ELRC 124-21-22 KZN

Case No ELRC 124-21-22 KZN
In the matter between
DEPARTMENT OF EDUCATION-KZN Applicant
and
SADTU O B O KWANDA FRANK KHANYILE Respondent

ARBITRATOR : AS Dorasamy
HEARD : 22 OCTOBER 2021
DATE OF AWARD : 03 DECEMBER 2021
SUMMARY : INQUIRY BY ARBITRATOR
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1 This matter was set down for arbitration on various dates and on the 22 October 2021 and the evidence was completed at the Pongola Academy Combined School in Pongola and under the auspices of the Education Labour Relations Council (ELRC). Mr S Acheampong of SADTU represented Mr Kwanda Frank Khanyile (respondent/ employee) hereinafter referred to as the educator, Ms Jabu Dumisa represented the Department of Education KZN (applicant/ employer) hereinafter referred to as the employer. The parties were to submit written closing arguments by the 29 October 2021 but because of other commitments load shedding the employer made its submissions on the 2 November 2021. The party’s submissions and the applicable provisions of the Collective Agreement No. 3 of 2018 (Inquiry by Arbitrator) were considered when I arrived at my decision.


THE ISSUE IN DISPUTE
2 I am required to determine whether the educator is guilty as charged and dependent thereon the appropriate relief may be determined.
THE BACKGROUND TO THE DISPUTE
3.1 This is a disciplinary process in the form of an arbitration, as outlined in ELRC Collective Agreement No.3 of 2018. The inquiry is conducted in terms of the ELRC’s dispute resolution processes. The outcome of this inquiry is final and binding and has the same status as an arbitration award, meaning there is no appeal and can only be reviewed by the Labour Court.
3.2. All documents referred to had been made available to the parties at arbitration. The markings of the documents was standardised with the parties at the arbitration.
3.3. The educator was charged as follows:
Be advised that you Mr K F Khanyile, duly appointed by the Head of Department of the KwaZulu- Natal Department of Education [“the Department] in terms of the Employment of Educator’s Act, 1998 (Act No 76 of 1998) (as amended) as an educator at Langa Secondary School are hereby charged with misconduct as follows:
CHARGE
It is alleged that on or about September 2018; at or near Langa Secondary School you allegedly engaged in a sexual relationship with an ex-learner of your school by the name of Ms B. In so doing you contravened Section 17(1) (c) of the Employment of Educators Act 76 of 1998 as amended.
3.4. The learner at the time was in grade 11 and 18 years old and at the date of the arbitration was a major and was granted the request that the educator be screened of so that he was not visible to her.
3.5. There was an intermediary present at the hearing.

APPLICANT’S (EMPLOYER) OPENING STATEMENT
4. Mr Khanyile is an educator at Langa Secondary School and was charged with misconduct of having sexual relationship with a learner at the school Ms B.
5. If Mr Khanyile is found guilty the relief sought is his dismissal and the outcome reported to SACE and his name entered into the register for sexual offenders as the offence happened when the learner was still a minor.

RESPONDENT’S (EMPLOYEE’S) OPENING STATEMENT
6. The employee will use one witness and prove the allegations are false and seeks the matter to be dismissed.

SUMMARY OF EVIDENCE AND ARGUMENT
EVIDENCE ON BEHALF OF THE APPLICANT (EMPLOYER)
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.

Ms B
Ms B testified to the following effect:
7. At the time of the allegation she was 18 years old. In 2018 she was studying at Langa High School in grade 11. She knows Mr Khanyile the accused educator.
8. She did not have a sexual relationship with the accused educator. (My emphasis).
9. On page 12 dated 26 September 2018 she wrote the letter that she had a relationship with the educator but she did not have any relationship. She had pressure at school and at home. At school the social worker asked her to write it. The social worker came because her mother complained about it. She was not forced to say what is contained in the letter. She voluntarily wrote the letter.
10. She was taken out while she was writing a test.
11. She was being forced by her family and her mother opened a case without her permission. Her mother lied about the incident because she found his number on her phone. She had many contacts on her phone and does not know what her mother found. She did not have any message from the educator.
AT THIS POINT THE EMPLOYER REPRESENTATIVE DECLARED THE WITNESS A HOSTILE WITNESS.

