ELRC644-20/21 EC
Text
ELRC276-20/21FS
Award Date:
18 November 2021
THE INQUIRY-BY-ARBITRATOR BETWEEN
SUPERINTENDENT GENERAL
FREE STATE DEPARTMENT OF EDUCATION EMPLOYER
and
MR MOSHE MOSES MOFOKENG EMPLOYEE
Case No: ELRC276-20/21FS
Dates: 19 November 2020, 03 Feb, 26 Aug, 27 Sept & 27 October 2021
Venue: DOE Provincial Office, Bloemfontein
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This is the award in the disciplinary matter (Inquiry-By-Arbitrator) between the Free State Department of Education (the employer) and Mr Moshe Moses Mofokeng, the employee.
2. The Inquiry-By-Arbitrator (the Inquiry) took place on 19 November 2020, 03 February, 26 August, 27 September and 27 October 2021 at the provincial offices of the employer in Bloemfontein. Both parties attended the Inquiry. The employer was represented by Mr BJ Lekitlane, its Labour Relations Officer. The employee was represented by Mr MD Mbhele, an Official from the trade union South African Democratic Teachers Union (SADTU).
3. The Inquiry was held under the auspices of the Education Labour Relations Council (the Council) in accordance with section 188A of the Labour Relations Act (the LRA), read together with Clause 32 of the Council’s Dispute Resolution Procedure as well as the Council’s Collective Agreement dealing with Inquiries-by-Arbitrators. The award is issued in terms of section 138(7) of the LRA.
4. The proceedings were digitally recorded. Mr Seabelo D Skhasa was the interpreter and Mrs Malefa Adelin Mphatane the intermediary. Both were appointed by the Council. The parties requested at the end of the Inquiry to submit their closing arguments in writing by 03 November 2021, where after the award shall then follow. I have also requested the parties to address me on whether the employee “is unsuitable to work with children” in their closing arguments.
PRELIMINARY ISSUES
5. Various preliminary issues were raised since the commencement of this Inquiry until its last sitting. These issues, ranged amongst others, insufficient time to prepare by the employee’s representative, postponement applications based on illnesses of both the employee and his representative, etc. I dealt with these issues and issued ex tempore rulings as the Inquiry progressed.
ISSUE TO BE DECIDED
6. I am called upon to decide whether the employee committed misconduct as per the allegations levelled against him. If I find that he did commit the alleged misconduct, I must decide on an appropriate sanction.
BACKGROUND TO THE DISPUTE
7. It is common cause that the employee is employed by the employer as a Level 1 Teacher in Tourism and Sesotho since 01 October 2010 at the employer’s Dinare Secondary School in Qwa-Qwa to date. The employee was notified of the allegations on 17 August 2020.
8. The allegations levelled against the employee are as follows:
Charge 1
You have contravened section 17 (1) ( c ) of the Employment of Educators Act , Act 76 of 1998 , in that during fourth term in 2019 at Dinare Secondary School , you committed an act of misconduct by having sexual relationship with a Grade 12 learner , [identity of learner] (sic)
Alternative to Charge 1
You have contravened section 18 ( 1) (q ) of the Employment of Educators Act , Act 76 of 1998 , in that during fourth term in 2019 at Dinare Secondary School , yourself in an improper , disgraceful or unacceptable manner when you had love affair with a learner , [identity of learner] (sic)
9. The employee pleaded not guilty to the charges. The employee was properly served with a notice to appear at the Inquiry and was provided with sufficient time to prepare for the case. His rights and obligations were also properly explained to him on 26 August 2021.
10. For purposes of this award, the name of the learner shall be kept confidential. The learner was 22 years old at the time when the alleged incidents took place. The alleged incidents took place at the private residence of the employee. He denied having had any sexual relationship with the learner. The learner and her parents apparently reported the incident in writing to the school’s principal.
SURVEY OF EVIDENCE AND ARGUMENT
11. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.
Documentary Evidence
12. The parties handed-in the following bundles of evidence:
Employer : Charge Sheet and A4 size pictures marked documents A1 to A5
Employee : Handwritten letter marked document B
Employer’s Case
13. “The Learner”, was sworn in and she testified as the first witness in the employer’s case. She confirmed that the allegations levelled against the employee are true and correct. The Learner referred to photographic pictures known as ‘selfies’ and stated that it is her and the employee appearing in the pictures. She stated that the sexual intercourses between herself and the employee took place at the employee’s private residences in Magalamang and Bukamsbush and at certain guesthouses.
14. The Learner stated that she never met the employee’s wife and that the ‘selfies’ were taken by her from her cellular phone. She stated that their two months’ relationship ended in December 2019 when she told the employee that she no longer wants him.
15. The Learner testified that on 01 January 2020, the employee went to their residence and met her uncle in the front yard. She stated that her uncle asked the employee what he wants, and the employee told the uncle that he (the employee) is looking for her because they (employee and learner) do have an affair. The Learner stated that her uncle became angry and furious and shouted at her and promised her to tell other people. She stated that her grandmother also came onto the scene and also disapproved of the relationship, where after the employee left.
