PSES 714-18/19KZN

CASE NUMBER: PSES 714-18/19KZN
DATE OF AWARD: 18th March 2022

APPLICANT: Mzikayifani David Shezi
Represented by Ms Simangele Shusha
NATU
Telephone:0789966133
Email:simangele.legal@natu,org.za


RESPONDENT: DEPARTMENT OF EDUCATION (KWAZULU NATAL)
Represented by Mr. Thabani Mchunu
Telephone: 0788287546
Email: thabani.mchunu@kzbdoe.gov.za


DETAILS OF HEARING AND REPRESENTATION


1. The Arbitration proceedings were finalized, on the virtual platform, Zoom, on the 4th March 2022 under the auspices of the ELRC, in terms of section 191 of the Labour Relations Act No 66 of 1995 (the LRA”). The Parties were required to submit, which they duly complied, closing arguments by no later than the 14th MARCH 2022.
2. Both parties were in attendance and were represented by their respective legal representatives, as recorded above.
3. The primary issue in dispute was couched in terms of section 191(1) [read with section 191(5)(a)] of the LRA] –Dismissal related to misconduct.
4. Nombulelo Mbiko was appointed to act as an intermediary in view of the allegation and the nature of the misconduct.
5. The proceedings were conducted in English and were digitally as well as manually recorded. The interpreter was Mr. B. Hadebe.
6. The Applicant, submitted a bundle of documents, which was later supplemented as part of its evidence which I marked “A” and “B” respectively.

BACKGROUND TO THIS DISPUTE


7. It is common cause that-
a. The Respondent, the Department of Education KZN, provides employment to educators.
b. The Applicant, Mzikayifani David Shezi, was an educator since 1984. He was promoted to the position of principal at the Mphahleni High School, in Nkandla in 2013, a position he has held at the date of his dismissal.
8. It is also common cause that-
a. On the 20th September 2016, there was an alleged incident of sexual assault involving the Applicant and a grade 11 learner, NK
b. A charge of attempted rape was laid against the Applicant, on the 22nd September 2016 at the Nkandla Police Station under Cas No.84/09/2016.
c. Shortly thereafter, the Applicant was arrested and detained.
d. The Respondent was informed, on the 28th September 2016, that the Applicant had been detained and that he was formally charged on the 29th September 2016 .
e. An investigation into the allegations was conducted and pending the outcome thereof, the Applicant was placed on precautionary suspension.
f. A preliminary report, dated the 29th September 2016, recommended that
i. The Applicant be placed in precautionary suspension pending an internal investigation into his conduct, and that
ii. A formal departmental enquiry be instituted, and that
iii. The complainant be assisted by the Respondent to find an alternative school.
g. He was served with a notice to attend a disciplinary hearing which was held between the 26th January 2017 and the 12th September 2017, where he faced the following charge of misconduct as follows:
“On the 20th September 2016, he sexually assaulted a grade 11 learner at the Nphahleni High School, Ms Nobuhle Nxumalo (hereinafter referred to as the “complainant”) in that , on that date, he alleged had sexual intercourse with her. In so misconducting himself, he contravened section 17(1)(b) of the Employment of Educators Act, as amended.”
h. He was found guilty and he was informed on the 7th November 2017 that the sanction of dismissal was confirmed, and the sanction was effected on 1st September 2018.
9. Having exhausted his domestic remedies, the Applicant referred a dispute wherein he challenged the fairness of his dismissal on substantive grounds.
10. The relief he seeks is reinstatement with back pay and benefits.

OPENING STATEMENTS
The parties were invited to make opening statements. For the sake of brevity, what follows is a summary and not a verbatim account thereof.

APPLICANT
11. He denied the charges against him. The essence of his defence was that the alleged sexual assault never took place. He had two witnesses who will vouchsafe his innocence.
12. He challenges his dismissal on substantive grounds. The relief he seeks is reinstatement as well as compensation.

RESPONDENT

13. The Applicant was charged and dismissed as per paragraph 8 supra.
14. It will present five witnesses who will testify and prove that the Applicant was dismissed for fair reasons and that the dismissal was substantively fair.
15. As it was established that a dismissal had taken place (s 192 (1)), the respondent bore the onus to prove that the dismissal was substantively and procedurally fair (section 192 (2)).

ISSUE TO BE DECIDED

16. The issue to be determined is whether the dismissal of the applicant was substantively fair.
17. Should I find in favour of the Applicant then I am required to consider what remedy would be appropriate.
18. Should I find against the Applicant, then the matter would be dismissed and the Applicant would not be entitled to relief.

SUMMARY OF THE EVIDENCE AND ARGUMENT

19. Section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the LRA”), requires me to issue an award with “brief” reasons”. I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration hearing.
20. However, reference to “brief reasons” doesn’t mean that I must not consider all relevant evidence adduced during this arbitration and not to record them. I am supported by persuasive case law on this point. Furthermore, given the number of witnesses (six in all who testified and reference to the documents used and referred to in these proceedings) this award is in line with the principle enunciated by the Labour Court in Country Fair Foods (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Another, [1999] ZALC 182 (19.8.1999) to the effect that as an arbitrator I am obliged to apply my mind to all the facts.
21. Newly appointed Chief Justice Raymond Zondo, reminds us in the LAC judgment in Naepe v Commission for Conciliation, Mediation and Arbitration, [2008] ZALAC 2 ( 18 April 2008), that although a commissioner is expected to give “brief reasons” he or she is expected to take into account all the facts and factors which are of great significance to or which are critical to one or other of the issues he or she is called upon to decide. It is my respectful understanding that I must make mention as to what these facts are and what are the factors that inform my finding as recorded in this award.

