ELRC644-20/21 EC
Text
ELRC581-19/20FS
Text
Award Date:
16 September 2021
THE INQUIRY-BY-ARBITRATOR BETWEEN
FREE STATE DEPARTMENT OF EDUCATION EMPLOYER
and
MR LERATO LEFERA EMPLOYEE
Case No: ELRC581-19/20FS
Date: 16 September 2021
Venue: Provincial Offices of the DOE in Bloemfontein
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This is the award in the disciplinary matter (Inquiry-By-Arbitrator) Free State Department of Education (the employer) and Mr Lerato Lefera the employee.
2. The Inquiry-By-Arbitrator (the Inquiry) took place on 03 September 2021 at the provincial offices of the employer in Bloemfontein. Both parties attended the Inquiry. The employer was represented by Mr Jan Booysen from its Xhariep District Offices. The employee, Mr Lerator Lefera was represented by Mr Mbuyiselo Frans, a Full-Time Shopsteward from the trade union South African Democratic Teachers Union (SADTU).
3. The Inquiry was held under the auspices of the Education Labour Relations Council (the Council) in accordance with section 188A of the Labour Relations Act (the LRA), read together with Clause 32 of the Council’s Dispute Resolution Procedure as well as the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued in terms of section 138(7) of the LRA.
4. The proceedings were digitally recorded. Ms Philane Nyezi was the interpreter and Mrs Malefu Mphatane the intermediary. Both were appointed by the Council. The parties requested at the end of the Inquiry to submit their closing arguments in writing by 07 September 2021, where after the award shall then follow. I have also requested the parties to address me on whether the employee “is unsuitable to work with children” in their closing arguments.
PRELIMINARY ISSUE
5. At the commencement of the Inquiry, the employee’s representative requested me to hear afresh jurisdictional issues which were dealt with by my predecessor in this matter. My predecessor considered the jurisdictional issues at a previous sitting of this Inquiry and issued a ruling that the Council does have jurisdiction to proceed with this Inquiry. The employee did not apply for a rescission of that ruling.
6. The employer opposed the application of the employee and requested that the Inquiry should not be prolonged any further.
7. I made an ex tempore ruling in which I held that the ruling of my predecessor remains valid and that the Inquiry shall proceed.
ISSUE TO BE DECIDED
8. I am called upon to decide whether the employee committed misconduct as per the allegations levelled against him. If I find that he did commit the misconduct, I must decide on an appropriate sanction.
BACKGROUND TO THE DISPUTE
9. It is common cause that the employee is employed by the employer as an Educator in Mathematics and Science since 2018 at Lere La Thuto Secondary School in Zastron to date. The employee was notified of the allegations on 19 September 2019.
10. The allegations levelled against the employee are as follows:
Count 1
You have contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998 in that on 19 May 2019, at Lere La Thuto Secondary School you committed an act of sexual assault on a learner (the learner) when you touched the learner’s breasts, face and buttocks.
Alternative Charge 1
You have contravened section 18(1)(a) of the Employment of Educators Act 76 of 1998 in that on 19 May 2019 you failed to comply with or contravened this Act or any other statute, regulation or legal obligation relating to education and the employment relationship (SACE Code of Professional Ethics), when you touched the learner’s breasts, face and buttocks.
11. The employee pleaded not guilty to the charge and its alternative charge. The employee was properly served with a notice to appear at the Inquiry and was provided with sufficient time to prepare for the case. His rights and obligations were also properly explained to him at the commencement of the Inquiry.
12. For purposes of this award, the name of the learner shall be kept confidential. The learner was 16 years old at the time when the alleged incident took place. The alleged incident took place in the laboratory classroom of the employee. The employee denies having touched the breasts, face and buttocks of the learner on 19 May 2019 in his classroom. The learner apparently reported the incident to her mother who in turn reported it to the police.
SURVEY OF EVIDENCE AND ARGUMENT
13. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.
Documentary Evidence
14. The parties agreed to use the employer’s evidence bundle for purposes of this Inquiry.
Employer’s Case
15. The Learner, who is now in Grade 12 at the same school, was sworn in and she testified as the first witness in the employer’s case. She testified that on Sunday 19 May 2019, at around 16:00, she was at school to study. The learner explained how she took a small break by going to a nearby tuck shop to buy snacks and how she returned to the school yard where she walked into the employee at the school gate. She stated that she had a conversation with the employee at the school gate whereafter she went back to her classroom to continue with her studies.
16. The learner then testified that the employee came to her classroom and asked her to accompany him to his laboratory classroom (the laboratory). She testified that in the laboratory, the employee then told her that he loves her. The learner stated that she was shocked and confused at the same time because she never thought that the employee would say that to her because she was young and dumb at the time.
17. The learner went on to testify that the employee then touched her face and breasts and that she stopped him. She testified that a certain Bakwena stopped by at the laboratory and knocked at the door. The learner stated that the employee then asked her to hide behind a door whilst others were watching. She stated that she did not know what to do or to scream and that the employee continued to touch her face and breasts.
18. The learner testified that she told the employee that he does not like what he is doing. She stated that the employee replied by saying that he does not mind being exposed. She stated that she told the employee that she will tell the other learners what he did. The learner testified that the employee then opened the door for her, and she left.
19. The learner testified that on her way back to the class, she walked into Grade 12 learners and told them what happened in the science lab. She stated that she then also reported the matter to her mother when she arrived home. The learner testified that her father did not welcome the news and went to the employee’s residence and assaulted him. She stated that a criminal case was also opened at the South African Police Service (SAPS).
20. In cross-examination, the learner deviated slightly from her main testimony and stated that the employee told her to hide behind a door before he could touch her. She stated that the employee’s eyes and behaviour frightened her when the employee proposed love to her. The learner then contended that she did mention ‘a touching of her buttocks’ as well under examination-in-chief. She stated that Bakwena lied about seeing her running to the laboratory’s office which is next to the laboratory. The learner testified that she was then taken to a hospital where she was provided with medicine and depression pills. She stated that the employee was under the influence of alcohol as well.
