ELRC644-20/21 EC
Text
ELRC18-21/22 FS
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Award Date:
22 September 2021
Arbitrator: SHIRAZ MAHOMED OSMAN Case Reference No: ELRC18-21/22 FS
Date of award: 22 SEPTEMBER 2021
In the arbitration between:
Mr. T Mokotjo Employee party
and
Department of Education – Free State Employer party
DETAILS OF HEARING AND REPRESENTATION
1. The present dispute between Mr. T Mokotjo (hereinafter referred to as the employee) and The Department of Education-Free State (hereinafter referred to as the employer) was referred to, Inquiry by Arbitrator in terms of Section 188A of the Labour Relations Act no.66 of 1995, as amended (the Act); read with Collective Agreement 3 of 2018. At the Inquiry by Arbitrator hearing, which was held at the Boardroom of the respondent, in Bloemfontein on, 17 September 2021, the employee failed to attend and the employer was represented by Mr. B J Lekitlane.
2. I was satisfied that the employee was aware of the date; time and venue of the said hearing, however failed to attend. The notice of set down was sent to the school at which the employee is an educator. The Principal of the school confirmed that he had issued the notice to the employee. He also confirmed that Mr. Mokotjo had told him yesterday that he would be attending the hearing. Moreover, he had tried to contact the employee on both his known telephone numbers this morning, but received no response.
3. The school secretary confirmed that the employee was in Bloemfontein today, and was not at school. The employer’s representative also attempted to contact the employee, but on both occasions his phone went onto voicemail.
4. I proceeded in the absence of the employee.
THE CHARGES TO BE DECIDED:
5. I am to decide whether the employee, is guilty of the following charges:
Charge 1
You have contravened section 17 (1) (b) of the Employment of Educators Act, Act 76 of 1998, in that on the 16 September 2020, while on duty at Welkom Preparatory School, you committed an act of sexual assault on a learner , Ms. X when you offered her money and alcohol in exchange for sex and asked her if she is still a virgin and said to her “ha ono e kenya haholo” (not going to penetrate you too much).
Alternative to Charge 1
You have contravened section 17 (1) (b) of the Employment of Educators Act, Act 76 of 1998, in that on the 16th September 2020, you conducted yourself in an improper, disgraceful or unacceptable manner when you offered a learner Ms. X money and alcohol in exchange for sex and asked her if she is still a virgin and said to her “ha ono e kenya haholo.
Charge 2
You have contravened section 17 (1) (b) of the Employment of Educators Act, Act 76 of 1998, in that on the 18th September 2020, while on duty at Welkom Preparatory School, you committed an act of sexual assault on a learner, Ms. X when you said to her “otla mosuna pele, otla mofa jwala, o kgalletse molomo wa hae because o tsamaisana lewa kuku yah ae, otlo ofa punani neng”(the conversation was recorded and its transcript is on file) .
Alternative to Charge 2
You have contravened section 18 (1) (q) of the Employment of Educators Act, Act 76 of 1998, in that on the 18th September 2020, you conducted yourself in an improper, disgraceful or unacceptable manner when you said to a learner Ms. X “otla mosuna pele, otla mofa jwala, o kgalletse molomo wa hae because o tsamaisana lewa kuku yah ae, otlo ofa punani neng”.
BACKGROUND
6. The employee is an educator at Welkom Preparatory School and was charged, as per the above allegations. He was charged in, March 2021.
7. He was charged in terms of Sections 17 of the Employment of Educators Act no. 78, of 1998 (the EEA). He was charged for sexual assault on learner X.
8. For the purposes of this award the learner, being under aged, shall be referred to as Ms. X.
9. The matter was referred to Council by the employer, in terms of Collective Agreement 3 of 2018; read with Section 188A, of the Act, an Inquiry by Arbitrator.
SURVEY OF EVIDENCE AND ARGUMENT
10. As per the reasons stated in paragraphs 2 & 3 above, I proceeded in the employee’s absence.
11. The employer was given the opportunity to call witnesses and submit an oral closing argument.
12. The employer called one witness.
13. The employer handed up the charge sheet, and the educator’s written statement, for the record.
14. Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Act. Should any of the evidence or argument not be reflected hereunder, then it does not mean that it was not considered.