Respondent’s case

Respondent led the evidence of two witnesses. They were
(a) Ms. NK ( the complainant)
(b) Mr. MB Madlalose.

(a) Ms Nobuhle Nxumalo

Her evidence in chief

22. The salient points of Ms. NK’s evidence are as follows:-
a. In preparation, as a grade 11 learner in the Mphahleni High School (hereinafter referred to as “the school”), towards her final year-end examinations she had attended late afternoon/early evening classes in respect of mathematics, conducted by the Applicant. Classes ended at around 7h30 pm and as it was dark and not safe, she went to a grade 12 class, where a fellow learner Nkosimphile Ngema, with whom she would walk home, had been studying for trial examinations in the company of a few (her version is that there were five) of his class mates. She had entered the class room and sat inside.
b. A short while later, the Applicant, in his capacity as principal at the school, who was in the absence of a supervising educator, acting as a supervisor responsible for the safety of learners attending extra-mural classes, peeped, through the windows, into the classroom and instructed her to leave as she was allegedly disturbing these grade 12 learners who were preparing for their forthcoming trial examinations. For the sake of context and completion, she reiterated this during cross examination.
c. She told him that she was waiting for Nkosimphile to finish his classes and to accompany her home as she was scared to walk home alone in the dark.
d. The Applicant offered to drive her home which she accepted. She entered the Applicant’s car and sat in the passenger’s side next to the driver’s side.
e. Just as they were leaving, she noticed that Nkosimphile had also finished his classes and she alerted the Applicant who, ignored her, and he continued driving the vehicle and headed in the direction of Nkandla. The Applicant had then received a phone call whilst they were enroute towards Nkandla. It is apposite to record that the complainant lives about 10 minutes away, which, she reiterated during cross-examination, from the school (that is near the school) and that Nkandla was in the opposite direction. He proceeded towards the Nkandla Hospital where he stopped across that hospital, and purchased a roll of toilet paper and two apples from a street vendor. He offered her an apple. He then got into the vehicle and headed towards and entered an empty plot of land near the Mthiyaqwa Secondary School and he parked the vehicle in a secluded dark place.
f. The Applicant thereafter exited the vehicle from the driver’s side and came towards the passenger side in the front, where she had been seated. He opened the door and, presumably, the light came on. He unfastened his pants, and exposed his private parts. She noticed that he had a pair of white briefs. He had also inserted a condom on his penis. He adjusted the front seat, pulled up her dress and pulled down her panty to one side and, he mounted and forced himself on her. She tried to resist but he was bigger and stronger than her. He tried to kiss her but she bit him. She also screamed. Eventually, he penetrated her and he ejaculated. She cried a lot thereafter. He offered her a piece of the toilet roll to cleanse herself, proceeded to do likewise, that is wipe himself, with the toilet roll and then returned to the driver’s side of the vehicle.
g. Thereafter he drove her home where she had been renting as her original maternal home was in Empangeni. A short while later, that very evening, while she had been asleep, the Applicant called her and asked her about her experience and he also professed that he loved her.
h. The next day, on the 21st September 2016, whilst in school, she sent her mother (in Empangeni, where she resides) call-me-back messages and she related to her mother what had transpired. She did not tell her mother the horrid details like she had been raped. A few days later she confided in her stepfather.
i. On her mother’s advice, on the 22nd September 2016, she reported the incident at the Nkandla Police Station. She had also spoken, to her uncle, also an educator at the school, whom she referred to as “malume” or uncle, a Mr. Mandla Madlalose. She went to Empangeni on Friday and returned to the school on Monday morning with her mother and stepfather. The Applicant was confronted and he denied the allegation. Nkosimphile Ngema was summoned to the office and he had been asked by them in which direction that the Applicant had driven his vehicle and he informed them that it was in the direction of Nkandla.
j. In the absence of her mother who had briefly left the office, the Applicant admitted to her step-father that he had had sexual intercourse with her and he offered make monetary reparation in the sum of R15,000-00 as well reimburse them their travelling costs of R500 which, costs that is, he made good. He also sought the intervention of her uncle, Mr. Madlalose, to persuade her mother to drop the action. He had been unaware that the matter had been reported to the police station. He had confided to Mr. Madlalose, that he was in debt but that he would make good the payment of R15,000. He had given R500-00 to Mr. Madlalose as conveyance costs to transport them to Nkandla to withdraw the case.
k. A while later (she doesn’t recall exactly when), they went to Nkandla to withdraw the case but it was too late as the Applicant had, by that time, been arrested. They were unable to do so.
l. She testified, further, that he had given her R 200 outside the courtroom by placing it in a bin. She had also testified how he would give her, from time to time, small amounts of money by putting them in between pages of text books for various purposes, presumably, whilst attempting to seek sexual favours from her. She was not the only one he did that to.

Cross-examination

23. She consistently maintained her version during extensive as well as intensive cross examination by Simangele Shusha, the Applicant’s legal representative.
24. She reiterated that there were no contradictions between the statements she made and her evidence-in- chief. She maintained that she had made a statement to the police officer who had taken down what she thought was accurate but which was not read back to her. She had, in fact given two statements, one at the time or shortly after she had reported the incident and the second one a while a while later.
25. It was put to her that the Applicant will testify that he had been dropped her off at home and that he had returned to the school a few minutes later to lock up and that Nkosimphile would testify that he had driven home towards Nkandla.
26. She denied, when it was put to her, that after her parents realized that they had been duped by her, they forced her to recant, that i.e. withdraw the case against the Applicant, and that the testimony about the R200 being placed in dustbin was, like the alleged rape incident, was a figment of her imagination. In other words, it did not happen.