16. The Learner then testified that her parents requested her the following day to report the visit of the employee to the principal in writing, which she did. She read the letter onto the record. The letter consisted of +- five sentences, which is handwritten in Sesotho and translated onto the record as follows:
1st sentence: (admission by learner) : she lied about not having had an affair with the employee
the principal did ask her before about the relationship of which she lied about it
2nd sentence: she was scared to disclose the relationship because the employee threatened to kill
her
3rd sentence: employee also got angry whenever he saw her speaking to fellow learners (boys)
4th sentence: the employee also had an informant who spied on her especially when she interacted
with other teachers
5th sentence: employee also told her that he does not want to lose his job
17. In cross-examination, the Learner stood by her testimony and added that she was suspended from school for her absence from the school’s camp on one night and for lying about the relationship to the employer’s school principal and circuit manager. She added that the employee even attempted to rape her when she ended the relationship in December 2019. The Learner testified that the employee was also intoxicated most of the time and does not know why the dates and times do not appear on the pictures.
18. Mrs Anna-Cleya Molefu Kgakgane, the Learner’s grandmother, was sworn in and she testified as the second witness in the employer’s case. She narrated the incident of 01 January 2020 at their residence. The grandmother stated how she took an afternoon nap on that day and how her son (the Learner’s uncle) woke her up and told her about the employee was looking for the Learner and how the employee claimed to have a relationship with the Learner.
19. The grandmother stated how the employee admitted to her about the relationship and how she asked the employee to leave her residence with a threat of calling some young boys to come and beat him up with sjamboks. She testified that she was very angry and decided to make a telephone call to the principal in which she asked the principal on whether learners are also being taught on how to make love at school. The grandmother stated that she and other family members told the Learner to report the matter in writing to the principal.
20. No questions were asked in cross-examination. In re-examination, the grandmother clarified that she did report the matter to the principal over the phone who in turn told her to report it to the circuit manager.
21. Mr Molingoana Saga Zacharia, the School Principal, was sworn in and he testified as the third witness in the employer’s case. He testified that it was during the October/November school camping at the school when he was informed that one of the learners (the Learner) did not sleep at the camp. The principal stated that he asked the Learner the following day where she slept, and the Learner kept on changing her version from having slept at her grandmother’s house to having slept at her boyfriend’s place (the father of her child).
22. The principal stated that this changing of versions became problematic especially when the Learner told him that she needed to leave the camp because she went to a clinic earlier that day. He stated that he called a friend of his at the clinic to verify the Learner’s version of which the friend could not confirm the Learner’s visit at the clinic on that day.
23. The principal testified that the Learner’s boyfriend approached him on 08 November 2019 and showed him pictures on his phone where the Learner and the employee made love. He stated that he advised the boyfriend to lodge a formal complaint with the employer and that he (the principal) also reported the matter to his circuit manager. The principal confirmed the phone call which he received from the grandmother and that the Learner’s uncle also wrote four letters to him regarding the relationship.
24. In cross-examination, the principal stood by his testimony and added that they wanted to suspend the Learner but retracted the decision upon the grandmother’s request.
25. In closing arguments, the employer’s representative submitted that the employee showed no remorse for the transgressions which he knew was wrong. He submitted that the employee compromised the core business of the employer which is teaching and learning and that the employee’s long service and clean disciplinary record does not mitigate his case. The representative submitted that the employer does not condone the misconduct and that I must find the employee guilty and impose a mandatory sanction of dismissal on him coupled with an order that his name be listed in the Child Protection Register.
Employee’s Case
26. Mr Moshe Moses Mofokeng, the employee, was sworn in and he testified as the first witness in his case. He testified that he knows about the rumours against him in 2019 which is without substance. He denied having had a relationship with the Learner. The employee stated that it was impossible for him to meet the Learner between October and December 2019 because of the school camps which were ongoing at the time.
27. The employee testified that a colleague of his told him about a meeting which has taken place at school between the principal, some teachers and the Learner in which, according to his colleague, the Learner was coerced by the principal to admit that she left the camp on a certain night. He stated that according to his colleague, the Learner did not want to agree with the version of the principal and that the principal threatened to expel the Learner should she refuse to agree with his version.
28. The employee confirmed that he was the Learner’s Tourism teacher and stated that the principal never called him in to discuss the issue after he (the principal) interviewed the Learner. He then stated that he did meet the principal at some stage who confronted him about the allegations. The employee stated that he denied the allegations even after principal told him about the pictures which the Learner’s boyfriend showed him.
29. The employee stated that he had a normal educator/learner relationship with the Learner and that he had a commotion with a member of the public who called him a ‘no tidy teacher’. He stated that a neighbour and the Learner had to intervene, and the Learner told the stranger that the allegations are false. He further stated that he thought that it was the end of the matter until he received a charge sheet.
30. In cross-examination, the employee stated that he does not know why the allegations were fabricated against him. He stated that he is not sure whether his colleague attended the meeting and disagreed that his colleague’s version amounts to hearsay evidence. The employee conceded that he and the Learner were making love in the pictures and that behaviour between a teacher and learner is not acceptable. He further conceded that the pictures shows that there is something going on between himself and the Learner but does not know why it was taken.
