ELRC272-20/21EC

Panelist: Clint Enslin
Case No.: ELRC272-20/21EC
Date of Award: 5 April 2022

In the ARBITRATION between:

Linda Kofi
(Union / Applicant)


and


Department of Education: Eastern Cape
(Respondent)

Applicant’s representative: Adv J Wild
Applicant’s address:

Telephone: 0730087467
Telefax:
Email jehwild@gmail.com

Respondent’s representative: Mr T Tsheko
Respondent’s address:
Telephone: 0605238324 / 082 4618250
Telefax:
Email toto.tsheko68@gmail.com

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 191(5) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 12 May, 11 and 14 June, 5, 6 and 31 August, 1 September, 26 and 30 November 2021 as well as 2 March 2022. There were also two live sittings at the Department of Education’s offices in Makhanda, on 22 and 23 February 2022.

2. The Applicant, Mr Linda Kofi, was present and was represented by Advocate Jennifer Wild, instructed by Brian Cutler Attorneys. The Respondent, Department of Education: Eastern Cape, was represented by Mr Toto Tsheko, a Labour Relations Practitioner, of the Respondent.

PRELIMINARY ISSUE

3. At the sitting of 12 May 2021, the Respondent brought a verbal application for documents to be provided. The documents requested were a full transcribed minute or recording of the disciplinary enquiry and witness statements by two persons (Mbombo and Netti), who had testified at the enquiry. The Applicant’s representative indicated that they had requested but not received same. She submitted that a failure to submit transcripts or recordings was sinister and that they had reason to believe that the said witnesses had not testified at the hearing. The Respondent’s representative submitted that the arbitration was a hearing de novo and that the outcome of the enquiry, which contained a summary of the evidence and reasons for the outcome, were contained in the bundle. He did not have the requested witness statements as they do not take written statements for witnesses for internal processes. He also did not have full transcribed minutes or recordings of the enquiry as same is not the norm. The outcome of the enquiry in the bundle is what they rely on.

4. I made an ex tempore ruling that the matter could proceed without the requested documents and confirmed that I would confirm same in the award. The reasoning for my ruling was as follows:

4.1 An arbitration is a hearing de novo and as such I am not bound by the finding or reasoning of the chairperson of the enquiry.

4.2 As it is a hearing de novo, evidence needs to be lead afresh in order for me to determine whether the dismissal was fair.

4.3 Any witnesses that may or may not have testified at the internal enquiry would need to testify again in the arbitration in order for their evidence to be considered. All witnesses that do testify at the arbitration can be challenged under cross examination.

4.4 The Respondent bears the onus to prove that the dismissal was fair.

4.5 Schedule 8 Item 4 of the LRA does not require minutes be kept of internal enquiries or that written witness statements be taken. It requires that the decision taken be communicated to the employee, preferably in writing.

4.6 Our labour dispensation requires speedy dispute resolution, with a minimum of legal formalities.

4.7 I do not believe that the Applicant is prejudiced by continuing without the requested documents.

ISSUE TO BE DECIDED
5. Whether the Applicant’s dismissal, by the Respondent, was procedurally and substantively fair.
6. If not, determine appropriate relief.

BACKGROUND TO THE ISSUES

7. It should be noted that many of the dates on which the matter was heard were not full days, mainly due to connection issues.

8. The parties submitted a pre arbitration minute.

9. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.

9.1 On 4 May 2018, the Applicant was the Principle of Phillip Mtywaku Senior Secondary School and Mrs Sifumba was a teacher at the same school.

9.2 He commenced employment as an educator on 5 September 2005.

9.3 He was dismissed on 18 September 2019 and appealed his dismissal to the MEC.

9.4 He was dismissed for assault.
9.5 At the time of his dismissal, he earned R36 370. 75 per month.

9.6 He was notified of the outcome of his appeal, to the MEC, on 31 August 2020.

9.7 He was paid until 18 September 2019. (He was paid for the period between the dismissal and the appeal outcome, but these monies were later recovered from him.)

9.8 On 4 May 2018, the day of the incidents at Phillip Mtywaku Senior Secondary School, Mr Kofi wrote a letter to South African Council of Educators (SACE).

9.9 On 7 May 2018 SACE investigators undertook an investigation of the incidents, in respect of which Ms Sifumba was the accused.

9.10 A charge sheet and notice to attend a disciplinary enquiry on 13 September 2018 at 10h00 – (although dated 30 July 2018) was served on Mr Kofi by the Department of Education Eastern Cape (“Respondent”) on 5 September 2018.

9.11 On 13 September 2018 the disciplinary enquiry was postponed because Mr Kofi submitted a medical certificate that he was suffering from a major depressive disorder together with a letter asking the Department to do a thorough investigation of his case.

9.12 The disciplinary enquiry was set down for 5 December 2018. On 5 December 2018 and at that hearing, Mr. Hena, the Respondent’s representative, was absent because he was involved in a car accident and Mrs. Sifumba was absent due National Senior Certificate marking. Advocate Dalena Mostert instructed and accompanied by Attorney Brian Cutler appeared for Mr Kofi and lodged written representations to permit Mr Kofi to be legally represented at the disciplinary enquiry.

9.13 On 5 December 2018 the matter was postponed to 9 January 2019. In the interim and on 21 December 2018, the Presiding Officer of the disciplinary enquiry, Mr Mashoai, issued a written ruling dismissing Mr Kofi’s application to be legally represented.

9.14 On 9 January 2019 the parties were present and initially the Presiding Officer permitted Brian Cutler, Mr Kofi’s Attorney to be present as an observer but Mr Cutler was requested by the Presiding Officer to leave.

9.15 The Presiding Officer has stated that thereafter Mr Kofi was “not seemingly understanding the process” and he asked Mr Kofi if he would be able to proceed and Mr Kofi requested a postponement to allow him to get a representative from a Union, to which the Department agreed and the Presiding Officer granted the request. The matter was postponed to 20 and 21 February 2019.

9.16 The matter did not proceed on 20 February 2019 because the Department’s representative Mr Hena had to chair a hearing in Bizana.

9.17 The matter was set down for 16 and 17 April 2019 but was postponed to 9 and 10 May 2019 because Mr Kofi’s Trade Union representative, Mr Adams, had an arbitration hearing on 16 April 2019 in Mthatha.

9.18 The matter did not proceed on 9 May 2019 as a result of an agreement between the representatives concluded on 26 April 2019 that the hearing would take place on 25 and 26 June 2019.

9.19 Mr Kofi had a Cosmetic Formulation Science training at University of Cape Town on those days and asked his Union Representative to secure a postponement, which was agreed between the parties to 18 and 19 July 2019.

9.20 In terms of the hearing on 18 July 2019; the Department sought to postpone the matter without a sitting because it was busy and the matter was postponed to 7 August 2019.

9.21 On 7th August 2019, Mr Adams, Mr Kofi’s Union representative filed an affidavit deposed to by Mr Adams in which he sought a postponement of the hearing. The Department consented to this and the matter was postponed to 2 and 3 September 2019.

