ELRC644-20/21 EC
Text
ELRC169-21/22FS
Award Date:
03 December 2021
SUPERINTENDENT GENERAL
FREE STATE DEPARTMENT OF EDUCATION EMPLOYER
and
MR SETSUMI APRIL NTONI EMPLOYEE
Case No: ELRC169-21/22FS
Dates: 19, 22 & 23 July & 28 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 Setsumi April Ntoni, the employee.
2. The Inquiry-By-Arbitrator (the Inquiry) took place on 19, 22 & 23 July and 28 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 Thiti Mokgwamme 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 04 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, the absence of sworn statements from the employer’s witnesses, unavailability of the employee’s witnesses, postponement applications, 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(s), 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 Post Level 1 Teacher in Sesotho and Life Orientation since April 2002. The employee was based at the employer’s Le Reng Secondary School in Ladybrandt. The alleged incident took place on 03 February 2020 and the employee was notified of the allegations on 11 May 2021.
8. The allegations levelled against the employee are as follows:
Charge 1
You have contravened section 17 (1) ( b ) of the Employment of Educators Act , Act 76 of 1998 , in that on the 03rd February 2020, you committed an act of sexual assault on a grade 10 learner where you are employed , [identity of learner] when you touched her breasts and asked her to kiss you at your home (sic)
Alternative to Charge 1
You have contravened section 18 ( 1) (q ) of the Employment of Educators Act , Act 76 of 1998 , in that on the 03rd February 2020, you conducted yourself in an improper , disgraceful or unacceptable manner when you touched a learner ,[identity of learner] on her breasts and asked her to kiss you. (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 22 July 2021.
10. For purposes of this award, the name of the learner shall be kept confidential. The learner was 15 years old and in Grade 10 at the time when the alleged incident took place. The alleged incident took place at the private residence of the employee. The employee denied having sexually assaulted the learner. The learner’s mother reported the incident the police and the school management.
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 : None
Employee : Charge sheet and medical certificate
Employer’s Case
13. “The Learner”, was sworn in and she testified as the first witness in the employer’s case. She started by explaining how the employee was her Grade 9 teacher and how the incident started at the staffroom at school. The Learner testified that the employee started making his moves on her at the school whereafter, on the same day (23 February 2020), the employee asked her to meet him in the street when she is free.
14. The Learner explained how the employee followed her down the street after school and offered her a lift. She testified that instead of dropping her off in or nearby her residential street, the employee continued to drive the vehicle and stopped at his own private residence. The Learner stated that the employee opened his gate and garage door and hold her by the hand and took her into his bedroom after closing the gate and doors behind them.
15. The Learner testified that the employee then touched her breasts and asked her to kiss him. She stated that she refused and managed to loosen herself from the grip of the employee. She stated that she left the bedroom and went back to the garage and waited there. The Learner stated that the employee then followed her to the garage and told her that he will not do anything to her and that she must wait for him whilst he went back to change his clothes.
16. The Learner stated that the employee came back to the garage wearing a t-shirt whilst she was crying and in tears. She stated that the employee took her back to school again. The Learner testified that at school, a certain Mogafula asked her why she was crying, and she did not answer. She stated that after school, she stopped by her grandparents’ residence first before going home. She stated that she went straight to her bedroom at home and did not tell anyone about the incident.
17. The Learner testified that on the following day (04 February 2020), she informed her mother about the incident whereafter she left for school. She stated that during the first interval at school, her mother arrived with the police at school. The Learner explained how the police interrogated her and her mother and the principal and another teacher about the incident. She stated that they went to the police station afterwards.
18. The Learner testified that at the police station, the employee asked her mother to withdraw the criminal case and asked for forgiveness and stated that he was prepared to do anything they want. She stated that the matter ended there, and she was never asked to appear in the criminal court.
19. In cross-examination, the Learner stood by her testimony and added that there were three of them at the door of the last staffroom next to the kitchen when the employee called her. She stated that she remembers that the school adjourned earlier on that day and also, that she had afternoon classes to attend on that day. She stated that the employee did not give her a lift later in the afternoon that day but only earlier.
20. The Learner stated that neither does she know, nor did she saw a Ms Makgele on that day at the residence of the employee. She stated that she did not see the employee fetching a remote control of the gate at his neighbours before opening the gate. After a persistent denial of the presence of a certain Ms Makgele on that day, the Learner became emotional of which I decided to end the cross-examination.
21. Mr Letlogonolo Steven Mogafula “Mr Mogafula”, a Grade 11 learner at the time, was sworn in and he testified as the second witness in the employer’s case. He stated that it was around the time when the school adjourned earlier, whilst busy studying in class, when the Learner left the school premises for about an hour. Mr Mogafula testified that upon the arrival of the Learner back at school, the Learner was crying and in tears. He stated that he asked her what is wrong, but the Learner only grabbed her backpack and left. Mr Mogafula stated that the Learner was fine and normal when the left the premises the first time around.