31. In re-examination, the employee disputed the authenticity of the pictures and what the Learner’s boyfriend told the principal.
32. Ms Khanya Mirriam Nghlepeng, the Acting Circuit Manager, was sworn in and she testified as the second witness in the employee’s case. The witness gave a short testimony of how she was informed about the Learner’s disappearance from the camp by the principal. She stated that she also attended the meeting where they interrogated the Learner about her disappearance. The witness stated that Learner refused to divulge the identify and phone number of her boyfriend. She stated that she left the meeting thereafter. The witness stated that she saw the pictures which the principal received from the Learner’s boyfriend.
33. Ms Pabalo Mphuti, a fellow Grade 12 Learner in 2019, was sworn in and she testified as the third witness in the employee’s case. She stated that she remembers an incident during the October – December 2019 camping where the Learner disappeared one evening and returned the following day. The witness stated that she saw the Learner upon her return the following day who told her that she went to see her boyfriend from Mpumalanga. She stated that she had a close relationship with the Learner and that the Learner never had a relationship with the employee.
34. In cross-examination, the witness conceded that the Learner might not have told her everything during their friendship.
35. In closing arguments, the employee’s representative submitted that it is clear that they have proven their innocence. He submitted that it is untrue that the employee could have threatened to kill the Learner because the Learner was relaxed when interviewed by the principal and circuit manager. The representative submitted that the Learner’s first version (denial of the relationship) must be preferred above her second version, because the second version was only given a year later after she (the Learner) matriculated.
36. The representative relied on the Law of Evidence Amendment Act and stated that the employer based its case on hearsay evidence which is not admissible. He complained about the interpretation services which were provided at the arbitration and stated that the employee must be cleared of all the charged laid against him.
ANALYSIS OF EVIDENCE AND ARGUMENT
37. As stated previously, the employee pleaded not guilty to the charges levelled against him. The employer called four witnesses whose testimonies did not contradict one another. The testimonies of the Learner and her grandmother together with the pictures and concessions of the employee made under cross-examination shows the probability of a sexual relationship which the two might have had.
38. The employee’s evidence on the other hand was more directed towards the aftermath of the relationship, such as the interrogation meeting which took place between the school management and the Learner. It deals little with the crux of the matter which is the allegation that the employee had a prohibited sexual relationship with the Learner.
39. Many allegations were made by the employer’s witnesses, and it became worrying some when the employee failed to challenge and rebut most of it. An example thereof is that he did not rebut the allegations made by the Learner and her grandmother about the visitation of 01 January 2020 in which it was said that he pronounced his relationship with the Learner to the family of the Learner. It is this relationship which forms the basis of the charges against him.
40. The Learner alleged that their sexual relationship took place at both private residences of the employee in Magalamang and Bukamsbush. This was never contested by the employee. The Learner also went further to say that the employee also took her to guesthouses where they pursued their relationship. This evidence was also not challenged or disproved by the employee. The employee only had a blanket denial of his relationship with the Learner, without trying to show the converse thereof.
41. The attempted rape allegation which the Learner also made under her cross-examination was also not rebutted by the employee and his representative. The representative of the employee only tried to rebut it during his closing arguments which was unfortunately too late. The allegation of the attempted rape upon the refusal of the Learner to continue the relationship is by itself serious, even though the employee was not formally charged with it.
42. The employer tendered as evidence pictures (selfies) which the Learner took of herself and the employee whilst being intimate and kissing. The employee has conceded under cross-examination that the pictures are clear enough to see that something was going on between himself and the Learner, even though he tried to challenge the authenticity of the pictures under re-examination. It is these pictures which swayed me to believe, on a balance of probabilities that the employee had a sexual relationship with the Learner, an act which is prohibited by law.
43. Now whether the principal was fair or unfair on how he dealt with the attempted suspension of the Learner for having been absent at the camp has little to do with the misconduct committed by the employee. In actual fact, the employee’s own witness (Ms Maphuti) also confirmed that the Learner was absent from the camp for one night, contradicting the employee who testified that it was impossible for him to meet the Learner because of the camp which she attended.
44. There is no evidence before me to show that the Learner might have had an ulterior motive for making such a serious allegation against the employee. This employee’s visit to the Learner’s residence where he admitted to the relationship is proof enough that the two had a relationship which is prohibited. The witnesses of the employer were credible and reliable witnesses and I have no evidence before me to doubt their versions. The employee and his witnesses focussed more on the misconduct of the Learner during the camp but does not disprove the allegations levelled against the employee. Ms Maphuti also conceded under cross-examination that it is possible that the Learner did not tell her everything (incl. her relationship with the employee).
45. The employee relied heavily on hearsay evidence of a colleague of his. Notwithstanding the fact that this colleague did not testify, the employee stated under cross-examination that he is not sure if this colleague actually attended the meeting where the Learner was interrogated. These uncertainties do not help the employee in his case. But in the end, like I stated before, it is not about the meeting where the acting circuit manager, principal and others tried to get to the bottom of things, but rather about the employee who contravened the law.
