ELRC644-20/21 EC
Text
ELRC256-20/21KZN
Award Date:
22 March 2022
Case No ELRC256-20/21KZN
In the matter between
Department of Education KZN Employer
And
Siyabonga Mzimela Employee
ARBITRATOR: R. Shanker
DELIVERED: 22 March 2022
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995, as amended, and was set down for an Inquiry by Arbitrator process. The process was finalised on 01 March 2022. The parties thereafter submitted written closing arguments which I considered in making this award.
2. The employee, Siyabonga Mzimela (“Mzimela”) was represented by G.B. Buthelezi, an attorney. The employer, Department of Education KZN, was represented by T. Mchunu.
3. The matter relates to allegations of sexual harassment of learners who are minors. In accordance with the protection of the rights of minors, the identity of the learners will not be disclosed. I will refer to the minors as Learners A, B, C, etc in this award. Evidence of the minors was led via an intermediary and an interpreter.
ISSUES TO BE DECIDED
4. The issue to be determined is whether the employee committed the misconduct as per the charges set out in Bundle A, Pages 3 and 4, and, if so, to recommend an appropriate disciplinary sanction. Not all the charges as per the original charge sheet was pursued by the employer.
5. In summary, the allegations against the Mzimela is that he contravened section 17 of the Employment of Educators Act 76 of 1998 (as amended) in that he committed several acts of sexual assault against learners in October 2019 at Hluma Secondary School, as summarised below:
Learner A: Uttered words with sexual overtone. (Charge - 3)
Learner B: Uttered words with sexual overtone. (Charge - 4)
Learner C: Touched her breasts and buttocks. (Charge - 5)
Learner D: Touched her breasts and buttocks. (Charge - 6)
Learner E: Touched her breasts and uttered words with sexual overtone. (Charge - 7)
Learner F: Uttered words with sexual overtone. (Charge - 8)
Learner G: Touched her buttocks and uttered words with sexual overtone. (Charge - 1)
Learner H: Touched her breasts and uttered words with sexual overtone. (Charge - 2)
Learner I: Touched her breasts and uttered words with sexual overtone. (Charge - 9)
Learner J: Touched her hand and forced it towards his private parts and uttered words with sexual overtone. (Charge - 10)
BACKGROUND TO DISPUTE
6. Mzimela is an educator at the school and was the learners’ Physics teacher. As a result of the serious nature of the allegations, he is currently on suspension (with full pay since 05 November 2019).
7. The employer produced a set of documents marked Bundle A. The employer did not pursue all the charges due to several reasons relating to the non-availability of learners to testify. The following four (4) learners testified at this hearing:
7.1. Learner B in respect of Charge 4
7.2. Learner C in respect of Charge 5
7.3. Learner F in respect of Charge 8
7.4. Learner G in respect of charge 1.
8. In addition, the employer called the school principal, G.N Ngubuli, and the investigator, P. Mlambo, to testify.
9. Mzimela testified. he agreed that he received the charges timeously, that the charges were clear to him and that he understood the charges. He denied that he committed any of the misconduct referred to in the charges.
SURVEY OF EVIDENCE AND ARGUMENT
10. The evidence and arguments hereunder are not verbatim accounts of the proceedings but a summary of the evidence presented at this hearing. All evidence and arguments were considered prior to drafting this award.
11. The respondent’s version at this arbitration hearing is that Mzimela had committed sexual misconduct by inappropriately touching the bodies of minor learners and uttering words with sexual overtone.
12. In general, the learners testified that there were no altercations between them and Mzimela and that they had no reason to lie.
13. It is not in dispute that the incidents were first reported to Mkhize who brought it to the attention of Ndlovu, the TLS (Teacher Learner Support). Ndlovu addressed it with the principal who asked the learners to write statements about what they had experienced. An investigator, Mlambo, was later appointed and she got the learners to write new statements.
14. Learner B testified in support of Charge 4 where it is alleged that Mzimela uttered words with sexual overtone to her.
15. An incident occurred when she was in class after school with her class friend, Learner A. Mzimela asked her to be her boyfriend. He asked her to think about that. She responded by saying “how teacher”. She understood his words to mean that he wanted to have a relationship with her.