21. The Learner’s Mother “the mother”, was sworn in and she testified as the second witness in the employer’s case. She testified that it was late on a Sunday afternoon when the learner came home and where she asked the learner on where she is coming from that late. The mother stated that the learner burst out in tears. She stated that whilst talking to the learner, a group of boys came knocking at the front door and asked her she heard what happened to her daughter.
22. The mother testified that the boys were furious and wanted to put up a fight. She testified that she then called SAPS (the police). She stated that upon the arrival of the police, the police took her and the learner to the police station. She stated that after a long wait at the station, the police gave her a form and told her that the form must be given to the school principal for completion. The mother testified that they met the employee the following day (Monday) at school in a meeting and that the employee admitted that the learner’s version is truthful.
23. In cross-examination, the mother stood by her version and added that the employee was assaulted by the community the day before and the police detective read the learner’s statement to the employee who then agreed to the correctness of the learner’s statement. She added that the detective was polite with the employee and did not threaten him with an arrest.
24. In re-examination, the mother clarified that the group of boys told her what happened at school.
25. Mrs Rosina Mponyane Sesedi “the principal”, the School Principal, was sworn in and she testified as the third witness in the employer’s case. She testified that it was on a Sunday during which the Grade 12 learners were incubated whilst the teachers guarded them. The principal testified that someone came to her and told her to call the police because they (the person and others) are on their way to the employee’s residence to assault him.
26. The principal testified that a security guard also came to her and told her that the employee has raped a child. She stated that she asked the security guard on why he is reporting the incident to her and not to the police. The principal stated that she became unease and decided to call her available colleagues to discuss the matter with them. She stated that whilst discussing the issue with her colleagues, a Grade 11 learner and the employee’s sister came running to them and told them that the employee was under attack.
27. The principal testified that they then immediately called the police who then went to the employee’s residence and did not find him there. She confirmed that a meeting took place the following day at the school and that the rape allegation was not raised at the meeting. The principal testified that the employee agreed that the version of the learner which was put to him was indeed correct. She confirmed that the versions of the employee and the learner were the same.
28. In cross-examination, the principal added that this was the first time that the employee committed a misconduct of this nature, and that the employee gave his version verbally. She stated that the employee asked for forgiveness from the learner’s family and that the learner’s father also asked for forgiveness from the employee about the incident of the previous day at the employee’s residence. The principal stated that the learner told them how the employee touched her breasts and buttocks.
29. Mr Thabo Moahloli, a Detective Constable at SAPS’ Family Violence, Child Protection and Sexual Offences Unit, was sworn in and he testified as the fourth witness in the employer’s case. He confirmed that he attended the meeting at the school on the Monday morning where the employee admitted to having proposed love to the learner.
30. The Detective testified that the employee did not admit to having touched the genitals (breasts, buttocks, etc) of the learner. He stated that it was on this basis that they (SAPS) decided not to open a criminal docket against the employee.
31. In cross-examination, the detective stood by his testimony and added that the learner only told him that the employee grabbed her hand. He reiterated that no criminal case was opened because the elements of the crime of sexual assault (touching of genitals) was not present in this case. The detective stated that he did interview the learner in the presence of her mother. He further stated that the learner wrote a 1-page affidavit in Sesotho which made no mention of the employee having touched any body parts of the learner. The detective stated that the employee agreed to the version of the learner as stated in that 1-page affidavit. He stated that no case docket was opened and that the two families (that of the employee and learner) apologised to each other.
32. The employer’s representative did not submit his closing arguments as agreed.
Employee’s Case
33. Mr Lerato Lefera, the employee, was sworn in and he testified as the first witness in his case. He confirmed that he met the learner at the school gate that Sunday afternoon and asked her to buy him some Halls sweets because his breath was still smelling alcohol. The employee testified that they then went straight to the laboratory where an exchange of love words took place between himself and the learner.
34. The employee testified that the learner asked him for question papers and that he told the learner to look for it in the storeroom of the laboratory. He stated that he then decided to go to the storeroom where the learner was and assisted her to find the papers. The employee stated that he told the learner that “you see, this is how much I love you that I would even provide you with papers.”
35. The employee stated that he was scared to attend the meeting on Monday morning and only went there on account of a request from the detective to attend the meeting. He denies having touched the learner’s parts and stated that the charge against him differs from the agreed versions in their meeting of that Monday morning.
36. In cross-examination, the employee stated that he does not know why the learner would make such allegations against him. He stated that he only grabbed the learner by the hand and later told her that he loves her that it why he was searching for the exam papers on her behalf. The employee stated that he did not know the learner’s name on that day.
37. The employee denied having promised anything to the learner’s mother. He stated that he did not give a sworn statement because everyone wanted him dead, and the children were boycotting against him. He stated that three incidents happened to him on that Sunday. He stated that firstly, dropout schoolboys came and kicked his door open, secondly, that a group of Grade 12 boys protested at his gate and thirdly, that the learner’s father also went to residence and, kicked his door open and assaulted him. The employee stated that his family rushed to the police station to open a criminal case because he was in hiding and could not open it himself.
38. Mr Tebello Tsiloane “Mr Tsiloane”, a former Grade 12 learner of 2019, was sworn in and he testified as the second witness in the employee’s case. Mr Tsiloane testified that he and some other Grade 12 friends were sitting outside the laboratory and saw the learner coming out of the laboratory. He stated that they did not see the learner crying. Mr Tsiloane testified that another group of learners assumed that something happened between the learner and the employee and thought the worst of it.
