ELRC644-20/21 EC
Text
ELRC200-21/22LP
Award Date:
12 November 2021
IN THE ELRC ARBITRATION
BETWEEN:
DEPARTMENT OF EDUCATION - LIMPOPO EMPLOYER
and
SYLVESTER MATHEKGA ACCUSED EMPLOYEE
ARBITRATION AWARD
Case Number: ELRC200-21/22LP
Last date of arbitration: 13 October 2021
Receipt of closing arguments: 20 October 2021
Date of award: 12 November 2021
MATHEWS RAMOTSHELA
ELRC Arbitrator
Case No: ELRC200-21/22LP
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
[1] The arbitration hearing was held on several days and finalized on 13 October 2021 at the employer’s offices in Polokwane, Limpopo. T Monyai, a union official of SADTU, represented the employee. L Chipa, the employer’s assistant director, presented its case. The proceedings were digitally recorded.
ISSUE TO BE DECIDED
[2] I am enjoined to determine whether the employee is guilty of the charges trained at him and where applicable, mete out the appropriate penalty.
BACKGROUND TO THE ISSUE
[3] The employee is employed as an educator at Phala Secondary School, Westphalia (Ga-Broekman) in the district of Bochum, Limpopo.
CHARGES LEVELED AGAINST THE EMPLOYEE
[4] The employer has preferred the following charges against the employee:
“You are hereby charged with misconduct in terms of Section 18 of the Employment of Educators Act, 76 of 1998 (as amended), hereinafter referred to as “the Act” in that:
CHARGE 1
You contravened the provisions of section (18) (1) (a) of the Act in that on or around April 2019 or at any period incidental thereto, at or near Phala Secondary School, you failed to comply with or contravened the South African Council of Educators Act 31 of 2000 in that:
COUNT 1
You proposed love to NM, a grade 10 learner, and therefore, you contravened “Code of Professional Ethics”, item 3.5 by failing to avoid any form of humiliation, and refrain from any form of abuse, physical or psychological.
COUNT 2
You proposed love to NM, a grade 10 learner, and therefore, you contravened “Code of Professional Ethics”, item 3.8 by failing to refrain from any form of sexual harassment (physical or otherwise) of a learner.
COUNT 3
You proposed love to NM, a grade 10 learner, and therefore, you contravened “Code of Professional Ethics”, item 3.10 by failing to use appropriate language and behavior in your interaction with a learner.
CHARGE 2
You contravened the provisions of section (18) (1) (a) of the Act in that on or around April 2019 or at any period incidental thereto, at or near Phala Secondary School, you failed to comply with or contravened the South African Council of Educators Act 31 of 2000 in that:
COUNT 1
You asked LS, a grade 11 learner, if she is still a virgin, and therefore, you contravened “Code of Professional Ethics” item 3.8 by failing to refrain from any form of sexual harassment (physical or otherwise) of a learner.
CHARGE 3
You contravened the provisions of section (18) (1) (g) of the Act on or around July 2020 or at any period incidental thereto, at or near Phala Secondary School you solicited sex from LS, a Grade 11 learner, in exchange of making her pass examination and therefore, you misused your position in the Department of Education to promote the interest of a learner.”
CHARGE 4
You contravened the provisions of section (18) (1) (g) of the Act on or around February 2021 or at any period incidental thereto, at or near Phala Secondary School, you solicited three rounds of sex from NM, a Grade 11 learner, in exchange of making her progress to Grade 12 and therefore, misused your position in the Department of Education to promote the interests of a learner.
[5] The above-quoted charges are a verbatim extract of the very detailed acts (charges) of misconduct prepared by the employer without any moderation of the language employed (on my part). Due to the sensitivity of the matter and the very tender age of the learners that came to testify, their full names shall not be reflected in this award. Instead, appropriate acronyms shall be utilised.
SURVEY OF EVIDENCE AND ARGUMENT
EMPLOYER’S EVIDENCE
NM testified under oath as follows:
Evidence-in-chief
[6] She is a 19 years old Grade 11 learner at Phala Secondary School (hereinafter referred to as “Phala” or “the school”)). She is repeating the grade. At the begging of February 2021 she received two reports, one from the employee, the other from the school principal. The reason she went to collect her report only in February 2021 is because it was the only time she could afford to pay for a missing textbook.
[7] When the employee handed her the report in the staff room, she perused it and was shocked to learn that she had failed and on observing her somber reaction, the employee asked to take a look at the report. Having done so, the employee remarked that she may have failed but she qualified to be progressed to the next grade. It was then that he asked her to wait whilst he went to consult with the principal to show him the report. He returned to report that the principal was not present and then asked her to save her contact number on her phone so she could later on send him her grade 10 report to prove that she was repeating the grade at Phala. Thus she went home without the report as he retained same.
[8] Upon arrival at home, she was about to send the report when she noticed that the employee had saved his phone numbers on her phone as “bae”. After she had sent the report via WhatsApp messaging, he replied with “Hello babe” and this prompted her to phone him. He answered her call with “NM babe, how are you?”, also telling her that he was actually doing her a favour by getting her a progression report. He then said to her, “I want something from you”. When she asked what is it he wanted from her, his reply was “I want you to sleep with me”. He further told her that the favour he was doing her was not for everyone as they had already submitted the schedule for Grade 12, but he was going to try everything possible to add her name.
[9] He further said that he was the only one that gets the reports done at the school, promising that he could go to the principal to tell him that there was a mistake committed on her report.
[10] Subsequent to this call, she downloaded a call recorder on her phone and on the following day phoned the employee to inquire about what he had done with the report. He confirmed that he was done with it and was only waiting for the principal to sign and told her that she should tell her parents to come for its collection. Despite arranging with her aunt to collect, she returned home empty-handed as she reportedly could not find the employee at the school.
[11] It was then that she decided to call him to ask for her report. The employee told her that he took it home and she should come fetch it there. When she indicated she could not make it, he told her that he was on his way to the offices of the Department of Home Affairs (“Home Affairs”) at Dendron for applying for a new identity card. He asked her to book him a spot in the queue and thereafter go to a guesthouse to a book a room. He furthermore asked him to buy a half dozen of Hunter’s Dry for him. She played along and agreed.
[12] Pursuant to this call she related everything to her aunt who suggested they involve media people to come and expose the employee’s shenanigans. Accordingly, the television crew from Moja Love were contacted and they agreed to immediately come to the place, which they did.
[13] After calling Moja Love people, he called the employee to tell him that she had already booked him a spot in the queue as well as a room at the guesthouse as per his request. The employee replied that she did very well as he had been dying to be on top of her, adding that she turned him on.
[14] Later on that day they chatted on WhatsApp where the employee texted “I guess I’m not gonna work alone tomorrow”, adding, “I want three rounds from you”. She then called him to ask what he was saying on text and the employee repeated, “I’m sure I’m not gonna work alone tomorrow”, adding, “I want a woman on top tomorrow”. She told him it was alright and he added, “Don’t forget to wear for me a sexy outfit”.
[15] The whole plan of Moja Love people to trap the employee at the guesthouse with her failed as the employee stopped responding to calls. The crew also interviewed some of the learners about the employee’s alleged sexual assaults but most were afraid to talk but one Lebohang Sepaane came out to tell her experience with the employee.
[16] When she accompanied the Moja Love crew to the employee’s home, after being interrogated, the employee opened up and admitted that what he did was a mistake as he was not himself, adding that he was drunk. He pleaded that he experienced some depression. He ended up apologizing to her but said that Lebo was lying as she did not have any proof.
[17] When the school re-opened in 2021, she went to collect her report from the school principal, who told her that he was not part of the deal she had with the employee, informing her that he was giving her the old report, which he did. She experienced difficulties as a result the things the employee said about her in class. She went to report this challenge to the principal, who asked her to write a report thereon. The principal promised to take up the matter with the circuit manager, but he did not do so. At the school she did not get any support and was treated like a nobody.
Under cross-examination he further testified as follows:
[18] The reason the employee wanted her grade 10 report was to prove that she repeated Grade 10 at Phala. She did not do her first Grade 10 at Phala. After downloading a call recorder, she used it when she was talking to the employee over the phone.
Audio recordings
[19] As part of NM’s evidence, during the hearing some of the audio recordings of phone calls between the witness and the employee were played. The following are relevant extracts.
[20] The employee told the witness that he wanted to apply for a new identity document and the witness promised to check for him the following day. He is also heard saying in Sepedi, “Ya, hlapa o e hlape a ke re”, loosely translated as “Yes, take a bath and bath it, neh”. She understood that to mean that he was commanding her to wash her private parts.