16. Another incident occurred on a Saturday during a physics class break. She went onto the balcony. Mzimela was there. He told her that she was beautiful and that he wants to take her out for dinner and when they come back, they will do things done by older/adult people. She didn’t respond to Mzimela’s comments. She interpreted this to mean that Mzimela wanted to sleep with her because of the way he looked at her. The way he looked at her made her feel uncomfortable. He was blinking an eye.
17. Under cross-examination, she agreed that Mzimela did not say he wanted to sleep with her and it was only her interpretation of what he had said. She didn’t mention anything in her statement about the way Mzimela had looked at her because no one asked her about that.
18. Learner F testified in respect of Charge 8 where it is alleged that Mzimela uttered words with sexual overtone to her. Although it is not in the charges, she testified that Mzimela had also touched her breasts.
19. Mzimela gave her a new exercise book. On a different day, Mzimela asked her why she didn’t thank him. She told him she forgot. Mzimela responded by saying there was no need to thank him because she is an adult and knows of thanking as adults in the bedroom.
20. Although it was not in her statement, she also testified that Mzimela touched her breasts. He was standing behind her when he put his hands around her sides and touched her breasts. Only the two of them were present when the incident took place. She looked at him with a “bad eye” and ran away.
21. The words uttered by Mzimela shocked her and she felt uncomfortable. The words were directed to her as there were only the two of them present at the time. She also felt uncomfortable when Mzimela touched her breasts. She was not expecting a teacher to do something like that.
22. She maintained that the incident took place at the laboratory and not in the library as indicated in her statement. She had made a mistake in her statement but was told not to strike it out when she wanted to correct it.
23. Under cross-examination, she maintained that the words “thanking in the bedroom” meant sex. Despite her statement stating “repeatedly”, she indicated that Mzimela had only once touched her breast. She could not say why the allegation of Mzimela touching her breast was not in the charge sheet.
24. Learner C testified in respect of Charge 5 where it is alleged that Mzimela touched her breasts and buttocks.
25. An incident occurred in the Physics classroom. Mzimela was monitoring and walking around when he touched her breasts. He put his hand on her left shoulder and touched her left breast. He squeezed it once. Other learners were present. She was shocked and surprised. She was not expecting it because he was her class teacher.
26. Another incident occurred when she returned to school after a car accident where she had injured her back. Mzimela told her that he had an operation to his back but was able to run in the bed. He told her this because her back was also injured. She understood this to mean that he was still able to do sex even though he had an operation to his back. The other learners would not have heard it as her desk was different and at a distance from the other learners. She became silent when those words were uttered. She did not say anything and did not feel anything.
27. Under cross-examination, she maintained that she wrote everything down in her statement. When questioned as to whether she was surprised to see that the charge also related to Mzimela touching her buttocks, she indicated that she was not surprised as Mzimela used to touch learners on their buttocks. Mzimela even touched her on her buttocks.
28. Learner G testified in respect of Charge 1 where it is alleged that Mzimela touched her buttocks and uttered words with sexual overtone to her. Although it is not in the charges, she testified that Mzimela had touched her breasts and thighs but not her buttocks.
29. An incident occurred after Physics class. The other learners had left and only three of them remained behind, including Learner A. She saw Mzimela “climbing” on Learner A and laughed. Mzimela saw her laughing and started “climbing” on her. By use of the word “climbing” she demonstrated that Mzimela had approached her from behind putting his hands over her shoulder and around her neck whilst rubbing his beard against her face.
30. Although not in her statement, she testified about another incident that occurred when she was on the stairways with two other learners. Mzimela came to her and touched her breasts. He squeezed her breast and said “a girl with such small breasts”. She was shocked at what Mzimela had done but had let it pass.
31. She further testified about another incident that occurred on a Saturday during Physics classes. She arrived whilst the lesson had already started. She came in and sat down and did not notice that her skirt had moved up and her thighs were showing. Mzimela came to her and touched her thighs. It worried her and she felt not safe at school.
32. She reported it to Mkhize and was the first to do so. After the incident was reported, Mzimela came to their class and told them that he has a lawyer and is going to sue them for fabricating this and for working with the principal who paid them to charge him. Mzimela also said he was not aware that if you play with a child, just touching, then you got a case. Whilst he was speaking, they just sat there watching him.
