything about the second paragraph on page 1 of the bundle. He averred that on 18 April 2018 whilst the learners were busy writing an assessment, he noticed that MM was uncomfortable and he approached her. He saw that MM was copying. He then took her answer sheet and gave her a blank one. After that, MM pushed him and she left the class without his permission. He stated that he knew Manganye as the Security Officer. After having read the first paragraph on page 5, he stated that he did not apologize to anyone. He stated that he did not talk to Manganye nor did he go to the gate. He denied that he has touched PM as alleged in allegation 2. He submitted that he could not have sent PM to fetch the class register as there was a dedicated class prefect who always did that.
22. Under cross-examination, he stated that he did not know why MM would accuse only him amongst the other male teachers and that he was not sure if the other male teachers go to MM’s class for lessons. He stated that MM has an attitude towards all the teachers. He stated that he did not know if Manganye hated him or not and that he did not go to Manganye to apologize. He stated that he did nothing when MM left the class because he had to invigilate other learners. He further submitted that he did not report to the Principal or the HOD that MM left his class. He confirmed that PM was in his class on 26 November 2018 and that she assisted with the allocation of marks. He stated that he did not have a healthy relationship with both Mbiza and Simelane. He suggested that MM and PM accused him of touching them because they were conspiring with Mbiza and Simelane. He stated that he did not have a toxic relationship with Manganye.
23. BB testified that he was 15 years old and that he attended school at Phakamonola in 2018 doing Gr 6. He stated that Shongwe was his Social Science teacher between Gr 4 – 6. He stated that he knows MM, PM and BM and that he attended the same school with them. He submitted that MM was a very naughty girl who always back chats with educators and that MM liked boys. He stated that MM used to wear very short skirts and would spread her legs. He testified that on 18 April 2018 Shongwe found MM busy cheating during the assessment in class. Shongwe took her cheating notes and gave her a clean sheet to write on, but MM left the class.
24. Under cross-examination, he stated that he cannot comment on the first allegation and he did not know whether it transpired or not. He submitted that it was wrong for a girl learner to wear a short skirt. He stated that when MM Left the class they continued with the assessment without MM. He narrated that when a learner misbehaves in class, the educator would call the learners parents and also inform the Principal. He stated that he did not know if Shongwe did the same with MM.
25. ON stated that she was in Gr 5 in 2018 at Phakamonola and that Shongwe was her class teacher. She confirmed that she knew MM, PM and BM. She stated that she did not know anything about allegation 2. She stated that on 26 November 2018, it was herself, ZN and PM assisting Shongwe with the allocation of marks. Shongwe was on the other side of the table. She stated that she did not see Shongwe touching PM and that PM never told her that Shongwe touched her on her buttocks. She stated that as the class prefect, she was the only person responsible for the class register.
26. Under cross-examination, she stated that because PM did not tell her that Shongwe touched her (PM) buttocks, that incident did not happen. She stated that BM came to fetch PM from the class and that PM was in a fine mood when she left the class. She stated that she did not know that PM reported the matter to the educators on the same day. She said that PM should have reported the incident to her as her prefect.
27. ZN stated that she was currently 14 years old doing Gr 8 and that she did Gr 5 in 2018. She stated that PM was her class mate in Gr 5 and that they were friends. She testified that it was not true that Shongwe touched PM on her buttocks and she further stated that PM was a naughty child. She stated that she was assisting with the allocation of marks together with PM and ON. She stated that whilst at the table, PM was in between her and ON and that Shongwe could not reach any of them with his hands. She testified that it was not possible that Shongwe could have touched PM on her buttocks. She stated that she was friends with PM and PM did not tell her about the allegation.
28. Under cross-examination, she stated that she was sure that Shongwe did not touch PM on her buttocks because PM did not tell her. She further stated that if something could happen to her and not tell her friends it would mean that the incident did not happen. She stated that MM was known by everyone at school because MM was forward and that the teachers knew that MM was disrespectful.
Closing arguments
29. As indicated herein above that the parties submitted their heads of arguments in writing, I do not propose to restate them in this award as they are a matter of record. I will only make mention of them in my analysis whenever necessary.
Analysis of evidence and argument
30. It is the requirement of section 138(7) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended, that a commissioner must issue an award with brief reasons. It therefore follows that what is contained herein is just a summation of the salient points that I deemed important for me to arrive at a reasonable decision in this matter. However, all the submissions were considered.