ANALYSIS OF EVIDENCE AND ARGUMENT
15. The employee was charged in terms of Section 17 (1) (b) of the EEA which provides “having a sexual relationship with a learner of the school where he or she is employed in”. The evidence supports an allegation in terms of Section 17 (1) (b) which provides “committing an act of sexual assault on a learner, student or other employee”. The alternative charges are in respect of improper, disgraceful or unacceptable conduct.
16. Ms. X testified on her own behalf that, the employee, Mr. Mokotjo testified that she was uncomfortable when the educator on his way home, had whispered into the applicant’s ear that, he was not going to penetrate too much”. In the car were two children on the back seat. The learner was seated in the front seat. The educator was giving the learner a ride home. On rainy days, the learner rides with the educator and not the taxi, as she usually does. This incident happened on, 16 September 2021.
17. Ms. X further testified that she had relayed the incident to her mother, who had given her a cellular phone to record the educator. A great thought. I must admit. On, 18 September 2020, the learner approached the educator in the car park, during the morning break. The recording was played into record. In the recording it emerged that Mr. Mokotjo told the learner that they would drive in the motor vehicle, drink alcohol and kiss each other. Ms. X replied to the educator that she did not want alcohol.
18. Mr. Mokotjo went on to tell the learner that he desired her lips because they looked like her vagina. He asked the learner for her cell number and that the other learners should not know about the discussion that was held. He gave Ms. X his cell phone number 067 965 4858 and asked not to repeat what he had discussed. When the learner asked the educator for clarity about what she should “give” him, the educator indicated that she will give him her vagina.
19. I am obliged to accept the undisputed and only version before me. I have no reason not to accept Ms. X’s testimony. She appeared to be an honest and bright young lady. I am not persuaded that she would fabricate such a story. In any event she had had the conversation recorded.
20. Mr. Mokotjo in his written statement claimed that the learner had asked him for alcohol. It is clear from the learner’s version that she indicated to Mr. Mokotjo that she did not want alcohol. He suggested that he promised to buy her alcohol to get rid of her from pestering him. Indeed, the statement could not be tested but it seems that the learner had clearly indicated to the educator that she did not want alcohol. He suggested that the learner had asked him if he would expect some sexual “payment”. Seemingly, the educator has a fabricated version.
21. From the above, it is evident that the learner had been sexually assaulted by the educator, Mr. Mokotjo. The sequence of events was corroborated by all the witnesses. There is nothing to suggest that any of these witnesses had indeed fabricated any of their testimonies.
22. I am persuaded that the educator, Mr. Mokotjo is indeed guilty of sexual assault.
23. In the present instance, the educator is charged with serious allegations of sexual assault, on a learner, a child. The child is 15 years old. At the time of the incident, she would have been 14 years old. Children have a Constitutional Right to be protected from maltreatment; neglect; abuse or degradation. See Section 28 (1) (d) of the Constitution of the Republic of South Africa. Moreover, Section 28 (2) provides that: a child’s best interests are of paramount importance in every matter concerning the child. I am bound by this Constitutional imperative, in view of the employer’s responsibility, to provide education to children.
24. The conduct of the educator, Mr. Mokotjo is gross, and cannot, and must not, be tolerated.
25. Sexual Assault is defined in Wikipedia as an act in which one intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence, which includes child sexual abuse, groping, rape, or the torture of the person in a sexual manner.
26. Sexual assault includes child sexual abuse. Sexual abuse need not only be physical and the sexual abuse of a child is considered as sexual assault.
27. Therefore, the educator’s conduct is tantamount to sexual assault on a child.
SANCTION
28. In terms of Section 17 (1) of the EEA, 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
29. There is no discretion for the Arbitrator to consider any other alternative sanction, short of dismissal.
30. Therefore, dismissal is the statutory sanction.
AWARD
31. The employee, Mr. Mokotjo, is found guilty of both Charges, 1 & 2.
32. The employee, Mr. T Mokotjo is dismissed, with immediate effect.
33. The employer, The Department of Education must inform the employee, Mr. T Mokotjo of his dismissal immediately upon receipt, of this award.