33. Under cross-examination, she agreed that the incident relating to Mzimela touching her breast was not in her written statement. She didn’t include it in her statement because she was confused and threatened. She maintained, however, that it was not an afterthought and that they were taken out of their classrooms to the library and had to write their statements in a hurry. When questioned about whether Mzimela had uttered any words of a sexual nature, she answered “no” but maintained that Mzimela had told her that her breasts were small. She did not know that Mzimela was not charged with touching her thighs and she was surprised. She agreed that Mzimela was charged with touching her buttocks but maintained that this was not true. She did not draft the charges.
34. Mlambo, the investigator, testified that she interviewed about 17 learners. The learners told her of several acts of uncomfortable touching and uncomfortable conversations of a sexual nature. The learners also told her that, after the principal had met with Mzimela, he went to the classroom and threatened the learners – He told them that who had reported the incident was going to be facing his lawyers.
35. During the interviews, Learner B informed her that Mzimela had requested her to be in a relationship with her and gave her advice on how adults thank each other, ie, not by word of mouth. Learner F informed her that Mzimela had touched her breasts. Learner C advised her that Mzimela had touched her breasts. Learner G advised her that Mzimela touched her breast and said it was small.
36. Under cross-examination, she could not comment on the drafting of the charges as she was not involved in that process.
37. Ngubuli, testified that she was the acting principal at the time. The incidents regarding Mzimela were brought to her attention by Ndlovu. She told Ndlovu to get statements from the learners. She did not interview the learners and was not involved with the investigation.
38. Mzimela, the accused employee, testified that he is 48 years old and was married. He started teaching in 2016 and was an ordinary teacher. He knew the learners as he used to teach them.
39. He denied that any of the incidents as testified to by the learners, had taken place. He did not touch their breast, buttocks, thighs or utter words of sexual overtone to them. He did not know anything about the allegations in the charges and could not comment on it. He did not know of any reason as to why the learners would have fabricated their evidence against him.
40. Before his suspension, he was not called by the principal or the investigator regarding the charges or to answer to the allegations against him. He was not given any opportunity or a platform to give his statement or answer to the charges at any stage. He was suspended in November 2019 and nothing happened in 2020. He just sat at home. He phoned to find out what was happening about his case in August 2020. Since his suspension, he did not visit the school or meet with the witnesses. He only came to know of the details of the charges when he first came to this case. He was informed of the charges about a month after he phoned the Department.
41. Under cross-examination, he agreed that he was aware of what sexual harassment is. He agreed that his suspension was precautionary in nature as the Department wanted to conduct an investigation. He was in good terms with the learners and he did not know why the learners had picked him out. He had never been in conflict with the learners’ families. He agreed that there was no reason for the learners to have said bad things against him. He was aware of the allegations on 16 October 2019 when the principal called him into a meeting and informed him that they were investigating. He agreed that he had legal representation but he denied that he told this to learners. He only told them that if you work with the principal then you must be aware that such things usually end up in courts. He did not have an operation to his back. He was aware of the one learner having an operation to her leg as a result of a car accident.
42. The employer argued that the learners had led credible and probable evidence to prove that Mzimela had uttered words of sexual overtone and had inappropriately touched their bodies, including their breasts, buttocks and thighs. Mzimela was an experienced educator and was aware of what sexual harassment was. The learners were minors at the time the incidents took place and there was an average age gap of 22 years between Mzimela and the learners. The learners had every reason to respect and trust Mzimela. They had no reason to fabricate their version against Mzimela who himself indicated that he does not know any reason as to why the learners would lie against him. There were many other male educators at the school. The trust relationship has been broken down and cannot be repaired and a sanction of dismissal should be imposed.