[21] In one conversation the employee can be heard telling the witness that he had already told the principal and was the one that was going to effect the changes. He also undertook to ensure that he succeeds to overcome any challenges regarding the relevant changes to the report to ensure that the witness obtains progression to the next grade. The witness is heard telling him that he must do as he undertakes and she in turn would give him the thing that she had agreed to give him. The employee confirms this undertaking by the witness with the popular slang, “sharp sharp”.
[22] The witness is heard telling the employee that she had been given some money and she would thus book for a room at a guest house in Dendron but is concerned about of lack of privacy at Bochum as a lot of people would see her and the employee. The employee’s response was in Sepedi, “A e tshwenye”, translated as “it does not matter”.
[23] Under re-examination she further testified that the employee told her that there was a mistake on her report because she qualified for progression and he was taking the report to the principal to show him that there was a mistake thereon.
LS testified as follows:
[23] She is an eighteen old (18) Grade 11 learner at Phala Secondary School. It was just after the Covid 19 hard lockdown of the year 2020 and she had just returned back to school when on a particular day the employee summonsed her to the staff room and inquired from her why she did not attend school during the past two days. After telling the employee her financial problems at home as the reason for her absence, he asked her whether she was a virgin. She laughed and asked why this type of question and the employee’s response was that he wanted her to come to the place where he was conducting extra lessons at Marais village. After telling him that it would not be easy for her as her parents would not allow her, he released her to return to her classes.
[24] On the same day it was during a break when she bumped into the employee, who asked her to go and obtain his ration of food, which she did. When it was school out, she went home.
[25] When she was back home she shared the issue of being asked about her virginity with her mother who has since passed on. Her late mother told her that she was planning to attend at the school without telling when in fact she would do so. In February 2021 her mother went to talk to the principal about her report but she is not in the know if she also addressed the issue relating to virginity.
[26] Her mother went to the principal because during December 2020 when she went to obtain her report, the employee refused to give her the report. When she went to collect her report in December 2020, the employee asked her how desperate she was to see her report. She looked at him and he was in front of her. He started to flourish the report in his hand, shaking his waist back and forth, adding, “if you and me can do like this, then I will give you your report”. Thereafter she left.
[28] The issue of her being asked whether she was a still a virgin did not sit well with her because she is of acquaintance with the employee’s wife and other relatives. She was disappointed by the question with the result that for the rest of the day she remained unhappy especially as she hails from the same village with the employee.
Under cross-examination she further testified as follows:
[29] The employee shares the staff room with other educators, being Mr Ramaano, Mr Lemekwane, former educator Ms Sekwaila and two clerks. After the employee spoke to her, he never handed her over to Ms Sekwaila to talk to her. She never reported the issue about virginity to the principal because after he mentioned it, she took it lightly and laughed. It was only later when she was at home that she started to ruminate about it. Her aunt went to fetch the report on 14 December 2020. Her aunt was in a hurry to collect other reports from another school, so it was herself that went to collect it. She waited to be given the report, but it was not issued to her.
[30] She denies that she was not given the report because she owed R 100.00 for donation and owed a book. She settled these two outstanding issues on 14 December 2020. She eventually got her report on 15 February 2021 when her sister went to collect same. There is no point at which the employee said he wanted her to sleep with him. He never promised to make her pass.
EMPLOYEE’S EVIDENCE
Mosibudi Sylvester Mathekga testified as follows:
Re: NM
[31] With effect from 28 February 2018 he had been employed as a CS1 educator at Phala Secondary School. On 9 February 2021 he was given the responsibility to issue out reports and one of those was for NM. The reports that he was issuing were not collected in December 2020.
[32] On 9 February 2021 NM came to request her report from him. Prior to handing her the report, he asked her to firstly pay for the outstanding R 100.00 in respect of a donation as well as for a missing textbook. Pursuant to her settling the outstanding balances, he furnished her with the report, which was sealed in an envelope.
[33] After leaving the staff room, she soon returned with the report, looking shocked. She approached him to say she was confused with the results as same said “not achieved” but they looked like those of other learners that were marked “progression”. It was then that he requested her to hand over the report to him so he could check. He then realized that she had passed only four subjects and failed three. He then explained to her the minimum requirements for progression. Having checked her results, he advised that she did not qualify for progression. She insisted that she failed grade 10. Based on her insistence, he then decided to look for supporting evidence and told her that he was going to consult with Grade 10 teachers who might know about her repeating grade 10, which he did.
[34] He inquired from Mr Lemekwane and Ms Rasedile, being her grade 10 educators. His inquiries revealed that she never repeated grade 10 at Phala, but was previously at a private school. When she reported back to NM his findings that she never repeated grade 10, she offered to prove her allegations with an old report. He agreed to the suggestion but she complained that it was at home and as it is far away, she would not afford the cost of transportation to bring it to the school. It was then that she requested to send the report to him so he could print and present to the principal.
[35] NM asked if she could send her old report to him via WhatsApp. He agreed and gave her his cellphone number. He dictated the number to her and she is the one that saved same on her phone. She then left the “not achieved” report with him. He told her that it would be needed by the principal. NM thereafter left the staff room.
[36] After a while before the school was out, per WhatsApp he received a picture of a report written her name. He looked at it on the phone and went to Mr Lemekwane (Grade 10 teacher) to show him. Upon analyzing the report, they (himself and Lemekwane) found that NM did not complete Grade 10 at the previous school as some terms were missing. As the principal was not at school at that time, he (the witness) left everything at the school.
[37] It was after school when he was at home that he had a phone conversation with NM who asked if it was possible that she met the requirements for progression. He told her that he was still waiting for the principal. She was eager to know if it was possible. He told her it was impossible.
[38] On 10 February 2021 NM phoned him to make follow-ups on how far he had gone regarding the issue of progression. He told her that he was still in pursuit. On that day she made several calls as a follow-up.
[39] He denies that he ever responded to her calls with a salutation “hello babe”.
[40] During one of the calls on 10 February 2021 he asked her to check the queue at Dendron Home Affairs offices, being worried about the length of the line. She promised to check but hinted that the best she could do for him was to book for the following day.
[41] There was another call where she said that she was given some money and thus could afford to book a room at a lodge. She offered to book a room at a lodge for him and asked him what kind of alcohol he drinks. He told her that he drinks Hunter’s Dry and she offered to buy it for him so long as he could do everything for her. He could come there on Sunday and must make sure that the issue of progression was done.
[42] On 11 February 2021 he was at home when he was blindsided by a TV crew from Moja Love, who started shooting videos and interviewed him about his alleged sexual relations and assaults on learners at Phala.
[43] He denies ever soliciting three rounds of sex from NM.
Re: LS
[44] During the year 2020 he was a class teacher for LS and noticed her prolonged absenteeism. When LS pitched up for school after being absent, he summonsed her to the staff room to inquire about the reasons for her absence as some of her reasons might be sensitive. She came to the staff room and found him seated at his desk. She told him that she had family problems that included financial hardships that impacted on her attending school. As she told him that some of the problems were too personal such that she could not tell, he then told her to go outside the staffroom. He then looked around the staffroom to see if he could get someone to talk to her, hoping she would feel comfortable to talk to a woman. It was then that he approached educator Ms Sekwaila to talk to her as a woman. She went out to where LS was. He could not hear their conversation as he remained inside.
[45] Sekwaila came back without the company of LS and then reported that LS did not say much, but only mentioned the issue of money for transport. Sekwaila was suspicious that LS might be hiding something.
The collection of report – LS
[46] On 8 February 2021 Lebohang attended at school to collect her report. She paid for the outstanding R 100 donation and handed him a book that was also outstanding. In compliance with the rule that says only parents can collect report, he did not give her the report. Furthermore, because of her poor attendance record, they wanted to consult with her parents. Thus she went home without the report.
[47] She returned to the school on 9 February 2021 with her elder sister in tow, who was somehow belligerent. The sister announced that she was there to collect the report and he gave it to her.
Under cross-examination she further testified as follows:
[48] On 8 and 9 February 2021, as per school policy, the reports were supposed to be issued to either a parent or guardian. However, in exceptional cases, the principal may allow learners that do not have a parent or guardian to be given reports. The reason for giving NM her report by herself was because on the previous day her aunt came to collect but did not find him. She told her that she could not collect the report on her own but she in turn complained that she did not have parents at home. He asked her if there was any guardian and her reply was that her aunt could come but she would not have money for transport. He was sympathetic to her challenges and thus gave her the report.