39. In cross-examination, Mr Tsiloane stood by his testimony and added that the learner was already inside the lab upon their arrival. He stated that they did not go inside the lab and those learners assumed that something happened between the learner and the employee. Mr Tsiloane testified that the other group of learners caused the learner to panic which is the reason why she is lying.
40. In closing arguments, the employee’s representative submitted that it is clear that the learner’s testimony was full of contradictions and was based on lies told by another learner, a certain Mr Bakoena Busakwe. He submitted that the learner could have stopped the havoc caused by the lies of Mr Busakwe by telling the community and the employer the truth, as she did in her first affidavit. The representative submitted that the learner did not tell her mother anything about the alleged incident on her arrival home until the boys came to their home and at which they told the mother about a rape.
41. The representative stated that it is difficult to understand why the learner’s family could just accept an apology from the employee if the employee did in fact touched their daughter’s breasts and buttocks. He stated that the principal testified on what a good worker the employee was. He further stated that the detective, as an expert in sexual offences cases, truthfully testified on the innocence of the employee.
42. The representative submitted that Mr Tsiloane correctly testified on what a false and full of lies person Mr Busakwe is. He submitted that Mr Tsiloane testified on how the learner was caused to lie about the events of the day. The representative stated that the employee’s version is more probable and that I should find him not guilty on the charges.
ANALYSIS OF EVIDENCE AND ARGUMENT
43. As stated previously, the employee pleaded not guilty to the charges levelled against him. The employer called four witnesses and the employee two. The first witness was the learner, whose testimony appeared problematic and inconsistent with her own previous versions. The mother’s testimony was not direct evidence apart from what she observed when the learner arrived home late that afternoon on Sunday 19 May 2021.
44. The principal also gave an account on how the incidents of the Sunday afternoon pertaining to the alleged rape and attacks on the employee was reported to her. This includes her involvement in the meeting of Monday morning. The detective, whom I find to have been a credible witness, also gave an account of how he interviewed the learner in the presence of her mother and why the SAPS decided not to pursue criminal charges against the employee.
45. The employee testified in his own case and his version was to some extent, corroborated by not only the detective, but also by one of the Grade 12 learners (Mr Tsiloane) who was sitting in front of the classroom (the laboratory) with other learners at the time of the alleged incident. I shall now proceed to analyse the evidence of the parties.
46. For the sake of brevity, I shall repeat the allegations levelled against the employee as follows:
Count 1
You have contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998 in that on 19 May 2019, at Lere La Thuto Secondary School you committed an act of sexual assault on a learner (the learner) when you touched the learner’s breasts, face and buttocks.
Alternative Charge 1
47. You have contravened section 18(1)(a) of the Employment of Educators Act 76 of 1998 in that on 19 May 2019 you failed to comply with or contravened this Act or any other statute, regulation or legal obligation relating to education and the employment relationship (SACE Code of Professional Ethics), when you touched the learner’s breasts, face and buttocks
48. The employee has been charged for sexual assault in that he allegedly touched the breasts, face and buttocks of the learner in the late afternoon of Sunday 19 May 2019 at the school. It is uncontested evidence that the school was in operation on that day (incubation of Grade 12 learners and that learners of other grades seized the opportunity to study at the school premises as well. It appears that the learner’s presence at the school as a Grade 10 learner at the time, was also to study, even though it appeared that her mother knew little, if anything about it.
49. Be that as it may, a few submissions appear to be somewhat odd regarding the employer’s case. The learner alleged that the employee touched her breasts and face under examination-in-chief. Under cross-examination, she was reminded about the buttocks part of the allegation. It was only then when she remembered about it and then stated that when she referred to the face and breasts, she insinuated that the buttocks were also included in it.
50. This is difficult to comprehend because buttocks, like breasts, is a critical part of the body which forms part of the elements of the offence of sexual assault which must have been touched. Then there was the moment when the learner left the laboratory and bumped in a certain Mr Bakoena Busakwe (hereinafter Mr Busakwe). The evidence suggest that the learner was approached by Mr Busakwe and other learners when she came out of the laboratory and pressurised her to agree that the employee raped her.
51. Neither Mr Busakwe nor any of the group of learners who saw and alleged that something happened between the employee and the learner came to testify at this Inquiry. The employee managed to secure the testimony of Mr Tsiloane, also a Grade 12 learner at the time, who was part of a small group of learners and who were sitting in front of his laboratory class at the time of the alleged incident. I need to make it clear that it appears as if there were two groups of Grade 12 learners close to the scene. One small group of 4 learners and consisting of Mr Tsiloane who were sitting right in front of the laboratory class, and another larger group also of Grade 12 learners, who were standing not too far from the laboratory class and of whom Mr Busakwe was apparently part of.
52. As stated previously, neither Mr Busakwe nor any of his group members came to testify at the Inquiry. Mr Tsilioane gave direct evidence in which he testified that the learner looked normal when she came out of the laboratory until Mr Busakwe and the other saw her and caused her to panic and told her to tell lies about what happened in the laboratory. This evidence of Mr Tsiloane was not challenged or disproved by the employer.
53. The evidence of both Mr Tsiloane and the employee suggests that this group of learners (Mr Busakwe’s group) caused havoc which ended up into a situation where the employee was assaulted by both the community and the learner’s father. The learner’s mother testified that when the learner arrived home, she shouted at the learner for having came home late. She stated that the learner then burst out and cry. It is the mother’s testimony that the group of Mr Busakwe came and aggressively wanted to put up a fight towards the employee.
54. It is strange that the learner did not tell her mother what actually happened (the touching of her private parts) and left her mother to resort under an impression that she was raped as alleged by Mr Busakwe’s group. It appears that Mr Busakwe’s group exaggerated the situation to such an extent that the learner’s father went to assault the employ as well as members of the community. This apparently led to a situation where the employee had to seek refuge whilst his family went to open a criminal case at SAPS and fearing for the life of their sibling which is being threatened.