9.22 On 2 September 2019 Mr Kofi and his Union representative attended and furnished the Presiding Officer with a medical certificate from Clinical Psychologist, Noluvuyo Mazaleni. It is common cause that Noluvuyo Mazaleni is a registered medical practitioner that she consulted with Mr Kofi and issued the medical certificate. Certificate is R1 Page 12 and states that Mr Kofi was seen on 30 August 2019 by Ms Mazaleni and that her diagnosis was “Major Depressive Disorder” and she recommended sick leave from 30 August 2019 to 6 September 2019

9.23 The Presiding Officer refused a postponement and continued the disciplinary enquiry and hearing unchallenged evidence in the absence of Mr Kofi and his representative, found Mr Kofi guilty of the charges and imposed the sanction of dismissal on Mr Kofi on 4 September 2019.

9.24 A letter informing Mr Kofi of his dismissal dated 10 September 2019 and signed on 19 September 2019 was furnished to Mr Kofi on 29 October 2019 by Mr Ngalwana of the Department at King Williams Town.

9.25 Mr. Kofi lodged an Appeal to the M.E.C (Education) on 3 November 2019.

9.26 The appeal was dismissed.

10. The Respondent initially handed in 1 bundle of documents, which was marked “R1”. Later in the proceedings the Respondent handed in a 1 page document (photo), which was marked “R2”. The Applicant handed in 2 bundles of documents, which were marked “A” and “B”.

11. The Applicants seeks to be reinstated retrospectively.

12. Both parties submitted written closing arguments.

13. The matter was electronically recorded.

SURVEY OF EVIDENCE AND ARGUMENT

14. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in
terms of Section 138 (7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
evidence and arguments heard and considered in deciding this matter.

RSPONDENT’S’ CASE

MS LUNGELWA SIFUMBA

15. Ms Sifumba testified that, on 4 May 2018, after the morning prayer session, she met her class learners, who were outside the class. She asked them why they were outside and they informed her that the Applicant had told them to fetch their parents. She asked them not to leave as she wanted to give them work. She found the Applicant inside the class and told him she wanted to give them work before they leave. She and the Applicant had a discussion where she explained that she wanted to give them work and that he can release them thereafter. She asked him if this was a big deal as it was her period. He left and went to his grade 11 class.

16. She gave the learners their work and they then went to the Applicant. They returned and she told them to sit and write. After approximately 5 to 10 minutes the Applicant returned. He asked where the learners were and she replied that they were writing and could leave when they were done. He went to the learners row by row, closing their books and asking them to leave. She was at the first row on the left. He came close to her and she asked him if he did the same with her colleagues. He responded in the affirmative and further stated “Kupa Ishori.” (There is no direct translation for this terms, but it effectively means “I will show you I will prove you wrong, I will deal with your attitude or I will take away your pride.”)(“I will show you I will prove you wrong” being the most accurate translation)He then asked her to move. He shoved her and she landed on the desk. She lost her balance and therefore tried to hold onto him. He turned around and hit her with a fist on the mouth and slapped her on the cheek. The learners tried to stop him and held him back. Someone ran to call other teachers. Mr Daniso, a fellow teacher, came in and asked her to go to the staff room.

17. She reported the incident to the police and Mr Gulwa, a fellow teacher, who called the School Governing Body (“SGB”). She believed from the report that the SGB came to the school, but she had already left by that time. This case was dealt with in 3 forums, being in a hearing at the district office, at the South African Council of Educators (“SACE”) and the SAPS in terms of the criminal matter. The learners in her class on the day of the incident were grade 12 learners.

18. After the incident she went out to go home, but then her family arrived. She met them outside the gate. Her family went to the clerks’ office and asked why the Applicant had beat her. The clerk took them to the Applicant’s office where they spoke to him. A learner was called for a statement as to what had happened in the class. The Applicant sated that he had not done anything and the learner explained what had happened. She was bleeding and they left for the police station and then the doctor. She was in the clerks’ office, but the door was open and she could see the Applicant. She did not see him being assaulted.

19. At court for the criminal proceedings she was cross examined by the Applicant’s attorney. The matter was to continue, but she was not aware of the second sittings date. She heard about the sitting from a learner who had been subpoenaed, however, she was required to do marking. She asked her husband to go to court and explain that she was marking and could not leave. Her husband came back and said the case proceeded in her absence and was dismissed.

20. Under cross examination she confirmed that she gave Life Orientation “LO” and IsiXhosa. She gave LO to grade 12 and presented the class in English. Her command of English was good. She confirmed that pages 51 to 52 of B was her statement given to the SAPS on 4 May 2018 about the incident. Page 39 to 46 was a report from SACE where she was the accused. Her statement to them was contained on page 41 of the said report. Page 80 of B was a front page newspaper article from the I’solezwe newspaper which was published on 17 May 2018. She had given an interview to them. She confirmed that the English transcription of the said article, contained on page 78 of B, was correct, except for the fact that it should have said “punched” and not “pushed”. She denied that she had told the reporter that they had called for the removal of the Applicant as per paragraph 6 on page 78 of B and stated that the reporter must have made that part up.

21. She agreed that the issue on 4 May 2018, where the Applicant wanted the learners to bring their parents, was as a result of them not attending the previous weekends arranged grade 12 physical science camp. Upon return from the camp, the Applicant had asked non-attendees to bring their parents and on 3 May 2018 some students had complied, but others had not. She agreed that when she arrived at her class and spoke to the students standing outside, she had become aware of the Applicant’s instruction to them. Despite this, she had instructed them to enter the class as she wanted them to give them work.

22. She agreed that the Applicant had told her to move and she had continued standing there. She confirmed that the Applicant had hit her with a fist on the jaw/temple as per her testimony in court on page 15 of A and stated that she must have made a mistake when she testified in her evidence in chief that he had hit her on the mouth. She stated that parts of her statement to the police were not correct. She denied having stated that she had asked the Applicant if she could hand out papers to the learners, as per her statement to the police on page 35 of B. It was pointed out to her that the parts of her statement on page 35 of B where it said “He respond saying that the agreement is that those learners must leave the classroom. I respond yes its fine but they must have papers first” and “I beg him that please leave the learners because this is my class, I’m in charge here.” differed from what she had testified. She stated that the reason for the differences was that she had given the statement in IsiXhosa and the police wrote it in English. Also that she was in pain at the time. It was pointed out to her that she has a good command of English as she teaches grade 12 learners LO in English.

23. She stated that the police must have written some things on their own, but could not explain why she believed the police would do so. She confirmed that she had told the court, as per page 22 of A that 4 things had been omitted from the police statement and not that things had been added to it. She could not remember why she had not said that parts of the statement were made up by the police. She conceded that as per page 23 of A, the court had confirmed with her that she understood the statement in English. She stated that although she had confirmed to the court, as per page 25 of A, that the statement to the police was accurate in terms of what she had told them, bar for some omissions, she agreed with the contents of the statement as it related to the assault, but not the part where she said the Principle must leave the class.

24. She stated that although there was no mention about a slap with an open hand in her statement to the police on page 35 of B, and it was also not one of the 4 omissions she had brought to the courts attention, she had only told the police about the fist as they had asked why she was bleeding. She initially denied that she had told the SACE investigator that she was the principle of her class, as contained on page 41 of B, later she confirmed that she had indeed said so to the investigator. She did not know why there was no mention of the fact that she had had stood or failed to move, when the Applicant had told her to do so, in either the SAPS, SACE or newspaper statements. She denied that she had blocked the Applicant. She denied that she had slapped the Applicant. A lack of time was the reason that she had not told the SAPS, SACE or the newspaper that the Applicant had asked her to move and she had failed to do so and then held on to him. She denied that she had told the newspaper reporter that the Applicant had pushed her and then pushed her in her mouth whilst she was lying down, as per page 78 of B and confirmed that she had told them that he had punched her with a fist.