(b) Mr. MB Madlalose.

His evidence in chief

27. Mr. Mandla Bongani Madlalose was a senior educator to whom the complainant confided on the advice of her mother. As the evidence will show, he was, as a head of department at the school, the next senior educator in the school management team, after the Applicant and that, he acted as an intermediary between the Applicant and the parents with the view of getting her to withdraw the complaint or charge against the Applicant.
28. The substance of his testimony was that the Applicant, who found himself in a pickle, sought his assistance and intervention in the hope of getting the complainant and her parents to withdraw the complaint and charge against him withdrawn. Most of what he testified during his evidence in chief wasn’t seriously questioned and was reiterated during cross examination by Simangele Shusha.
29. He testified that, on the 21st September 2016, two learners at the school approached him and informed him that the complainant was very distraught and emotional. He called for her and she had narrated to him her experience at the hands of the Applicant. It is apposite that, so that I avoid unnecessary repetition, I record that his testimony relating to what transpired, dovetailed with the testimony and version of the complainant.
30. She had narrated to him how the Applicant had got her to leave the classroom and that he had offered her to convey her to her place of residence which was a few minutes away from the school.
31. He testified, further, that after she had narrated her experience, he had spoken to a Mr. Dladla and a Mr. Mthabela, both of whom had testified, in this arbitration, on the Applicant’s behalf, and of his discussion with her mother who had called him around the same time.
32. He further testified how he and the Applicant had met with the purpose of trying to resolving the problem he, that is the Applicant, had been foist with. The Applicant requested him to intercede after the parents had come to the school to confront him with the allegations. He sought his intervention to get them to withdraw the charges against him and for that purpose offered to compensate them. An amount of R15,000 was demanded by them which he managed to get reduced to R10,000 and which he undertook to pay after the case was withdrawn against him.
33. He was paid R500 as money to convey them from Empangeni to Nkandla which, he testified, and steadfastly reiterated during cross examination that he did.


Cross examination

34. I refer to paragraph 28 where I recorded that most of what he testified during his evidence in chief wasn’t seriously questioned and contradicted during cross examination by Simangele Shusha. He consistently maintained his version and narrative of what transpired.
35. He reiterated, after it was put to him by Simangele Shusha that there was no interaction between himself and Mr. Dladla and Mr. Mthabela, that he had, in a general discussion with them ( refer to para 31 supra) when he found himself in a dilemma as he did not know what to do.

The Respondent’s Mr. Mchunu, informed me that due to six years elapsing, witnesses were reluctant to testify and that he closed its case.

Applicant’s case

Mzikayifani David Shezi
36. He testified that on the 20th September 2016 afternoon classes were been held between 5h00 to 7h00 pm for learners in grades 10 to 12. He conducted classes in mathematics which the complainant had attended. The policy was that learners had to leave at 7h00 pm.This was so that their parents would know what time to pick them up.
37. Thereafter he went to his office, uplifted his books and was preparing to leave when realized that there were five grade 12 children who, he permitted, were studying accounting on that day without a supervising educator in a classroom in the school. He remained in his office until 7h30pm. Thereafter he went to see if they were finished. He went to their class and saw them busy. Nkosimphile Ngema who, testified in this arbitration, was the group leader conducting an exercise and he was writing on the board whilst the other learners were sitting down. He also saw that the complainant, Nobuhle in the class. He enquired from her about her presence which was disturbing the grade 12 class .
38. The complainant responded that she was waiting for Nkosinphile as she had made arrangement to leave with him after class. He asked her to leave as she was disturbing those learners and that, besides that she wasn’t allowed to be in that classroom because she was a grade 11 learner and that that a learner isn’t allowed in another class. She thereafter left the classroom. He enquired from those learners, how long they were going to be and they replied that they had two more questions to cover. He went back to his office and waited for them to finish.
39. He testified that he found her standing outside the class. He shouted at her and asked her why she was standing there. She replied that she was afraid to go home alone. He then offered to drive her home safely. As the principal, if anything untoward happened to her, he would held accountable. He estimated that the distance between the school to her place of residence was about a kilometre. He drove her there and returned to the school. Just about then, he found that they were ready to leave. He proceeded to his office, leaving the car engine running, to pick up his books. Nkosimphile returned the class room keys and left with the other learners. He secured the premises and also left.
40. He denied the allegations of the complainant, insisting that he had dropped her home about 10 to 15 minutes before. The complainant, Nobuhle, had been seated at the back seat of his vehicle, a double cab Toyota Hilux. He categorically denied that he had driven with her towards Nkandla Hospital, where he stopped to purchase a roll of toilet paper and apples and thereafter proceeded to a secluded spot where he forced himself on her.
41. He was unaware of these allegations until the 26th September 2016 when he was confronted by the complainant and her parents who were very angry. He protested his innocence to them. The complainant was seated in their car at the time. The mother went out to fetch her and he explained to the father what had happened. Upon the mother’s return with the complainant, he reiterated to them what had transpired and that he did what he thought was correct by driving her to her place of residence as her presence in the classroom was disturbing the other learners.
42. The complainant allegedly stuttered or stammered her response which indicated that she had lied to them and they became angry with her . He warned them of the legal consequences of falsely accusing him. They allegedly apologized to him. He accepted their apology. He never knew, at that time, that a case was opened.
43. He denied that he ever engaged with Mr. Madlalose . He testified that Mr. Madlalose wasn’t even there when he spoke to the parents .
44. He testified, further, that on the 28th September 2016, preliminary schedules for grade 12 had to be corrected and sent back to the district for processing. As the photocopier at school was not working, he left the school at about 8am to make copies in Nkandla. He returned at about 10h00 am. On his way back he was stopped by police officers who informed him that they were acting on the instructions of a Captain Zulu who asked him to report to the police station. He complied and followed them to the police station. He met with Captain Zulu who told him about the case opened against him by the complainant on the 22nd September 2016 . He protested his innocence but was arrested and charged for attempted rape. He was asked, inter alia, to take off his shoe laces, hand in his mobile phone and put in a cell. He was held for about five hours.
45. He reiterated his denial of ever engaging Mr. Madlalose to intercede on his behalf with the complainant’s mother, or paying him R500 as alleged to convey the complainant and her parents to Nkandla and he persisted with his denial that he had ever offered to pay any amount of money as was alleged. He also denied paying the complainant the R200 as alleged.