55. To come back to the allegations of sexual assault, the evidence of the witnesses is that the police arranged some sort of an investigative meeting at the school the following day. The evidence is clear that a 1-page statement of the learner in Sesotho was tabled at this meeting and shown to the employee. Unfortunately for the Inquiry, this statement was not tendered as evidence. All the witnesses of the employer are in agreement that the version contained in this statement was presented to the employee and that the employee agreed with the version of the learner as contained in the statement.
56. Neither the learner’s mother nor the principal elaborated on the contents of the statement and what it entailed. It is the employer’s last witness, the detective, who shed light about this 1-page statement of the learner. According to the detective, the learner, who was also interviewed by him, said nothing about her breasts, face and buttocks having been touched by the employee. The statement only made mention that the employee proposed love to the learner and that the employee grabbed to learner’s hand.
57. The detective stated that because none of the learner’s genitals were touched by the employee, the elements of the crime of sexual assault were not present in the case, which led to SAPS’ decision not to open a criminal case against the employee. The detective was the only investigator who interviewed the learner. He also testified that the learner did not divulge anything about her genitals being touched by the employee during the interview in the presence of her mother.
58. Now with this evidence coming from the employer’s witness, it shows the degree and extent of the odds against the employer’s case. A new statement of the learner was later taken, which consists of two pages with many adjustments made on it. This statement was not given to the police to reconsider its decision to criminally charge the employee. It was only handed in at this forum with no explanations on why the learner is deviating from her original statement given at the investigative meeting of Monday 20 May 2019.
59. The evidence is therefore clear that the version of the learner to which the employee agreed to is the one contained in that 1-page statement. No explanations were also forthcoming from the employer on what happened to the 1-page statement of the learner which its witnesses made mention of in this Inquiry. The employer did not deem it important to also provide the police with a copy of this new statement of the learner. In any event, the testimonies of the witnesses of the employer revolved around the original first 1-page statement of the learner, and not about the second and altered statement of the learner. It is on this basis that I cannot accept the second statement of the learner as it has a tendency of prejudicing the employee who never had an opportunity to formally react to it like in the instance of the first statement.
60. The lack of the learner to mention in her examination-in-chief about the touching of her buttocks, as well as the fact that she did not mention anything about her breasts, face and buttocks having been touched to the detective as well as in her original statement, leaves much to be desired for. The learner also testified under examination-in-chief that the employee touched her genitals in the laboratory before opening the door for Mr Busakwe and changed in cross-examination where she stated that the employee only touched her genitals after opening the door for Mr Busakwe. This is problematic in that the version of the learner cannot be relied on as credible.
61. No evidence was provided by the employer that Mr Busakwe even went to the laboratory and knocked at the door. Mr Tsiloane is on record that Mr Busakwe never knocked at the door but only ran to the learner after the learner left the laboratory. It is the employee’s version of events which is corroborated by Mr Tsiloane. As stated previously, none of the people (including) the learner’s father came to testify about the events of the day and how they came to a conclusion to attack and assault the employee.
62. What was made clear as part of the evidence is the fact that the employee apologised to the learner’s family for having proposed love to the learner and for grabbing her hand. The grabbing of a learner’s hand and to say to a learner does not amount to acts of sexual assault as contained in the charge and alternative charge. Uncontested evidence was led that the father of the learner also apologised to the employee for the assault of the previous day inflicted on the employee. This, I find rather odd if the learner was indeed sexually assaulted by the employee.
63. One clear fact which is standing out in this case is that only one case docket was opened with the police, the case against those who attacked and assaulted the employee. The investigation by SAPS into this matter has proven that the elements of the offence of sexual assault are not present in this case. No evidence to show the contrary was led at this Inquiry. The evidence given by the learner’s mother and principal is not direct evidence pertaining to the incident but more hearsay in nature.
64. The learner’s mother and the principal were not openly honest with this Inquiry that the version of the learner in the original handwritten 1-page statement excluded a touching of the breasts, face and buttocks of the learner. I find this distressing and it explains why the learner had to constantly change her version about the events of Sunday 19 May 2019.
65. I am as a result not persuaded, on a balance of probabilities, that the employee has committed the acts alleged of in the charges.
66. Section 17(1)(b) of the Employment of Educators Act (the EEA) provides the following:
Serious misconduct
18. (1) An educator must be dismissed if he or she is found guilty of –
……………
(b) committing an act of sexual assault on a learner, student or other employee
67. The evidence before me is that the learner was never consistent with her claim that the employee has touched her breasts, face and buttocks. The evidence shows that the learner was under immense pressure from Mr Busakwe and his crew and others to change her version which she originally gave to her parents and the school management and police at the meeting of Monday 20 May 2019 to a sudden version that the employee sexually assaulted her. In relation to Charge 1, it is my finding that the employee is not guilty of having contravened section 17(1)(b) of the EEA and has not misconducted himself in this regard.
68. Section 18(1)(a) of the EEA provides the following:
Misconduct
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits
misconduct if he or she –
(a) fails to comply with or contravenes this Act or any other statute, regulation or legal obligation
relating to education and the employment relationship;
69. The employer included SACE’s Code of Professional Ethics to the alternative charge, without elaborating on it during the arbitration. It is therefore not clear which exact provision or provisions of the Code of Ethics was contravened by the employee. With no details to that effect, it is my finding that the employee is not guilty on the alternative charge and that there is no evidence to show that he contravened section 18(1)(a) of the EEA.
VERDICT
70. The employer, Free State Department of Education, has failed to prove on a balance of probabilities, the guilt of the employee on charge 1 and its alternative.
71. The employee, Mr Lerato Lefera, is found not guilty on charge 1 and its alternative charge.
This is done and dated on 16 September 2021 at Upington.