31. The Employer’s witnesses’ testimony was corroborative and consistent during their examination in chief and during cross examination. On the other hand, Shongwe brought in new versions in his evidence in chief that were never put to the Employer’s witnesses for them to respond to his versions. Over and above that, his witnesses’ testimony was only for character assassination of MM and PM. The parties were sensitized at the commencement of the proceedings that it was prudent to put a version so that it can be tested. However, the Employee dismally failed to put its version to the Employer’s witnesses.
32. With regard to allegation 1, it is common cause that MM left Shongwe’s class. The Employer’s version was that when MM left the class she went to Manganye to report that Shongwe touched her buttocks. Manganye went to report the incident to Etsane (the Deputy Principal) and Manganye wrote a report to this effect as per page 5. It was established that Ngobeni (the Principal) was not at school on that day. Therefore, in my view, for Manganye to have stated in her report that she took MM to the Principal, she was referring to Etsane and not Ngobeni. The Employee’s version was that MM unceremoniously left the class being angry after Shongwe found her copying during an assessment. This version was not put to MM to respond to. BB corroborated this version. However, I cannot attach any weight to this version as it was not tested when MM was on the stand. It is my view that if indeed it was true that Shongwe found MM with crib notes, the crib notes and the assessment question paper would have been brought as evidence in these proceedings. In my view, these documents were not presented as evidence because they were non-existent.
33. It is also worrisome that after a learner left the class during the assessment, the educator did nothing to reprimand the learner. Shongwe did not report MM to her parents, the Principal or the HOD. BB testified that when a learner misbehaves, the learner’s parents are called to the school. In the case of MM, this did not happen simply because there was nothing to reprimand MM for. I therefore find Shongwe’s version improbable on this score and I find him guilty as alleged.
34. With regard to allegation 2, PM stated that Shongwe touched her on her buttocks whilst she was at the cupboard. It is neither here nor there about the sitting arrangements of PM, ON, ZN and Shongwe whilst they were allocating marks at the table. This is so because the touching according to PM occurred at the cupboard. It was Simelane and Mbiza’s corroborative evidence that PM and BM came to them to report that Shongwe had touched PM on her buttocks. Their (Simelane and Mbiza) version was also corroborated by PM and BM. All the Employee’s witnesses testified that they did not observe Shongwe touching MM or PM. Shongwe only denied that these incidences occurred and his defense was that there was a plot against him.
35. It was Shongwe’s version that there was a conspiracy perpetrated against him by Simelane and Mbiza. In his view, Simelane was after his post since she was not permanently appointed in 2018. However, he did not state what Mbiza could have wanted to benefit out of his dismissal. The version that Simelane wanted his post was not put to her (Simelane) when she was on the witness stand. I therefore find that this is a fabricated defense version and that it has no basis.
36. It is to be expected that sexually harassed victims will not find it easy to report their harassment ordeal as and when they occur. In both these allegations, the victims reported their ordeal instantly to people that they trusted. Shongwe stated that he did not know if Manganye hated him or not, but confirmed that they did not have a toxic relationship. There was no evidence that was brought before me that suggested that in MM case, there was conspiracy perpetrated against Shongwe. The version that MM was an ill-disciplined child was not put to her. Even if that was the case, I cannot find any nexus connection between Shongwe’s conduct and her behaviour. I consequently find Shongwe guilty of allegation 2. Thus, I find that the Employer succeeded in discharging its burden of proof on a balance of probabilities.
Award
37. I find that Mr P.I. Shongwe is GUILTY of contravening the prescripts of section 18(1)(q) of the Employment of Educators Act 76 of 1998. In view of my guilty finding, I consider a dismissal sanction to be appropriate under the circumstances for the following reasons:
37.1. Shongwe pleaded not guilty to the allegations levelled against him and he did not show any remorse throughout the entire proceedings.
37.2. Shongwe was entrusted with the care of children and adolescents. Therefore, he should have acted with the utmost good faith in his conduct towards MM and PM as society must be able to trust him unconditionally with children.
37.3. His misconduct was not a once off occurrence and him not seeing any wrongdoing on his part, it would be difficult to rehabilitate him.
38. The Employee, Mr P.I. Shongwe is therefore dismissed on the charge as reflected in paragraph 5 with immediate effect from the Department of Education: Gauteng
39. I also find that Mr P.I. Shongwe is unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the Council must, in terms of section 120(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the finding of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005 that Mr P.I. Shongwe is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
40. I further find that the educator, Mr P.I. Shongwe as a consequence to the transgressions as referred to in paragraph 5 above is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.
Council Panellist
Themba Manganyi
ELRC 302 -20 /21 NW
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