Signed at Kimberley on this 22nd day of September 2021
ELRC PANELLIST
SHIRAZ MAHOMED OSMAN
Date of award: 22 SEPTEMBER 2021
In the arbitration between:
Mr. T Mokotjo Employee party
and
Department of Education – Free State Employer party
DETAILS OF HEARING AND REPRESENTATION
1. The present dispute between Mr. T Mokotjo (hereinafter referred to as the employee) and The Department of Education-Free State (hereinafter referred to as the employer) was referred to, Inquiry by Arbitrator in terms of Section 188A of the Labour Relations Act no.66 of 1995, as amended (the Act); read with Collective Agreement 3 of 2018. At the Inquiry by Arbitrator hearing, which was held at the Boardroom of the respondent, in Bloemfontein on, 17 September 2021, the employee failed to attend and the employer was represented by Mr. B J Lekitlane.
2. I was satisfied that the employee was aware of the date; time and venue of the said hearing, however failed to attend. The notice of set down was sent to the school at which the employee is an educator. The Principal of the school confirmed that he had issued the notice to the employee. He also confirmed that Mr. Mokotjo had told him yesterday that he would be attending the hearing. Moreover, he had tried to contact the employee on both his known telephone numbers this morning, but received no response.
3. The school secretary confirmed that the employee was in Bloemfontein today, and was not at school. The employer’s representative also attempted to contact the employee, but on both occasions his phone went onto voicemail.
4. I proceeded in the absence of the employee.
THE CHARGES TO BE DECIDED:
5. I am to decide whether the employee, is guilty of the following charges:
Charge 1
You have contravened section 17 (1) (b) of the Employment of Educators Act, Act 76 of 1998, in that on the 16 September 2020, while on duty at Welkom Preparatory School, you committed an act of sexual assault on a learner , Ms. X when you offered her money and alcohol in exchange for sex and asked her if she is still a virgin and said to her “ha ono e kenya haholo” (not going to penetrate you too much).
Alternative to Charge 1
You have contravened section 17 (1) (b) of the Employment of Educators Act, Act 76 of 1998, in that on the 16th September 2020, you conducted yourself in an improper, disgraceful or unacceptable manner when you offered a learner Ms. X money and alcohol in exchange for sex and asked her if she is still a virgin and said to her “ha ono e kenya haholo.
Charge 2
You have contravened section 17 (1) (b) of the Employment of Educators Act, Act 76 of 1998, in that on the 18th September 2020, while on duty at Welkom Preparatory School, you committed an act of sexual assault on a learner, Ms. X when you said to her “otla mosuna pele, otla mofa jwala, o kgalletse molomo wa hae because o tsamaisana lewa kuku yah ae, otlo ofa punani neng”(the conversation was recorded and its transcript is on file) .
Alternative to Charge 2
You have contravened section 18 (1) (q) of the Employment of Educators Act, Act 76 of 1998, in that on the 18th September 2020, you conducted yourself in an improper, disgraceful or unacceptable manner when you said to a learner Ms. X “otla mosuna pele, otla mofa jwala, o kgalletse molomo wa hae because o tsamaisana lewa kuku yah ae, otlo ofa punani neng”.
BACKGROUND
6. The employee is an educator at Welkom Preparatory School and was charged, as per the above allegations. He was charged in, March 2021.
7. He was charged in terms of Sections 17 of the Employment of Educators Act no. 78, of 1998 (the EEA). He was charged for sexual assault on learner X.
8. For the purposes of this award the learner, being under aged, shall be referred to as Ms. X.
9. The matter was referred to Council by the employer, in terms of Collective Agreement 3 of 2018; read with Section 188A, of the Act, an Inquiry by Arbitrator.
SURVEY OF EVIDENCE AND ARGUMENT
10. As per the reasons stated in paragraphs 2 & 3 above, I proceeded in the employee’s absence.
11. The employer was given the opportunity to call witnesses and submit an oral closing argument.
12. The employer called one witness.
13. The employer handed up the charge sheet, and the educator’s written statement, for the record.
14. Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Act. Should any of the evidence or argument not be reflected hereunder, then it does not mean that it was not considered.