25. She agreed that the Applicant had said no when she asked to first give them papers before they leave, but felt that he later understood/agreed as he left the class. She denied that she had slapped the Applicant. She was not in a position to dispute that the Applicant had reported the incident to Respondent and the SAPS as soon as he arrived in the office. She was aware of the fact that her husband had been charged with the assault of the Applicant and would be appearing in court. She did not know how the Applicant had sustained the injuries contained on the doctor’s J88 report, conducted the morning after the incident, on pages 67and 69 of B, which included swelling, a bruised left cheek, tender hand, loose tooth and tender left calf. She did not see anything happen in the office.

26. She believed that the Applicant was right handed. She could not explain the injuries to the Applicant as confirmed by the abovementioned medical report, as well as the medical report on pages 72 to 75 of B, which was made on the same day of the incident, as she had not seen him being beaten.

MS THIMNA NETHI

27. Ms Thimna Nethi testified that she was a grade 12 learner at Phillip Mtywaku Senior Secondary School in 2018. The incident on 4 May 2018 had taken place in her class. They had come from assembly on the morning when the Applicant took out learners who had not attended classes on the public holiday. He then entered his office. There were some parents at school. He went to attend on his grade 11 class and came back to their class. Mr Sifumba asked why they were outside and they told her that he had sent them out as they had not attended. They went inside and Ms Sifumba asked if she could give papers and did so. They went outside and waited long whilst he was busy with his class. Parents started to panic. They entered the class whilst the parents were outside and the Applicant entered angry. He took books from the learners on his way in. Ms Sifumba asked what he was doing. The Applicant approached the row where she and Ms Sifumba and others were and said “Kupa Ishori.” He went into her row and pushed her. She balanced on him and he then turned and punched her in the face. She fell on the desk and was bleeding. The learners tried to stop him, but he was unstoppable. Some learners went to call another teacher. The Applicant was stopped by teachers and he then went to his office. They all went outside and were called to assembly and told to go home.

28. Under cross examination she agreed that she was one of the learners who had failed to attend the extra lesson and upon returning from the long weekend, the Applicant had told them return with their parents. She did not return with her parents on 3 May 2018, but she had called them and they had said that they would come on the Friday. Her parents were present on the Friday. The extra lessons were to improve the pass rate. The Applicant had put extra lessons in place long ago and he used to transport them, but had not done so on this occasion. He expected them to attend, but it was far and dangerous, hence why he took and fetched them.

29. She conceded that her parents had not attended on the Friday, but that it was her cousin who attended. She and her cousin lived with her mother and her mother sent her cousin as she could not attend. The only words in the class between the Applicant and Ms Sifumba, that she remembered was when she asked him what he was doing and when he said to her “Kupa Ishori.”. She confirmed that the parents were standing outside, despite her statement to SACE, on page 44 of B, that they were told by the, Applicant, to go home and fetch their parents. She could not say why Ms Sifumba had not stated anything about parents standing outside. She did not know why her statement to SACE did not contain anything about Ms Sifumba asking the Applicant what he was doing or him saying “Kupa Ishori.”, but maintained that she had said so. She did not see the Applicant going row by row taking the books. She did not know why Ms Sifumba had not testified that she had asked the Applicant what he was doing. She did not see Ms Sifumba standing in the Applicant’s way hear him ask her to move. She was not saying it did not happen, but she could not remember it. She denied that she was the learner called to the office after the incident in the class or that she knew of the Applicant being assaulted. She confirmed that they wanted to enter the class, despite the Applicant instructing them to fetch their parents, as they were standing outside and he had gone to his grade 11 class. She was not sure why Ms Sifumba had said that she had let them enter class to give them papers, when in fact it was them that wanted to enter the class.

30. She conceded that as she had not seen Ms Sifumba continue to stand when after being asked to move, as testified to by Ms Sifumba, she may also not have seen Ms Sifumba slapping the Applicant. She did not write the SACE report and could not recall if it was given to her to read.

MS MANDIPHA PENDU

31. Ms Mandipha Pendu testified that she was on the School Governing Body (“SGB”) of Phillip Mtywaku Senior Secondary School in 2018. She also had a children at the school. There was an incident at the school and she was called by Mr Gulwa, a teacher, who said there was a problem and she should rush there. She went to the school. On her way, she met Ms Valisi who was also on the SGB. There were a few kids there when they arrived and they went to the Applicant’s office. Inspector Genoti, from the department, arrived and they sat down with the Applicant and asked what had happened. The Applicant told them that he had had a fight with Ms Sifumba in the classroom. He had gone to ask the children to leave and she had taken them back in. He had lost his temper and ended up beating Ms Sifumba. Ms Sifumba was not with them in the office at the time. Ms Valisi, herself and Mr Genote told him that he should meet with Ms Sifumba and apologise to her. They told the Applicant that they would set up such a meeting. They did not speak with or meet him again after that. On another day, after that, they (SGB members) had met with Ms Sifumba and she noticed that Ms Sifumba had swelling around her eyes.

32. Under cross examination she agreed that she had not given a statement to the police or SACE or testified at the hearing. She did not see learners with placards when she arrived at the school on the day of the incident or notice the police having to escort the Applicant off the premises due to the situation. She did not notice that the Applicant had been beaten and he had also not said anything about it. She denied that the Applicant had informed them in the office that he had been assaulted by Ms Sifumba in the class and then again by Mr Sifumba and others in the office. She agreed that Mr Genote had told the Applicant to write down all that had happened and send it to the department. SACE had not invited her to testify and she believed that people who would be called to give evidence were those that had witnessed the incident. She was not in the class at the time of the incident there.

MS NTOMBEKHAYA KOBESE

33. Ms Ntombekhaya Kobese testified that she stayed in Peelton. Her child went to Phillip Mtywaku Senior Secondary School. The Applicant was the principal of the school at the time. She had met the Applicant at a meeting at the school and then later at her house. He had phoned before he arrived at her house and she was nervous as she thought it was about her child at school. When he arrived at her house he wanted to talk about the incident at the school. He told her that he wants permission for her son to be his witness and that he had already spoken to her son, Aviwe, about it. She asked him how that was as her son was in grade 11 and the incident happened in grade 12. She also told him that her son had told her what had happened, but that she could not take such a decision alone as she stayed with her elders. He did not have a problem with her first meeting with her elders.

34. She later met with him, but they did not agree to let him testify as Mr Kofi had made promises she did not agree with and she had told her family this. He had promised to take her son to another school and give her R20 000 if she let her son testify.

35. Under cross examination she confirmed that she was not sure if the Applicant had met with her on the Friday, but she was sure that he arrived on the Monday. She confirmed that she was aware that her son and a friend had been interviewed by the Applicant, Mr Juna, who was a principle at a primary school, and Mr August and that the interviews were recorded, as he had informed her about it. She was not aware of the contents of the interview or if her son had said that he had seen Mr Sifumba beating the Applicant, as put to her by the Respondent’s representative and accordingly could not dispute it.

36. She confirmed that the Applicant had another gentleman with him when he arrived on the Monday and the conversation was held in the presence of this person.

MS ASITHANDILE MBOMBO

37. Ms Asithandile Mbombo testified that she was a grade 12 learner at Phillip Mtywaku Senior Secondary School in 2018. She was in the class when the incident occurred. The Applicant had beaten Ms Sifumba whilst they were in class. He had beaten her as he wanted to take them, but it was not his period. The Applicant pushed Ms Sifumba and when she tried to get up he hit her with a fist and said “Kupa Ishori.”. Other students tried to stop the fight.

38. Under cross examination she confirmed that, as per page 39 of B, she could see that Ms Sifumba had given evidence in the said investigation where she was the accused. She could also see that her fellow learner, Ms Nethi, had also given evidence in this investigation. She was required to attend the extra lessons and had not done so on the second occasion. She was one of the learners whom the Applicant had told to attend with their parents. They were in assembly and the parents were on their way. It was correct that the Applicant had told them not to attend class until their parents arrived as he had told them this himself, when he got them outside their class after assembly. On the way from assembly Ms Sifumba had asked them to come for homework. The Applicant had said they should not attend and must get their parents.

39. She confirmed that Ms Sifumba arrived and found them outside the class and she asked the Applicant for them to enter the class for homework. The Applicant said to Ms Sifumba that they can’t go in as he was waiting for their parents. At that stage all the learners, the Applicant and Ms Sifumba were still outside the class. Ms Sifumba left them outside and they eventually went in when the Applicant went to his grade 11 class. As such, it was their own decision to enter the class. They entered and went and sat at their desks, whilst Ms Sifumba was inside. The Applicant then returned and wanted to find out why they had defied his instruction. When the Applicant entered he asked them why they were in the class and also if he had not told them not to so. He started taking books. Ms Sifumba asked why he was taking kids out of her class as it was her period. He said he was the principle of the school. She did not see Ms Sifumba refuse to get out of the way or hear the Applicant ask her to move. She only saw him push her, she tried to hold on to him and he said “Kupa Ishori.” and hit her with a fist. She disputed that she was giving a second version and stated that it had happened long ago.

40. Page 16 of B was the statement she had given to the police in the matter of the Applicant against the Sifumbas. When pointed out to her that her version in paragraph 2 of this statement of hers differed from her current version she confirmed that what she said in 2018 was what she had seen. When asked why both Ms Sifumba and Ms Nheti had stated that “Kupa Ishori.” was said prior to any physical push, whilst according to her it was after the push, she stated that she could not say if it was before or after. She could not say why the part about “Kupa Ishori.” was not captured in her statement on page 16 of B. She did not understand why Ms Sifumba’s version was that the learners had left the class and came back saying that the Applicant was not available, as they had got him outside the class and had not looked for him.

MS PUMEZA VALISI

41. Ms Pumeza Valisi was called to testify by the Respondent. She completed her testimony, but was still being cross examined when the matter was adjourned. The arrangement was that she would come back to complete same at the next sitting. She did not do so and the matter proceed with the new arrangement that she would come back at a later stage to complete same. There were a number of sittings after this and each time she did not return. Finally, Mr Tsheko confirmed that she would not be returning and he did not intend to pursue her. He was warned that if she did not return to finalise her cross examination, I would not consider her evidence. He confirmed that despite this, he still held firm that she would not be coming back to complete her cross examination. Her evidence has therefore not been considered as it remained untested.


APPLICANT’S CASE

MR LINDA KOFI

42. Mr Malinda Kofi testified that he was 42 years old, married and had 2 kids. He held various degrees and diplomas. He started as an educator in 2003 at a private school and joined the Respondent in 2005. He taught at various schools before starting at Phillip Mtywaku Senior Secondary School in 2009. When he started there the situation with maths and science, which he taught, was not good. He arranged extra classes in the afternoons and on Saturdays. He was not paid for this. He was appointed principal on 1 November 2012, but continued to teach science thereafter. When he became principal the matric pass rate was 48%. After his first year as principal it was 72.6% or 72.8%. In 2017 they had a 96% matric pass rate and a 92% pass rate for science.

43. Page 77 of B was a letter Ms Sifumba and other staff had done complaining about him and requesting his removal. This letter was dated 15 February 2018 and was done before the incident which lead to his dismissal. He only saw the letter after he was assaulted when he got it from the union. He did not trust this letter as the union had found it together with his complaint. He felt the issue that led to the letter on page 77 of B may have been that he was too strict. He did not have many issues with them, but one example was when he went for his MBA he had asked Ms Sifumba to act as principle. Upon his return he heard that she, the SGB chair and the teachers had agreed to lend Mr George, who was a newly appointed teacher that the Respondent had not paid yet, R5000 from the school money. He was not happy and queried why he had not been asked as she had contacted him for other issues. There were general behavioural issues with staff such as a teacher not coming to school or marking the June exam papers in 2017, which lead to them not being able to issue reports. They had a meeting with the Circuit Manager about this. Another example was when they were appointing an admin person, the teachers told the Respondent that they do not want him as part of the process. They accused him of having ulterior motives and he withdrew himself. The Department said that according to the process he must be there and ultimately, he was there.

44. Teachers came to his office to say he must sign the release for matric marking, but he reminded them that they could only go after they had completed their own school as well as moderation. It was not done and therefore he had not signed. The teachers reported him to the Circuit Manager, saying he could not control school and was abusing their right to go and mark. The Circuit Manager confirmed that if the work was not complete, he could not force the Applicant to release them. Also in 2017, he last saw Mr George, a teacher, on about 15 November. After the feedback from, the Circuit Manager, they came to his house saying they could not mark Mr George’s scripts as he had gone to initiation school, which they had only found out then. There was a process which needed to be followed prior to taking leave.

45. There was a course for the learners on the long weekend before 4 May 2018, which a number of learners did not attend. He instructed those who did not attend to bring their parents. On Friday 4 May 2018, he announced during assembly that some of the learners had not brought their parents. After assembly he went to his office. Some of the grade 12 parents were there so he told them that he wanted to go to the grade 12 class to confirm who had not brought their parents. When he got to the class, the learners were busy entering. He stood in front of the door and pointed to learners who did physics, the subject that the extra lessons were for. He allowed the others, as well as those who had brought their parents, to enter. The ones he pointed out told him that their parents were still coming and he told them to stand next to him as he wanted to talk to them.

46. Ms Sifumba arrived and asked them why they were standing there. They explained the reason to her and she said they must go in and pushed them. They then came to the door where he was. She followed them and he said to her that he was doing what had been agreed upon. She again told them to enter. He followed her into the class and asked her why she was doing so. She said that she was tired of what he was doing and that the problem was that she also did not get the learners the previous day due to him. He explained the parent issue. The learners he had spoken to were still standing in front of the class and she told them to sit down. He asked why she was doing so and she replied that it was her period. He said it was what they had agreed upon and as the principal he needed her assistance. He queried why she was not following his instruction and she replied that she was the principal of the class and he was the principal of the school. She also said she wanted to give them papers. He said that he could give them the papers, but he need to take them and she responded by asking if it was a big deal if she gave them the papers herself, to which he replied that it was. She said it was a big deal to him, but not to her and started handing the papers out.