[49] When asked if he took the decision to deviate from the policy of giving reports to parents/guardian only unless the principal relaxed the rule, his reply was in the affirmative.
[50] He concedes that it was not the right thing to exchange contact numbers with a learner.
[51] When asked the reason for not approaching other relevant educators to assist with the information regarding her previous reports for Grade 10, the witness replied that he consulted with both Mr Lemekwane and MS Rasedile as they were Grade 10 educators to check whether they knew if she was repeating.
[52] He does not see anything wrong with speaking over the phone with her to ask her to attend at Home Affairs offices to book a spot in the line for him.
[53] When asked to explain what he meant by his Sepedi utterance “hlapa o e hlape”, he testified that he was emphasizing for her to “bath strongly her body”. Being probed further to explain the connection between the booking of a line and the washing of a human body, the witness’s reply was that as the last part of the conversation, he was trying to create humour by saying that as she was going out to meet people, she must be clean.
[54] A question was posed to the employee as follows: “as a teacher who is regarded as a parent, why did you not ask her why she wanted to go with you at a lodge?” His reply was that “I knew very well there is no way she would do that and I suspected she is up to something so I just agreed to everything she was saying”.
[55] He concedes that talking to NM in the manner he did was improper behavior.
[56] Having explained that the reason for not giving learners report is that some of them are not honest to their parents, he was asked why he saw no problem to give NM her report directly to her. His answer was that she requested him and said she would behave herself as she is old enough to handle it. He could not refer her request to the principal as he was not at the school at that time. She also mentioned that she would not have money for another trip back to the school.
[57] He agrees that when LS’s sister came to collect the report, he never engaged her on LS’s persistent absenteeism.
Mokgadi Alice Sekwaila (Sekwaila) testified as follows:
[58] She is a former teacher at Phala but since the year 2020 she is on pension. She knows LS as a learner.
[59] During July 2020 she was in the staff room when LS and the employee were having a discussion regarding her late coming and abseentism. When they were busy talking in the staff room she was also there with them. Initially they were not agreeing but eventually found each other. Thereafter the employee requested her to talk to LS about not coming to school and she agreed.
[60] She went outside the staff room with her to have a talk. She mentioned the issue of transport. She advised her that whenever she encountered problems like those, she should tell her class teacher. When she was done with her, she asked for R 20 for transport back home. She never raised any other issue.
[61] When asked why she had to engage Lebo further when she testified that she and the employee ended up agreeing, her response was that she was doing her job.
Lekau Caleb Mamabolo testified under oath as follows:
[62] He is employed as a school principal at Phala. On 12 February 2021 he was not at the school when he received a call to say that media people had visited the school.
[63] On 15 February 2021 NM came to his office in the company of LS. They both wanted to know whether they were going to be progressed. His response was that their parents were needed. Because of the information he obtained from the media people, he referred both to the social worker at the school. After NM insisted on having her report, he gave to her the authentic report that says that she did not qualify for progression. Only NM went to see the social worker.
[64] The class teacher, Mr Mathekga, brought the report to him with the indication that in terms of the marks, the learner qualified for progression. Upon checking other requirements, he learnt that she did not qualify. On the basis that the parents did not come, she gave her the report. The report from her previous school shows that she actually did not complete.
WRITTEN CLOSING ARGUMENTS
[65] As agreed, the parties submitted detailed written closing arguments. I have pored over these submissions and same was taken into account when deliberating on my conclusions. However, for the sake of brevity, the minutiae of these written submissions shall not be repeated herein.
ANALYSIS OF EVIDENCE AND ARGUMENT
[66] It has now become trite in our law of evidence that a party that alleges bears the burden of proof. The employer is alleging various acts of misconduct against the employee and accordingly, it shoulders the requisite burden.
[67] As already shown in the preceding paragraphs above, the employee is facing what may best be described as a laundry list of offences that are of a sexual nature and thus viewed by the employer as statutory contraventions. I must be quick off the mark to state that regardless of what the specific statute that regulates offences by educators says, the nature of offences trained at the employee are by themselves of a sexual nature that would in any event, without specific reference to statute, if proven, amount to serious misconduct that would generally invite the harshest penalty.
THE CASE OF NM
[68] In an endeavour to discharge the onus it is saddled with, the employer called upon NM, the learner and alleged victim, to give evidence, which evidence was both verbal and supported by audio recordings of phone calls between her and the employee. There is no denial of the audios being authentic. I will thus be quick off the mark to rule that the phone conversations heard on audio are indeed between the witness and the employee.
[69] Regarding the phone conversations, it is her testimony that it was only after the first phone conversation on 9 February 2021 that she downloaded onto her mobile phone a call recorder that she used in subsequent phone conversations with the employee. While it is her evidence that she used the recorder when talking with her interlocutor, there is no evidence that she engaged the recorder in all subsequent conversations with him. Accordingly, having listened to the audios that were played, I will not necessarily exclude any part of her evidence merely because no corroborating recording thereof was played. Furthermore, the evidence is silent on whether audios of all recorded conversations were produced and played during the proceedings. Accordingly, by the same token, I shall be hesitant to disregard her evidence merely because no audio was played to corroborate same. I will thus evaluate and assess the evidence presented in its totality.
[70] As per testimony of both NM and LS, though their experiences with the employee are not exactly the same, the evidence presented reveals the employee’s modus operandi: albeit in vain, he carefully carved a stratagem to lure the learners into succumbing to his sexual desires by unduly holding on to their reports so as to have prolonged engagements and/or conversations with them. He was aware that under normal circumstances, in his capacity as their educator he would ordinarily have minimum interaction with the learners, especially on an individual and/or private basis. As it appears, this rare proximity to the learners beyond the normal engagements in class and other related engagements would afford him an opportunity to take undue liberties with them, as he has done. He may have not succeeded in his attempted untoward romantic pursuits, but the evidence presented on behalf of the employer detailed as above clearly shows that he took advantage of these two learners being some of the stragglers that belatedly approached their class teacher to obtain their 2020 end of year school reports as late as in February 2021 just before learners returned for the new academic year of 2021.
[71] In his own evidence, the employee has testified that the school policy is that reports are to be issued only to parents or guardians and only in exceptional and deserving cases would the principal allow some deviation. He further gave the reason for the practice being the dishonesty of some learners to their parents. Despite this policy that he advocates, he saw no problem with giving NM her report when she came to collect it on 9 February 2021, and yet denied LS the same privilege. His explanation for not treating the two learners even-handedly is not convincing at all. He tells us the reason he gave NM the report is because she told him that she was old enough to behave. We need to bear in mind that she is only 19 years old and one wonders why he would readily accept her assurance and furthermore not involve the principal in the deviation from the practice.
[72] Regarding LS’s case, he says he could not give her the report as he wanted her parents to attend at school to discuss her late coming and absenteeism, yet when her sister came to collect the report, he never discussed this issue with her. One also wonders whether the sister would qualify as a guardian.
[73] The only logical conclusion is that the employee is not telling the truth but is concocting a story to justify his untoward behavior. All the evidence points towards proof that when the employee noticed that NM was shell-shocked and disappointed by the negative results, she would be desperate to be assisted. He saw her vulnerability and attempted to use same to achieve his nefarious goals. Otherwise how does he explain that he did not engage her parents or guardians on the more serious issue of whether she qualified for progression to Grade 12. If the issuing of reports only to parents is a serious matter, given the surrounding circumstances, the issue of progression was of greater significance such that one would have expected the employee to engage the learner’s parents and/or guardian and furthermore engage the relevant personnel at the school in a more formal manner. But because the employee had his own plans, he chose the murky waters of dealing privately with the learner only. The mobile numbers that he exchanged with the learner should have been avoided but in their stead the numbers of her aunt or parents obtained and used to communicate with them. In case it was really necessary, the communications and forwarding of the report that the evidence shows took place between the learner and the witness should have been between the parents/guardian on one side, and the employee and/or the principal on the other side. The employee was conscious of the reality that if things were to be done in this proper manner, that would have nipped his goals of being involved romantically with these two hapless learners in the bud.
[74] It is the employee’s evidence that NM told her that her parents do not reside with her. However, the evidence of both the employee and NM reveals that she resides with her aunt. The aunt would decidedly qualify as a guardian. It thus beggars belief that the employee is attempting to give the impression that she is totally living by herself and bereft of parenthood and/or guardianship around her life.