43. Mzimela argued that the charges were vague as it did not specify the words of sexual overtone uttered to learners. Although he denied uttering the words as alleged by the learners, he maintained that the words were not of a sexual nature and that the learners attached their own interpretations to the words. In certain instances, the charges and statements did not mention what the learners had testified. The evidence of the learners did not prove the allegation. On this basis Mzimela contends that the employer failed to prove the charges and Mzimela should be acquitted. In certain instances, learners were not called to support versions where learners had mentioned that incidents had taken place in the presence of other learners. The employer failed to call Mkhize who was the first person that the incidents were reported to. She would have been important to prevent discrepancies and provide clarity, example, with regard to what prompted learners to report simultaneously when the incidents are alleged to have taken place at different times and whether the learners were influenced by Mkhize or anyone else. Mzimela could not have threatened the learners as he had no knowledge of the allegations against him at that stage.
ANALYSIS OF EVIDENCE AND ARGUMENTS
44. The key issue to be determined in this matter is whether Mzimela had committed the misconduct as testified to by the learners, ie, whether he had touched the breasts, buttocks, thighs of the learners and uttered words of sexual overtone to them.
45. The Department of Education KZN led the evidence of four (4) learners in support of its version that Mzimela had committed several acts of sexual misconduct. Mzimela denied that he had committed any of the alleged sexual misconduct. As to whether Mzimela committed the misconduct would depend on the credibility and reliability of the witnesses and the probabilities of their versions.
46. Mzimela’s version amounted to a bare denial of all the incidents. He did little to discredit the evidence of the learners and failed to provide me with alternative probable version to consider. I accept that there were a few discrepancies with regard to the charges, learner statements and the versions presented by the learners at this hearing. I am of the view that this went to the inaccurate drafting of the charges and the lack of guidance to learners in drafting their statements rather than to the credibility of learners or the probabilities of their versions. The learners had nothing to do with the drafting of the charges. Given that these were minors and given the pressures they would have experienced at the time, one could hardly have expected them to write perfect statements. I don’t believe that Mzimela had suffered any prejudice as a result thereof as he was given sufficient opportunity to challenge the allegations.
47. The learners, on the other hand, were compelling witnesses and their versions were probable. They gave their evidence clearly, honestly and without contradiction even under robust cross-examination. There were no reasons suggested by Mzimela as to why any of the learners would have falsely accused him or fabricated versions against him. Their versions were also supported by Mlambo who recalled the same version that the learners had presented to her when they were interviewed during the investigation. There was nothing inherently improbable in their version. Collectively, they testified about several independent incidents and each of their versions had sufficient details and accuracies to convince me that these incidents did take place.
48. I therefore find that the evidence, on the whole, is sufficient to substantiate the employer’s version that Mzimela had committed several acts of sexual misconduct. It is clear from the evidence that words used by Mzimela were inappropriate and falls within what is generally regarded as words with sexual overtone, including, commenting on the size of a learner’s breast, wanting to be a boyfriend of a learner, wanting to do things that adults do, etc. From his evidence, I am satisfied that Mzimela was aware of what constituted sexual harassment. I believe that it was reasonable for the learners to have interpreted the words used by Mzimela in the manner they did. In any event, most of the words were clearly of a sexual nature and did not require interpretation. It is also clear that Mzimela had inappropriately touched the bodies of learners, including their breast, buttocks and thighs.
49. The misconduct that Mzimela had committed is of a sexual nature and is dealt with in section 17(1)(b) of the Employment of Educators Act, 76 of 1998 (“EEA”). In terms of Section 17, the misconduct is regarded as serious misconduct for which dismissal is a mandatory sanction irrespective of any mitigating factors. Having regard to the gravity of the misconduct, the rights of learners to be treated with dignity and that Mzimela is an educator who works closely with learners, I am satisfied that the employment relationship has irretrievably broken down.
50. I therefore find that a sanction of dismissal is appropriate in the circumstances.
51. In addition, given the egregious nature of the sexual misconduct involving several vulnerable learners, I find that Mzimela should not be permitted to ever work with children again.
Award
52. In the circumstances I make the following award:
52.1. The employee, Siyabonga Mzimela, contravened section 17 of the Employment of Educators Act, 76 of 1998.
52.2. The employer, Department of Education KZN, must with immediate effect impose the sanction of dismissal on Mzimela in terms of the said Act.
52.3. The ELRC General Secretary must forward this award to the Department of Social Development for Siyabonga Mzimela’s name to be included in the National Child Protection Register as unsuitable to work with children and to the SA Council for Educators (SACE) for appropriate action.
Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal
In the matter between
Department of Education KZN Employer
And
Siyabonga Mzimela Employee
ARBITRATOR: R. Shanker
DELIVERED: 22 March 2022
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995, as amended, and was set down for an Inquiry by Arbitrator process. The process was finalised on 01 March 2022. The parties thereafter submitted written closing arguments which I considered in making this award.
2. The employee, Siyabonga Mzimela (“Mzimela”) was represented by G.B. Buthelezi, an attorney. The employer, Department of Education KZN, was represented by T. Mchunu.
3. The matter relates to allegations of sexual harassment of learners who are minors. In accordance with the protection of the rights of minors, the identity of the learners will not be disclosed. I will refer to the minors as Learners A, B, C, etc in this award. Evidence of the minors was led via an intermediary and an interpreter.
ISSUES TO BE DECIDED
4. The issue to be determined is whether the employee committed the misconduct as per the charges set out in Bundle A, Pages 3 and 4, and, if so, to recommend an appropriate disciplinary sanction. Not all the charges as per the original charge sheet was pursued by the employer.
5. In summary, the allegations against the Mzimela is that he contravened section 17 of the Employment of Educators Act 76 of 1998 (as amended) in that he committed several acts of sexual assault against learners in October 2019 at Hluma Secondary School, as summarised below:
Learner A: Uttered words with sexual overtone. (Charge - 3)
Learner B: Uttered words with sexual overtone. (Charge - 4)
Learner C: Touched her breasts and buttocks. (Charge - 5)
Learner D: Touched her breasts and buttocks. (Charge - 6)
Learner E: Touched her breasts and uttered words with sexual overtone. (Charge - 7)
Learner F: Uttered words with sexual overtone. (Charge - 8)
Learner G: Touched her buttocks and uttered words with sexual overtone. (Charge - 1)
Learner H: Touched her breasts and uttered words with sexual overtone. (Charge - 2)
Learner I: Touched her breasts and uttered words with sexual overtone. (Charge - 9)
Learner J: Touched her hand and forced it towards his private parts and uttered words with sexual overtone. (Charge - 10)
BACKGROUND TO DISPUTE
6. Mzimela is an educator at the school and was the learners’ Physics teacher. As a result of the serious nature of the allegations, he is currently on suspension (with full pay since 05 November 2019).
7. The employer produced a set of documents marked Bundle A. The employer did not pursue all the charges due to several reasons relating to the non-availability of learners to testify. The following four (4) learners testified at this hearing:
7.1. Learner B in respect of Charge 4
7.2. Learner C in respect of Charge 5
7.3. Learner F in respect of Charge 8
7.4. Learner G in respect of charge 1.
8. In addition, the employer called the school principal, G.N Ngubuli, and the investigator, P. Mlambo, to testify.
9. Mzimela testified. he agreed that he received the charges timeously, that the charges were clear to him and that he understood the charges. He denied that he committed any of the misconduct referred to in the charges.
SURVEY OF EVIDENCE AND ARGUMENT
10. The evidence and arguments hereunder are not verbatim accounts of the proceedings but a summary of the evidence presented at this hearing. All evidence and arguments were considered prior to drafting this award.
11. The respondent’s version at this arbitration hearing is that Mzimela had committed sexual misconduct by inappropriately touching the bodies of minor learners and uttering words with sexual overtone.
12. In general, the learners testified that there were no altercations between them and Mzimela and that they had no reason to lie.
13. It is not in dispute that the incidents were first reported to Mkhize who brought it to the attention of Ndlovu, the TLS (Teacher Learner Support). Ndlovu addressed it with the principal who asked the learners to write statements about what they had experienced. An investigator, Mlambo, was later appointed and she got the learners to write new statements.
14. Learner B testified in support of Charge 4 where it is alleged that Mzimela uttered words with sexual overtone to her.
15. An incident occurred when she was in class after school with her class friend, Learner A. Mzimela asked her to be her boyfriend. He asked her to think about that. She responded by saying “how teacher”. She understood his words to mean that he wanted to have a relationship with her.