47. He stood watching for a while and she said she would give him the learners after handing out the papers. He left the class to wait for them. He remembered he had a grade 11 class and went to them to give them work. He then returned to the grade 12 class by Ms Sifumba. The door was open and he saw that she was finished with the papers and was teaching. He entered the class and asked where the learners were that she said she would give him. She said she did not know about saying she would send them. He saw them in the class and he went row by row closing their books and sending them out. There were approximately 70 to 80 learners in the class. On his way to the learners, she said that he liked to be looked at and he responded by saying “Kupa Ishori”. As he reached the first learner, she moved from being in front of the board to between desks where he was supposed to go. He closed the first learner’s book and said he/she should come as he needed to speak with him/her. He then moved to other learners row by row.

48. As he was moving, Ms Sifumba was standing between two of the rows. He asked her to move, but she stood. He decided to find space between her and the desks to pass, but she closed the gap and they bumped each other. She then slapped him with an open hand. He stood and looked at her and she then threw fists and tried to grab him. She also head butted him. He tried to push her away and he lost balance and fell on the desk. She was holding onto him and also fell onto him and learners tried to separate them. He denied that he had punched her. Female learners took her away from him to the blackboard and said to the boys that they must help. Boys grabbed him and took him outside. There was lots of screaming and noise and Mr Daniso, a teacher, came just as they were taking him out. He took the male students away from him as he went outside with him. While he was standing outside, Mr Mabela, also a teacher, went inside the class and then came out and grabbed him by the collar, strangling him. He said “beat me asshole”. Mr Gulwa, another teacher, came and removed Mr Mabela away from him. He then went to his office and called the police and the Respondent. He called Mr Katchasa, who was the Circuit Supervisor as the Circuit Manager had changed and he was not sure of the contact number.

49. Ms Bikaco, the cleaner and a SGB member, came to his office. He asked her to phone the rest of the SGB and inform them of the situation. After phoning she came back and asked what had happened and he then told her. While he was talking to her in his office, behind a closed door, Mr Sifumba and another male and female entered. Mrs Sifumba was behind them and said “There he is.” Mr Sifumba and the male grabbed him from behind. Mr Sifumba hit him with a fist and he tried to defend himself. The other male kicked him from the back whilst Mr Sifumba was hitting him. Mr Valisi, an admin clerk, entered and grabbed Ms Bikaco and took her out of the office. He then returned and closed the curtains of the office. The Applicant fell down and Mr Sifumba continued to kick him in the face. Ms Bikaco came back and pushed them away from him. She said to Mr Valisi “This is not right what you are doing” and pushed him. She helped him to stand up and then sit down in his chair.

50. Mr Sifumba asked “why you hitting?” He responded that he does not even beats the children, unlike Mr Sifumba’s wife who does so. Mr Sifumba went out and asked where were the cleaners were. Mr Mxo, a teacher, shouted the name “Mboniswa”, who was the first learner he had taken the papers form. He could hear learners telling her to come, but she never did. Ms Nhetti, a learner, came in her place. Ms Sifumba’s sister asked what happened, didn’t the Principle beat Mr Sifumba? Ms Nhetti said “yes he did”. The Applicant did not respond. Ms Bikaco brought his ring that had fallen off and the other male said “Let’s go to the police and report this dog” before they left. The Applicant then went to the police, as they had not arrived. On his way to the gate, in his vehicle, Ms Sifumba told learners to close the gate. They and Mr Goerge, a teacher, closed the gate. He went back to the office to wait for those he had called and took pictures of himself. Mr Genoti arrived and confirmed that Mr Katchasa had sent him. The SGB member also arrived. One SGB member said that the Applicant had said he had lost his temper and hit her. He denied saying so. He told them that Mr Sifumba had assaulted him. Mr Genoti said he should put it in writing that same day and send it to him.

51. Page 65 of B was the letter he sent in this regard. It was sent to Mr Genoti, SACE and SADTU. Police later assisted him to leave the school. He laid charges on the day. Pages 72 to 75 of B was the J88 from the day of his assault. P 67-71 of B was a medical report from the next day. The reason for the second report was that he had gone to his doctor who said they do not do the reports and advised him to go to a public hospital for same. At the public hospital they did not have an X-Ray machine and told him to come back the next day. He went home and went to a private hospital the next morning. Pages 67-71 of B was the J88 from the private hospital and pages 72-75 of B was the normal J88. Page 62 of B was the statement he made to the police when opening a case.

52. Page 12 of B was the medical certificate he had handed in on 13 September 2018. His mental condition was fine prior to the incident on 4 May 2018, but after the incident he had to see a psychologist and departmental counsellor. The Respondent, via Mr Ngalwana and Mr Sinoka, had told him they were forced to suspend him as a result of the newspaper article on page 80 of B. He was not initially suspended. His last day at the school was the day of the incident. The Respondent told him not to go back as the teachers had said that they would leave if he returned. He then reported to the office as a result of that and safety reasons. He was later suspended.

53. Under cross examination, he confirmed that Bongani Buntsuntsu was a former matric student of his. He did not write his final matric exam while at the school, but rather at a different school. This had come about when Mr Buntsuntsu had said he does not want to study at Phillip Mtywaku Senior Secondary School anymore. He had reported the matter to SACE and a hearing was to be held, but this had not been completed as yet. He was the person charged in this process. He believed that this was due to the fact that when they did their investigation at the school he was already suspended and they therefore only got one side of the story. They only later came to him. He confirmed that SACE had spoken to him before charging him. He confirmed that he had reported the matter to SACE, they had investigated and given the report that ends on page 46 of B, which concludes that he was the one that assaulted Ms Sifumba. The letter on page 47 of B, which was inter alia sent to Mr Genoti sited his allegations. When he reported to the office on the Monday, he asked Mr Genoti if he had seen his letter. He said no, but he needed to go to the school. He asked if he could go with and Mr Genoti said he could not as the teachers had said that if he arrived there they would leave. Mr Genoti said he would rather have the teachers there than him alone.

54. Page 37 of B was the letter sent to him prior to the SACE hearing, which was a result of the investigation on pages 39 of B. He agreed that on the day of the incident as the principal he represented the HOD in terms of the South African Schools Act and that principals were not allowed to chase learners out class during teaching time. He, however, did not feel that he was baring the learners from learning when he sent them to fetch their parents as it was departmental policy to get parents to assist where learners do not co-operate. The reason he had chased them out during tuition was that he had issued the instruction the previous day and they had not complied. He wanted them to first bring their parents. He felt his actions, of sending them out while the teacher was there, were legal as he had asked the teacher for co-operation had she had not given it. As the principal he was responsible for teaching and learning and was the leader. He felt it was wrong to chase learners out as discipline, but not for them to fetch parents.

55. He had not called Ms Sifumba to his office to sort out the issue as she did not want to listen and some of the parents were already in his office. He did not normally address teachers in front of learners and he had asked to speak to her alone, but she had not listened. She disrespected him and asked in front of the learners why he was standing there and then told them to go inside. He had not asked to speak to her alone the second time he came to the class as on the first occasion in the doorway she did not respond. He knew she would not step outside. He had chosen Ms Sifumba to act in his place as she was a school management member and behaviour and attendance was good and she was willing to accept delegation. They worked together in the extra classes and she had always supported him in this. He attributed the increase in percentages and pass rate to teacher’s parents and himself. The extra classes were co-ordinated by a non- governmental organisation, but they also had extra cases over and above these, which he and Ms Sifumba organised and co-ordinated.