His evidence during cross examination

46. He testified, under oath that on that day he had, contrary to the school policy, when he went to drop the complainant off at her residence, he had left Nkosimphile and his fellow learners unsupervised but that it was for about ten minutes. He had made sure that the school gates were locked when I left with her. For the sake of context and completion, it beggars belief why was this version not presented during his evidence in chief.
47. It was not true when he alleged that the complainant had registered late in March with the assistance of her mother. In fact, she registered herself. That was not rebutted during the cross examination of the complainant by Simangele Shusha. He qualified his response with the explanation that the complainant was supposed to come with her mother but that she had explained that her mother was in Empangeni but that contrary to the policy of the department, she had been registered by Mr. Madlalose who was later disciplined with a warning letter.
48. He could not explain why would a learner to whom he had been good, It was put to him that he had been grooming her by giving her money and doing her favours.
Re-examination

49. He reiterated that he did not harm the complainant in any way and that, in fact, he had habitually financially assisted other learners.

Apart from the Applicant the following witnesses also testified:

(a) Nkosimphile Ngema
(b) Musawenkosi Dladla
(c) Sibusiso Mthabela

(a) Nkosimphile Ngema
50. He testified under oath as to what he recalled transpired on the 20th September 2016. Indeed, the complainant had been waiting for him in the classroom on that day and time. As their grade tutor had been ill, he obtained the keys to the classroom from the Applicant, so that he and his fellow learners could avail themselves of the opportunity to study . Whilst they were studying the complainant came in just after 7h00pm and remained seated until she was requested by the Applicant to leave the classroom as she had been released earlier to go home. He did inform the Applicant that the complainant was waiting for him but that he insisted she leave as she was disturbing them. As she was leaving he told her to wait for him at the gates. They continued with their lessons and shortly thereafter, he heard a car engine running for about ten minutes and came out. He concluded the lessons and he went to the principal’s office to return the key and proceeded towards the gates. At about the same time, the principal’s car was leaving as well. It stopped at the gates where he principal got out to lock the gates. He could not see anyone in the car as it was late at night and it was dark. The principal took a right turn towards Nkandla and proceeded in that direction. It was possible for him to leave her home and come back quickly for her residence wasn’t far away and he guessed was a five minute distance from the school.

His evidence under cross examination

51. He reiterated that the complainant was, indeed, waiting for him and that they had arranged to leave together for her safety.
52. He heard a car engine running for ten minutes, but he never heard the car leave. They were engrossed in a discussion at the time, so he wasn’t sure. The car had a very noisy engine, so he would have heard the Applicant/principal leave to drop the complainant off as alleged. He reiterated that he didn’t see the car leaving the school as he was at the class board in the classroom at that time. At the gate, where he asked the complainant to wait for him, he did not find her. When the principal stopped the car to lock the gates, he could not see into the car as it was dark.
53. He was adamant that he was approached by the Applicant/principal and asked to testify and that he was doing so voluntarily and that he was not coached or instructed what to say.

54. He confirmed that he had been requested to come to the principal’s office when he was asked the direction in which the Applicant/principal’s car had taken on the night of the 20th September 2016.
55. He, further testified that he didn’t find it odd that she wasn’t waiting at the gates as he thought that perhaps she had accompanied her friend Neliswa who was also an attendee at the special classes, and went home..

(c) Musawenkosi Dladla

56. He testified that was an educator at the school since April 2013. He held the Applicant in high esteem as a colleague and principal. He was not a party or a witness to the alleged incident between the Applicant and the complainant. He heard that the Applicant had been arrested during a staff meeting that Mr. Madlalose chaired in, as the next in command, in the Applicant’s absence.
57. He testified that there had been no one-on-one discussion between himself and Mr. Madlalose, as alleged by the latter, relating to what the complainant had informed Mr. Madlalose but that he heard about it during a general meeting when the incident was mentioned and discussed in a general staff meeting.

His evidence during cross-examination

58. He never testified at the internal disciplinary hearin. He explained that his presence at this arbitration was because he was informed by the Applicant that Mr. Madlalose had mentioned his name and he voluntarily presented himself to learn more and to clear his name.
59. He was not informed of the allegations against the Applicant or that he had been dismissed.

(c) Sibusiso Mthabela

60. Like Mr. Dladla, Mr. Mthabela was an educator at the school which he joined in 2015. He too held the Applicant in high esteem and regard. Unlike Mr. Dladla, he candidly testified that he knew that the Applicant had been arrested for attempted sexual rape of a learner . He received that information through Mr. Madlalose, the HOD, in a staff briefing.
61. He categorically denied that there was a one-on-one meeting between Mr. Madlalose and himself wherein he was informed immediately after the incident. If it did, he would have remembered. It never happened. Mr Madlalose was lying.