46. Section 17(1)(cc) of the Employment of Educators Act (the EEA) provides the following:
Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of -
……………
(c) having a sexual relationship with a learner of the school where he or she is employed;
47. The Learner has given persuasive evidence that she had a sexual relationship with the employee and that the employee even attempted to rape her after she ended the relationship. It is common cause that the learner was already above the age of consent of 18 years when she had the relationship with the employee. It was therefore not difficult for them to enter into such a sexual relationship. It is also common cause that both of them were based at the same school.
48. The testimonies of the employer’s witnesses and the pictures serve as compelling evidence that a sexual relationship existed between the employee and the Learner. With this being prohibited by the law, I am left with little choice but to find the employee guilty on Charge 1 as levelled against him.
49. Section 18(1)(q) of the EEA provides the following:
Misconduct
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits
misconduct if he or she –
(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable
manner
50. For the sake of brevity, I have decided to touch on this alternative charge because it was formally brought against the employee and he pleaded not guilty to it. The evidence proves that the sexual relationship between the employee and the Learner mainly took place at the private residences of the employee and guesthouses. It did not come out clear as to whether this happened only after hours or during working hours as well.
51. However, uncontested evidence was led by the employer and the Learner that the employee spied on the Learner during working hours and monitored her inactions with Grade 12 boys and other teachers. Now this is enough evidence to conclude that the employee has conducted himself in an improper and unacceptable manner to say the least. Even though there is no evidence to show that the sexual relationship might have also taken place during working hours, the behaviour of the employee at school is sufficient to conclude that he is guilty of the alternative charge as well.
VERDICT
52. In the final analysis, the employee is hereby found guilty as charged by the employer for having had a sexual relationship with the Learner during the fourth quarter of 2019 at and around Dinare Secondary School.
SANCTION
53. The parties have submitted closing arguments in writing to this Council, which I have duly considered. I do not deem it necessary to allow further mitigating and aggravating circumstances based on the prescripts of the law. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the EEA’s provisions dealing with incapacity, misconduct and appeals, provides the following:
Substitution of section 17 of Act 76 of 1998
10. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 17 of the
following section:
“Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of—
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner. student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or
other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e). (2) If it is alleged that an educator committed a serious misconduct I contemplated in subsection
(1), the employer must institute disciplinary proceedings in accordance with the disciplinary code
and procedures 35 provided for in Schedule 2.”
54. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having a sexual relationship with the learner in accordance with section 10 of the ELAA. A dismissal therefore automatically follows a guilty finding. If put differently, one may also say that the employee is dismissed by operation of law after being found guilty of having had a sexual relationship with the Learner, who in this case, was a learner in 2019 as is common cause.
55. It follows that based on the provisions of the law (the ELAA) a dismissal is mandatory and the appropriate sanction which can be handed down on the employee. No mitigating or aggravating circumstances can overrule this provision of the law. The employee in my view abused his authority as a teacher and the fact that he is placed in loco parentis whilst the Learner was under his care. Despite the age of the Learner, the employee had a legal duty to protect the interest of the employer and society by maintaining a professional teacher/learner relationship with the Learner. This, he failed to do. The employee’s conduct was weak and disgraceful.
56. Having considered the facts of the case and the provisions of the law, I am dutybound to dismiss the employee. The employee is therefore dismissed with immediate effect.
57. Further to that effect, I was also asked by the employer in closing arguments to make a finding that the former employee (hereinafter Mr Mofokeng) is unfit to work with children and that his name be listed on the Child Protection Register. Mr Mofokeng and his representative did not address me on this factor.
58. Be that as it may, this is what sections 120 and 121 of the Children’s Act (the CA) has to say:
120 Finding persons unsuitable to work with children
(1) A finding that a person is unsuitable to work with children may be made by-
(a) a children’s court
(b) any other court in any criminal or civil proceedings in which that person is involved; or
(c) any forum established or recognised by law in any disciplinary proceedings concerning
the conduct of that person relating to a child.
(2) A finding in terms of subsection (1) may be made by a court or a forum contemplated in
subsection (1) of its own volition or on application by-
(a) an organ of state involved in the implementation of this Act;
(b) a prosecutor, if the finding is sought in criminal proceedings; or
(c) a person having a sufficient interest in the protection of children.
(3) Evidence as to whether the person is unsuitable to work with children may be heard by the court
or forum either in the course of or at the end of its proceedings.
59. Based on the fact that the Learner was no longer a child (a person under the age of 18 years) at the time of the incidents (October – December 2019), it is my view that the provisions of the CA do not apply to the instance of the Learner. Though she was a learner in 2019 in accordance with the EEA, the Learner was already an adult at that point in time. I shall as a result not make a finding on the suitability of Mr Mofokeng to work with children.
60. In the premise, I make the following award:
AWARD
61. Mr Moshe Moses Mofokeng is found guilty on both charges levelled against him by the Free State Department of Education.
62. The mandatory sanction of dismissal is imposed with immediate effect on Mr Moshe Moses Mofokeng.
This is done and dated on 18 November 2021 at Kimberley.