56. The class that the incident took place in was a double class. They had partitioned the school hall into 3 classes. On the day, two of these classes were made into one and there were approximately 70 to 80 learners inside. The class was overcrowded. Due to the congestion there was no other route for him to take other than past Ms Sifumba. She was not preventing his entry to all the rows, but to the one that he was on his way to. He had not responded to Mr Mabela as Mr Mabela did not know what he was talking about and he also had him by the collar. He also did not say anything when Mr Gulwa broke them up as Mr Gulwa took Mr Mabela away and he could not deal with him in his current state. With reference to the photo on R2, he confirmed that Ms Sifumba was crying and emotional in the photo, but denied that he could see the alleged injuries in it. Page 36 of R1 was a J88 for Ms Sifumba. It gave a background of the alleged assault at the school and made clinical findings of injuries. They were a swollen left side cheek of approximately 5 cm in diameter, tearing inside upper lip at the level opposite the left upper canine and a bluish discolouration of approximately 10cm on the lateral side of the wrist area on the left side. He denied that he was angry or frustrated on the day. He denied that “Kupa Ishori” was a threat. He was going to prove her wrong in that the learners would fetch their parents.

57. He was inducted when appointed as principal and knew what to do if a teacher did not follow his instructions He had not followed the disciplinary procedures with Ms Sifumba for not following his instructions as he was assaulted at work and had phoned his supervisor. He was dealing with learners as the parents were in his office and he would have dealt with her insubordination later. There was no one in his office when he returned after the incident. The parents were outside the office, but he did not attend on them.

58. He was aware that Mr Buntsuntsu was transferred to a different school and that according to the letter from the Circuit Manager, dated 23 August 2018, it was facilitated by him as a “parent”. He agreed that he did not have a child at the school. He confirmed that a parent as per the departments policy was someone who takes care of a child and that he was not registered as the guardian. He was also not his biological father. He had stated that he was the parent as he had received an instruction from the parent who was in Umtata. Mr Buntsuntsu did not have a guardian when he came to the school. A departmental official had confirmed that knew the learner and that he was repeating grade 12. He said that his sister was his guardian at school. The sister said she could not come from King Williamstown and that The Applicant should write his name as parent. Transfers were not always facilitated by parents. He did not find it suspicious that this transfer was facilitated by him after the incident. He laid charges against Mr and Ms Sifumba as well as Mr Mabela, but the justice department decided to only continue against Mr Sifumba.

MR BONGANI BUNTSUNTSU

59. Mr Bongani Buntsuntsu testified that he was redoing his grade 12 at Phillip Mtywaku Senior Secondary School in 2018. He wanted to improve his marks. Physical Science was one of his subjects in 2018 and it was taught by the Applicant. He attended the extra classes held by the Applicant, but a number of learners did not attend. They were instructed to bring their parents and again some did and some did not. He was present in the class on the day of the incident.

60. As he was getting ready to sit down, he saw the Applicant preventing learners from entering. Some learners were standing at the door and others were entering. The Applicant entered after this. The Applicant spoke to Ms Sifumba, but he could not hear what was said. He then heard Ms Sifumba say, in a very load voice, “I am the principal of the class as you are bragging to be the principle of the school”. She said he would get the learners after she had distributed the papers. She gave the papers out and said the learners could go as she was finished. The learners laughed. The Applicant returned to the class and asked for the learners she had promised to release. She said to him that he was stubborn and that she will show him. The Applicant went to the learners and got to his row. Ms Sifumba was standing in the middle of his row. The Applicant came to there and requested to pass her as she blocked him. She refused and he then forced himself through the gap. She slapped him with an open hand and then jumped towards him trying to pull him down. Her head covering (doek) fell off. The Applicant tried to stop her from beating him. The learners screamed and tried to separate them. Two other teachers came in, Mr Mabela and Mr Daniso. The learners and two teachers took him outside, where Mr Mabela held the Applicant by his neck and collar threatening to beat him. The Applicant escaped and went to his office. Ms Sifumba started her vehicle and drove off the premises.

61. She returned accompanied by two other vehicles. Two males and a female got out of these vehicles. They went to the staff room and then to the Applicant’s office. A group of learners followed them. Another teacher entered the office and then came out to the veranda, where the learners were and showed a sign with his hand/fist of beating and said the principle is being beaten. He decided to look through the window and had to walk around to do so. There were also learners in the office. He saw a short guy, who was one of the males who had come in, beating the Applicant. The Applicant was lying down. The tall guy lifted the Applicant up and kicked him at his back. The lady used a stick to beat him. Ms Bakacu rescued him. The short guy was the leader of the attack. Mr Valise entered whilst the fight was on and closed the curtains. The attackers left and the Respondent came out of the office. He drove his vehicle to the gate and Ms Sifumba instructed the learners to close the gate, which they did. He then drove back to his office and Ms Sifumba left in her vehicle. Later the police came, with two vehicles, and entered the Respondent’s office. They came out with him and he left in a police van with them. His car was driven by one of the policeman. He confirmed that he had made a statement to the police.

62. He wanted to transfer to another school as the teaching in Physical Science was poor after the Applicant left. He was concerned about his future and had to leave. He discussed it with his sister, who was his guardian. He found out where the Applicant lived and went to find out how he was after the incident. He addressed the issue of the school with him, but the Applicant was not keen on assisting him with the transfer. He persuaded the Applicant, who said he would need an instruction from his guardian and he queried who his guardian was. He informed the Applicant who then spoke with his sister. They agreed to facilitate the transfer. He had tried to persuade him after the incident, but the Applicant had only agreed in August, after he had told him that I was his right to be transferred as he could not write exams in the toxic environment at the current school.

63. Under cross examination he confirmed that page 49 and 50 of B was the statement he had made to the police. He did not believe that “Kupa Ishori” was regarded as a threat in IsiXhosa. Ms Sifumba had said to the Applicant that she would release the learners after she had given the papers, whilst they were in the class and the Applicant was also present at the time. He felt that Ms Sifumba did not honour her agreement to release the learners as that when she said “yes you can go now as I have finished what I wanted to do”, as per paragraph 2 of his statement on page 49 of B, it was a joke from her. He found it strange that Mr that Mr Valisi prioritised closing the curtains over stopping the fight. He denied that he had testified for the Applicant in exchange for the transfer and stated that the the Applicant did not want him to do so. He thought Mr Valise was a teacher but later found out that he was a clerk.

64. He had not informed the school of his transfer prior to his departure due to their attitude and he did not trust them. He went to the district officials and was sure they communicated with the school. The school had not given him a release letter. Mr Gulwa or Ms Sifumba were the acting principal at the time and were not aware of his transfer. He denied that he and the Applicant had flouted the process.

ANALYSIS OF EVIDENCE AND ARGUMENT

65. The Applicant’s dismissal is not in dispute and the onus is therefore, in terms of Section 192 of the LRA, on the Respondent to prove that the dismissal of the Applicant was fair. Section 188 of the LRA further states that a dismissal that is not automatically unfair is unfair if the employer fails to prove that the reason for dismissal was for a fair reason relating to the employee’s conduct and was affected in accordance with a fair procedure. This must be decided on a balance of probabilities.