Under cross-examination she stated that
12. She knew Mr Khanyile for three years and he did not propose love to her. He taught her Geography in grade 10. She completed grade 12.
13. He did not make any sexual advances towards her. The incident was talked about by everyone and
on social media. She had nothing to do with it. She spoke to Mr Khanyile about what the public was
saying about them at school. He said he saw it and it can lead to him losing his job. She did not
speak to her mother about the alleged relationship and do not know where she got the information.
14. The children and teachers were talking about it. Her mother did not give her pocket money and said
she was no longer her child. At the time she was dependent on her grandmother.
15. In the letter she did not say that she had a sexual relationship with Mr Khanyile. She spoke to Mr
Biyela who asked her to write a letter.
16. She wanted to withdraw the letter and wrote a letter (email) to her father. She wrote the letter because she was misled by the teachers and friends.
17. She denied going to Mr Khanyile’s apartment or having a sexual relationship with him. She has a child from another man.

Miss DUDUZILE (Ms B’s MOTHER)
She testified as follows:
18. She lives in Pongola and Johannesburg. In 2018 she was in Johannesburg and Ms B is her daughter.
19. She became aware of the alleged relationship because Ms B was bunking classes and decided to check her phone.
20. When she is not at home Ms B stays with her mother. She sat and asked her about what was going on and she did not give her any valid reason so be began digging as to what was going on.
21. Ms B had a phone and her (mother) boyfriend had access to the phone and he checked the phone. It was on contract by her boyfriend. When she open the gallery she saw the educator and at that point the educator was in hospital and he sent a picture of his transfer to Empangeni hospital. She went to the school.
22. The messages related to another girl at the Tiger Lodge.
23. She went to the school and talked to the principal and told a SGB member.
24. She saw a picture of her daughter in his room and his private parts.
25. The educator contacted her and his mum and brother met her and her boyfriend was present. He and his brother said they wanted to pay lobola for her child. In her culture a person cannot pay lobola if he is not having a sexual relationship.
26. She was not there when Ms B wrote the letter and do not know about the letter.
27. Prior to this she knew Mr Khanyile as an educator and did not have an altercation with him.
Under cross examination she stated as follows:
28. Her allegations are based on phone conversations and pictures. She did not go to the teacher’s room and did not see the educator and daughter having sex.
The phone in question could not open. She met the father of her daughter’s child.
29. She did not know about Ms B letter to her father and the letter from the father

ZIMPENDLULA GUMEDE
The salient aspects of her evidence is recorded below:
30. She is a school counsellor at Pongola CMC. She went to Langa High School in respect of Ms B.
31. She received a call from the principal about a case. They called Ms B and asked her to write everything down and gave her counselling. She did not read the document.

Under cross examination she stated as follows:
32. Children always change things and only the learner knows the truth. She referred the case to the District.

EVIDENCE ON BEHALF OF THE RESPONDENT/ EDUCATOR

FRANK KWANDA KHANYILE
The salient aspects of his evidence are recorded below.
33. He is at Langa High School since 2016 to date. He knows the learner since she was in grade 10 and he was teaching her Geography. It was a relationship between learner and teacher.
34. He denies having sexual intercourse/ relationship with Ms B and did not propose love to her.
35. He did not see Ms B mother at the Engen garage and does not have a brother. He did not arrange to pay lobola because he was in a relationship with someone else, who is the mother of his child. The lobola is still not paid.
36. He never took a picture of an erect penis and sent it to Ms B. He heard about the allegations when M went to him.
37. He did not know Ms B mother’s number.

Under cross examination he stated as follows:
38. His mother did not call Ms B’s mother. He is the only son.

CLOSING ARGUMENTS
39. The parties submitted written closing arguments that were considered in arriving at my decision. The parties must be complimented for submitting comprehensive arguments.