[75] In his own testimony, the employee testified that after receiving NM’s old report via WhatsApp on 9 February 2021, together with fellow educator Lemekwane, they checked and learnt that she did not complete her grade 10 at the previous school, which simply means that she did meet one of the basic requirements. This discovery translates into the learner glaringly not being eligible for the coveted progression. However, even thereafter the employee continued to communicate with NM per phone and still promised her that he would endeavour to assist with the progression. This further pursuit and promises to the learner was part of the employee’s ploy to keep her hopes alive as that would give the impression that he was doing all that he could to enable her to overcome all obstacles to obtain her coveted progression to grade 12.
[76] The findings and conclusions above that the employee was engaged in undue moves to lure the learners to give in to his romantic pursuits lend significant credence to the learners’ allegations of sexual abuse and/or assault, as seen in the detailed evidence by both learners. As it can be gleaned from the detailed evidence by the two learners, the remarks that the employee hurled at them are of a risqué nature.
[77] The evidence by NM above, which I find to be probably true as per my evaluation above, reveals a catalogue of unacceptable conduct by the employee as an educator and these deplorable lapses are too detailed and unprintable to be all repeated herein. The extent and manner in which the employee in his capacity as an educator has to engage with learners is regulated by specific legislation that is carved specifically to prohibit certain acts of conduct by an educator. The following highlights of the gory details of evidence tendered on behalf of employer speak for themselves as uncontroverted proof of serious transgressions.
Re: NM
[78] On 9 February 2021 the employee addressed the witness as “bae” and “babe”, telling her that he wanted to sleep with her. While this evidence has not been corroborated by audio recordings as the incident took place prior to the downloading of the recorder, given her demeanor whilst testifying as well as the surrounding circumstances, I find the allegations to be probably true.
[79] In one of the audios, the employee could be heard coaxing NM to wash in the specific manner that he wished when he said in Sepedi, “Ya, hlapa o e hlape a ke re”, interpreted as “Please take a bath and bath it”. It is the witness’ testimony that she understood that to mean that she should take a bath and ensure that she furthermore washes her private parts. On the other hand, it is the employee’s explanation that all he meant was that she had to ensure she should take a proper bath and be clean as she was gout out to meet members of the public. When one compares the notes, the ineluctable conclusion is that NM’s version is more probable. To start with, it was neither necessary nor proper for the employee to even comment or issue any lesson to the learner regarding how she should freshen up. It was furthermore even both unseemly and unnecessary to add that she should “bath it”. In the absence of any competing plausible explanation on his part, I find no reason to reject the learner’s view that the employee was in this regard referring to her private parts. The conduct is glaringly untoward and constitutes serious misconduct, as alleged by the employer and beyond this specific allegation.
[80] In the audio, the witness is heard telling the employee that he must do as per his undertaking and she in turn would give him ‘the thing’ that she had agreed to give him. In response, the employee is heard confirming by uttering the colloquial “sharp, sharp”, a popular South African slang for “it’s ok”. The witness promised to give what she promised as part of the conversation when the employee was busy assuring her that he would do his best to ensure that he succeeds to assist her with the progression.
[81] It is thus my considered view that NM’s narration of events regarding the employee soliciting romantic favours is probably the truth. Otherwise, how does the employee explain the fact he never asked the witness what she meant that she would give him want was agreed upon? It is thus my considered view that it was only because he knew fully what she was talking about, being romantic favours as he was assisting her with obtaining progression to grade 12 even though it was apparent that the odds (of gaining progression) were stacked against her. Both the employee and the witness were by now aware that since she did not repeat Grade 10 both at Phala as well as her previous school, she decidedly did not qualify for progression. It was indeed a classic case of quid pro quo.
[82] I furthermore agree with NM’s version that the employee asked her to book a room at the local lodge for the intended romantic escapade. The employee also concedes that there was some discussion about the booking of a room at the lodge, yet he neglects and/or omits to give any plausible explanation for discussing the need to book a room at a lodge with a learner. Furthermore, in the audio NM is heard telling him that she would book a room at a lodge in Dendron as she was concerned about the lack of privacy in Bochum as a lot of people would see them together. In response, the employee is heard commenting airily that it does not matter (A e tshwenye). When testifying, the employee was silent about this utterance. In my view, all these evidence flow like a coherent river to the conclusion that the room was intended for the employee to explore his romantic desires with her. His request for booking a room at the lodge was an oblique way of telling her that he wanted and was ready for the duo to consummate the forbidden relationship.
[83] In conclusion, in respect of NM, it is my inevitable finding and conclusion that the employer has presented sufficient evidence to underpin allegations of serious misconduct of a sexual nature.
Re: LS
[84] It is LS’s testimony that it was in the staff room when the employee summonsed her to explain her absence that he asked her if she was still a virgin. The employee denies this allegation as unfounded. However, the employee was unable to establish any motive for the learner to lie.
[85] The evidence by Sekwaila that she heard the conversation between the employee and the witness does not sound probable seeing that the employee has himself testified that he initially held the conversation with the learner alone and only thereafter called upon Sekwaila to talk to her as a woman.
[86] Furthermore, there is a glaring contradiction between what the employee and Sekwaila testified. It is the employee’s evidence that upon her arrival at his desk, he commenced holding a detailed conversation with LS on what he termed ‘a sensitive matter’ and when she also commented that some of the problems are too personal to disclose, he decided to ask her to go out of the staffroom and thereafter looked around the staffroom to get someone to talk to her as she may have needed some freedom to talk to a woman. The pertinent question is if, as she intimates, Sekwaila was seated so close to the employee, why would he have gone around to look for someone like her?
[87] It is not part of the employee’s testimony that Sekwaila was part of the conversation or was within earshot of the conversation. Furthermore, there is no iota of evidence that in the staff room the seating arrangement is such that the educators are huddled together. None of the witnesses gave any evidence of the distance between the employee and Sekwaila’s respective desks for me to determine if indeed she was within earshot.
[88] I accordingly find that the conversation between the employee and the witness was subdued and thus could not be distinctively heard beyond them. The very ‘sensitive nature’ of the conversation that the employee in his wisdom classified same, lends credence to the probability that he would naturally need the conversation with her to be as private as possible and the voices would be of a subdued decibel so as to be out of earshot of other occupants of the staff room. Sekwaila’s evidence in this regard is thus rejected as evidence specifically carved to assist a fellow educator in his troubles with the law. In particular, she is not in a position to testify on the very contentious issue of whether the employee raised the issue of virginity with LS.
[89] Given LS’s demeanor when testifying, in which she was forthright both in chief and under cross-examination, and furthermore in the absence of any motive for her to lie being established, I find no compelling reason to reject her evidence as deliberate distortion of the truth. Compared to the employee’s bare denial, I find her evidence to be probably the truth. She has given cogent evidence that she initially took it light but it was only when she was at home and ruminating about the employee’s unseemly question about her virginity that she started to feel bad about it. She accordingly told her mother who has since regrettably passed on. The fact that her late mother could not be able to corroborate her evidence does not take away the very weighty quality of her testimony in this regard.
[90] By the same token, I find her evidence regarding the incident in December 2020, when she went to ask for report, to be probably the truth. It is her unchallenged evidence that the employee asked her how desperate she was to see her report. He then flourished the report in his hand, shaking his waist back and forth with accompanying inviting words, “if you and me can do this do this, then I will give you your report”.
[91] From my observation of her demonstration whilst testifying, the employee’s movements were decidedly of a sexual nature. Using gestures, he was inviting her for a love-making session. Given that he remained steadfast that the incident is total fabrication, the employee was silent on offering his own interpretation so as to parry the witness’ view of his bodily movements. It must be noted that at that time, by his own account, the employee was well aware that indeed he would be doing her a favour as the policy says the report should be given only to parents or guardians. Indeed, giving the report to her would have been a favour to her. Given these surrounding circumstances, I find it highly probable that the witness’s version amounts to a true reflection of what transpired. As it now seems to be his wont, the employee took advantage of the learner’s vulnerability and wanted to explore same to achieve his nefarious goals, another classic case of quid pro quo.
AWARD
[87] The employee is guilty of the following charges as levelled against him:
(a) Charge 1, Count 1;
(b) Charge 1, Count 3;
(c) Charge 2, Count 1;
(d) Charge 3; and
(e) Charge 4.
[89] The charges in respect of which the employee is guilty are of a serious nature.
[90] The employee is not guilty of the remainder of the charges on account of same being a duplication of other charges or lacking sufficient evidence to underpin same.
[91] I decree that the employer is entitled to fairly dismiss the employee from his employment as an educator for committing acts of serious misconduct of a sexual nature.