16. Another incident occurred on a Saturday during a physics class break. She went onto the balcony. Mzimela was there. He told her that she was beautiful and that he wants to take her out for dinner and when they come back, they will do things done by older/adult people. She didn’t respond to Mzimela’s comments. She interpreted this to mean that Mzimela wanted to sleep with her because of the way he looked at her. The way he looked at her made her feel uncomfortable. He was blinking an eye.
17. Under cross-examination, she agreed that Mzimela did not say he wanted to sleep with her and it was only her interpretation of what he had said. She didn’t mention anything in her statement about the way Mzimela had looked at her because no one asked her about that.
18. Learner F testified in respect of Charge 8 where it is alleged that Mzimela uttered words with sexual overtone to her. Although it is not in the charges, she testified that Mzimela had also touched her breasts.
19. Mzimela gave her a new exercise book. On a different day, Mzimela asked her why she didn’t thank him. She told him she forgot. Mzimela responded by saying there was no need to thank him because she is an adult and knows of thanking as adults in the bedroom.
20. Although it was not in her statement, she also testified that Mzimela touched her breasts. He was standing behind her when he put his hands around her sides and touched her breasts. Only the two of them were present when the incident took place. She looked at him with a “bad eye” and ran away.
21. The words uttered by Mzimela shocked her and she felt uncomfortable. The words were directed to her as there were only the two of them present at the time. She also felt uncomfortable when Mzimela touched her breasts. She was not expecting a teacher to do something like that.
22. She maintained that the incident took place at the laboratory and not in the library as indicated in her statement. She had made a mistake in her statement but was told not to strike it out when she wanted to correct it.
23. Under cross-examination, she maintained that the words “thanking in the bedroom” meant sex. Despite her statement stating “repeatedly”, she indicated that Mzimela had only once touched her breast. She could not say why the allegation of Mzimela touching her breast was not in the charge sheet.
24. Learner C testified in respect of Charge 5 where it is alleged that Mzimela touched her breasts and buttocks.
25. An incident occurred in the Physics classroom. Mzimela was monitoring and walking around when he touched her breasts. He put his hand on her left shoulder and touched her left breast. He squeezed it once. Other learners were present. She was shocked and surprised. She was not expecting it because he was her class teacher.
26. Another incident occurred when she returned to school after a car accident where she had injured her back. Mzimela told her that he had an operation to his back but was able to run in the bed. He told her this because her back was also injured. She understood this to mean that he was still able to do sex even though he had an operation to his back. The other learners would not have heard it as her desk was different and at a distance from the other learners. She became silent when those words were uttered. She did not say anything and did not feel anything.
27. Under cross-examination, she maintained that she wrote everything down in her statement. When questioned as to whether she was surprised to see that the charge also related to Mzimela touching her buttocks, she indicated that she was not surprised as Mzimela used to touch learners on their buttocks. Mzimela even touched her on her buttocks.
28. Learner G testified in respect of Charge 1 where it is alleged that Mzimela touched her buttocks and uttered words with sexual overtone to her. Although it is not in the charges, she testified that Mzimela had touched her breasts and thighs but not her buttocks.
29. An incident occurred after Physics class. The other learners had left and only three of them remained behind, including Learner A. She saw Mzimela “climbing” on Learner A and laughed. Mzimela saw her laughing and started “climbing” on her. By use of the word “climbing” she demonstrated that Mzimela had approached her from behind putting his hands over her shoulder and around her neck whilst rubbing his beard against her face.
30. Although not in her statement, she testified about another incident that occurred when she was on the stairways with two other learners. Mzimela came to her and touched her breasts. He squeezed her breast and said “a girl with such small breasts”. She was shocked at what Mzimela had done but had let it pass.
31. She further testified about another incident that occurred on a Saturday during Physics classes. She arrived whilst the lesson had already started. She came in and sat down and did not notice that her skirt had moved up and her thighs were showing. Mzimela came to her and touched her thighs. It worried her and she felt not safe at school.
32. She reported it to Mkhize and was the first to do so. After the incident was reported, Mzimela came to their class and told them that he has a lawyer and is going to sue them for fabricating this and for working with the principal who paid them to charge him. Mzimela also said he was not aware that if you play with a child, just touching, then you got a case. Whilst he was speaking, they just sat there watching him.