66. The Applicant has challenged both the procedural and substantive fairness of his dismissal.

PROCEDURAL CHALLENGE

Disciplinary Enquiry held in the absence of the Applicant

67. The Applicant’s procedural challenges is based on the fact that the disciplinary enquiry was held in his absence despite him having submitted a medical certificate.

68. The requirements for a fair procedure, in a dismissal for misconduct matters, are set out in Schedule 8, Code of Good Practice: Dismissal. Item 4 states that normally the employer should conduct an investigation to determine whether there are grounds for dismissal. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegation. The employee should be entitled a reasonable time to prepare a response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with a written notification of that decision. (Own underlining)

69. The requirements for procedural fairness for misconduct dismissals were further confirmed in the matter of Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1664 (LC); [2006] 9 BLLR 833 (LC), where the court held that the employer was merely required to conduct an investigation, give the employee or his representative an opportunity to respond to the allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof. (Own underlining)

70. It is common cause that the disciplinary enquiry, which lead to the dismissal of the Applicant, was held in his absence. It is further common cause that the Applicant and/or his representative handed in a medical certificate on the day, being 2 September 2019, as contained on page 12 of R1. The said medical certificate was from Clinical Psychologist, Noluvuyo Mazaleni. It is further common cause that Noluvuyo Mazaleni is a registered medical practitioner and that she consulted with the Applicant and issued the medical certificate. The certificate states that Mr Kofi was seen on 30 August 2019, by Ms Mazaleni, and that her diagnosis was “Major Depressive Disorder” and she recommended sick leave from 30 August 2019 to 6 September 2019. The Presiding Officer refused a postponement and continued the disciplinary enquiry in the Applicant’s absence, found him guilty and ultimately imposed the sanction of dismissal.

71. No evidence was lead to indicate why the matter proceeded, despite a medical certificate having being handed in. The credentials of Noluvuyo Mazelaleni, the facts that she examined the Applicant on 30 August 2019, her diagnoses and that she had recommended sick leave for him for a period including 2 September 2019 was not in dispute. Her medical certificate must therefore be accepted as being valid. The chairperson of the enquiry was not called to explain his decision in this regard. From the common cause facts, it is evident that out of all the previous postponements, only one was as a result of the Applicant submitting a medical certificate and that was at the first sitting on 13 September 2018. It is further evident from the common cause facts that there were a number of postponements in this matter, however, those were not all due to the Applicant. Some were due to the Respondent and some were due to both parties. To my mind this is not a matter where it can be said that the Applicant was attempting to delay the process with the misuse or abuse of medical certificates and that as such issue should have taken therewith. After all the matter was postponed for a variety of various reasons, why the sudden urgency to continue in the face of a valid medical certificate, particularly where there is no history of this being used as an excuse to avoid the process?

72. In light of the above, I cannot find that there was a justifiable reason to proceed in the Applicant’s absence. By doing so, he was therefore, in my view, unreasonably deprived of an opportunity to respond to the allegations against him, as required by Schedule 8, Code of Good Practice: Dismissal and as confirmed in the case sited in paragraph 69 above.

73. I accordingly find that the dismissal of the Applicant was procedurally unfair.

SUBSTANTIVE CHALLENGES

Applicant is not guilty of the misconduct

74. The misconduct with which the Applicant was charged and found guilty of is the alleged assault incident that took place in the class of Ms Sifumba. On this critical issue, there are two diametrically opposed versions in front of me. In summary, the Respondent’s version is that the Applicant assaulted Ms Sifumba, whilst on the other hand the Applicant’s version is that he never did so and that it was in fact him that was assaulted by Ms Sifumba, as well as Mr Sifimba and others. In order to determine which facts are to be accepted as correct, I will first deal with the evidence of each of the witnesses, who were present, as it pertains to the actual issue in question, ie. Who was the perpetrator of the alleged assault, if there was one, and how it came about.

75. Ms Sifumba’s version of these events in summary is that she was standing between the desks, the Applicant asked her to move, she did not do so, he shoved her and she landed on the desk. She lost her balance and tried to hold onto him. He turned around and hit her with a fist on the mouth and slapped her on the cheek.

76. Ms Nethi’s version of these events is that the Applicant approached the row where Ms Sifumba was and pushed her. She balanced on him and he turned around and punched her in the face. She fell on the desk bleeding.

77. Ms Mbombo’s version of these events is that the Applicant had pushed Ms Sifumba and when she tried to get up, he hit her with a fist.

78. The Applicant’s versions of these events is that Ms Sifumba was standing between the two rows and he asked her to move, but she did not. He decided to try and pass in the space between her and the desks, she closed the gap and they bumped each other. She then slapped him with an open hand. He stood and looked at her and she then threw fists and tried to grab him. She also head butted him. He tried to push her away and lost balance and fell on the desk. She was holding onto him and also fell onto him. The learners tried to separate them.

79. Mr Buntsuntsu’s version of these events is that Ms Sifumba was standing in the middle of a row. The Applicant requested to pass as she blocked him. She refused and he then forced himself though the gap. She slapped him with an open hand and then jumped towards him trying to pull him down. Her head covering fell off, The Applicant tried to stop her from beating him. The learners than tried to separate them.

80. From the above it is clear that all 5 witnesses were in the class at the time of the incident and none of their versions is identical in all respects. I, however, believe that this can be expected given that the incident took place nearly two years ago. Although not specifically agreed to, it is apparent from the evidence that the parties seem to agree that Ms Sifumba was standing between rows of desks where the Applicant wanted to pass, he asked her to move and she did not. He then tried to move past her.

81. If one looks at the versions of Ms Sifumba, Ms Nethi and Ms Mbombo on this point, although they are not exactly the same, in essence they corroborate each other. They all agree that the Applicant pushed or shoved Ms Sifumba, They all agree that she lost balance and or fell and that whilst holding onto him or getting up, he hit her with a fist. Ms Sifumba, however, added that she was slapped, which the other two witnesses did not include

82. If one looks at the versions of the Applicant and Mr Buntsuntsu on this point, they are also not exactly the same, but in essence they too corroborate each other. They agree that as the Applicant was trying to pass through the gap, Ms Sifumba slapped him with an open hand and she then approached him again. The Applicant added that Ms Sifumba also head butted him, which was not included in the version of Mr Buntsuntsu.

83. The J88 form for Ms Sifumba, reflects that she had a swollen left cheek, a tearing inside the upper lip at the level opposite the left upper canine and a bluish discoloration on the left wrist area. It is, in my view, consistent with being hit in the face with a fist, which was the version of all 3 of the Respondent’s witnesses that were present. It is not consistent with the version of the Applicant in that he never hit or slapped her.

84. The J88 forms for the Applicant, reflect that he had bruised cheek, small tear behind the upper lip, loose tooth, tender fingers on the left hand and a tender left calf. This may, in my view be consistent with his version that he was slapped and head butted and then fell and Mr Mbombo’s version that he was slapped, by her with an open hand and then tried to stop her from beating him. However, one needs to consider his version of events in his office thereafter. His version on this is that Mr Sifumba hit him with a fist, the other male kicked him from the back, whilst Mr Sifumba was hitting him. He fell down and Mr Sifumba continued to kick him in the face. I am not required to determine what happened in the office as it is not the incident that lead to his dismissal. As I understand it there is a criminal matter pending, where this will be dealt with. For purposes of this award, if I accept the Applicant’s own version, as per the above, I believe it is more probable that he sustained his injuries during the alleged incident in his office.