Council Panelist: MATHEWS M RAMOTSHELA
Signed
BETWEEN:
DEPARTMENT OF EDUCATION - LIMPOPO EMPLOYER
and
SYLVESTER MATHEKGA ACCUSED EMPLOYEE
ARBITRATION AWARD
Case Number: ELRC200-21/22LP
Last date of arbitration: 13 October 2021
Receipt of closing arguments: 20 October 2021
Date of award: 12 November 2021
MATHEWS RAMOTSHELA
ELRC Arbitrator
Case No: ELRC200-21/22LP
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
[1] The arbitration hearing was held on several days and finalized on 13 October 2021 at the employer’s offices in Polokwane, Limpopo. T Monyai, a union official of SADTU, represented the employee. L Chipa, the employer’s assistant director, presented its case. The proceedings were digitally recorded.
ISSUE TO BE DECIDED
[2] I am enjoined to determine whether the employee is guilty of the charges trained at him and where applicable, mete out the appropriate penalty.
BACKGROUND TO THE ISSUE
[3] The employee is employed as an educator at Phala Secondary School, Westphalia (Ga-Broekman) in the district of Bochum, Limpopo.
CHARGES LEVELED AGAINST THE EMPLOYEE
[4] The employer has preferred the following charges against the employee:
“You are hereby charged with misconduct in terms of Section 18 of the Employment of Educators Act, 76 of 1998 (as amended), hereinafter referred to as “the Act” in that:
CHARGE 1
You contravened the provisions of section (18) (1) (a) of the Act in that on or around April 2019 or at any period incidental thereto, at or near Phala Secondary School, you failed to comply with or contravened the South African Council of Educators Act 31 of 2000 in that:
COUNT 1
You proposed love to NM, a grade 10 learner, and therefore, you contravened “Code of Professional Ethics”, item 3.5 by failing to avoid any form of humiliation, and refrain from any form of abuse, physical or psychological.
COUNT 2
You proposed love to NM, a grade 10 learner, and therefore, you contravened “Code of Professional Ethics”, item 3.8 by failing to refrain from any form of sexual harassment (physical or otherwise) of a learner.
COUNT 3
You proposed love to NM, a grade 10 learner, and therefore, you contravened “Code of Professional Ethics”, item 3.10 by failing to use appropriate language and behavior in your interaction with a learner.
CHARGE 2
You contravened the provisions of section (18) (1) (a) of the Act in that on or around April 2019 or at any period incidental thereto, at or near Phala Secondary School, you failed to comply with or contravened the South African Council of Educators Act 31 of 2000 in that:
COUNT 1
You asked LS, a grade 11 learner, if she is still a virgin, and therefore, you contravened “Code of Professional Ethics” item 3.8 by failing to refrain from any form of sexual harassment (physical or otherwise) of a learner.
CHARGE 3
You contravened the provisions of section (18) (1) (g) of the Act on or around July 2020 or at any period incidental thereto, at or near Phala Secondary School you solicited sex from LS, a Grade 11 learner, in exchange of making her pass examination and therefore, you misused your position in the Department of Education to promote the interest of a learner.”
CHARGE 4
You contravened the provisions of section (18) (1) (g) of the Act on or around February 2021 or at any period incidental thereto, at or near Phala Secondary School, you solicited three rounds of sex from NM, a Grade 11 learner, in exchange of making her progress to Grade 12 and therefore, misused your position in the Department of Education to promote the interests of a learner.
[5] The above-quoted charges are a verbatim extract of the very detailed acts (charges) of misconduct prepared by the employer without any moderation of the language employed (on my part). Due to the sensitivity of the matter and the very tender age of the learners that came to testify, their full names shall not be reflected in this award. Instead, appropriate acronyms shall be utilised.
SURVEY OF EVIDENCE AND ARGUMENT
EMPLOYER’S EVIDENCE
NM testified under oath as follows:
Evidence-in-chief
[6] She is a 19 years old Grade 11 learner at Phala Secondary School (hereinafter referred to as “Phala” or “the school”)). She is repeating the grade. At the begging of February 2021 she received two reports, one from the employee, the other from the school principal. The reason she went to collect her report only in February 2021 is because it was the only time she could afford to pay for a missing textbook.
[7] When the employee handed her the report in the staff room, she perused it and was shocked to learn that she had failed and on observing her somber reaction, the employee asked to take a look at the report. Having done so, the employee remarked that she may have failed but she qualified to be progressed to the next grade. It was then that he asked her to wait whilst he went to consult with the principal to show him the report. He returned to report that the principal was not present and then asked her to save her contact number on her phone so she could later on send him her grade 10 report to prove that she was repeating the grade at Phala. Thus she went home without the report as he retained same.
[8] Upon arrival at home, she was about to send the report when she noticed that the employee had saved his phone numbers on her phone as “bae”. After she had sent the report via WhatsApp messaging, he replied with “Hello babe” and this prompted her to phone him. He answered her call with “NM babe, how are you?”, also telling her that he was actually doing her a favour by getting her a progression report. He then said to her, “I want something from you”. When she asked what is it he wanted from her, his reply was “I want you to sleep with me”. He further told her that the favour he was doing her was not for everyone as they had already submitted the schedule for Grade 12, but he was going to try everything possible to add her name.
[9] He further said that he was the only one that gets the reports done at the school, promising that he could go to the principal to tell him that there was a mistake committed on her report.
[10] Subsequent to this call, she downloaded a call recorder on her phone and on the following day phoned the employee to inquire about what he had done with the report. He confirmed that he was done with it and was only waiting for the principal to sign and told her that she should tell her parents to come for its collection. Despite arranging with her aunt to collect, she returned home empty-handed as she reportedly could not find the employee at the school.
[11] It was then that she decided to call him to ask for her report. The employee told her that he took it home and she should come fetch it there. When she indicated she could not make it, he told her that he was on his way to the offices of the Department of Home Affairs (“Home Affairs”) at Dendron for applying for a new identity card. He asked her to book him a spot in the queue and thereafter go to a guesthouse to a book a room. He furthermore asked him to buy a half dozen of Hunter’s Dry for him. She played along and agreed.
[12] Pursuant to this call she related everything to her aunt who suggested they involve media people to come and expose the employee’s shenanigans. Accordingly, the television crew from Moja Love were contacted and they agreed to immediately come to the place, which they did.
[13] After calling Moja Love people, he called the employee to tell him that she had already booked him a spot in the queue as well as a room at the guesthouse as per his request. The employee replied that she did very well as he had been dying to be on top of her, adding that she turned him on.
[14] Later on that day they chatted on WhatsApp where the employee texted “I guess I’m not gonna work alone tomorrow”, adding, “I want three rounds from you”. She then called him to ask what he was saying on text and the employee repeated, “I’m sure I’m not gonna work alone tomorrow”, adding, “I want a woman on top tomorrow”. She told him it was alright and he added, “Don’t forget to wear for me a sexy outfit”.
[15] The whole plan of Moja Love people to trap the employee at the guesthouse with her failed as the employee stopped responding to calls. The crew also interviewed some of the learners about the employee’s alleged sexual assaults but most were afraid to talk but one Lebohang Sepaane came out to tell her experience with the employee.
[16] When she accompanied the Moja Love crew to the employee’s home, after being interrogated, the employee opened up and admitted that what he did was a mistake as he was not himself, adding that he was drunk. He pleaded that he experienced some depression. He ended up apologizing to her but said that Lebo was lying as she did not have any proof.
[17] When the school re-opened in 2021, she went to collect her report from the school principal, who told her that he was not part of the deal she had with the employee, informing her that he was giving her the old report, which he did. She experienced difficulties as a result the things the employee said about her in class. She went to report this challenge to the principal, who asked her to write a report thereon. The principal promised to take up the matter with the circuit manager, but he did not do so. At the school she did not get any support and was treated like a nobody.
Under cross-examination he further testified as follows:
[18] The reason the employee wanted her grade 10 report was to prove that she repeated Grade 10 at Phala. She did not do her first Grade 10 at Phala. After downloading a call recorder, she used it when she was talking to the employee over the phone.
Audio recordings
[19] As part of NM’s evidence, during the hearing some of the audio recordings of phone calls between the witness and the employee were played. The following are relevant extracts.
[20] The employee told the witness that he wanted to apply for a new identity document and the witness promised to check for him the following day. He is also heard saying in Sepedi, “Ya, hlapa o e hlape a ke re”, loosely translated as “Yes, take a bath and bath it, neh”. She understood that to mean that he was commanding her to wash her private parts.