22. In cross-examination, Mr Mogafula stated that the Learner was his classmate. He stated that the crying of the Learner can be linked to the incident because he also saw the Learner earlier that day at the staffroom.
23. Ms Mokamohelo Modise “the mother”, the Learner’s Mother, was sworn in and he testified as the third witness in the employer’s case. She testified that she noticed on 03 February 2020 when the Learner came from school, that the Learner when straight to her bedroom and slept. The mother stated that she did not ask any questions until the following morning when she saw the Learner crying.
24. The mother testified that she asked the Learner what is wrong, and the Learner wanted to postpone the conversation. She stated that she insisted on an answer whereafter the Learner told her what happened. The mother stated that after the Learner left for school, she then decided to report the matter to the police. She stated that after their visit to the school, at the police station, the employee asked for forgiveness and promised to give them anything they want.
25. In cross-examination, the mother stood by her testimony and added that she did not notice anything untoward on the Learner when she arrived home from school on 03 February 2020. She stated that no mention of rape was made at the meeting at school except that she asked for DNA tests to be done. She stated that the Learner did not mention the presence of any bystanders at the residence of the employee during the incident.
26. In closing arguments, the employer’s representative submitted that there is no justification for what the employee did. He stated that the employee did not show any remorse and was fully aware of the consequences of his decision when he committed the act. The representative submitted that the employee has put the employer into disrepute and has breached the trust relationship despite his clean record and long service history.
27. The representative submitted that the employee stood in a relationship of parenthood and should not have abused his authority by sexually assaulting the learner. He stated that the Learner is of primary responsibility to the employer and that the law requires that she be protected. The representative submitted that the employee be found guilty, that the mandatory sanction be imposed on him and that the employee’s name be listed in the Child Protection Register.
Employee’s Case
28. Mr Setsumi April Ntoni, the employee, was sworn in and he testified as the first witness in his case. He testified that he walked into the Learner and three of her friends on 03 February 2020 at their staffroom. He stated that one of the Learner’s friends grabbed him by the hand asked for his assistance with an assignment. The employee stated that he then went to their kitchen, after which he heard the principal calling an urgent staff meeting through their telecoms.
29. The employee testified that after the meeting, the principal released them from duty at 11:30 in order to depart at 12:00 to a workshop. He stated that he then had to rush home to change his shirt with t-shirt. The employee testified that along the way home, he saw the Learner and offered her an innocent lift which the Learner did not reject or showing any signs of being doubtful. He stated that the Learner told him that she is not going home but to her grandparent’s home.
30. The employee further stated that upon their arrival at his residence, he stepped out of the vehicle and went to fetch the gate’s remote control at his neighbour who lives across him. He stated that he went to the house and unbuttoned his shirt and put on his SADTU t-shirt. The employee stated that he went back to the car and asked the Learner where to drop her off and the Learner told him that she wants to go back to school. He stated that he dropped the Learner at school and that the Learner was not crying.
31. The employee stated that he was surprised the following day to see the Learner’s mother and police at school. He stated that he was questioned by the police, taken to the police station and arrested. The employee stated that he was charged. He denied having ever asked the child to accompany him to his residence.
32. In cross-examination, the employee stated that the learners at school trust him and that he promised all four girls at the staffroom to assist them with their assignments. He stated that it was the first time when he offered the Learner a lift home. The employee stated that he would not have extended the offer if the Learner was accompanied by other learners. He stated that though he does not dispute that he asked for forgiveness, he only asked for it from the Learner and not her mother.
33. The employee stated that he cannot explain why the Learner is crying even after a year. He contended that there was a workshop which took place on that day (03 February 2020) and that his paperwork for that workshop was delayed. He stated that his residence’s front and kitchen doors are not working and that the only access to the house was through his garage’s door. The employee stated that he does not want to Learner to feel intimidated but does not see her as the type who would make wild allegations against him.
34. Mrs Masamuele Makhele “Mrs Makhele, the employee’s neighbour, was sworn in and she testified as the second witness in the employee’s case. Mrs Makhele testified that the employee normally leaves his house and gate keys at her home and that on 03 February 2020, she saw how the employee stepped out of his car and went to fetch the keys at her house. She stated that the employee was wearing a white shirt and then a red t-shirt when he took the keys back to her house. Mrs Makhele stated that the employee gave the keys to her husband. She stated that she saw when the employee went into his house and that only one door of the car opened up during the process.
35. In cross-examination, Mrs Makhele stated that she did not see who else was in the car. She stated that she only saw the employee who came to her place.