His evidence during cross-examination

62. He had enjoyed a professional relationship with the Applicant whom, he remembers visiting in prison/jail together with a few colleagues.
63. He cannot remember what happened around the time in 2016. He presented himself voluntarily at this arbitration after being informed by the Applicant that his name had been mentioned by Mr. Madlalose and therefore he wanted to clear his name if he was implicated in any way.
64. Initially he testified that, at no time, was he informed by Mr. Madlalose but when he was reminded of what he had earlier on stated he conceded that he had heard of what transpired during a staff briefing chaired by Mr. Madlalose. The previous witness, Mr. Dladla had been present as well.


CLOSING ARGUMENTS

No further witnesses were called by the Applicant to testify on his behalf and he closed his case. Due to professional pressures and commitments both the Applicant’s and Respondent’s representatives requested time until the 14th March 2022 to file their closing arguments. I ruled ex tempore that there were be no extensions of time. The Applicant was entitled to a speedy resolution of his dispute and I would be failing in my duty to ensure that. The misconduct for which the Applicant had been dismissed was a very serious one which impacted on the country and community in general, I deemed it in the interests of justice to afford him as well as to the Respondent a fair opportunity to persuade me which of the two versions were probable and convincing.
What is contained herein is a summary of my understanding of each party’s arguments, highlighting their respective versions in order to persuade me which version was preferable as probable. Both parties duly submitted their closing arguments.


Applicant’s closing arguments

65. It was argued, in closing, that the Applicant had an unblemished record since he commenced employment in 1984. It was also argued that he was a hardworking and dedicated educator who suffered loss in income and prestige as a result of what was clearly a failed attempt to solicit money from him.
66. On the substantive issue, it was argued that in view of the alleged misconduct being of a very serious nature, namely sexual assault on a learner, the Respondent had an obligation to provide credible and direct evidence to prove that the Applicant was dismissed fairly on a balance of probability.
67. It was argued (however, this wasn’t put in evidence before me in the form of the Applicant’s evidence in chief) that the Applicant was charged and acquitted for attempted rape in a court of law.
68. There were a few discrepancies vis-à-vis the evidence led by the Respondent which cast a lot of doubt and raised a lot of questions’. For instance,
a. The Respondent did not provide a ‘J88’, although it was common cause that the complainant did report the alleged incident with the South African Police Services.
b. Further to that, the complainant made not one, but two statements with the SAPS found on pages 1-7 of bundle A. It was argued that these ‘statements do not speak to each other at all’. For instance, on page 3 the complainant says that he stooped before inserting his penis and then almost a week later, she makes an additional statement to say that he did’(sic).
c. Mr. Mdlalose who seemed very clear and on point with his evidence suddenly could not explain the contents of his statements he had made with the SAPS.
d. He, that is Mr. Madlalose, made two very contradictory statements under oath. These can be found paragraph 3 of the additional documents handed in as evidence. Under cross examination he proved to be very evasive and unclear. He said the complainant’s mother had called him early on the morning of the 21st of September 2016 to inform him that the complainant was not in a good state, yet on record he says he received a report from other learners that the complainant was crying in class.
e. Further to that, two educators, who testified for the Applicant, namely Mr. Dladla and Mr. Mthabela both gave evidence under oath that they never had discussions with him regarding the matter of the Applicant until the Applicant had been arrested which was well after Mr. Mdlalose had apparently received the report of the alleged incident.
69. In context, there were two mutually destructive versions of the circumstances surrounding the incident under the microscope before me. Having highlighted that the evidence submitted on behalf of the Respondent had a lot of discrepancies and deficiencies, and further that Mr. Mdlalose was ‘not be a truthful and credible witness’, Simangele Shusha argued that, the case was all about an attempt to solicit money from the Applicant. The Applicant did not misconduct himself as the whole incident was fabricated in an effort to solicit monies from the him.
70. In mitigation, it was submitted that the Applicant was a married father of three children, two of whom were minors. He was able to support his family whilst still employed and, thus, losing his job negatively impacted on the livelihood of the family.
71. In conclusion, the Respondent failed to prove its case on a balance of probabilities and the Applicant was entitled to be reinstated with back pay and full restoration of benefits.