85. As stated the versions of the parties are not without their issues, but this is the case with both sides. I do not intend listing all the issues, but will highlight some. Ms Sifumba failed to mention in her statement to police on the day of the incident that she had found the pupils outside the class, that the Applicant had been to her class twice or that she was standing between the desks where that Applicant wanted to pass through and after being asked to move failed to do so. There was also no mention of her allegedly being slapped by the Applicant. Ms Sifumba also claimed that she had not returned to court as she was not informed of the date in time or at all and that when she did find out she was already marking. It was, however, pointed out to her that as per the court transcripts it was confirmed that both her and her husband were informed of the dates at the previous court sitting.

86. As far as Ms Nethi is concerned, her version contradicted the version of Ms Sifumba in some respects. She stated that there were parents outside the class and that the reason they re-entered was due to the parents starting to panic. There was no mention of any parents outside the class by Ms Sifumba or any of the other witnesses. She also claims that she did not hear the Applicant ask Ms Sifumba to move or see her standing in the Applicant’s way, or at least that she did not remember same. This issue appears to be pretty much common cause between the other witnesses.

87. Ms Pendu testified that the Applicant had effectively made a confession in front of herself, Ms Valisi and Mr Genoti. If this was the case, surely it would have been vital information to give the SAPS, SACE and at the disciplinary enquiry as it would almost be a proverbial “slam dunk” in the case. She, however, did not give a statement to either SAPS or SACE and also did not testify at the hearing. I am aware that an arbitration is a hearing denovo, meaning that you may call other and or extra witnesses not called at the internal enquiry, however, if the Applicant had in fact confessed to them, surely she would at the very least have been called to give such evidence at the enquiry. Not to do so makes absolutely no sense. Also if her version on this point in the arbitration is correct, surely Mr Genoti could and would have been called to corroborate same. He was not. I accordingly find the witness’s version to be improbable.

88. Ms Kobese effectively testified that the Applicant offered her a bribe to take her son to a different school and give them R20 000 for her son to testify on his behalf. She agreed that he had phoned for an appointment with her and that he the conversation with him happened in the presence of a third party, which was with him. If he had offered her a bribe, why would he bring a third a party along as a witness? More importantly, why would she only have come to light as a witness now? The matter was front page news and I believe I can safely say that everyone involved with the school, would have known about the incident. If such bribe was offered why did she not come forward earlier? How did the Respondent suddenly become aware of this? Also, it is common cause that her son was in grade 11 and therefore not in the class where the incident happened. As such, he would have been of little or no assistance in the current matter. If bribes were to be offered, it would surely have made more sense to offer same to learners who were present in the class at the time of the incident. Again, I find the witnesses’ evidence on this point to be improbable.

89. Ms Mbombo, in her statement to the SAPS, stated that the Applicant bumped Ms Sifumba and that Ms Sifumba then, whilst touching the Applicant’s shoulder, asked him why he had bumped her. He did not answer and punched her. In her evidence in the arbitration she stated that the Applicant pushed Ms Sifumba and when she tried to get up he hit her with a fist. In her statement to the SAPS she also states that she was in the class when Ms Sifumba came and gave them papers, whilst under cross examination she confirmed that when Ms Sifumba arrived, she found them outside and that Ms Sifumba then asked the Applicant for them to enter the class. The Applicant said no as he was waiting for their parents.

90. The Applicant’s version is not without its own concerns. Firstly, the issue of him failing to deny any misconduct when Mr Mabele confronted him is of some concern. In my view, a person being wrongfully accused of serious misconduct would in all probability make an effort to deny same. His reasoning for this, as put forward by him, was that he was being held by the collar/neck which initially prevented him from doing so. Thereafter, once released, they were taking Mr Mabele away and he was not in a state to deal with Mr Mabele. I find this to be improbable. Firstly, it would in my view be normal for a person being accused of serious misconduct to at least dispute same even if only briefly. Especially once he had been released and there were other parties present with them. Also he was in a good enough state to go to his office and inform the relevant parties. Again, when on his own version, a learner states in his office that he hit Ms Sifumba, he remains quiet. I also find it hard to believe that he would not have been upset of frustrated, given the fact that, on his own version, his authority was being challenged in front of learners. Also of concern is the Applicant’s assistance in the transfer of Mr Bunsunsu and the timing thereof. Whilst some of it was explained by himself and more so Mr Bunsunsu, one issue that the Applicant agreed to and, to my mind, could not explain adequately, was why he had stated that he was a parent of the Applicant in this process. He admitted that he knew what a parent is defined as and that he was not one. It should also be born in mind that this transfer, which was facilitated by the Applicant, was done only in August 2018, when the Applicant was no longer in the position of principle at the school since May 2018 already. Surely he must have realized that he was not the parent as indicated, he was no longer performing the job of principal at the school and as such it would be wrong of him to do so. The Applicant was charged on 1 August 2018 and the transfer occurred later in the same month.

91. Mr Buntsuntsu for example states that in the office, the Applicant was beat by the lady with a stick. The Applicant himself did not say anything about being beaten with a stick. Surely if this had happened, he
would have remembered it and raised same in his testimony. The Applicant’s testimony was that “Mr Valise entered and grabbed Ms Bikaco and took her out the office. He then returned and closed the curtains of the office. He fell down and Mr Sifumba continued to kick him in the face.” How was it then possible to see the Applicant on the floor if the curtains had been closed prior? Furthermore, the issue surrounding the transfer, in my view, must cast doubt on his credibility.

92. There seems to issues with the testimony from both sides, however, this to my mind does not mean that the evidence of said witnesses stands to be rejected in totality. I believe the witnesses of the Respondent, who were present in the class were consistent on the fact that the Applicant hit Ms Sifumba with a fist. This is further corroborated by the J88. Whilst the Applicant and his witness were also consistent that she slapped him, I must consider the credibility issue as it relates to the transfer.

93. Given all that has been said above, I find that on a balance of probabilities the Applicant is guilty of the misconduct.

Was the sanction too harsh in the circumstances of the case?

94. I have considered that that the Applicant’s actions effectively amounted to a challenge of the Applicant’s authority. I have also considered his personal circumstances in that he is 42 years old, married and has 2 children. Further, that he had approximately 13 years’ service at the time of his dismissal. However, given the seriousness of the misconduct, the fact that there were other mechanisms available to the Applicant to deal with such challenge to his authority, that it occurred in front learners, and that no remorse has been shown, I believe the sanction of dismissal is appropriate.

95. I accordingly find that the dismissal of the Applicant was substantively fair.


AWARD

96. The dismissal of the Applicant, Mr Linda Kofi, by the Respondent, Department of Education Eastern Cape, was procedurally unfair and substantively fair.

97. The Respondent is ordered to pay the Applicant the amount of R72 741.50, which is two months’ salary, in respect of the procedural unfairness of his dismissal.


98. The amount in paragraph 97 above, must be paid by no later than 29 April 2022.


Name: Clint Enslin
(ELRC) Arbitrator