Adv. David Pietersen
ELRC COMMISSIONER
Inquiry-By-Arbitrator
SUPERINTENDENT GENERAL
FREE STATE DEPARTMENT OF EDUCATION EMPLOYER
and
MR MOSHE MOSES MOFOKENG EMPLOYEE
Case No: ELRC276-20/21FS
Dates: 19 November 2020, 03 Feb, 26 Aug, 27 Sept & 27 October 2021
Venue: DOE Provincial Office, Bloemfontein
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This is the award in the disciplinary matter (Inquiry-By-Arbitrator) between the Free State Department of Education (the employer) and Mr Moshe Moses Mofokeng, the employee.
2. The Inquiry-By-Arbitrator (the Inquiry) took place on 19 November 2020, 03 February, 26 August, 27 September and 27 October 2021 at the provincial offices of the employer in Bloemfontein. Both parties attended the Inquiry. The employer was represented by Mr BJ Lekitlane, its Labour Relations Officer. The employee was represented by Mr MD Mbhele, an Official from the trade union South African Democratic Teachers Union (SADTU).
3. The Inquiry was held under the auspices of the Education Labour Relations Council (the Council) in accordance with section 188A of the Labour Relations Act (the LRA), read together with Clause 32 of the Council’s Dispute Resolution Procedure as well as the Council’s Collective Agreement dealing with Inquiries-by-Arbitrators. The award is issued in terms of section 138(7) of the LRA.
4. The proceedings were digitally recorded. Mr Seabelo D Skhasa was the interpreter and Mrs Malefa Adelin Mphatane the intermediary. Both were appointed by the Council. The parties requested at the end of the Inquiry to submit their closing arguments in writing by 03 November 2021, where after the award shall then follow. I have also requested the parties to address me on whether the employee “is unsuitable to work with children” in their closing arguments.
PRELIMINARY ISSUES
5. Various preliminary issues were raised since the commencement of this Inquiry until its last sitting. These issues, ranged amongst others, insufficient time to prepare by the employee’s representative, postponement applications based on illnesses of both the employee and his representative, etc. I dealt with these issues and issued ex tempore rulings as the Inquiry progressed.
ISSUE TO BE DECIDED
6. I am called upon to decide whether the employee committed misconduct as per the allegations levelled against him. If I find that he did commit the alleged misconduct, I must decide on an appropriate sanction.
BACKGROUND TO THE DISPUTE
7. It is common cause that the employee is employed by the employer as a Level 1 Teacher in Tourism and Sesotho since 01 October 2010 at the employer’s Dinare Secondary School in Qwa-Qwa to date. The employee was notified of the allegations on 17 August 2020.
8. The allegations levelled against the employee are as follows:
Charge 1
You have contravened section 17 (1) ( c ) of the Employment of Educators Act , Act 76 of 1998 , in that during fourth term in 2019 at Dinare Secondary School , you committed an act of misconduct by having sexual relationship with a Grade 12 learner , [identity of learner] (sic)
Alternative to Charge 1
You have contravened section 18 ( 1) (q ) of the Employment of Educators Act , Act 76 of 1998 , in that during fourth term in 2019 at Dinare Secondary School , yourself in an improper , disgraceful or unacceptable manner when you had love affair with a learner , [identity of learner] (sic)
9. The employee pleaded not guilty to the charges. The employee was properly served with a notice to appear at the Inquiry and was provided with sufficient time to prepare for the case. His rights and obligations were also properly explained to him on 26 August 2021.
10. For purposes of this award, the name of the learner shall be kept confidential. The learner was 22 years old at the time when the alleged incidents took place. The alleged incidents took place at the private residence of the employee. He denied having had any sexual relationship with the learner. The learner and her parents apparently reported the incident in writing to the school’s principal.
SURVEY OF EVIDENCE AND ARGUMENT
11. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.
Documentary Evidence
12. The parties handed-in the following bundles of evidence:
Employer : Charge Sheet and A4 size pictures marked documents A1 to A5
Employee : Handwritten letter marked document B
Employer’s Case
13. “The Learner”, was sworn in and she testified as the first witness in the employer’s case. She confirmed that the allegations levelled against the employee are true and correct. The Learner referred to photographic pictures known as ‘selfies’ and stated that it is her and the employee appearing in the pictures. She stated that the sexual intercourses between herself and the employee took place at the employee’s private residences in Magalamang and Bukamsbush and at certain guesthouses.
14. The Learner stated that she never met the employee’s wife and that the ‘selfies’ were taken by her from her cellular phone. She stated that their two months’ relationship ended in December 2019 when she told the employee that she no longer wants him.
15. The Learner testified that on 01 January 2020, the employee went to their residence and met her uncle in the front yard. She stated that her uncle asked the employee what he wants, and the employee told the uncle that he (the employee) is looking for her because they (employee and learner) do have an affair. The Learner stated that her uncle became angry and furious and shouted at her and promised her to tell other people. She stated that her grandmother also came onto the scene and also disapproved of the relationship, where after the employee left.