Respondent’s closing arguments

72. The Applicant who, at the time of the alleged incident was a principal at Mphahleni High School, was charged and dismissed for committing an act of sexual assault on the complainant, Nobuhle Nxumalo, then a learner at the school.
73. The Department has proved, on a balance of probabilities, that the Applicant raped the complainant and that therefore it had fair reason to dismiss him.
74. The Code of Conduct for educators, at section 17 (1) (b) of the Employment of Educators’ Act 76 of 1998 as amended, has categorized this act as one of the most serious acts of misconduct which, if proved, merits dismissal.
75. Evidence led during the many days over which this arbitration was conducted, established that the conduct of the Applicant was tantamount to sexual assault . For instance;
a. Verbal utterances that had sexual overtones –telling her that he liked or loved her.
b. Touching – stripping off his ‘trouser in front of Nobuhle’, pressing her into the car seat.
c. Pulling up her skirt.
d. Moving her panty on the side.
e. Penetrating the complainant’s vagina with his penis.
76. During her evidence in chief, the complainant stated that she trusted the Applicant as a principal of the school (Mphahleni High School). At the time of the alleged incident, she was twenty years old. She had all reason to respect, trust and abide instruction issued by Shezi.
77. Mr. Mchunu mentioned what the Labour Appeal Court stated in Grey v Education Labour Relations Council and Others [2015] ZALAC 50 (23 October 2015) in terms of section 17 (1) (c) of the Employment of Educators Act of 1998 (EEA) it was imperative that an educator ‘found guilty of having had a sexual relationship with a learner of the school where he or she is employed “must be dismissed” from his or her employment.’ It regarded the prevalence of educator-on-learner sexual misconduct as constituting an abuse, “not only of the authority and responsibility vested in an educator, but of the rights of the child given that’… no child has equal power to say ‘no’ to a parental figure or to anticipate the consequences of sexual involvement with a caretaker. In such an unequal relationship the adult (educator) bears sole responsibility for… sexual activity with a minor”.
78. The Respondent expected the Applicant to fulfil his role in ‘loco parentis’.The Applicant abdicated his obligation. He abused that role. He decided to abdicate his duty of care and exercise it upon the Applicant.
79. On his own version, he testified that he assisted abused/needy children in the school and that, therefore Nobuhle had all the reason to trust him. The complainant testified and, this was not contradicted by the Applicant, that he told her on a few occasions that he loved her and that as she was coming from a big city she supposed to be smart and not to tell anyone. The Applicant used to insert money within her math’s exercise book after he had marked them and, from Nobuhle’s testimony, Mr. Thabani Mchunu argued that ,it clearly indicated that the Applicant had planned this sexual assault over a period of time which he knew that she will not tell her mother.
80. The Applicant took her to a secluded spot where he raped her. The compliant tried to resist but he prevailed as she was scared of him.
81. That incident affected her career. Nobuhle was supposed to do grade 12 the following year (2017). However, it never happened due to the mere fact that the learner was disturbed in her studies. She was even afraid of going back to school where she was because the learners were going to laugh at her and make a joke about the situation she was going through.
82. The Applicant was an unreliable witness. He contradicted himself a few times and he even changed or tailored his version from time to time.
83. Compared to the Applicant, the complainant, Nobuhle Nxumalo aptly demonstrated through her evidence, the manner in which she was sexually assaulted by the Applicant. She had also been able to give the sequence and episodes of her ordeal. The Applicant had not been able to advance reasons that could have led to Nobuhle (the victim) to fabricate and implicate him.
84. The Applicant had expected the complainant to reciprocate favourably to his sexual overtures considering the favour he had done by allowing her late admission (somewhere around March 2016) and this was unusual as it had to be approved by the Circuit Manager.
85. Given all the favours and financial ‘sweeteners afforded to’ the complainant, she had no reason to fabricate a story that had a potential to destroy the career of the Applicant.
86. Mr. Mchunu argued that ‘the favours or sweeteners that (the Applicant) had extended to Nobuhle, were very suspicious and typified gestures that characterize would be perpetrators or paedophiles. His entire conduct pointed in that direction.
87. Her evidence was corroborated by Mr. Mdlalose’s evidence who appeared to be a broker between the Applicant and Nobuhle’s family.
88. The evidence that Mr. Mdlalose tendered was plausible and was not rebutted by the Applicant or seriously challenged by Mr. Dladla and Mthabela.
89. If there was any ‘bad blood’ between them, there was no evidence tendered to suggest that Mr. Madlalose was not being truthful. His evidence was substantially uncontradicted. Mr Mchunu argued that S v Mkohle 1990 1 SACR 95(A), it was held that contradictions per se do not necessarily lead to rejection of witnesses’ evidence. Although they may be indicative of an error made by a witness necessarily affects his/her credibility. Mkohle’s case provides a good example of inconsistences and differences of a relatively minor nature.”
90. There was no substance in the allegations of Applicant’s legal representative that the version was fabrication or a lie. He went on to argue that there was no motive for the learner to fabricate or lie at the hearing to the extent to mention the size of Applicant’s penis.
91. The Applicant’s witnesses (Dladla and Mthabela) lied in order to save the Applicant. They were unreliable and further they never testified at the internal hearing. They were partial towards him, as they have clearly indicated that they both viewed him as their father and a respectable man and one added to say he was a mentor to him. They kept changing their versions throughout their testimony and were very selective in their response under cross examination.
92. In the light of the foregoing, I had to confirm that there was just cause to dismiss and that the Applicant was fairly dismissed.