Adv. David Pietersen
ELRC COMMISSIONER
Inquiry-By-Arbitrator
FREE STATE DEPARTMENT OF EDUCATION EMPLOYER
and
MR LERATO LEFERA EMPLOYEE
Case No: ELRC581-19/20FS
Date: 16 September 2021
Venue: Provincial Offices of the DOE in Bloemfontein
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This is the award in the disciplinary matter (Inquiry-By-Arbitrator) Free State Department of Education (the employer) and Mr Lerato Lefera the employee.
2. The Inquiry-By-Arbitrator (the Inquiry) took place on 03 September 2021 at the provincial offices of the employer in Bloemfontein. Both parties attended the Inquiry. The employer was represented by Mr Jan Booysen from its Xhariep District Offices. The employee, Mr Lerator Lefera was represented by Mr Mbuyiselo Frans, a Full-Time Shopsteward from the trade union South African Democratic Teachers Union (SADTU).
3. The Inquiry was held under the auspices of the Education Labour Relations Council (the Council) in accordance with section 188A of the Labour Relations Act (the LRA), read together with Clause 32 of the Council’s Dispute Resolution Procedure as well as the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued in terms of section 138(7) of the LRA.
4. The proceedings were digitally recorded. Ms Philane Nyezi was the interpreter and Mrs Malefu Mphatane the intermediary. Both were appointed by the Council. The parties requested at the end of the Inquiry to submit their closing arguments in writing by 07 September 2021, where after the award shall then follow. I have also requested the parties to address me on whether the employee “is unsuitable to work with children” in their closing arguments.
PRELIMINARY ISSUE
5. At the commencement of the Inquiry, the employee’s representative requested me to hear afresh jurisdictional issues which were dealt with by my predecessor in this matter. My predecessor considered the jurisdictional issues at a previous sitting of this Inquiry and issued a ruling that the Council does have jurisdiction to proceed with this Inquiry. The employee did not apply for a rescission of that ruling.
6. The employer opposed the application of the employee and requested that the Inquiry should not be prolonged any further.
7. I made an ex tempore ruling in which I held that the ruling of my predecessor remains valid and that the Inquiry shall proceed.
ISSUE TO BE DECIDED
8. I am called upon to decide whether the employee committed misconduct as per the allegations levelled against him. If I find that he did commit the misconduct, I must decide on an appropriate sanction.
BACKGROUND TO THE DISPUTE
9. It is common cause that the employee is employed by the employer as an Educator in Mathematics and Science since 2018 at Lere La Thuto Secondary School in Zastron to date. The employee was notified of the allegations on 19 September 2019.
10. The allegations levelled against the employee are as follows:
Count 1
You have contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998 in that on 19 May 2019, at Lere La Thuto Secondary School you committed an act of sexual assault on a learner (the learner) when you touched the learner’s breasts, face and buttocks.
Alternative Charge 1
You have contravened section 18(1)(a) of the Employment of Educators Act 76 of 1998 in that on 19 May 2019 you failed to comply with or contravened this Act or any other statute, regulation or legal obligation relating to education and the employment relationship (SACE Code of Professional Ethics), when you touched the learner’s breasts, face and buttocks.
11. The employee pleaded not guilty to the charge and its alternative charge. The employee was properly served with a notice to appear at the Inquiry and was provided with sufficient time to prepare for the case. His rights and obligations were also properly explained to him at the commencement of the Inquiry.
12. For purposes of this award, the name of the learner shall be kept confidential. The learner was 16 years old at the time when the alleged incident took place. The alleged incident took place in the laboratory classroom of the employee. The employee denies having touched the breasts, face and buttocks of the learner on 19 May 2019 in his classroom. The learner apparently reported the incident to her mother who in turn reported it to the police.
SURVEY OF EVIDENCE AND ARGUMENT
13. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.
Documentary Evidence
14. The parties agreed to use the employer’s evidence bundle for purposes of this Inquiry.
Employer’s Case
15. The Learner, who is now in Grade 12 at the same school, was sworn in and she testified as the first witness in the employer’s case. She testified that on Sunday 19 May 2019, at around 16:00, she was at school to study. The learner explained how she took a small break by going to a nearby tuck shop to buy snacks and how she returned to the school yard where she walked into the employee at the school gate. She stated that she had a conversation with the employee at the school gate whereafter she went back to her classroom to continue with her studies.
16. The learner then testified that the employee came to her classroom and asked her to accompany him to his laboratory classroom (the laboratory). She testified that in the laboratory, the employee then told her that he loves her. The learner stated that she was shocked and confused at the same time because she never thought that the employee would say that to her because she was young and dumb at the time.
17. The learner went on to testify that the employee then touched her face and breasts and that she stopped him. She testified that a certain Bakwena stopped by at the laboratory and knocked at the door. The learner stated that the employee then asked her to hide behind a door whilst others were watching. She stated that she did not know what to do or to scream and that the employee continued to touch her face and breasts.
18. The learner testified that she told the employee that he does not like what he is doing. She stated that the employee replied by saying that he does not mind being exposed. She stated that she told the employee that she will tell the other learners what he did. The learner testified that the employee then opened the door for her, and she left.
19. The learner testified that on her way back to the class, she walked into Grade 12 learners and told them what happened in the science lab. She stated that she then also reported the matter to her mother when she arrived home. The learner testified that her father did not welcome the news and went to the employee’s residence and assaulted him. She stated that a criminal case was also opened at the South African Police Service (SAPS).
20. In cross-examination, the learner deviated slightly from her main testimony and stated that the employee told her to hide behind a door before he could touch her. She stated that the employee’s eyes and behaviour frightened her when the employee proposed love to her. The learner then contended that she did mention ‘a touching of her buttocks’ as well under examination-in-chief. She stated that Bakwena lied about seeing her running to the laboratory’s office which is next to the laboratory. The learner testified that she was then taken to a hospital where she was provided with medicine and depression pills. She stated that the employee was under the influence of alcohol as well.