16. The Learner then testified that her parents requested her the following day to report the visit of the employee to the principal in writing, which she did. She read the letter onto the record. The letter consisted of +- five sentences, which is handwritten in Sesotho and translated onto the record as follows:
1st sentence: (admission by learner) : she lied about not having had an affair with the employee
the principal did ask her before about the relationship of which she lied about it
2nd sentence: she was scared to disclose the relationship because the employee threatened to kill
her
3rd sentence: employee also got angry whenever he saw her speaking to fellow learners (boys)
4th sentence: the employee also had an informant who spied on her especially when she interacted
with other teachers
5th sentence: employee also told her that he does not want to lose his job
17. In cross-examination, the Learner stood by her testimony and added that she was suspended from school for her absence from the school’s camp on one night and for lying about the relationship to the employer’s school principal and circuit manager. She added that the employee even attempted to rape her when she ended the relationship in December 2019. The Learner testified that the employee was also intoxicated most of the time and does not know why the dates and times do not appear on the pictures.
18. Mrs Anna-Cleya Molefu Kgakgane, the Learner’s grandmother, was sworn in and she testified as the second witness in the employer’s case. She narrated the incident of 01 January 2020 at their residence. The grandmother stated how she took an afternoon nap on that day and how her son (the Learner’s uncle) woke her up and told her about the employee was looking for the Learner and how the employee claimed to have a relationship with the Learner.
19. The grandmother stated how the employee admitted to her about the relationship and how she asked the employee to leave her residence with a threat of calling some young boys to come and beat him up with sjamboks. She testified that she was very angry and decided to make a telephone call to the principal in which she asked the principal on whether learners are also being taught on how to make love at school. The grandmother stated that she and other family members told the Learner to report the matter in writing to the principal.
20. No questions were asked in cross-examination. In re-examination, the grandmother clarified that she did report the matter to the principal over the phone who in turn told her to report it to the circuit manager.
21. Mr Molingoana Saga Zacharia, the School Principal, was sworn in and he testified as the third witness in the employer’s case. He testified that it was during the October/November school camping at the school when he was informed that one of the learners (the Learner) did not sleep at the camp. The principal stated that he asked the Learner the following day where she slept, and the Learner kept on changing her version from having slept at her grandmother’s house to having slept at her boyfriend’s place (the father of her child).
22. The principal stated that this changing of versions became problematic especially when the Learner told him that she needed to leave the camp because she went to a clinic earlier that day. He stated that he called a friend of his at the clinic to verify the Learner’s version of which the friend could not confirm the Learner’s visit at the clinic on that day.
23. The principal testified that the Learner’s boyfriend approached him on 08 November 2019 and showed him pictures on his phone where the Learner and the employee made love. He stated that he advised the boyfriend to lodge a formal complaint with the employer and that he (the principal) also reported the matter to his circuit manager. The principal confirmed the phone call which he received from the grandmother and that the Learner’s uncle also wrote four letters to him regarding the relationship.
24. In cross-examination, the principal stood by his testimony and added that they wanted to suspend the Learner but retracted the decision upon the grandmother’s request.
25. In closing arguments, the employer’s representative submitted that the employee showed no remorse for the transgressions which he knew was wrong. He submitted that the employee compromised the core business of the employer which is teaching and learning and that the employee’s long service and clean disciplinary record does not mitigate his case. The representative submitted that the employer does not condone the misconduct and that I must find the employee guilty and impose a mandatory sanction of dismissal on him coupled with an order that his name be listed in the Child Protection Register.
Employee’s Case
26. Mr Moshe Moses Mofokeng, the employee, was sworn in and he testified as the first witness in his case. He testified that he knows about the rumours against him in 2019 which is without substance. He denied having had a relationship with the Learner. The employee stated that it was impossible for him to meet the Learner between October and December 2019 because of the school camps which were ongoing at the time.
27. The employee testified that a colleague of his told him about a meeting which has taken place at school between the principal, some teachers and the Learner in which, according to his colleague, the Learner was coerced by the principal to admit that she left the camp on a certain night. He stated that according to his colleague, the Learner did not want to agree with the version of the principal and that the principal threatened to expel the Learner should she refuse to agree with his version.
28. The employee confirmed that he was the Learner’s Tourism teacher and stated that the principal never called him in to discuss the issue after he (the principal) interviewed the Learner. He then stated that he did meet the principal at some stage who confronted him about the allegations. The employee stated that he denied the allegations even after principal told him about the pictures which the Learner’s boyfriend showed him.
29. The employee stated that he had a normal educator/learner relationship with the Learner and that he had a commotion with a member of the public who called him a ‘no tidy teacher’. He stated that a neighbour and the Learner had to intervene, and the Learner told the stranger that the allegations are false. He further stated that he thought that it was the end of the matter until he received a charge sheet.
30. In cross-examination, the employee stated that he does not know why the allegations were fabricated against him. He stated that he is not sure whether his colleague attended the meeting and disagreed that his colleague’s version amounts to hearsay evidence. The employee conceded that he and the Learner were making love in the pictures and that behaviour between a teacher and learner is not acceptable. He further conceded that the pictures shows that there is something going on between himself and the Learner but does not know why it was taken.