[21] In one conversation the employee can be heard telling the witness that he had already told the principal and was the one that was going to effect the changes. He also undertook to ensure that he succeeds to overcome any challenges regarding the relevant changes to the report to ensure that the witness obtains progression to the next grade. The witness is heard telling him that he must do as he undertakes and she in turn would give him the thing that she had agreed to give him. The employee confirms this undertaking by the witness with the popular slang, “sharp sharp”.
[22] The witness is heard telling the employee that she had been given some money and she would thus book for a room at a guest house in Dendron but is concerned about of lack of privacy at Bochum as a lot of people would see her and the employee. The employee’s response was in Sepedi, “A e tshwenye”, translated as “it does not matter”.
[23] Under re-examination she further testified that the employee told her that there was a mistake on her report because she qualified for progression and he was taking the report to the principal to show him that there was a mistake thereon.
LS testified as follows:
[23] She is an eighteen old (18) Grade 11 learner at Phala Secondary School. It was just after the Covid 19 hard lockdown of the year 2020 and she had just returned back to school when on a particular day the employee summonsed her to the staff room and inquired from her why she did not attend school during the past two days. After telling the employee her financial problems at home as the reason for her absence, he asked her whether she was a virgin. She laughed and asked why this type of question and the employee’s response was that he wanted her to come to the place where he was conducting extra lessons at Marais village. After telling him that it would not be easy for her as her parents would not allow her, he released her to return to her classes.
[24] On the same day it was during a break when she bumped into the employee, who asked her to go and obtain his ration of food, which she did. When it was school out, she went home.
[25] When she was back home she shared the issue of being asked about her virginity with her mother who has since passed on. Her late mother told her that she was planning to attend at the school without telling when in fact she would do so. In February 2021 her mother went to talk to the principal about her report but she is not in the know if she also addressed the issue relating to virginity.
[26] Her mother went to the principal because during December 2020 when she went to obtain her report, the employee refused to give her the report. When she went to collect her report in December 2020, the employee asked her how desperate she was to see her report. She looked at him and he was in front of her. He started to flourish the report in his hand, shaking his waist back and forth, adding, “if you and me can do like this, then I will give you your report”. Thereafter she left.
[28] The issue of her being asked whether she was a still a virgin did not sit well with her because she is of acquaintance with the employee’s wife and other relatives. She was disappointed by the question with the result that for the rest of the day she remained unhappy especially as she hails from the same village with the employee.
Under cross-examination she further testified as follows:
[29] The employee shares the staff room with other educators, being Mr Ramaano, Mr Lemekwane, former educator Ms Sekwaila and two clerks. After the employee spoke to her, he never handed her over to Ms Sekwaila to talk to her. She never reported the issue about virginity to the principal because after he mentioned it, she took it lightly and laughed. It was only later when she was at home that she started to ruminate about it. Her aunt went to fetch the report on 14 December 2020. Her aunt was in a hurry to collect other reports from another school, so it was herself that went to collect it. She waited to be given the report, but it was not issued to her.
[30] She denies that she was not given the report because she owed R 100.00 for donation and owed a book. She settled these two outstanding issues on 14 December 2020. She eventually got her report on 15 February 2021 when her sister went to collect same. There is no point at which the employee said he wanted her to sleep with him. He never promised to make her pass.
EMPLOYEE’S EVIDENCE
Mosibudi Sylvester Mathekga testified as follows:
Re: NM
[31] With effect from 28 February 2018 he had been employed as a CS1 educator at Phala Secondary School. On 9 February 2021 he was given the responsibility to issue out reports and one of those was for NM. The reports that he was issuing were not collected in December 2020.
[32] On 9 February 2021 NM came to request her report from him. Prior to handing her the report, he asked her to firstly pay for the outstanding R 100.00 in respect of a donation as well as for a missing textbook. Pursuant to her settling the outstanding balances, he furnished her with the report, which was sealed in an envelope.
[33] After leaving the staff room, she soon returned with the report, looking shocked. She approached him to say she was confused with the results as same said “not achieved” but they looked like those of other learners that were marked “progression”. It was then that he requested her to hand over the report to him so he could check. He then realized that she had passed only four subjects and failed three. He then explained to her the minimum requirements for progression. Having checked her results, he advised that she did not qualify for progression. She insisted that she failed grade 10. Based on her insistence, he then decided to look for supporting evidence and told her that he was going to consult with Grade 10 teachers who might know about her repeating grade 10, which he did.
[34] He inquired from Mr Lemekwane and Ms Rasedile, being her grade 10 educators. His inquiries revealed that she never repeated grade 10 at Phala, but was previously at a private school. When she reported back to NM his findings that she never repeated grade 10, she offered to prove her allegations with an old report. He agreed to the suggestion but she complained that it was at home and as it is far away, she would not afford the cost of transportation to bring it to the school. It was then that she requested to send the report to him so he could print and present to the principal.
[35] NM asked if she could send her old report to him via WhatsApp. He agreed and gave her his cellphone number. He dictated the number to her and she is the one that saved same on her phone. She then left the “not achieved” report with him. He told her that it would be needed by the principal. NM thereafter left the staff room.
[36] After a while before the school was out, per WhatsApp he received a picture of a report written her name. He looked at it on the phone and went to Mr Lemekwane (Grade 10 teacher) to show him. Upon analyzing the report, they (himself and Lemekwane) found that NM did not complete Grade 10 at the previous school as some terms were missing. As the principal was not at school at that time, he (the witness) left everything at the school.
[37] It was after school when he was at home that he had a phone conversation with NM who asked if it was possible that she met the requirements for progression. He told her that he was still waiting for the principal. She was eager to know if it was possible. He told her it was impossible.
[38] On 10 February 2021 NM phoned him to make follow-ups on how far he had gone regarding the issue of progression. He told her that he was still in pursuit. On that day she made several calls as a follow-up.
[39] He denies that he ever responded to her calls with a salutation “hello babe”.
[40] During one of the calls on 10 February 2021 he asked her to check the queue at Dendron Home Affairs offices, being worried about the length of the line. She promised to check but hinted that the best she could do for him was to book for the following day.
[41] There was another call where she said that she was given some money and thus could afford to book a room at a lodge. She offered to book a room at a lodge for him and asked him what kind of alcohol he drinks. He told her that he drinks Hunter’s Dry and she offered to buy it for him so long as he could do everything for her. He could come there on Sunday and must make sure that the issue of progression was done.
[42] On 11 February 2021 he was at home when he was blindsided by a TV crew from Moja Love, who started shooting videos and interviewed him about his alleged sexual relations and assaults on learners at Phala.
[43] He denies ever soliciting three rounds of sex from NM.
Re: LS
[44] During the year 2020 he was a class teacher for LS and noticed her prolonged absenteeism. When LS pitched up for school after being absent, he summonsed her to the staff room to inquire about the reasons for her absence as some of her reasons might be sensitive. She came to the staff room and found him seated at his desk. She told him that she had family problems that included financial hardships that impacted on her attending school. As she told him that some of the problems were too personal such that she could not tell, he then told her to go outside the staffroom. He then looked around the staffroom to see if he could get someone to talk to her, hoping she would feel comfortable to talk to a woman. It was then that he approached educator Ms Sekwaila to talk to her as a woman. She went out to where LS was. He could not hear their conversation as he remained inside.
[45] Sekwaila came back without the company of LS and then reported that LS did not say much, but only mentioned the issue of money for transport. Sekwaila was suspicious that LS might be hiding something.
The collection of report – LS
[46] On 8 February 2021 Lebohang attended at school to collect her report. She paid for the outstanding R 100 donation and handed him a book that was also outstanding. In compliance with the rule that says only parents can collect report, he did not give her the report. Furthermore, because of her poor attendance record, they wanted to consult with her parents. Thus she went home without the report.
[47] She returned to the school on 9 February 2021 with her elder sister in tow, who was somehow belligerent. The sister announced that she was there to collect the report and he gave it to her.
Under cross-examination she further testified as follows:
[48] On 8 and 9 February 2021, as per school policy, the reports were supposed to be issued to either a parent or guardian. However, in exceptional cases, the principal may allow learners that do not have a parent or guardian to be given reports. The reason for giving NM her report by herself was because on the previous day her aunt came to collect but did not find him. She told her that she could not collect the report on her own but she in turn complained that she did not have parents at home. He asked her if there was any guardian and her reply was that her aunt could come but she would not have money for transport. He was sympathetic to her challenges and thus gave her the report.
[49] When asked if he took the decision to deviate from the policy of giving reports to parents/guardian only unless the principal relaxed the rule, his reply was in the affirmative.
[50] He concedes that it was not the right thing to exchange contact numbers with a learner.
[51] When asked the reason for not approaching other relevant educators to assist with the information regarding her previous reports for Grade 10, the witness replied that he consulted with both Mr Lemekwane and MS Rasedile as they were Grade 10 educators to check whether they knew if she was repeating.
[52] He does not see anything wrong with speaking over the phone with her to ask her to attend at Home Affairs offices to book a spot in the line for him.
[53] When asked to explain what he meant by his Sepedi utterance “hlapa o e hlape”, he testified that he was emphasizing for her to “bath strongly her body”. Being probed further to explain the connection between the booking of a line and the washing of a human body, the witness’s reply was that as the last part of the conversation, he was trying to create humour by saying that as she was going out to meet people, she must be clean.
[54] A question was posed to the employee as follows: “as a teacher who is regarded as a parent, why did you not ask her why she wanted to go with you at a lodge?” His reply was that “I knew very well there is no way she would do that and I suspected she is up to something so I just agreed to everything she was saying”.
[55] He concedes that talking to NM in the manner he did was improper behavior.
[56] Having explained that the reason for not giving learners report is that some of them are not honest to their parents, he was asked why he saw no problem to give NM her report directly to her. His answer was that she requested him and said she would behave herself as she is old enough to handle it. He could not refer her request to the principal as he was not at the school at that time. She also mentioned that she would not have money for another trip back to the school.
[57] He agrees that when LS’s sister came to collect the report, he never engaged her on LS’s persistent absenteeism.
Mokgadi Alice Sekwaila (Sekwaila) testified as follows:
[58] She is a former teacher at Phala but since the year 2020 she is on pension. She knows LS as a learner.
[59] During July 2020 she was in the staff room when LS and the employee were having a discussion regarding her late coming and abseentism. When they were busy talking in the staff room she was also there with them. Initially they were not agreeing but eventually found each other. Thereafter the employee requested her to talk to LS about not coming to school and she agreed.
[60] She went outside the staff room with her to have a talk. She mentioned the issue of transport. She advised her that whenever she encountered problems like those, she should tell her class teacher. When she was done with her, she asked for R 20 for transport back home. She never raised any other issue.
[61] When asked why she had to engage Lebo further when she testified that she and the employee ended up agreeing, her response was that she was doing her job.
Lekau Caleb Mamabolo testified under oath as follows:
[62] He is employed as a school principal at Phala. On 12 February 2021 he was not at the school when he received a call to say that media people had visited the school.
[63] On 15 February 2021 NM came to his office in the company of LS. They both wanted to know whether they were going to be progressed. His response was that their parents were needed. Because of the information he obtained from the media people, he referred both to the social worker at the school. After NM insisted on having her report, he gave to her the authentic report that says that she did not qualify for progression. Only NM went to see the social worker.
[64] The class teacher, Mr Mathekga, brought the report to him with the indication that in terms of the marks, the learner qualified for progression. Upon checking other requirements, he learnt that she did not qualify. On the basis that the parents did not come, she gave her the report. The report from her previous school shows that she actually did not complete.
WRITTEN CLOSING ARGUMENTS
[65] As agreed, the parties submitted detailed written closing arguments. I have pored over these submissions and same was taken into account when deliberating on my conclusions. However, for the sake of brevity, the minutiae of these written submissions shall not be repeated herein.
ANALYSIS OF EVIDENCE AND ARGUMENT
[66] It has now become trite in our law of evidence that a party that alleges bears the burden of proof. The employer is alleging various acts of misconduct against the employee and accordingly, it shoulders the requisite burden.
[67] As already shown in the preceding paragraphs above, the employee is facing what may best be described as a laundry list of offences that are of a sexual nature and thus viewed by the employer as statutory contraventions. I must be quick off the mark to state that regardless of what the specific statute that regulates offences by educators says, the nature of offences trained at the employee are by themselves of a sexual nature that would in any event, without specific reference to statute, if proven, amount to serious misconduct that would generally invite the harshest penalty.
THE CASE OF NM
[68] In an endeavour to discharge the onus it is saddled with, the employer called upon NM, the learner and alleged victim, to give evidence, which evidence was both verbal and supported by audio recordings of phone calls between her and the employee. There is no denial of the audios being authentic. I will thus be quick off the mark to rule that the phone conversations heard on audio are indeed between the witness and the employee.
[69] Regarding the phone conversations, it is her testimony that it was only after the first phone conversation on 9 February 2021 that she downloaded onto her mobile phone a call recorder that she used in subsequent phone conversations with the employee. While it is her evidence that she used the recorder when talking with her interlocutor, there is no evidence that she engaged the recorder in all subsequent conversations with him. Accordingly, having listened to the audios that were played, I will not necessarily exclude any part of her evidence merely because no corroborating recording thereof was played. Furthermore, the evidence is silent on whether audios of all recorded conversations were produced and played during the proceedings. Accordingly, by the same token, I shall be hesitant to disregard her evidence merely because no audio was played to corroborate same. I will thus evaluate and assess the evidence presented in its totality.
[70] As per testimony of both NM and LS, though their experiences with the employee are not exactly the same, the evidence presented reveals the employee’s modus operandi: albeit in vain, he carefully carved a stratagem to lure the learners into succumbing to his sexual desires by unduly holding on to their reports so as to have prolonged engagements and/or conversations with them. He was aware that under normal circumstances, in his capacity as their educator he would ordinarily have minimum interaction with the learners, especially on an individual and/or private basis. As it appears, this rare proximity to the learners beyond the normal engagements in class and other related engagements would afford him an opportunity to take undue liberties with them, as he has done. He may have not succeeded in his attempted untoward romantic pursuits, but the evidence presented on behalf of the employer detailed as above clearly shows that he took advantage of these two learners being some of the stragglers that belatedly approached their class teacher to obtain their 2020 end of year school reports as late as in February 2021 just before learners returned for the new academic year of 2021.
[71] In his own evidence, the employee has testified that the school policy is that reports are to be issued only to parents or guardians and only in exceptional and deserving cases would the principal allow some deviation. He further gave the reason for the practice being the dishonesty of some learners to their parents. Despite this policy that he advocates, he saw no problem with giving NM her report when she came to collect it on 9 February 2021, and yet denied LS the same privilege. His explanation for not treating the two learners even-handedly is not convincing at all. He tells us the reason he gave NM the report is because she told him that she was old enough to behave. We need to bear in mind that she is only 19 years old and one wonders why he would readily accept her assurance and furthermore not involve the principal in the deviation from the practice.
[72] Regarding LS’s case, he says he could not give her the report as he wanted her parents to attend at school to discuss her late coming and absenteeism, yet when her sister came to collect the report, he never discussed this issue with her. One also wonders whether the sister would qualify as a guardian.
[73] The only logical conclusion is that the employee is not telling the truth but is concocting a story to justify his untoward behavior. All the evidence points towards proof that when the employee noticed that NM was shell-shocked and disappointed by the negative results, she would be desperate to be assisted. He saw her vulnerability and attempted to use same to achieve his nefarious goals. Otherwise how does he explain that he did not engage her parents or guardians on the more serious issue of whether she qualified for progression to Grade 12. If the issuing of reports only to parents is a serious matter, given the surrounding circumstances, the issue of progression was of greater significance such that one would have expected the employee to engage the learner’s parents and/or guardian and furthermore engage the relevant personnel at the school in a more formal manner. But because the employee had his own plans, he chose the murky waters of dealing privately with the learner only. The mobile numbers that he exchanged with the learner should have been avoided but in their stead the numbers of her aunt or parents obtained and used to communicate with them. In case it was really necessary, the communications and forwarding of the report that the evidence shows took place between the learner and the witness should have been between the parents/guardian on one side, and the employee and/or the principal on the other side. The employee was conscious of the reality that if things were to be done in this proper manner, that would have nipped his goals of being involved romantically with these two hapless learners in the bud.
[74] It is the employee’s evidence that NM told her that her parents do not reside with her. However, the evidence of both the employee and NM reveals that she resides with her aunt. The aunt would decidedly qualify as a guardian. It thus beggars belief that the employee is attempting to give the impression that she is totally living by herself and bereft of parenthood and/or guardianship around her life.