21. The Learner’s Mother “the mother”, was sworn in and she testified as the second witness in the employer’s case. She testified that it was late on a Sunday afternoon when the learner came home and where she asked the learner on where she is coming from that late. The mother stated that the learner burst out in tears. She stated that whilst talking to the learner, a group of boys came knocking at the front door and asked her she heard what happened to her daughter.
22. The mother testified that the boys were furious and wanted to put up a fight. She testified that she then called SAPS (the police). She stated that upon the arrival of the police, the police took her and the learner to the police station. She stated that after a long wait at the station, the police gave her a form and told her that the form must be given to the school principal for completion. The mother testified that they met the employee the following day (Monday) at school in a meeting and that the employee admitted that the learner’s version is truthful.
23. In cross-examination, the mother stood by her version and added that the employee was assaulted by the community the day before and the police detective read the learner’s statement to the employee who then agreed to the correctness of the learner’s statement. She added that the detective was polite with the employee and did not threaten him with an arrest.
24. In re-examination, the mother clarified that the group of boys told her what happened at school.
25. Mrs Rosina Mponyane Sesedi “the principal”, the School Principal, was sworn in and she testified as the third witness in the employer’s case. She testified that it was on a Sunday during which the Grade 12 learners were incubated whilst the teachers guarded them. The principal testified that someone came to her and told her to call the police because they (the person and others) are on their way to the employee’s residence to assault him.
26. The principal testified that a security guard also came to her and told her that the employee has raped a child. She stated that she asked the security guard on why he is reporting the incident to her and not to the police. The principal stated that she became unease and decided to call her available colleagues to discuss the matter with them. She stated that whilst discussing the issue with her colleagues, a Grade 11 learner and the employee’s sister came running to them and told them that the employee was under attack.
27. The principal testified that they then immediately called the police who then went to the employee’s residence and did not find him there. She confirmed that a meeting took place the following day at the school and that the rape allegation was not raised at the meeting. The principal testified that the employee agreed that the version of the learner which was put to him was indeed correct. She confirmed that the versions of the employee and the learner were the same.
28. In cross-examination, the principal added that this was the first time that the employee committed a misconduct of this nature, and that the employee gave his version verbally. She stated that the employee asked for forgiveness from the learner’s family and that the learner’s father also asked for forgiveness from the employee about the incident of the previous day at the employee’s residence. The principal stated that the learner told them how the employee touched her breasts and buttocks.
29. Mr Thabo Moahloli, a Detective Constable at SAPS’ Family Violence, Child Protection and Sexual Offences Unit, was sworn in and he testified as the fourth witness in the employer’s case. He confirmed that he attended the meeting at the school on the Monday morning where the employee admitted to having proposed love to the learner.
30. The Detective testified that the employee did not admit to having touched the genitals (breasts, buttocks, etc) of the learner. He stated that it was on this basis that they (SAPS) decided not to open a criminal docket against the employee.
31. In cross-examination, the detective stood by his testimony and added that the learner only told him that the employee grabbed her hand. He reiterated that no criminal case was opened because the elements of the crime of sexual assault (touching of genitals) was not present in this case. The detective stated that he did interview the learner in the presence of her mother. He further stated that the learner wrote a 1-page affidavit in Sesotho which made no mention of the employee having touched any body parts of the learner. The detective stated that the employee agreed to the version of the learner as stated in that 1-page affidavit. He stated that no case docket was opened and that the two families (that of the employee and learner) apologised to each other.
32. The employer’s representative did not submit his closing arguments as agreed.
Employee’s Case
33. Mr Lerato Lefera, the employee, was sworn in and he testified as the first witness in his case. He confirmed that he met the learner at the school gate that Sunday afternoon and asked her to buy him some Halls sweets because his breath was still smelling alcohol. The employee testified that they then went straight to the laboratory where an exchange of love words took place between himself and the learner.
34. The employee testified that the learner asked him for question papers and that he told the learner to look for it in the storeroom of the laboratory. He stated that he then decided to go to the storeroom where the learner was and assisted her to find the papers. The employee stated that he told the learner that “you see, this is how much I love you that I would even provide you with papers.”
35. The employee stated that he was scared to attend the meeting on Monday morning and only went there on account of a request from the detective to attend the meeting. He denies having touched the learner’s parts and stated that the charge against him differs from the agreed versions in their meeting of that Monday morning.
36. In cross-examination, the employee stated that he does not know why the learner would make such allegations against him. He stated that he only grabbed the learner by the hand and later told her that he loves her that it why he was searching for the exam papers on her behalf. The employee stated that he did not know the learner’s name on that day.
37. The employee denied having promised anything to the learner’s mother. He stated that he did not give a sworn statement because everyone wanted him dead, and the children were boycotting against him. He stated that three incidents happened to him on that Sunday. He stated that firstly, dropout schoolboys came and kicked his door open, secondly, that a group of Grade 12 boys protested at his gate and thirdly, that the learner’s father also went to residence and, kicked his door open and assaulted him. The employee stated that his family rushed to the police station to open a criminal case because he was in hiding and could not open it himself.
38. Mr Tebello Tsiloane “Mr Tsiloane”, a former Grade 12 learner of 2019, was sworn in and he testified as the second witness in the employee’s case. Mr Tsiloane testified that he and some other Grade 12 friends were sitting outside the laboratory and saw the learner coming out of the laboratory. He stated that they did not see the learner crying. Mr Tsiloane testified that another group of learners assumed that something happened between the learner and the employee and thought the worst of it.
39. In cross-examination, Mr Tsiloane stood by his testimony and added that the learner was already inside the lab upon their arrival. He stated that they did not go inside the lab and those learners assumed that something happened between the learner and the employee. Mr Tsiloane testified that the other group of learners caused the learner to panic which is the reason why she is lying.