Analysis

93. The Applicant does not challenge his dismissal on procedural grounds. His focus is on the substantive grounds. The allegations against him were extremely serious and the fact that he was arrested and incarcerated by the police and appeared in court, even though the outcome is not before me. No doubt that his standing in the community and society was tarnished and he sought to redeem himself.
94. I have considered all the evidence that was put before me as well as the closing arguments of the Applicant and the Respondent. I have analyzed them as they were recorded elsewhere in this section of the award and accordingly, I draw attention thereto as they must be incorporated by reference in supporting the ratio underpinning this award.
95. I find the dictum of learned judge of the labour court, Tlhothalemaje J who, in Rustenburg Platinum Mines Limited v UASA obo Pietersen and Others [2018] ZALCJHB 72 (27 February 2018) instructive. In that case, he spoke of a “greater need” amongst commissioners “for more sensitization to the scourge of sexual harassment in the workplace” (vide para 3). I opine that the same holds in cases involving alleged sexual assaults of school learners.
96. In the wake of global movements highlighting the scourge of sexual abuse and assaults on school learners, there is a greater need for more awareness and sensitization against the scourge of sexual abuse and harassment in the learning environment. If we do not express to show our moral outrage and disgust through action and deed we fail in our constitutional duty to respect and protect the rights of children to human dignity and protection against violations of their right to bodily integrity.
97. One witness plus the complainant testified for the Respondent who was obliged to prove, on a balance of probability, that the dismissal of the Applicant was substantively fair and that he was dismissed for a fair reason. Four witnesses together with the Applicant testified. This award is informed of all the evidence ad arguments submitted at this hearing.
98. The Applicant’s defense against the allegations amounted to a bare denial. According to him the version of the complainant was improbable since he could not have perpetrated the alleged sexual assault. He was on duty in school supervising Nkosinphile Ngema and his five or so fellow learners who were preparing for their supplementary exams and, he admitted that he left them for about ten minutes to go and drop the complainant off at her residence. He had dropped her off and returned and he was informed by them that they were finishing the last two questions and that they would not be long. So, he left the motor of his vehicle running, and went to his office to pick up his books and to wait. A short while later Nkosinphile returned the classroom keys to him and he locked up. He then got into his car and drove towards the gates, where he stopped the vehicle to lock the gates. Nkosimphile testified that he did not see anyone in the vehicle at the time but that it was dark so he wasn’t sure. He concluded his testimony that the Applicant thereafter got into his vehicle and headed off towards Nkandla where he stays. So it was improbable that he perpetrated the sexual assault.
99. The complainant’s version was that, after she was asked to leave the classroom where she sought shelter waiting for Nkosimphile, which the latter confirmed, she was told by the Applicant to go home, and that after she informed him that she had been waiting for Nkosimphile to walk her home in the dark as she was afraid, he offered to take her home. She accepted and got into the vehicle. The Applicant then drove off with her towards Nkandla and ignored her when she questioned why he headed in that direction whereas she lived a short distant away. She thereafter described what happened. A few days later the parents of the complainant confronted the Applicant who was unaware that a criminal complaint was laid against him at Nkandla.
100. To a substantial degree, her version was corroborated by Mr. Madlalose who testified that he had been asked by the Applicant to intercede on his behalf with the parents of the complainant and financial inducements were offered to them with the view to getting the complainant to withdraw the charges. He was also given R 500,00 as money for petrol to pick them up from Empangeni and to drive them to the Nkandla police station for that purpose. He testified that he complied with that. He also testified that an amount of R15,000 was mentioned but that was reduced to R10,000.
101. The Applicant’s two witnesses, namely Mr. Dladla and Mr. Mthabela, proved to be hopeless witnesses conscripted in a desperate attempt to paper over the cracks and smoothen the dents in his defence as a result of the damning evidence of Mr. Madlalose. Even though an arbitration is a hearing de novo, I found it strange that, if indeed they were to be believed, they would have been ready to spring to his defence and to testify during the internal hearing.

Was the dismissal procedurally fair

102. Even though it is not necessary, for me to consider this aspect as the Applicant’s legal representative conceded that she was not contesting the procedural fairness of the dismissal, mero motu, I am satisfied that it was a concession wisely made by Simangele Shusha, Applicant’s legal representative.