31. In re-examination, the employee disputed the authenticity of the pictures and what the Learner’s boyfriend told the principal.
32. Ms Khanya Mirriam Nghlepeng, the Acting Circuit Manager, was sworn in and she testified as the second witness in the employee’s case. The witness gave a short testimony of how she was informed about the Learner’s disappearance from the camp by the principal. She stated that she also attended the meeting where they interrogated the Learner about her disappearance. The witness stated that Learner refused to divulge the identify and phone number of her boyfriend. She stated that she left the meeting thereafter. The witness stated that she saw the pictures which the principal received from the Learner’s boyfriend.
33. Ms Pabalo Mphuti, a fellow Grade 12 Learner in 2019, was sworn in and she testified as the third witness in the employee’s case. She stated that she remembers an incident during the October – December 2019 camping where the Learner disappeared one evening and returned the following day. The witness stated that she saw the Learner upon her return the following day who told her that she went to see her boyfriend from Mpumalanga. She stated that she had a close relationship with the Learner and that the Learner never had a relationship with the employee.
34. In cross-examination, the witness conceded that the Learner might not have told her everything during their friendship.
35. In closing arguments, the employee’s representative submitted that it is clear that they have proven their innocence. He submitted that it is untrue that the employee could have threatened to kill the Learner because the Learner was relaxed when interviewed by the principal and circuit manager. The representative submitted that the Learner’s first version (denial of the relationship) must be preferred above her second version, because the second version was only given a year later after she (the Learner) matriculated.
36. The representative relied on the Law of Evidence Amendment Act and stated that the employer based its case on hearsay evidence which is not admissible. He complained about the interpretation services which were provided at the arbitration and stated that the employee must be cleared of all the charged laid against him.
ANALYSIS OF EVIDENCE AND ARGUMENT
37. As stated previously, the employee pleaded not guilty to the charges levelled against him. The employer called four witnesses whose testimonies did not contradict one another. The testimonies of the Learner and her grandmother together with the pictures and concessions of the employee made under cross-examination shows the probability of a sexual relationship which the two might have had.
38. The employee’s evidence on the other hand was more directed towards the aftermath of the relationship, such as the interrogation meeting which took place between the school management and the Learner. It deals little with the crux of the matter which is the allegation that the employee had a prohibited sexual relationship with the Learner.
39. Many allegations were made by the employer’s witnesses, and it became worrying some when the employee failed to challenge and rebut most of it. An example thereof is that he did not rebut the allegations made by the Learner and her grandmother about the visitation of 01 January 2020 in which it was said that he pronounced his relationship with the Learner to the family of the Learner. It is this relationship which forms the basis of the charges against him.
40. The Learner alleged that their sexual relationship took place at both private residences of the employee in Magalamang and Bukamsbush. This was never contested by the employee. The Learner also went further to say that the employee also took her to guesthouses where they pursued their relationship. This evidence was also not challenged or disproved by the employee. The employee only had a blanket denial of his relationship with the Learner, without trying to show the converse thereof.
41. The attempted rape allegation which the Learner also made under her cross-examination was also not rebutted by the employee and his representative. The representative of the employee only tried to rebut it during his closing arguments which was unfortunately too late. The allegation of the attempted rape upon the refusal of the Learner to continue the relationship is by itself serious, even though the employee was not formally charged with it.
42. The employer tendered as evidence pictures (selfies) which the Learner took of herself and the employee whilst being intimate and kissing. The employee has conceded under cross-examination that the pictures are clear enough to see that something was going on between himself and the Learner, even though he tried to challenge the authenticity of the pictures under re-examination. It is these pictures which swayed me to believe, on a balance of probabilities that the employee had a sexual relationship with the Learner, an act which is prohibited by law.
43. Now whether the principal was fair or unfair on how he dealt with the attempted suspension of the Learner for having been absent at the camp has little to do with the misconduct committed by the employee. In actual fact, the employee’s own witness (Ms Maphuti) also confirmed that the Learner was absent from the camp for one night, contradicting the employee who testified that it was impossible for him to meet the Learner because of the camp which she attended.
44. There is no evidence before me to show that the Learner might have had an ulterior motive for making such a serious allegation against the employee. This employee’s visit to the Learner’s residence where he admitted to the relationship is proof enough that the two had a relationship which is prohibited. The witnesses of the employer were credible and reliable witnesses and I have no evidence before me to doubt their versions. The employee and his witnesses focussed more on the misconduct of the Learner during the camp but does not disprove the allegations levelled against the employee. Ms Maphuti also conceded under cross-examination that it is possible that the Learner did not tell her everything (incl. her relationship with the employee).
45. The employee relied heavily on hearsay evidence of a colleague of his. Notwithstanding the fact that this colleague did not testify, the employee stated under cross-examination that he is not sure if this colleague actually attended the meeting where the Learner was interrogated. These uncertainties do not help the employee in his case. But in the end, like I stated before, it is not about the meeting where the acting circuit manager, principal and others tried to get to the bottom of things, but rather about the employee who contravened the law.