36. Mrs Agnes Mhrekazi Ntoni-Radebe, the employee’s wife was sworn in and she testified as the third witness in the employee’s case. She stated that the employee is a very honest husband and does not belief the allegations against him. The employee’s wife testified that she was also at the police station on 04 February 2020 and that her husband is a role model in the community. She stated that she does not know why the criminal case was struck from the roll.
37. In cross-examination, the employee’s wife stated that she only came to testify about what she knows. She stated that she does not know what happened on 03 February 2020 and that she did speak to the Learner’s mother at the police station.
38. Mr Tshidiso Tjabane “Mr Tjabane”, the employee’s other neighbour, was sworn in and he testified as the fourth witness in the employee’s case. He stated that he was standing outside a shop, which is adjacent to the employee’s house on the day of the alleged incident. Mr Tjabane stated how he saw the employee going to Mrs Makhele’s house to fetch keys and how the employee changed his shirt and took the keys back to Mrs Makhele. He confirmed that there was a passenger in the car who did not come out of the car and that he is certain about it.
39. In cross-examination, Mr Tjabane stood by his testimony and added that he does not know whether the employee give lifts to school children. He stated that he could not make out whether the passenger was a child or an adult.
40. In closing arguments, the employee’s representative submitted that it is clear that they have proven their innocence. He submitted that Mrs Makhele and Mr Tjabane has proven that the Learner never left the car. The representative submitted that they have provided clear and cogent reasons on why the employee must be cleared of the charges.
ANALYSIS OF EVIDENCE AND ARGUMENT
41. As stated previously, the employee pleaded not guilty to the charges levelled against him. The employer called three witnesses whose testimonies did not contradict one another. The employee called four witnesses, two of which tried to proffer that the Learner never went to the alleged ‘crime scene’ (the employee’s bedroom).
42. As it is common knowledge, crimes against the person especially crimes involving sex and sexual assaults, mostly do take place in private spaces. It is then mostly the word of the victim against that of the perpetrator. This forum is having one luxury though, which is to decide incidents placed before it on a balance of probabilities.
43. The Learner’s evidence coupled with the traumatic emotions which she displayed at the Inquiry appeared genuine and persuasive. I also found consistency in her version especially how she narrated the event of 03 February 2020 and how she narrated the incident to her mother. This made of her a credible witness.
44. The Learner’s mother also gave a testimony which corroborated the Learner’s version. The same goes for Mr Mogafula who corroborated the Learner’s version pertaining her return to the classroom. No evidence was submitted to disprove the claims made by the two witnesses. This in essence, also renders their testimonies credible and reliable.
45. The employee’s evidence on the other hand was more directed towards him entered his residence alone without the Learner, thus trying to aver that he could not have sexually assault the Learner because she (the Learner) was never in his bedroom. His wife could not confirm this, but his two neighbours tried to corroborate his version. It is the odds in the employee’s defence that will point out why I doubt the truthfulness of his neighbours’ version.
46. Now it is common cause that both of them (the employee and the Learner) left the school premises, and later down the road, proceeded to the residence of the employee in his private vehicle. Of concern is when the employee testified that he gave the Learner an innocent lift. I do not know why “an innocent lift” and what the opposite thereof could be.
47. Be that as it may, despite the fact that the Learner told him that she is going to her grandparents’ home, the employee drove past the streets in which both the Learner’s grandparents’ and parents’ homes are situated and proceeded to his private residence. Surely this can be perceived as a motive of some sort, especially for someone who happens to be late and who must still catch a transport to attend a workshop before 12:00 on that day.
48. And so, they arrived at his home. Now this is where the bone of contention lies. The employer through the Learner avers that the employee parked the vehicle in the garage and took the Learner by hand and led her into his bedroom where the incident of sexual assault took place. The employee with his two witnesses (Mrs Makhele and Mr Tjabane) submitted that the employee’s car never entered the yard and that only the employee stepped out of the vehicle and entered his house and came out wearing a red t-shirt.
49. Of importance to note is that this alleged incident took place on 03 February 2020 and the evidence at this Inquiry was presented on 22 July 2021 with no affidavits having been taken to test the recollection of the witnesses. Mr Tjabane was not initially part of the witness list and was brought to testify towards the end of the Inquiry. Mrs Makhele, who is a senior citizen, was sitting in her house when she witnessed the employee stepping out of his vehicle alone, more than one and a half year later, and who remembers the colour of the shirt and t-shirt the employee was wearing on that day.
50. With utmost respect to the employee and his witnesses, I find that hard to belief. If his version and that of his witnesses are the truth, then why apologising and asking for forgiveness from the Learner and making promises to her and her mother the following day. A removal off the roll of a criminal case does not necessarily mean that the accused person is innocent of the charges levelled against him. The employee confirmed that the only access into his house is through his garage’s door, a version which corresponds with the Learner submission that they entered the house through the garage door.
51. Even though the onus of proof rests on the employer, the employee has not given an explanation on why his former Grade 9 learner would make such a serious allegation against him if it is untrue. No ulterior motive on the part of the Learner was established during the course of this Inquiry. Uncontested evidence was given by the Learner’s classmate, Mr Mogafula that the Learner was crying upon her return to the classroom which was not the case when she left. There are also doubts as to whether the employee even attended the so-called ‘workshop’ on that day. None of the employee’s colleagues came to testify on his behalf except his neighbours ( a granny and an acquaintance).
52. 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. The fact that the employee failed to drop-off the Learner at her nearest residential street shows a motive of some sort. The presence of the Learner at his residence shows opportunity. The employee also testified on the good character of the Learner which gives more credence to the version of the Learner. I am stating this not to mention the fact that the employee is on record to say that “he would not have offered a lift to the Learner if she was with other learners”.
53. It is these odds in the employee’s defence which brings me to a finding that the Learner’s version must be accepted as truthful on a balance of probabilities.
54. 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 -
……………
(b) committing an act of sexual assault on a learner, student or other employee;
55. Having found that the act of sexual assault has taken place, it is then clear that the law prohibits such conduct which is dismissible. The employee, who stands in loco parentis towards the Learner, has breached the law and the high expectations of trust placed upon him. His wife testified on his good character and the ‘role model’ he is in the community. Unfortunately, as for this incident, the rule of law must prevail.
56. The testimonies of the employer’s witnesses bring me to a finding that the employee is guilty of Charge 1.
57. 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
58. 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. For an educator like the employee, his conduct of having touched the Learner’s breasts and asking to be kissed was not just only unwarranted and improper, but it was also disgraceful and unacceptable for a professional who is held in high regard by his community.
59. The employee abused his position of authority and trust, and learners must be protected from such people. The professional responsibilities of the employee towards the Learner did not end when both left the school premises and went to his private residence. His professional duties and responsibilities towards learners are ongoing, irrespective of the time and place. The evidence is clear that the employee breached his professional duties and misconducted himself which necessitates a guilty finding of on the alternative charge as well.
VERDICT
60. In the final analysis, the employee is hereby found guilty as charged by the employer for having had a sexually assaulted the Learner on 03 February 2020 at his private residence by touching her breasts and asking for kisses.
SANCTION
61. 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.”
62. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having sexually assaulted 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 sexually assaulted the Learner, who in this case, was a learner in 2020 as is common cause.
63. It follows that based on the provisions of the law (the ELAA) a dismissal is mandatory and the appropriate sanction which must 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.
64. Having considered the facts of the case and the provisions of the law, I am duty bound to dismiss the employee. The employee is therefore dismissed with immediate effect.
65. Further to that effect, I was also asked by the employer in closing arguments to make a finding that the former employee (hereinafter Mr Ntoni) is unfit to work with children and that his name be listed on the Child Protection Register. Mr Ntoni and his representative did not address me on this factor.
66. 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.
67. It is clear that this Inquiry is empowered by subsection 120(1)(c) to make a finding on the suitability of Mr Ntoni to work with children as requested by the employer in accordance with subsection 120(2)(a) of the CA. I have considered evidence to this effect through the closing arguments of the parties in accordance with subsection 120(3) of the CA. Based on the fact that the Learner was/is a child (15 years of age in 2020 and 16 years of age in 2021), it is clear that Mr Ntoni committed this misconduct not just only against a person, but against a child for that matter. My finding is that Mr Ntoni is no longer suitable to work with children.
68. Section 122(1) of the CA provides the following:
122 Finding to be reported to the Director-General
(1) The registrar of the relevant court, or the relevant administrative forum, or if the finding was made
on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing-
(a) of any findings in terms of section 120 that a person is unsuitable to work with children; and
(b) of any appeal or review lodged by the affected person.
(2) The Director-General must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.
69. It follows that the finding which I have made in paragraph 67 supra necessitates that it be forwarded in writing to the Director-General of the Department of Social Development. This is for purposes of entering Mr Ntoni’s name in Part B of the Register.
70. In the premise, I make the following award:
AWARD
71. Mr Setsumi April Ntoni is found guilty of the charges levelled against him by the Superintendent-General: Free State Department of Education.
72. The mandatory sanction of dismissal is imposed with immediate effect on Mr Setsumi April Ntoni.
73. Mr Setsumi April Ntoni is found unsuitable to work with children in accordance with section 120(4) of the Children’s Act 38b of 2005.
74. The General Secretary of the Education Labour Relations Council must, in terms of section 122(1) of the CA, notify the Director General of the Department of Social Development in writing of the findings of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005, that Mr Setsumi April Ntoni is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
This is done and dated on 03 December 2021 at Kimberley.