[75] In his own testimony, the employee testified that after receiving NM’s old report via WhatsApp on 9 February 2021, together with fellow educator Lemekwane, they checked and learnt that she did not complete her grade 10 at the previous school, which simply means that she did meet one of the basic requirements. This discovery translates into the learner glaringly not being eligible for the coveted progression. However, even thereafter the employee continued to communicate with NM per phone and still promised her that he would endeavour to assist with the progression. This further pursuit and promises to the learner was part of the employee’s ploy to keep her hopes alive as that would give the impression that he was doing all that he could to enable her to overcome all obstacles to obtain her coveted progression to grade 12.
[76] The findings and conclusions above that the employee was engaged in undue moves to lure the learners to give in to his romantic pursuits lend significant credence to the learners’ allegations of sexual abuse and/or assault, as seen in the detailed evidence by both learners. As it can be gleaned from the detailed evidence by the two learners, the remarks that the employee hurled at them are of a risqué nature.
[77] The evidence by NM above, which I find to be probably true as per my evaluation above, reveals a catalogue of unacceptable conduct by the employee as an educator and these deplorable lapses are too detailed and unprintable to be all repeated herein. The extent and manner in which the employee in his capacity as an educator has to engage with learners is regulated by specific legislation that is carved specifically to prohibit certain acts of conduct by an educator. The following highlights of the gory details of evidence tendered on behalf of employer speak for themselves as uncontroverted proof of serious transgressions.
Re: NM
[78] On 9 February 2021 the employee addressed the witness as “bae” and “babe”, telling her that he wanted to sleep with her. While this evidence has not been corroborated by audio recordings as the incident took place prior to the downloading of the recorder, given her demeanor whilst testifying as well as the surrounding circumstances, I find the allegations to be probably true.
[79] In one of the audios, the employee could be heard coaxing NM to wash in the specific manner that he wished when he said in Sepedi, “Ya, hlapa o e hlape a ke re”, interpreted as “Please take a bath and bath it”. It is the witness’ testimony that she understood that to mean that she should take a bath and ensure that she furthermore washes her private parts. On the other hand, it is the employee’s explanation that all he meant was that she had to ensure she should take a proper bath and be clean as she was gout out to meet members of the public. When one compares the notes, the ineluctable conclusion is that NM’s version is more probable. To start with, it was neither necessary nor proper for the employee to even comment or issue any lesson to the learner regarding how she should freshen up. It was furthermore even both unseemly and unnecessary to add that she should “bath it”. In the absence of any competing plausible explanation on his part, I find no reason to reject the learner’s view that the employee was in this regard referring to her private parts. The conduct is glaringly untoward and constitutes serious misconduct, as alleged by the employer and beyond this specific allegation.
[80] In the audio, the witness is heard telling the employee that he must do as per his undertaking and she in turn would give him ‘the thing’ that she had agreed to give him. In response, the employee is heard confirming by uttering the colloquial “sharp, sharp”, a popular South African slang for “it’s ok”. The witness promised to give what she promised as part of the conversation when the employee was busy assuring her that he would do his best to ensure that he succeeds to assist her with the progression.
[81] It is thus my considered view that NM’s narration of events regarding the employee soliciting romantic favours is probably the truth. Otherwise, how does the employee explain the fact he never asked the witness what she meant that she would give him want was agreed upon? It is thus my considered view that it was only because he knew fully what she was talking about, being romantic favours as he was assisting her with obtaining progression to grade 12 even though it was apparent that the odds (of gaining progression) were stacked against her. Both the employee and the witness were by now aware that since she did not repeat Grade 10 both at Phala as well as her previous school, she decidedly did not qualify for progression. It was indeed a classic case of quid pro quo.
[82] I furthermore agree with NM’s version that the employee asked her to book a room at the local lodge for the intended romantic escapade. The employee also concedes that there was some discussion about the booking of a room at the lodge, yet he neglects and/or omits to give any plausible explanation for discussing the need to book a room at a lodge with a learner. Furthermore, in the audio NM is heard telling him that she would book a room at a lodge in Dendron as she was concerned about the lack of privacy in Bochum as a lot of people would see them together. In response, the employee is heard commenting airily that it does not matter (A e tshwenye). When testifying, the employee was silent about this utterance. In my view, all these evidence flow like a coherent river to the conclusion that the room was intended for the employee to explore his romantic desires with her. His request for booking a room at the lodge was an oblique way of telling her that he wanted and was ready for the duo to consummate the forbidden relationship.
[83] In conclusion, in respect of NM, it is my inevitable finding and conclusion that the employer has presented sufficient evidence to underpin allegations of serious misconduct of a sexual nature.
Re: LS
[84] It is LS’s testimony that it was in the staff room when the employee summonsed her to explain her absence that he asked her if she was still a virgin. The employee denies this allegation as unfounded. However, the employee was unable to establish any motive for the learner to lie.
[85] The evidence by Sekwaila that she heard the conversation between the employee and the witness does not sound probable seeing that the employee has himself testified that he initially held the conversation with the learner alone and only thereafter called upon Sekwaila to talk to her as a woman.
[86] Furthermore, there is a glaring contradiction between what the employee and Sekwaila testified. It is the employee’s evidence that upon her arrival at his desk, he commenced holding a detailed conversation with LS on what he termed ‘a sensitive matter’ and when she also commented that some of the problems are too personal to disclose, he decided to ask her to go out of the staffroom and thereafter looked around the staffroom to get someone to talk to her as she may have needed some freedom to talk to a woman. The pertinent question is if, as she intimates, Sekwaila was seated so close to the employee, why would he have gone around to look for someone like her?
[87] It is not part of the employee’s testimony that Sekwaila was part of the conversation or was within earshot of the conversation. Furthermore, there is no iota of evidence that in the staff room the seating arrangement is such that the educators are huddled together. None of the witnesses gave any evidence of the distance between the employee and Sekwaila’s respective desks for me to determine if indeed she was within earshot.
[88] I accordingly find that the conversation between the employee and the witness was subdued and thus could not be distinctively heard beyond them. The very ‘sensitive nature’ of the conversation that the employee in his wisdom classified same, lends credence to the probability that he would naturally need the conversation with her to be as private as possible and the voices would be of a subdued decibel so as to be out of earshot of other occupants of the staff room. Sekwaila’s evidence in this regard is thus rejected as evidence specifically carved to assist a fellow educator in his troubles with the law. In particular, she is not in a position to testify on the very contentious issue of whether the employee raised the issue of virginity with LS.
[89] Given LS’s demeanor when testifying, in which she was forthright both in chief and under cross-examination, and furthermore in the absence of any motive for her to lie being established, I find no compelling reason to reject her evidence as deliberate distortion of the truth. Compared to the employee’s bare denial, I find her evidence to be probably the truth. She has given cogent evidence that she initially took it light but it was only when she was at home and ruminating about the employee’s unseemly question about her virginity that she started to feel bad about it. She accordingly told her mother who has since regrettably passed on. The fact that her late mother could not be able to corroborate her evidence does not take away the very weighty quality of her testimony in this regard.
[90] By the same token, I find her evidence regarding the incident in December 2020, when she went to ask for report, to be probably the truth. It is her unchallenged evidence that the employee asked her how desperate she was to see her report. He then flourished the report in his hand, shaking his waist back and forth with accompanying inviting words, “if you and me can do this do this, then I will give you your report”.
[91] From my observation of her demonstration whilst testifying, the employee’s movements were decidedly of a sexual nature. Using gestures, he was inviting her for a love-making session. Given that he remained steadfast that the incident is total fabrication, the employee was silent on offering his own interpretation so as to parry the witness’ view of his bodily movements. It must be noted that at that time, by his own account, the employee was well aware that indeed he would be doing her a favour as the policy says the report should be given only to parents or guardians. Indeed, giving the report to her would have been a favour to her. Given these surrounding circumstances, I find it highly probable that the witness’s version amounts to a true reflection of what transpired. As it now seems to be his wont, the employee took advantage of the learner’s vulnerability and wanted to explore same to achieve his nefarious goals, another classic case of quid pro quo.
AWARD
[87] The employee is guilty of the following charges as levelled against him:
(a) Charge 1, Count 1;
(b) Charge 1, Count 3;
(c) Charge 2, Count 1;
(d) Charge 3; and
(e) Charge 4.
[89] The charges in respect of which the employee is guilty are of a serious nature.
[90] The employee is not guilty of the remainder of the charges on account of same being a duplication of other charges or lacking sufficient evidence to underpin same.
[91] I decree that the employer is entitled to fairly dismiss the employee from his employment as an educator for committing acts of serious misconduct of a sexual nature.
Council Panelist: MATHEWS M RAMOTSHELA
Signed