46. Section 17(1)(cc) of the Employment of Educators Act (the EEA) provides the following:
Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of -
……………
(c) having a sexual relationship with a learner of the school where he or she is employed;
47. The Learner has given persuasive evidence that she had a sexual relationship with the employee and that the employee even attempted to rape her after she ended the relationship. It is common cause that the learner was already above the age of consent of 18 years when she had the relationship with the employee. It was therefore not difficult for them to enter into such a sexual relationship. It is also common cause that both of them were based at the same school.
48. The testimonies of the employer’s witnesses and the pictures serve as compelling evidence that a sexual relationship existed between the employee and the Learner. With this being prohibited by the law, I am left with little choice but to find the employee guilty on Charge 1 as levelled against him.
49. Section 18(1)(q) of the EEA provides the following:
Misconduct
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits
misconduct if he or she –
(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable
manner
50. For the sake of brevity, I have decided to touch on this alternative charge because it was formally brought against the employee and he pleaded not guilty to it. The evidence proves that the sexual relationship between the employee and the Learner mainly took place at the private residences of the employee and guesthouses. It did not come out clear as to whether this happened only after hours or during working hours as well.
51. However, uncontested evidence was led by the employer and the Learner that the employee spied on the Learner during working hours and monitored her inactions with Grade 12 boys and other teachers. Now this is enough evidence to conclude that the employee has conducted himself in an improper and unacceptable manner to say the least. Even though there is no evidence to show that the sexual relationship might have also taken place during working hours, the behaviour of the employee at school is sufficient to conclude that he is guilty of the alternative charge as well.
VERDICT
52. In the final analysis, the employee is hereby found guilty as charged by the employer for having had a sexual relationship with the Learner during the fourth quarter of 2019 at and around Dinare Secondary School.
SANCTION
53. The parties have submitted closing arguments in writing to this Council, which I have duly considered. I do not deem it necessary to allow further mitigating and aggravating circumstances based on the prescripts of the law. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the EEA’s provisions dealing with incapacity, misconduct and appeals, provides the following:
Substitution of section 17 of Act 76 of 1998
10. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 17 of the
following section:
“Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of—
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner. student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or
other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e). (2) If it is alleged that an educator committed a serious misconduct I contemplated in subsection
(1), the employer must institute disciplinary proceedings in accordance with the disciplinary code
and procedures 35 provided for in Schedule 2.”
54. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having a sexual relationship with the learner in accordance with section 10 of the ELAA. A dismissal therefore automatically follows a guilty finding. If put differently, one may also say that the employee is dismissed by operation of law after being found guilty of having had a sexual relationship with the Learner, who in this case, was a learner in 2019 as is common cause.
55. It follows that based on the provisions of the law (the ELAA) a dismissal is mandatory and the appropriate sanction which can be handed down on the employee. No mitigating or aggravating circumstances can overrule this provision of the law. The employee in my view abused his authority as a teacher and the fact that he is placed in loco parentis whilst the Learner was under his care. Despite the age of the Learner, the employee had a legal duty to protect the interest of the employer and society by maintaining a professional teacher/learner relationship with the Learner. This, he failed to do. The employee’s conduct was weak and disgraceful.
56. Having considered the facts of the case and the provisions of the law, I am dutybound to dismiss the employee. The employee is therefore dismissed with immediate effect.
57. Further to that effect, I was also asked by the employer in closing arguments to make a finding that the former employee (hereinafter Mr Mofokeng) is unfit to work with children and that his name be listed on the Child Protection Register. Mr Mofokeng and his representative did not address me on this factor.
58. Be that as it may, this is what sections 120 and 121 of the Children’s Act (the CA) has to say:
120 Finding persons unsuitable to work with children
(1) A finding that a person is unsuitable to work with children may be made by-
(a) a children’s court
(b) any other court in any criminal or civil proceedings in which that person is involved; or
(c) any forum established or recognised by law in any disciplinary proceedings concerning
the conduct of that person relating to a child.
(2) A finding in terms of subsection (1) may be made by a court or a forum contemplated in
subsection (1) of its own volition or on application by-
(a) an organ of state involved in the implementation of this Act;
(b) a prosecutor, if the finding is sought in criminal proceedings; or
(c) a person having a sufficient interest in the protection of children.
(3) Evidence as to whether the person is unsuitable to work with children may be heard by the court
or forum either in the course of or at the end of its proceedings.
59. Based on the fact that the Learner was no longer a child (a person under the age of 18 years) at the time of the incidents (October – December 2019), it is my view that the provisions of the CA do not apply to the instance of the Learner. Though she was a learner in 2019 in accordance with the EEA, the Learner was already an adult at that point in time. I shall as a result not make a finding on the suitability of Mr Mofokeng to work with children.
60. In the premise, I make the following award:
AWARD
61. Mr Moshe Moses Mofokeng is found guilty on both charges levelled against him by the Free State Department of Education.
62. The mandatory sanction of dismissal is imposed with immediate effect on Mr Moshe Moses Mofokeng.
This is done and dated on 18 November 2021 at Kimberley.
Adv. David Pietersen
ELRC COMMISSIONER
Inquiry-By-Arbitrator