40. In closing arguments, the employee’s representative submitted that it is clear that the learner’s testimony was full of contradictions and was based on lies told by another learner, a certain Mr Bakoena Busakwe. He submitted that the learner could have stopped the havoc caused by the lies of Mr Busakwe by telling the community and the employer the truth, as she did in her first affidavit. The representative submitted that the learner did not tell her mother anything about the alleged incident on her arrival home until the boys came to their home and at which they told the mother about a rape.
41. The representative stated that it is difficult to understand why the learner’s family could just accept an apology from the employee if the employee did in fact touched their daughter’s breasts and buttocks. He stated that the principal testified on what a good worker the employee was. He further stated that the detective, as an expert in sexual offences cases, truthfully testified on the innocence of the employee.
42. The representative submitted that Mr Tsiloane correctly testified on what a false and full of lies person Mr Busakwe is. He submitted that Mr Tsiloane testified on how the learner was caused to lie about the events of the day. The representative stated that the employee’s version is more probable and that I should find him not guilty on the charges.
ANALYSIS OF EVIDENCE AND ARGUMENT
43. As stated previously, the employee pleaded not guilty to the charges levelled against him. The employer called four witnesses and the employee two. The first witness was the learner, whose testimony appeared problematic and inconsistent with her own previous versions. The mother’s testimony was not direct evidence apart from what she observed when the learner arrived home late that afternoon on Sunday 19 May 2021.
44. The principal also gave an account on how the incidents of the Sunday afternoon pertaining to the alleged rape and attacks on the employee was reported to her. This includes her involvement in the meeting of Monday morning. The detective, whom I find to have been a credible witness, also gave an account of how he interviewed the learner in the presence of her mother and why the SAPS decided not to pursue criminal charges against the employee.
45. The employee testified in his own case and his version was to some extent, corroborated by not only the detective, but also by one of the Grade 12 learners (Mr Tsiloane) who was sitting in front of the classroom (the laboratory) with other learners at the time of the alleged incident. I shall now proceed to analyse the evidence of the parties.
46. For the sake of brevity, I shall repeat the allegations levelled against the employee as follows:
Count 1
You have contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998 in that on 19 May 2019, at Lere La Thuto Secondary School you committed an act of sexual assault on a learner (the learner) when you touched the learner’s breasts, face and buttocks.
Alternative Charge 1
47. You have contravened section 18(1)(a) of the Employment of Educators Act 76 of 1998 in that on 19 May 2019 you failed to comply with or contravened this Act or any other statute, regulation or legal obligation relating to education and the employment relationship (SACE Code of Professional Ethics), when you touched the learner’s breasts, face and buttocks
48. The employee has been charged for sexual assault in that he allegedly touched the breasts, face and buttocks of the learner in the late afternoon of Sunday 19 May 2019 at the school. It is uncontested evidence that the school was in operation on that day (incubation of Grade 12 learners and that learners of other grades seized the opportunity to study at the school premises as well. It appears that the learner’s presence at the school as a Grade 10 learner at the time, was also to study, even though it appeared that her mother knew little, if anything about it.
49. Be that as it may, a few submissions appear to be somewhat odd regarding the employer’s case. The learner alleged that the employee touched her breasts and face under examination-in-chief. Under cross-examination, she was reminded about the buttocks part of the allegation. It was only then when she remembered about it and then stated that when she referred to the face and breasts, she insinuated that the buttocks were also included in it.
50. This is difficult to comprehend because buttocks, like breasts, is a critical part of the body which forms part of the elements of the offence of sexual assault which must have been touched. Then there was the moment when the learner left the laboratory and bumped in a certain Mr Bakoena Busakwe (hereinafter Mr Busakwe). The evidence suggest that the learner was approached by Mr Busakwe and other learners when she came out of the laboratory and pressurised her to agree that the employee raped her.
51. Neither Mr Busakwe nor any of the group of learners who saw and alleged that something happened between the employee and the learner came to testify at this Inquiry. The employee managed to secure the testimony of Mr Tsiloane, also a Grade 12 learner at the time, who was part of a small group of learners and who were sitting in front of his laboratory class at the time of the alleged incident. I need to make it clear that it appears as if there were two groups of Grade 12 learners close to the scene. One small group of 4 learners and consisting of Mr Tsiloane who were sitting right in front of the laboratory class, and another larger group also of Grade 12 learners, who were standing not too far from the laboratory class and of whom Mr Busakwe was apparently part of.
52. As stated previously, neither Mr Busakwe nor any of his group members came to testify at the Inquiry. Mr Tsilioane gave direct evidence in which he testified that the learner looked normal when she came out of the laboratory until Mr Busakwe and the other saw her and caused her to panic and told her to tell lies about what happened in the laboratory. This evidence of Mr Tsiloane was not challenged or disproved by the employer.
53. The evidence of both Mr Tsiloane and the employee suggests that this group of learners (Mr Busakwe’s group) caused havoc which ended up into a situation where the employee was assaulted by both the community and the learner’s father. The learner’s mother testified that when the learner arrived home, she shouted at the learner for having came home late. She stated that the learner then burst out and cry. It is the mother’s testimony that the group of Mr Busakwe came and aggressively wanted to put up a fight towards the employee.
54. It is strange that the learner did not tell her mother what actually happened (the touching of her private parts) and left her mother to resort under an impression that she was raped as alleged by Mr Busakwe’s group. It appears that Mr Busakwe’s group exaggerated the situation to such an extent that the learner’s father went to assault the employ as well as members of the community. This apparently led to a situation where the employee had to seek refuge whilst his family went to open a criminal case at SAPS and fearing for the life of their sibling which is being threatened.
55. To come back to the allegations of sexual assault, the evidence of the witnesses is that the police arranged some sort of an investigative meeting at the school the following day. The evidence is clear that a 1-page statement of the learner in Sesotho was tabled at this meeting and shown to the employee. Unfortunately for the Inquiry, this statement was not tendered as evidence. All the witnesses of the employer are in agreement that the version contained in this statement was presented to the employee and that the employee agreed with the version of the learner as contained in the statement.
56. Neither the learner’s mother nor the principal elaborated on the contents of the statement and what it entailed. It is the employer’s last witness, the detective, who shed light about this 1-page statement of the learner. According to the detective, the learner, who was also interviewed by him, said nothing about her breasts, face and buttocks having been touched by the employee. The statement only made mention that the employee proposed love to the learner and that the employee grabbed to learner’s hand.
57. The detective stated that because none of the learner’s genitals were touched by the employee, the elements of the crime of sexual assault were not present in the case, which led to SAPS’ decision not to open a criminal case against the employee. The detective was the only investigator who interviewed the learner. He also testified that the learner did not divulge anything about her genitals being touched by the employee during the interview in the presence of her mother.
58. Now with this evidence coming from the employer’s witness, it shows the degree and extent of the odds against the employer’s case. A new statement of the learner was later taken, which consists of two pages with many adjustments made on it. This statement was not given to the police to reconsider its decision to criminally charge the employee. It was only handed in at this forum with no explanations on why the learner is deviating from her original statement given at the investigative meeting of Monday 20 May 2019.
59. The evidence is therefore clear that the version of the learner to which the employee agreed to is the one contained in that 1-page statement. No explanations were also forthcoming from the employer on what happened to the 1-page statement of the learner which its witnesses made mention of in this Inquiry. The employer did not deem it important to also provide the police with a copy of this new statement of the learner. In any event, the testimonies of the witnesses of the employer revolved around the original first 1-page statement of the learner, and not about the second and altered statement of the learner. It is on this basis that I cannot accept the second statement of the learner as it has a tendency of prejudicing the employee who never had an opportunity to formally react to it like in the instance of the first statement.
60. The lack of the learner to mention in her examination-in-chief about the touching of her buttocks, as well as the fact that she did not mention anything about her breasts, face and buttocks having been touched to the detective as well as in her original statement, leaves much to be desired for. The learner also testified under examination-in-chief that the employee touched her genitals in the laboratory before opening the door for Mr Busakwe and changed in cross-examination where she stated that the employee only touched her genitals after opening the door for Mr Busakwe. This is problematic in that the version of the learner cannot be relied on as credible.
61. No evidence was provided by the employer that Mr Busakwe even went to the laboratory and knocked at the door. Mr Tsiloane is on record that Mr Busakwe never knocked at the door but only ran to the learner after the learner left the laboratory. It is the employee’s version of events which is corroborated by Mr Tsiloane. As stated previously, none of the people (including) the learner’s father came to testify about the events of the day and how they came to a conclusion to attack and assault the employee.
62. What was made clear as part of the evidence is the fact that the employee apologised to the learner’s family for having proposed love to the learner and for grabbing her hand. The grabbing of a learner’s hand and to say to a learner does not amount to acts of sexual assault as contained in the charge and alternative charge. Uncontested evidence was led that the father of the learner also apologised to the employee for the assault of the previous day inflicted on the employee. This, I find rather odd if the learner was indeed sexually assaulted by the employee.
63. One clear fact which is standing out in this case is that only one case docket was opened with the police, the case against those who attacked and assaulted the employee. The investigation by SAPS into this matter has proven that the elements of the offence of sexual assault are not present in this case. No evidence to show the contrary was led at this Inquiry. The evidence given by the learner’s mother and principal is not direct evidence pertaining to the incident but more hearsay in nature.
64. The learner’s mother and the principal were not openly honest with this Inquiry that the version of the learner in the original handwritten 1-page statement excluded a touching of the breasts, face and buttocks of the learner. I find this distressing and it explains why the learner had to constantly change her version about the events of Sunday 19 May 2019.
65. I am as a result not persuaded, on a balance of probabilities, that the employee has committed the acts alleged of in the charges.
66. Section 17(1)(b) of the Employment of Educators Act (the EEA) provides the following:
Serious misconduct
18. (1) An educator must be dismissed if he or she is found guilty of –
……………
(b) committing an act of sexual assault on a learner, student or other employee
67. The evidence before me is that the learner was never consistent with her claim that the employee has touched her breasts, face and buttocks. The evidence shows that the learner was under immense pressure from Mr Busakwe and his crew and others to change her version which she originally gave to her parents and the school management and police at the meeting of Monday 20 May 2019 to a sudden version that the employee sexually assaulted her. In relation to Charge 1, it is my finding that the employee is not guilty of having contravened section 17(1)(b) of the EEA and has not misconducted himself in this regard.
68. Section 18(1)(a) of the EEA provides the following:
Misconduct
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits
misconduct if he or she –
(a) fails to comply with or contravenes this Act or any other statute, regulation or legal obligation
relating to education and the employment relationship;
69. The employer included SACE’s Code of Professional Ethics to the alternative charge, without elaborating on it during the arbitration. It is therefore not clear which exact provision or provisions of the Code of Ethics was contravened by the employee. With no details to that effect, it is my finding that the employee is not guilty on the alternative charge and that there is no evidence to show that he contravened section 18(1)(a) of the EEA.
VERDICT
70. The employer, Free State Department of Education, has failed to prove on a balance of probabilities, the guilt of the employee on charge 1 and its alternative.
71. The employee, Mr Lerato Lefera, is found not guilty on charge 1 and its alternative charge.
This is done and dated on 16 September 2021 at Upington.
Adv. David Pietersen
ELRC COMMISSIONER
Inquiry-By-Arbitrator