ANALYSIS OF EVIDENCE AND ARGUMENT

SURVEY OF EVIDENCE AND ARGUMENT
40. The applicant/employer sought the educator’s dismissal and the outcome reported to SACE and his name entered into the register for sexual offenders as the offence happened when the learner was still a minor.
41. The respondent/educator sought the charge to be dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENT
42. This matter was cited as an inquiry by an arbitrator in terms of Collective Agreement No. 3 of 2018.
40 The term sexual misconduct refers to a romantic or sexual relationship between a teacher and a
learner. This also includes inappropriate misconduct such as sending text message to learners;
communication on social platforms such as WhatsApp that is of a sexual nature; taking and sending
nude photographs and/or videos; propositioning a learner and inappropriate touching.
41. In terms of Section 17 of the Employment of Educators Act 76 of 1998 dismissal is mandatory if a
teacher is found guilty of sexual misconduct.
42. The arbitrator has a duty to determine if the teacher is fit to work with children. Once declared
unsuitable the ELRC has a duty to submit a report to the Director-General of Social Development to
be added to the National Register For sex Offenders (NRSO).
43. Arising from the above it is important for arbitrator’s to apply their minds carefully because of the
consequences of a guilty finding.
44. In respect of the current matter, the enquiry is required to ascertain whether the educator is guilty as
charged based on the evidence tendered at the arbitration.
45. I record that I have taken note of oral and documentary evidence and record the following for completeness and in determining this matter:
Section 138 General provisions for arbitration proceedings
(1) The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.
(7) Within 14 days of the conclusion of the arbitration proceedings-
(a) the commissioner must issue an arbitration award with brief reasons, signed by the
commissioner.
(10) The commissioner may make an order for the payment of costs according the
requirements of law and fairness..............
46. In this matter the learner in question Ms B had denied any sexual relationship with the
educator. She was clear in her testimony that there was no sexual intercourse between her and the
educator.
47. The employer’s case depended on the submission by Ms B that there was sexual impropriety
between herself and the educator.
48. In this matter it is clear from the submissions submitted by the parties that the following may be
reasonably gleaned.
49. The educator and Ms B had discussed the rumors circulating at the school and they regarded
it as false.
50. The employer had declared its crucial witness Ms B a hostile witness because she could not
corroborate its version. The employer’s case was dependent on Ms B confirming that there
was a sexual relationship between her and the educator. She denied this contention. She was clear
that she was pressurized by the school and her mother to concoct a version of sexual impropriety.
51. The testimony of the mother and social worker did not take the matter in the employer’s desired
direction. The mother was hardly at home to monitor the actions of the daughter and there were
differing positions held by the mother and father of Ms B.
52. The social worker stated that she did not read the letter written by the learner but forwarded it to the
District. In this regard Mr M M Biyela who investigated the matter and who had since retired did not
testify on the outcome of the investigation.
53. The mother’s evidence must be treated with caution. She related a meeting at the Engen Garage
but did not corroborate her version with other witnesses as the educator denied having a brother or
that he attended such a meeting. Further he was still paying lobola for the mother of his child.
54. The cellphone was not produced in evidence to corroborate the version of the mother or clear her
submissions.
55. In a matter of this nature if the evidence points to the definition of sexual misconduct then the inquiry ends there and then and the educator should be found guilty and it is mandatory that he be dismissed and the other requirement be followed up.
56. I have taken into account the demeanor of Ms B and believe that she was a credible witness and provided honest testimony and her evidence should not be doubted.
57. I have concerns on the testimony of the mother and school counsellor and the fact that the evidence of the witnesses of the employer did not support its case.
58. The employer/applicant failed to discharge the onus that there was sufficient to find the educator guilty. The educator had submitted sufficient evidence that the allegations against him was not properly founded and as such should be found not guilty and exonerated.
59. As a consequence of the above the employer must within FOURTEEN (14) days of receipt of this
award contact the applicant and make the necessary arrangements for the applicant’s return to work.

COSTS
60. I have considered the issue of wasted costs and do not believe that any party acted unreasonably
and direct in terms of law and fairness that neither party should be burdened with a cost order
against it and should pay its own costs.
AWARD
61. I find that the respondent/educator not guilty of the charge he faced in this inquiry.
62. The employer must within FOURTEEN (14) days of receipt of this award contact the
respondent/educator and make the necessary arrangements for the applicant’s return to work.
63. Each party should pay its own costs.

DONE AND SIGNED IN DURBAN ON THIS 03 DAY OF DECEMBER 2021.

Arbitrator: Anand Dorasamy