Adv. David Pietersen
ELRC COMMISSIONER
Inquiry-By-Arbitrator
FREE STATE DEPARTMENT OF EDUCATION EMPLOYER
and
MR SETSUMI APRIL NTONI EMPLOYEE
Case No: ELRC169-21/22FS
Dates: 19, 22 & 23 July & 28 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 Setsumi April Ntoni, the employee.
2. The Inquiry-By-Arbitrator (the Inquiry) took place on 19, 22 & 23 July and 28 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 Thiti Mokgwamme 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 04 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, the absence of sworn statements from the employer’s witnesses, unavailability of the employee’s witnesses, postponement applications, 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(s), 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 Post Level 1 Teacher in Sesotho and Life Orientation since April 2002. The employee was based at the employer’s Le Reng Secondary School in Ladybrandt. The alleged incident took place on 03 February 2020 and the employee was notified of the allegations on 11 May 2021.
8. The allegations levelled against the employee are as follows:
Charge 1
You have contravened section 17 (1) ( b ) of the Employment of Educators Act , Act 76 of 1998 , in that on the 03rd February 2020, you committed an act of sexual assault on a grade 10 learner where you are employed , [identity of learner] when you touched her breasts and asked her to kiss you at your home (sic)
Alternative to Charge 1
You have contravened section 18 ( 1) (q ) of the Employment of Educators Act , Act 76 of 1998 , in that on the 03rd February 2020, you conducted yourself in an improper , disgraceful or unacceptable manner when you touched a learner ,[identity of learner] on her breasts and asked her to kiss you. (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 22 July 2021.
10. For purposes of this award, the name of the learner shall be kept confidential. The learner was 15 years old and in Grade 10 at the time when the alleged incident took place. The alleged incident took place at the private residence of the employee. The employee denied having sexually assaulted the learner. The learner’s mother reported the incident the police and the school management.
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 : None
Employee : Charge sheet and medical certificate
Employer’s Case
13. “The Learner”, was sworn in and she testified as the first witness in the employer’s case. She started by explaining how the employee was her Grade 9 teacher and how the incident started at the staffroom at school. The Learner testified that the employee started making his moves on her at the school whereafter, on the same day (23 February 2020), the employee asked her to meet him in the street when she is free.
14. The Learner explained how the employee followed her down the street after school and offered her a lift. She testified that instead of dropping her off in or nearby her residential street, the employee continued to drive the vehicle and stopped at his own private residence. The Learner stated that the employee opened his gate and garage door and hold her by the hand and took her into his bedroom after closing the gate and doors behind them.
15. The Learner testified that the employee then touched her breasts and asked her to kiss him. She stated that she refused and managed to loosen herself from the grip of the employee. She stated that she left the bedroom and went back to the garage and waited there. The Learner stated that the employee then followed her to the garage and told her that he will not do anything to her and that she must wait for him whilst he went back to change his clothes.
16. The Learner stated that the employee came back to the garage wearing a t-shirt whilst she was crying and in tears. She stated that the employee took her back to school again. The Learner testified that at school, a certain Mogafula asked her why she was crying, and she did not answer. She stated that after school, she stopped by her grandparents’ residence first before going home. She stated that she went straight to her bedroom at home and did not tell anyone about the incident.
17. The Learner testified that on the following day (04 February 2020), she informed her mother about the incident whereafter she left for school. She stated that during the first interval at school, her mother arrived with the police at school. The Learner explained how the police interrogated her and her mother and the principal and another teacher about the incident. She stated that they went to the police station afterwards.
18. The Learner testified that at the police station, the employee asked her mother to withdraw the criminal case and asked for forgiveness and stated that he was prepared to do anything they want. She stated that the matter ended there, and she was never asked to appear in the criminal court.
19. In cross-examination, the Learner stood by her testimony and added that there were three of them at the door of the last staffroom next to the kitchen when the employee called her. She stated that she remembers that the school adjourned earlier on that day and also, that she had afternoon classes to attend on that day. She stated that the employee did not give her a lift later in the afternoon that day but only earlier.
20. The Learner stated that neither does she know, nor did she saw a Ms Makgele on that day at the residence of the employee. She stated that she did not see the employee fetching a remote control of the gate at his neighbours before opening the gate. After a persistent denial of the presence of a certain Ms Makgele on that day, the Learner became emotional of which I decided to end the cross-examination.
21. Mr Letlogonolo Steven Mogafula “Mr Mogafula”, a Grade 11 learner at the time, was sworn in and he testified as the second witness in the employer’s case. He stated that it was around the time when the school adjourned earlier, whilst busy studying in class, when the Learner left the school premises for about an hour. Mr Mogafula testified that upon the arrival of the Learner back at school, the Learner was crying and in tears. He stated that he asked her what is wrong, but the Learner only grabbed her backpack and left. Mr Mogafula stated that the Learner was fine and normal when the left the premises the first time around.
22. In cross-examination, Mr Mogafula stated that the Learner was his classmate. He stated that the crying of the Learner can be linked to the incident because he also saw the Learner earlier that day at the staffroom.
23. Ms Mokamohelo Modise “the mother”, the Learner’s Mother, was sworn in and he testified as the third witness in the employer’s case. She testified that she noticed on 03 February 2020 when the Learner came from school, that the Learner when straight to her bedroom and slept. The mother stated that she did not ask any questions until the following morning when she saw the Learner crying.
24. The mother testified that she asked the Learner what is wrong, and the Learner wanted to postpone the conversation. She stated that she insisted on an answer whereafter the Learner told her what happened. The mother stated that after the Learner left for school, she then decided to report the matter to the police. She stated that after their visit to the school, at the police station, the employee asked for forgiveness and promised to give them anything they want.
25. In cross-examination, the mother stood by her testimony and added that she did not notice anything untoward on the Learner when she arrived home from school on 03 February 2020. She stated that no mention of rape was made at the meeting at school except that she asked for DNA tests to be done. She stated that the Learner did not mention the presence of any bystanders at the residence of the employee during the incident.
26. In closing arguments, the employer’s representative submitted that there is no justification for what the employee did. He stated that the employee did not show any remorse and was fully aware of the consequences of his decision when he committed the act. The representative submitted that the employee has put the employer into disrepute and has breached the trust relationship despite his clean record and long service history.
27. The representative submitted that the employee stood in a relationship of parenthood and should not have abused his authority by sexually assaulting the learner. He stated that the Learner is of primary responsibility to the employer and that the law requires that she be protected. The representative submitted that the employee be found guilty, that the mandatory sanction be imposed on him and that the employee’s name be listed in the Child Protection Register.
Employee’s Case
28. Mr Setsumi April Ntoni, the employee, was sworn in and he testified as the first witness in his case. He testified that he walked into the Learner and three of her friends on 03 February 2020 at their staffroom. He stated that one of the Learner’s friends grabbed him by the hand asked for his assistance with an assignment. The employee stated that he then went to their kitchen, after which he heard the principal calling an urgent staff meeting through their telecoms.
29. The employee testified that after the meeting, the principal released them from duty at 11:30 in order to depart at 12:00 to a workshop. He stated that he then had to rush home to change his shirt with t-shirt. The employee testified that along the way home, he saw the Learner and offered her an innocent lift which the Learner did not reject or showing any signs of being doubtful. He stated that the Learner told him that she is not going home but to her grandparent’s home.
30. The employee further stated that upon their arrival at his residence, he stepped out of the vehicle and went to fetch the gate’s remote control at his neighbour who lives across him. He stated that he went to the house and unbuttoned his shirt and put on his SADTU t-shirt. The employee stated that he went back to the car and asked the Learner where to drop her off and the Learner told him that she wants to go back to school. He stated that he dropped the Learner at school and that the Learner was not crying.
31. The employee stated that he was surprised the following day to see the Learner’s mother and police at school. He stated that he was questioned by the police, taken to the police station and arrested. The employee stated that he was charged. He denied having ever asked the child to accompany him to his residence.
32. In cross-examination, the employee stated that the learners at school trust him and that he promised all four girls at the staffroom to assist them with their assignments. He stated that it was the first time when he offered the Learner a lift home. The employee stated that he would not have extended the offer if the Learner was accompanied by other learners. He stated that though he does not dispute that he asked for forgiveness, he only asked for it from the Learner and not her mother.
33. The employee stated that he cannot explain why the Learner is crying even after a year. He contended that there was a workshop which took place on that day (03 February 2020) and that his paperwork for that workshop was delayed. He stated that his residence’s front and kitchen doors are not working and that the only access to the house was through his garage’s door. The employee stated that he does not want to Learner to feel intimidated but does not see her as the type who would make wild allegations against him.
34. Mrs Masamuele Makhele “Mrs Makhele, the employee’s neighbour, was sworn in and she testified as the second witness in the employee’s case. Mrs Makhele testified that the employee normally leaves his house and gate keys at her home and that on 03 February 2020, she saw how the employee stepped out of his car and went to fetch the keys at her house. She stated that the employee was wearing a white shirt and then a red t-shirt when he took the keys back to her house. Mrs Makhele stated that the employee gave the keys to her husband. She stated that she saw when the employee went into his house and that only one door of the car opened up during the process.
35. In cross-examination, Mrs Makhele stated that she did not see who else was in the car. She stated that she only saw the employee who came to her place.
36. Mrs Agnes Mhrekazi Ntoni-Radebe, the employee’s wife was sworn in and she testified as the third witness in the employee’s case. She stated that the employee is a very honest husband and does not belief the allegations against him. The employee’s wife testified that she was also at the police station on 04 February 2020 and that her husband is a role model in the community. She stated that she does not know why the criminal case was struck from the roll.
37. In cross-examination, the employee’s wife stated that she only came to testify about what she knows. She stated that she does not know what happened on 03 February 2020 and that she did speak to the Learner’s mother at the police station.
38. Mr Tshidiso Tjabane “Mr Tjabane”, the employee’s other neighbour, was sworn in and he testified as the fourth witness in the employee’s case. He stated that he was standing outside a shop, which is adjacent to the employee’s house on the day of the alleged incident. Mr Tjabane stated how he saw the employee going to Mrs Makhele’s house to fetch keys and how the employee changed his shirt and took the keys back to Mrs Makhele. He confirmed that there was a passenger in the car who did not come out of the car and that he is certain about it.
39. In cross-examination, Mr Tjabane stood by his testimony and added that he does not know whether the employee give lifts to school children. He stated that he could not make out whether the passenger was a child or an adult.
40. In closing arguments, the employee’s representative submitted that it is clear that they have proven their innocence. He submitted that Mrs Makhele and Mr Tjabane has proven that the Learner never left the car. The representative submitted that they have provided clear and cogent reasons on why the employee must be cleared of the charges.
ANALYSIS OF EVIDENCE AND ARGUMENT
41. As stated previously, the employee pleaded not guilty to the charges levelled against him. The employer called three witnesses whose testimonies did not contradict one another. The employee called four witnesses, two of which tried to proffer that the Learner never went to the alleged ‘crime scene’ (the employee’s bedroom).
42. As it is common knowledge, crimes against the person especially crimes involving sex and sexual assaults, mostly do take place in private spaces. It is then mostly the word of the victim against that of the perpetrator. This forum is having one luxury though, which is to decide incidents placed before it on a balance of probabilities.
43. The Learner’s evidence coupled with the traumatic emotions which she displayed at the Inquiry appeared genuine and persuasive. I also found consistency in her version especially how she narrated the event of 03 February 2020 and how she narrated the incident to her mother. This made of her a credible witness.
44. The Learner’s mother also gave a testimony which corroborated the Learner’s version. The same goes for Mr Mogafula who corroborated the Learner’s version pertaining her return to the classroom. No evidence was submitted to disprove the claims made by the two witnesses. This in essence, also renders their testimonies credible and reliable.
45. The employee’s evidence on the other hand was more directed towards him entered his residence alone without the Learner, thus trying to aver that he could not have sexually assault the Learner because she (the Learner) was never in his bedroom. His wife could not confirm this, but his two neighbours tried to corroborate his version. It is the odds in the employee’s defence that will point out why I doubt the truthfulness of his neighbours’ version.
46. Now it is common cause that both of them (the employee and the Learner) left the school premises, and later down the road, proceeded to the residence of the employee in his private vehicle. Of concern is when the employee testified that he gave the Learner an innocent lift. I do not know why “an innocent lift” and what the opposite thereof could be.
47. Be that as it may, despite the fact that the Learner told him that she is going to her grandparents’ home, the employee drove past the streets in which both the Learner’s grandparents’ and parents’ homes are situated and proceeded to his private residence. Surely this can be perceived as a motive of some sort, especially for someone who happens to be late and who must still catch a transport to attend a workshop before 12:00 on that day.
48. And so, they arrived at his home. Now this is where the bone of contention lies. The employer through the Learner avers that the employee parked the vehicle in the garage and took the Learner by hand and led her into his bedroom where the incident of sexual assault took place. The employee with his two witnesses (Mrs Makhele and Mr Tjabane) submitted that the employee’s car never entered the yard and that only the employee stepped out of the vehicle and entered his house and came out wearing a red t-shirt.
49. Of importance to note is that this alleged incident took place on 03 February 2020 and the evidence at this Inquiry was presented on 22 July 2021 with no affidavits having been taken to test the recollection of the witnesses. Mr Tjabane was not initially part of the witness list and was brought to testify towards the end of the Inquiry. Mrs Makhele, who is a senior citizen, was sitting in her house when she witnessed the employee stepping out of his vehicle alone, more than one and a half year later, and who remembers the colour of the shirt and t-shirt the employee was wearing on that day.
50. With utmost respect to the employee and his witnesses, I find that hard to belief. If his version and that of his witnesses are the truth, then why apologising and asking for forgiveness from the Learner and making promises to her and her mother the following day. A removal off the roll of a criminal case does not necessarily mean that the accused person is innocent of the charges levelled against him. The employee confirmed that the only access into his house is through his garage’s door, a version which corresponds with the Learner submission that they entered the house through the garage door.