Was the dismissal of the Applicant substantively fair

102 John Grogan in Workplace Law, 11th Edition, page 249, cited the court in Pick and Pay Retailers (Pty) Ltd ( Gallo Manor Branch) and CCawusa (1990)ILJ 1352(ARB), where it was held that the circumstances of an assault must be fully considered.
103 In the matter before me, the allegations against the Applicant referred to specific kind of assault , namely sexual assault. These were, I reiterate, extremely serious. The evidence of the complainant was that the Applicant penetrated her forcefully and without her consent. Her further evidence was she tried to force him off her after he had mounted her but he proved to be stronger and that she experienced great deal of pain. I have considered all the evidence which I have evaluated and analyzed and I have found that the Respondent has discharged its onus and that on a balance of probability, the Applicant was fairly dismissed. This was not a case where, considering the Applicant’s impeccable record and dedication and commitment that the notion of progressive discipline applied.
104 In considering the appropriateness of the sanction, I had regard to the decision of the Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; [2007] (5 October 2007) where the court held that in deciding dismissal disputes in terms of the compulsory arbitration provisions of the Labour Relations Act 66 of 1995 (LRA), commissioners acting under the auspices of the Commission For Conciliation, Mediation and Arbitration (CCMA), should approach a dismissal with “a measure of deference” because “it (was) primarily the function of the employer” to decide on a proper sanction. In deciding whether a dismissal is fair a commissioner need not be persuaded that dismissal is the only fair sanction – it is sufficient that the employer establishes that it is a fair sanction” (see para 1).
105 The complainant was honest in her testimony and she proved to be a credible witness. Her testimony was never seriously challenged and contradicted and her version was not improbable.
106 The Applicant was a very unsatisfactory witness. He never took this hearing into his confidence when he could have summarized the essence of his defence both during the initial stages when the parties made their opening statements as well as during cross examination of the complainant.
107 His defence was that he did drop the complainant at her place of residence and that he immediately returned to the school as there were those five or so learners who were studying in a classroom. Besides that his was a bare denial. Besides Nkosimphile Ngema, the grade 12 learner who at best testified that he did not see anyone else in the Applicant’s vehicle at the gate and that he was honest in conceding that it was dark and he could not see into the vehicle .
108 Apropos the contention that the charges of misconduct were fabricated and therefore the dismissal was substantively unfair he provided no evidence to support it. His legal representative’s valiant attempts to discredit the complainant and Mr. Madlalose hardly made not impact on their reliability and credibility.
109 He made several allegations but he produced no evidence to gainsay them. Those who did testify on his behalf were not persuasive.
110 For instance, it will be recalled that he professed that he was responsible for the safety of learners attending extra-mural classes and so when he peeped, through the windows, into the classroom, he saw the complainant sitting inside, he had instructed her to leave as she was allegedly disturbing these grade 12 learners who were preparing for their forthcoming trial examinations. Nkosimphile Ngema did not confirm that aspect of the allegations, when he testified. All he seemed focused on was, a sort of alibi defence.
111 Having considered all the facts and the evidence before me, including but not limited to, the gravity of the offence, the position of trust the Applicant was employed in, and the years of service of the Applicant, I am of the opinion that the sanction of dismissal was fair in the circumstances.
112 The Applicant was asked by his legal representative, during the last day of the hearing, whether he could think of any reason why the complainant would persist with the allegations three years later ( in 2019). At first, he could not think of any reason but then he mentioned that it was possible that she, or her parents wanted to extort or solicit money from him. It would have been worth considering had he taken the hearing into his confidence laid out his defence during his opening statement on 13th September 2019. I find that odd and I opine that he thought that up, during his testimony or possibly after consultation of his legal representative, having had the benefit of learning the depth of the evidence against him. He was vague and was constantly tailoring his response to fit the narrative as it unfolded. What was very odd, and fatal, that this version was never put to the complainant when she had testified.
113 I found that the version of the Respondent’s witnesses were more credible and their testimony which supported the version of the Respondent, more probable than that of the Applicant. A better part of their evidence went unchallenged.
114 Section 138(6) of the Labour Relations Act No 66 of 1995, as amended, obliges me to take into account any Code of Good Conduct that has been issued by Nedlac or the guidelines published by the CCMA that is relevant to a matter being considered in these arbitration proceedings. Sexual assault is a form of sexual harassment. Item 4 of the Code of Good Practice on the Handling of Sexual Harassment Cases defines sexual harassment as unwanted physical conduct of a sexual nature. Employers are enjoined by item 5 thereof to create and maintain a working environment in which the dignity of employees is respected. The complainant found the conduct of the Applicant unbecoming and unwelcome.
115 I am therefore, persuaded that the Applicant did misconduct himself as alleged. I am alive to the imprimatur of the learned judge Tlhothalemaje of the Labour Court who, in Rustenburg Platinum Mines Limited v UASA obo Pietersen and Others [2018] ZALCJHB 72 (27 February 2018) spoke of there being a “greater need” amongst commissioners “for more sensitization to the scourge of sexual harassment in the workplace” ( vide para 3), The conduct of the Applicant was clearly found offensive to the dignity of the complainant and should not be countenanced.
116 The allegations against the Applicant were extremely serious. He was in a position of trust which he abused. This case is an example where a long service record cannot compensate for the serious misconduct of which the Applicant was found guilty of and dismissed. In the words of Goosen AJ, as he then as, “[M]isconduct of this nature cries foul of the rights of female members of society to be treated with dignity, respect and without abuse; whether emotional and/or physical.” ( Motshoane v Education Labour Relations Council and Others [2018] ZALCJHB 98 (9 March 2018) at para [59]).
117 The Bill of Rights to our Constitution holds, in section 28(1)(d) that ‘(e)very child has a right to…be protected from maltreatment, neglect, abuse or degradation’. What the complainant experienced at the hands of the Applicant was clearly in violation of her rights.
118 I am reminded of what the Constitutional Court held in Centre for Child Law v Minister for Justice and Constitutional Development and Others [2009] ZACC 18; (15 July 2009). “ the Constitution” it stated
“draws this sharp distinction between children and adults not out of sentimental considerations, but for practical reasons relating to children’s greater physical and psychological vulnerability ( italics for emphasis)”. “Children’s bodies” , it continued, are generally frailer, and their ability to make choices generally more constricted, than those of adults. They are less able to protect themselves, more needful of protection, and less resourceful in self-maintenance than adults” ( at para [26]).
119 Section 17(1)(c) of the Employment of Educators Act 76 of 1998 requires that an educator found guilty of having had a sexual relationship with a learner of the school where he or she is employed “must be dismissed” from his or her employment.
120 With an inordinately high prevalence of educator -on-learner sexual assault in South Africa , I recall the words of Savage AJA, as he then was, who held in Grey ( vide para [77] supra for full citation) that ‘our law reflects that sexual misconduct with a learner constitutes an abuse, not only of the authority and responsibility vested in an educator, but of the rights of the child given that’….”no child has the equal power to say ‘no’ to a parental figure or to anticipate the consequences of sexual involvement with a caretaker. In such an unequal relationship, the adult (educator) bears sole responsibility for…sexual activity with a minor.” (see para [2] of Grey).
121 Ultimately the Applicant was the principal of the school. He was employed in a position of trust and by breaching that trust, he compromised and brought about an irretrievable breakdown in that trust relationship.
122 I am unable to find any reason to conclude that the witnesses who testified against the Applicant; with particular reference to the allegations relating to the sexual assault, fabricated their evidence against the Applicant. There is absolutely no reason; based on the evidence; to find that Mr. Madlalose and the complainant had a motive to lie and in doing so, to ensure the dismissal of the Applicant. They had no motive to lie and I could find no plausible support in the Applicant’s contention that the sexual assault that the complainant described were imaginary or a figment of her fantasy.
123 There is no foundation to support the allegation, that there was an attempt to solicit or extort money from the Applicant.
124 Mr. Madlalose testified that he was approached by the Applicant to intercede and negotiate with the complainant’s parents with the view of offering them a financial inducement to get them to withdraw the complainant. That went unchallenged.
125 Considering the above, I find that the Applicant has failed to advance persuasive grounds as to why his version embellished with the evidence of his witnesses, whom I found unreliable, should prevail over that of the Respondent.
126 Accordingly, the dismissal of the Applicant was substantively fair and he is not entitled to the relief he seeks.

AWARD
A. The dismissal of the Applicant was both procedurally and substantively fair.
B. The Applicant is not entitled to the relief he seeks.
C. There is no order as to costs.

Dated at Durban on this, the 18th March 2022.


ELRC PANELIST