ANALYSIS OF EVIDENCE AND ARGUMENT
15. The employee was charged in terms of Section 17 (1) (b) of the EEA which provides “having a sexual relationship with a learner of the school where he or she is employed in”. The evidence supports an allegation in terms of Section 17 (1) (b) which provides “committing an act of sexual assault on a learner, student or other employee”. The alternative charges are in respect of improper, disgraceful or unacceptable conduct.
16. Ms. X testified on her own behalf that, the employee, Mr. Mokotjo testified that she was uncomfortable when the educator on his way home, had whispered into the applicant’s ear that, he was not going to penetrate too much”. In the car were two children on the back seat. The learner was seated in the front seat. The educator was giving the learner a ride home. On rainy days, the learner rides with the educator and not the taxi, as she usually does. This incident happened on, 16 September 2021.
17. Ms. X further testified that she had relayed the incident to her mother, who had given her a cellular phone to record the educator. A great thought. I must admit. On, 18 September 2020, the learner approached the educator in the car park, during the morning break. The recording was played into record. In the recording it emerged that Mr. Mokotjo told the learner that they would drive in the motor vehicle, drink alcohol and kiss each other. Ms. X replied to the educator that she did not want alcohol.
18. Mr. Mokotjo went on to tell the learner that he desired her lips because they looked like her vagina. He asked the learner for her cell number and that the other learners should not know about the discussion that was held. He gave Ms. X his cell phone number 067 965 4858 and asked not to repeat what he had discussed. When the learner asked the educator for clarity about what she should “give” him, the educator indicated that she will give him her vagina.
19. I am obliged to accept the undisputed and only version before me. I have no reason not to accept Ms. X’s testimony. She appeared to be an honest and bright young lady. I am not persuaded that she would fabricate such a story. In any event she had had the conversation recorded.
20. Mr. Mokotjo in his written statement claimed that the learner had asked him for alcohol. It is clear from the learner’s version that she indicated to Mr. Mokotjo that she did not want alcohol. He suggested that he promised to buy her alcohol to get rid of her from pestering him. Indeed, the statement could not be tested but it seems that the learner had clearly indicated to the educator that she did not want alcohol. He suggested that the learner had asked him if he would expect some sexual “payment”. Seemingly, the educator has a fabricated version.
21. From the above, it is evident that the learner had been sexually assaulted by the educator, Mr. Mokotjo. The sequence of events was corroborated by all the witnesses. There is nothing to suggest that any of these witnesses had indeed fabricated any of their testimonies.
22. I am persuaded that the educator, Mr. Mokotjo is indeed guilty of sexual assault.
23. In the present instance, the educator is charged with serious allegations of sexual assault, on a learner, a child. The child is 15 years old. At the time of the incident, she would have been 14 years old. Children have a Constitutional Right to be protected from maltreatment; neglect; abuse or degradation. See Section 28 (1) (d) of the Constitution of the Republic of South Africa. Moreover, Section 28 (2) provides that: a child’s best interests are of paramount importance in every matter concerning the child. I am bound by this Constitutional imperative, in view of the employer’s responsibility, to provide education to children.
24. The conduct of the educator, Mr. Mokotjo is gross, and cannot, and must not, be tolerated.
25. Sexual Assault is defined in Wikipedia as an act in which one intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence, which includes child sexual abuse, groping, rape, or the torture of the person in a sexual manner.
26. Sexual assault includes child sexual abuse. Sexual abuse need not only be physical and the sexual abuse of a child is considered as sexual assault.
27. Therefore, the educator’s conduct is tantamount to sexual assault on a child.
SANCTION
28. In terms of Section 17 (1) of the EEA, 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
29. There is no discretion for the Arbitrator to consider any other alternative sanction, short of dismissal.
30. Therefore, dismissal is the statutory sanction.
AWARD
31. The employee, Mr. Mokotjo, is found guilty of both Charges, 1 & 2.
32. The employee, Mr. T Mokotjo is dismissed, with immediate effect.
33. The employer, The Department of Education must inform the employee, Mr. T Mokotjo of his dismissal immediately upon receipt, of this award.
Signed at Kimberley on this 22nd day of September 2021
ELRC PANELLIST
SHIRAZ MAHOMED OSMAN