33. Under cross-examination, she agreed that the incident relating to Mzimela touching her breast was not in her written statement. She didn’t include it in her statement because she was confused and threatened. She maintained, however, that it was not an afterthought and that they were taken out of their classrooms to the library and had to write their statements in a hurry. When questioned about whether Mzimela had uttered any words of a sexual nature, she answered “no” but maintained that Mzimela had told her that her breasts were small. She did not know that Mzimela was not charged with touching her thighs and she was surprised. She agreed that Mzimela was charged with touching her buttocks but maintained that this was not true. She did not draft the charges.
34. Mlambo, the investigator, testified that she interviewed about 17 learners. The learners told her of several acts of uncomfortable touching and uncomfortable conversations of a sexual nature. The learners also told her that, after the principal had met with Mzimela, he went to the classroom and threatened the learners – He told them that who had reported the incident was going to be facing his lawyers.
35. During the interviews, Learner B informed her that Mzimela had requested her to be in a relationship with her and gave her advice on how adults thank each other, ie, not by word of mouth. Learner F informed her that Mzimela had touched her breasts. Learner C advised her that Mzimela had touched her breasts. Learner G advised her that Mzimela touched her breast and said it was small.
36. Under cross-examination, she could not comment on the drafting of the charges as she was not involved in that process.
37. Ngubuli, testified that she was the acting principal at the time. The incidents regarding Mzimela were brought to her attention by Ndlovu. She told Ndlovu to get statements from the learners. She did not interview the learners and was not involved with the investigation.
38. Mzimela, the accused employee, testified that he is 48 years old and was married. He started teaching in 2016 and was an ordinary teacher. He knew the learners as he used to teach them.
39. He denied that any of the incidents as testified to by the learners, had taken place. He did not touch their breast, buttocks, thighs or utter words of sexual overtone to them. He did not know anything about the allegations in the charges and could not comment on it. He did not know of any reason as to why the learners would have fabricated their evidence against him.
40. Before his suspension, he was not called by the principal or the investigator regarding the charges or to answer to the allegations against him. He was not given any opportunity or a platform to give his statement or answer to the charges at any stage. He was suspended in November 2019 and nothing happened in 2020. He just sat at home. He phoned to find out what was happening about his case in August 2020. Since his suspension, he did not visit the school or meet with the witnesses. He only came to know of the details of the charges when he first came to this case. He was informed of the charges about a month after he phoned the Department.
41. Under cross-examination, he agreed that he was aware of what sexual harassment is. He agreed that his suspension was precautionary in nature as the Department wanted to conduct an investigation. He was in good terms with the learners and he did not know why the learners had picked him out. He had never been in conflict with the learners’ families. He agreed that there was no reason for the learners to have said bad things against him. He was aware of the allegations on 16 October 2019 when the principal called him into a meeting and informed him that they were investigating. He agreed that he had legal representation but he denied that he told this to learners. He only told them that if you work with the principal then you must be aware that such things usually end up in courts. He did not have an operation to his back. He was aware of the one learner having an operation to her leg as a result of a car accident.
42. The employer argued that the learners had led credible and probable evidence to prove that Mzimela had uttered words of sexual overtone and had inappropriately touched their bodies, including their breasts, buttocks and thighs. Mzimela was an experienced educator and was aware of what sexual harassment was. The learners were minors at the time the incidents took place and there was an average age gap of 22 years between Mzimela and the learners. The learners had every reason to respect and trust Mzimela. They had no reason to fabricate their version against Mzimela who himself indicated that he does not know any reason as to why the learners would lie against him. There were many other male educators at the school. The trust relationship has been broken down and cannot be repaired and a sanction of dismissal should be imposed.