51. Even though the onus of proof rests on the employer, the employee has not given an explanation on why his former Grade 9 learner would make such a serious allegation against him if it is untrue. No ulterior motive on the part of the Learner was established during the course of this Inquiry. Uncontested evidence was given by the Learner’s classmate, Mr Mogafula that the Learner was crying upon her return to the classroom which was not the case when she left. There are also doubts as to whether the employee even attended the so-called ‘workshop’ on that day. None of the employee’s colleagues came to testify on his behalf except his neighbours ( a granny and an acquaintance).
52. 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. The fact that the employee failed to drop-off the Learner at her nearest residential street shows a motive of some sort. The presence of the Learner at his residence shows opportunity. The employee also testified on the good character of the Learner which gives more credence to the version of the Learner. I am stating this not to mention the fact that the employee is on record to say that “he would not have offered a lift to the Learner if she was with other learners”.
53. It is these odds in the employee’s defence which brings me to a finding that the Learner’s version must be accepted as truthful on a balance of probabilities.
54. 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 -
……………
(b) committing an act of sexual assault on a learner, student or other employee;
55. Having found that the act of sexual assault has taken place, it is then clear that the law prohibits such conduct which is dismissible. The employee, who stands in loco parentis towards the Learner, has breached the law and the high expectations of trust placed upon him. His wife testified on his good character and the ‘role model’ he is in the community. Unfortunately, as for this incident, the rule of law must prevail.
56. The testimonies of the employer’s witnesses bring me to a finding that the employee is guilty of Charge 1.
57. 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
58. 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. For an educator like the employee, his conduct of having touched the Learner’s breasts and asking to be kissed was not just only unwarranted and improper, but it was also disgraceful and unacceptable for a professional who is held in high regard by his community.
59. The employee abused his position of authority and trust, and learners must be protected from such people. The professional responsibilities of the employee towards the Learner did not end when both left the school premises and went to his private residence. His professional duties and responsibilities towards learners are ongoing, irrespective of the time and place. The evidence is clear that the employee breached his professional duties and misconducted himself which necessitates a guilty finding of on the alternative charge as well.
VERDICT
60. In the final analysis, the employee is hereby found guilty as charged by the employer for having had a sexually assaulted the Learner on 03 February 2020 at his private residence by touching her breasts and asking for kisses.
SANCTION
61. 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.”
62. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having sexually assaulted 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 sexually assaulted the Learner, who in this case, was a learner in 2020 as is common cause.
63. It follows that based on the provisions of the law (the ELAA) a dismissal is mandatory and the appropriate sanction which must 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.
64. Having considered the facts of the case and the provisions of the law, I am duty bound to dismiss the employee. The employee is therefore dismissed with immediate effect.
65. Further to that effect, I was also asked by the employer in closing arguments to make a finding that the former employee (hereinafter Mr Ntoni) is unfit to work with children and that his name be listed on the Child Protection Register. Mr Ntoni and his representative did not address me on this factor.
66. 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.
67. It is clear that this Inquiry is empowered by subsection 120(1)(c) to make a finding on the suitability of Mr Ntoni to work with children as requested by the employer in accordance with subsection 120(2)(a) of the CA. I have considered evidence to this effect through the closing arguments of the parties in accordance with subsection 120(3) of the CA. Based on the fact that the Learner was/is a child (15 years of age in 2020 and 16 years of age in 2021), it is clear that Mr Ntoni committed this misconduct not just only against a person, but against a child for that matter. My finding is that Mr Ntoni is no longer suitable to work with children.
68. Section 122(1) of the CA provides the following:
122 Finding to be reported to the Director-General
(1) The registrar of the relevant court, or the relevant administrative forum, or if the finding was made
on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing-
(a) of any findings in terms of section 120 that a person is unsuitable to work with children; and
(b) of any appeal or review lodged by the affected person.
(2) The Director-General must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.
69. It follows that the finding which I have made in paragraph 67 supra necessitates that it be forwarded in writing to the Director-General of the Department of Social Development. This is for purposes of entering Mr Ntoni’s name in Part B of the Register.
70. In the premise, I make the following award:
AWARD
71. Mr Setsumi April Ntoni is found guilty of the charges levelled against him by the Superintendent-General: Free State Department of Education.
72. The mandatory sanction of dismissal is imposed with immediate effect on Mr Setsumi April Ntoni.
73. Mr Setsumi April Ntoni is found unsuitable to work with children in accordance with section 120(4) of the Children’s Act 38b of 2005.
74. The General Secretary of the Education Labour Relations Council must, in terms of section 122(1) of the CA, notify the Director General of the Department of Social Development in writing of the findings of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005, that Mr Setsumi April Ntoni is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
This is done and dated on 03 December 2021 at Kimberley.
Adv. David Pietersen
ELRC COMMISSIONER
Inquiry-By-Arbitrator