43. Mzimela argued that the charges were vague as it did not specify the words of sexual overtone uttered to learners. Although he denied uttering the words as alleged by the learners, he maintained that the words were not of a sexual nature and that the learners attached their own interpretations to the words. In certain instances, the charges and statements did not mention what the learners had testified. The evidence of the learners did not prove the allegation. On this basis Mzimela contends that the employer failed to prove the charges and Mzimela should be acquitted. In certain instances, learners were not called to support versions where learners had mentioned that incidents had taken place in the presence of other learners. The employer failed to call Mkhize who was the first person that the incidents were reported to. She would have been important to prevent discrepancies and provide clarity, example, with regard to what prompted learners to report simultaneously when the incidents are alleged to have taken place at different times and whether the learners were influenced by Mkhize or anyone else. Mzimela could not have threatened the learners as he had no knowledge of the allegations against him at that stage.
ANALYSIS OF EVIDENCE AND ARGUMENTS
44. The key issue to be determined in this matter is whether Mzimela had committed the misconduct as testified to by the learners, ie, whether he had touched the breasts, buttocks, thighs of the learners and uttered words of sexual overtone to them.
45. The Department of Education KZN led the evidence of four (4) learners in support of its version that Mzimela had committed several acts of sexual misconduct. Mzimela denied that he had committed any of the alleged sexual misconduct. As to whether Mzimela committed the misconduct would depend on the credibility and reliability of the witnesses and the probabilities of their versions.
46. Mzimela’s version amounted to a bare denial of all the incidents. He did little to discredit the evidence of the learners and failed to provide me with alternative probable version to consider. I accept that there were a few discrepancies with regard to the charges, learner statements and the versions presented by the learners at this hearing. I am of the view that this went to the inaccurate drafting of the charges and the lack of guidance to learners in drafting their statements rather than to the credibility of learners or the probabilities of their versions. The learners had nothing to do with the drafting of the charges. Given that these were minors and given the pressures they would have experienced at the time, one could hardly have expected them to write perfect statements. I don’t believe that Mzimela had suffered any prejudice as a result thereof as he was given sufficient opportunity to challenge the allegations.
47. The learners, on the other hand, were compelling witnesses and their versions were probable. They gave their evidence clearly, honestly and without contradiction even under robust cross-examination. There were no reasons suggested by Mzimela as to why any of the learners would have falsely accused him or fabricated versions against him. Their versions were also supported by Mlambo who recalled the same version that the learners had presented to her when they were interviewed during the investigation. There was nothing inherently improbable in their version. Collectively, they testified about several independent incidents and each of their versions had sufficient details and accuracies to convince me that these incidents did take place.
48. I therefore find that the evidence, on the whole, is sufficient to substantiate the employer’s version that Mzimela had committed several acts of sexual misconduct. It is clear from the evidence that words used by Mzimela were inappropriate and falls within what is generally regarded as words with sexual overtone, including, commenting on the size of a learner’s breast, wanting to be a boyfriend of a learner, wanting to do things that adults do, etc. From his evidence, I am satisfied that Mzimela was aware of what constituted sexual harassment. I believe that it was reasonable for the learners to have interpreted the words used by Mzimela in the manner they did. In any event, most of the words were clearly of a sexual nature and did not require interpretation. It is also clear that Mzimela had inappropriately touched the bodies of learners, including their breast, buttocks and thighs.
49. The misconduct that Mzimela had committed is of a sexual nature and is dealt with in section 17(1)(b) of the Employment of Educators Act, 76 of 1998 (“EEA”). In terms of Section 17, the misconduct is regarded as serious misconduct for which dismissal is a mandatory sanction irrespective of any mitigating factors. Having regard to the gravity of the misconduct, the rights of learners to be treated with dignity and that Mzimela is an educator who works closely with learners, I am satisfied that the employment relationship has irretrievably broken down.
50. I therefore find that a sanction of dismissal is appropriate in the circumstances.
51. In addition, given the egregious nature of the sexual misconduct involving several vulnerable learners, I find that Mzimela should not be permitted to ever work with children again.
Award
52. In the circumstances I make the following award:
52.1. The employee, Siyabonga Mzimela, contravened section 17 of the Employment of Educators Act, 76 of 1998.
52.2. The employer, Department of Education KZN, must with immediate effect impose the sanction of dismissal on Mzimela in terms of the said Act.
52.3. The ELRC General Secretary must forward this award to the Department of Social Development for Siyabonga Mzimela’s name to be included in the National Child Protection Register as unsuitable to work with children and to the SA Council for Educators (SACE) for appropriate action.
Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal