PSES115-18/19WC
Text
ELRC16-21/22KZN
Award Date:
12 April 2022
IN THE ELRC ARBITRATION
BETWEEN:
DEPARTMENT PF BASIC EDUCATION – KWAZULU-NATAL the Applicant
and
THEMBINKOSI MPOFANA the Respondent
ARBITRATION AWARD
Case Number: ELRC16-21/22KZN
Last date of arbitration: 19 November 2021
Date of award: 12 April 2022
Arbitrator: Scelo V Mkhize
Education Labour Relations Council
ELRC Building, 261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.z
DETAILS OF THE HEARING
1. The matter was enrolled before me for an inquiry by arbitrator proceedings in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (the Act). The arbitration was held at Durban Teachers Centre on various dates being 15 June 2021, 24 August 2021, 03 September 2021, 08 October 2021 and 18 and 19 November 2021.
2. The Applicant, the Department of Basic Education, was represented by Mr Itumeleng Makhooe who is employed by the Applicant as a labour relations practitioner. The Respondent, Mr Mpofana, appeared in person and he was represented by Sbongiseni Chamane a trade union representative from SADTU.
3. The proceedings were held in English and were interpreted by various interpreters. Similarly, various intermediaries were used in the proceedings. The proceedings were also mechanically recorded.
BACKGROUND
4. The Applicant is the Department of Education KwaZulu Natal, a governmental department dully fulfilling its mandate in terms of the Constitution and in terms of the South African Schools Act 84 of 1996, with its provincial offices at 247 Burger street, Pietermaritzburg, KwaZulu Natal. I shall herein after refer to the Applicant as the “employer”.
5. The Respondent is Thembinkosi Mpofana, who is employed by the employer at Dumehlezi Secondary School as an Educator and whom I shall herein after refer to as the “accused”.
6. On 26 March 2021, the employer charged the accused with two counts of misconduct arising from the alleged contravention of the Employment of Educators Act 76 of 1998 (the Educators Act). Consequently, the employer referred the matter to the Council for an inquiry by the arbitrator. The matter was then set down for an inquiry by the arbitrator, hence this arbitration award.
ISSUE TO BE DECIDED
7. In these proceedings, I am required to decide whether the accused is guilty of the charges levelled against him, in particular whether:
7.1. The accused contravened section 17 (1) (b) of the Employment of Educators Act 76 of 1998 (the Educators Act), in that on or about 13 March 2020, at his residence, he intentionally caused two female leaners enrolled in the same school where the accused is employed (viz Dumehlezi Secondary School), to be intoxicated before he sexually assaulted them. In order to protect the learners’ identity, I shall hereinafter refer to the first leaner as leaner number 1 and the second learner as learner number 2.
7.2. The accused contravened section 17 (1) (f) of the Educators Act, in that on or about 13 March 2020, the accused and Mr Mzolo caused learner number 2, a female learner then enrolled in the same school that the accused and Mzolo were employed (viz Dumehlezi Secondary School), to engage in a sexual relationship with them.
SURVEY OF EVIDENCE AND ARGUMENTS
Employer’s case
8. The employer called learner number 2 as its only witness and she testified as follows:
9. During or about 13 March 2019, she was 19 years old and she was attending school at Dumehlezi Secondary School. The accused and a certain Mr Mzolo were her educators in the same school.
10. On 13 March 2019 at about 18:30 to 19:00, near her homestead, they met the accused and Mzolo who were travelling in the accused’s motor vehicle. At that time, she was with her cousin, learner number 1. Then the accused and Mzolo asked them to go with them and they both agreed. Consequently, the accused and Mzolo drove off with them to another place in town where they bought them liquor.
11. Subsequently, the accused and Mzolo took them to another flat in town. She did not know who was the owner of the flat. They continued drinking liquor at that flat. While they were still drinking, her cousin, leaner number 1, said she wanted to go to sleep. The accused then showed leaner number 1 a room where she would sleep. She continued drinking liquor until late whilst Mzolo had decided to sleep on the sofa. When they wanted to go, the accused then went to wake up leaner number 1 and she was left with Mzolo. Subsequently they kissed each other and thereafter, they went to cubana night club. However, when they arrived at cubana they did not get inside, but the accused and Mzolo were talking to their friends. Afterwards, the accused suggested that they should go to his house. At that time, it was 03:00 in the morning. Consequently, they all went to the accused’s place, but she could not remember whether the accused house was at Dube village or Amaoti.
12. After they had arrived at the accused’s place, they continued drinking liquor. Subsequently, they had sex with Mzolo and consequently, she fell asleep in the sofa whilst undressed. When she woke up in the morning, she saw the accused in front of her and she screamed. Mzolo who was at the other room with leaner number 1 came out and asked what was the accused doing. She could not recall what the accused’s response was, but after that, the accused went out to buy food for them.
13. After they had food, they continued drinking liquor left overs. Thereafter, Mzolo told them that he had a class that he needed to attend at the school and he asked them to accompany him. On their way to the school, Mzolo bought a backet of KFC for the leaners he was going to see on that day. When they arrived at the school, they did not get inside, but they waited for them at Elangeni College. Mzolo came back with the backet of KFC and he told them that the leaners he was going to see had already left. Subsequently, they went to her home to have a bath and changed cloths. The accused and Mzolo waited for them outside their home.
14. Subsequently, they went back to the flat in town again. When they arrive, they found that there were other people in the flat, eight boys and one girl. Again, Mzolo and another gentlemen went out to buy some liquor for them. They came back with another gentlemen who was selling cocaine. They called them into another room to smoke cocaine. After that they went back to the dining room. Mzolo called her to the room and they had sex again. While they were in the room, the accused knocked and asked that they should go to Mojos. However, they did not get to Mojos because Mzolo’s motor vehicle had a problem. As a result, they asked the accused to drop them home. On their way, the accused bought another liquor at Malambane butchery. He suggested that they must also braai meat at the butchery, but they refused. After that they went to Mr Gasa’s place and thereafter they went home.
15. Under cross examination, she was asked about her statement where she said the accused and Mzolo were coming from the nearby tavern. In her response, she said it was dark in the evening at about 19:00. When she was asked what did she meant when she said afterschool, she stated that they were coming from school in the afternoon. She conceded that the school finishes at 14:00 on Friday. When she was asked where were they between 14:00 to 19:00, she stated that she was at home and leaner number 2 came to her. Thereafter, they went to a nearby tavern. She further stated that she said afterschool because it was already around 19:00.
16. She was further asked why they agreed to go and drink alcohol with the accused and Mzolo knowing very well that they were their teachers. In her response, she stated that they were board and it was not the first time they drank liquor. But she conceded that they have never drank liquor with the teachers before. When it was put to her that the accused wife will say that the accused was at home on the date of the incident at 19:00 h00, she stated that she did have a watch, but they eventually went to the accused home and his wife was not there.
17. She was also asked whether she knew where the accused was residing. In her response, she stated that the accused was residing at Amaoti. When it was put to her that the accused did not live at Amaoti, she stated that she did not really know where the accused was residing, but when they left, the accused said they were going into his house and there were even his belongings in that house. It was put to her that the accused house is at Zwelisha next to Verulam. In response, she stated that she did not say exactly at Amaoti, but it is the same area. The accused’s house is like an RDP house. She stated that the accused’s RDP house has an open plan with dinning and kitchen combined and another room.
18. She denied that she was influence by Sizwe Mchunu because Mchunu did not get well with the accused. But she conceded that Mchunu is her neigbour. She stated that she reported the issue to Mcunu because sometimes teachers are judgemental. She once reported an incident to a certain Mr Gasa and the teachers were judgemental.
19. When she was asked why she did not open a criminal case that the accused gave them alcohol and drugs. In response, she stated that, with regard to alcohol, she was over age. With regard to drugs, it did not cross her mind to open a criminal case. She also conceded that the accused did not sleep with her.
20. During re-examination, she confirmed that she slept in the dining room with Mzolo and they had sex, while the accused slept in the other room with leaner number 1. She did not know whether they had sex or not.
Employee’s case
First witness
21. The accused called two witnesses in support of his case. The accused was the first witness to testify and he testified as follows:
22. He is employed by the employer at Dumehlezi Secondary School as an educator. He has been employed as such for the past five years.
23. He knows leaner number 2 who is the complainant and the employer’s witness in this matter. He was teaching her from 2015 to 2020. He had an ordinary relationship with her.
24. He stated that on the day in question, 13 March 2020, he left school as usual and he gave his colleague, Mr Zolo a lift. He dropped Mzolo on the road called new road and proceeded to his place of residence at Zwelisha in Verulam. That is where he was residing at the time of the alleged incident and he is still residing there even today. He stays there with the mother of his children and his two children. He arrived home at about 15:30. He stayed at home with his family for a while and subsequently, he went to a night vigil with his fiancee at his neighbour’s residence. They came back home in the morning at about 1:00 am and went to sleep. They woke up in the morning and they went to a funeral at his neigbour’s residence. After the funeral he remained at his neibour’s residence until 17:00. Subsequently, he went back home where he stayed with his family up until they went to sleep. His fiancee was always there with him.
25. He further stated that the house they were living in is his property. It is an RDP house with kitchen, dining room and one bedroom. The kitchen and the dining room is separated by a wall. He never made any renovations to this house since he bought it.
26. He denied the charges that were levelled against him. He stated that one of the days at KwaNozaza, Ntuzuma, he was approached by a gentleman called Sizwe Nchunu and another guy who was unknown to him. Mchunu told him that he must stop dating his child’s mother, Phindile Cele, otherwise he would see what he would do to him. At that time the accused was travelling on foot as this was before he bought a motor vehicle. He did not take him serious as this was the first time he was threatened in this manner. He also did not deny having a sexual relationship with Cele.
27. He denied all the allegations made by leaner number 2 against him. He stated that he was very much shocked when he heard about these allegations. He was even more shocked when he received a letter from the school principal date 12 February 2020.
28. During cross examination, he was asked why he did not put his version to the employer’s witness so that she would comment about it, in particular, that her version was a fabrication. In response, he stated that it did not cross his mind and he also thought he would get his chance to state his case. When it was put to him that if the relationship between him and the employer’s witness was an average one that would mean that the witness is mental disturbed to make such a fabrication against him. In his response, he stated that this was possible if the witness was being used by someone else. He further stated that his mother, the grandmother of his kids, was staying in the same area, which is about a kilometer from his place of residence. When they went to the night vigil, they left the kids at home. He denied that his fiancee and his kids were not at home on the date of the incident. He also disputed the employer’s witness’s version that the kitchen and the dining area of his house was an open plan, not separated. He insisted that the employer’s witness was being used by certain people from his work and by Mchunu.
Second witness
29. The accused second witness was Nothando Noxolo Mthethwa who testified as follows:
30. She was a fiancée of the accused and she leaves with him at Zwelisha in Verulam. She knows about the allegations that were levelled against the accused. She stated that on the date of the alleged incident she was at home at Zwelisha. The accused was at work and he came back from work at about 16:00 to 17:00. After the accused had arrived home, she prepared food for him and thereafter, they stayed home for a while. After that they went to a night vigil at their neigbour’s residence. They were at the night vigil until 02:00 am and the accused was always with her. After the night vigil they went back home to sleep. They woke up in the morning and they went to a funeral at about 10:00. She stated that the accused did not go anywhere during that weekend.
31. About the description of the house, she stated that their house is a three roomed house with a kitchen, sitting room, bed room and bathroom. She confirmed the sketch of the house drawn by the accused.
32. During cross examination, she stated that when they went to a night vigil, the kids were left with the accused’s mother. When it was put to her that the accused stated that the kids were on their own at home, she insisted that they were left with the granny. She denied that there were any girls who came to the house on 13 March 2020. She also denied the description of their house as it was described by the employer’s witness.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
33. In these proceedings, I am required to decide whether the accused is guilty of the offences that were levelled against him, in particular, whether the accused intentionally caused learner number 1 and number 2 to be intoxicated before sexually assaulting them, alternatively, whether the accused caused leaner number 2 to engaged in a sexual relationship with him. If it is found in favour of the employer, I must determine an appropriate sanction in the circumstances.
34. The general rule applicable to all civil litigation and arbitrations is that whoever alleges a fact must prove it on a balance of probabilities. In David Johan Randles v Chemical Specialities Case No D28610, the Labour Court held, with reference to Pillay v Khrishna 1946 A 946, that – “if one person claims something from another in a court of law, then he has to satisfy the court that he is entitled to it. Therefore, the employer bears onus to prove that the accused is guilty of the offence.
Whether the accused is guilty of the offence
35. The Employer’s witnesses, leaner number 2, testified as how the events which led to the present charges came about. This appears in paragraphs 8 to 20 of the survey of evidence. The accused on the other hand denied these allegations in their entirety. In fact, the accused has raised a defense of an alibi, completely denying meeting with the witness on the day in question and contending that he was at home on the date of the incident. This then raises a dispute of facts between the employer’s version and the accused’s version.
36. Our Courts have developed guidelines on how to deal with the dispute of facts in a particular case. In SFW Group Ltd and Another vs Martel et Cie and Others 2003 (1) SA 11 (SCA), it was held that in order to come to a conclusion on the disputed facts the court must make findings on the credibility of various factual witnesses, their reliability and probabilities. In Sasol Mining (Pty) Ltd vs Commissioner Ngeleni NO & Others (2011) 32 ILJ 723 (LC), it was held that the proper approach when resolving factual dispute is to make findings on the credibility and reliability of witnesses, which in turn entails finding on the witnesses’ condor, demeanor, contradictions in their evidence and an assessment of the probability of their testimony.
37. In the present case leaner number 1 was the only witness who testified in support of the employer’s version. It is trite that the evidence of a single witnesses must be treated with caution.
38. The evidence of the employer’s witness had material contradictions. The first material contradiction was in relation to the time the witness met with the accused and Mzolo on 13 March 2020. In her statement in page 6 of the common bundle, leaner number 2 stated that they met the accused and Mzolo after school when the accused and Mzolo were coming from the nearby tavern. However, in her evidence in chief, she stated that they met the accused and Mzolo at about 18:30 to 19:00 near their homestead. There was no mention of after school and that the accused and Mzolo were coming from a nearby tavern. The witness admitted that the school finishes at 14:00 on Fridays. When she was asked what she meant by after school, she stated that they were coming from school in the afternoon. The only reasonable inference that can be drawn from the witness’s interpretation of after school is that the witness meant immediately after school. She could not have meant the time between 18:30 to 19:00 in the evening. This is simple not after school. I see no reason why the witness would mention after school if she meant that they met them in the evening.
39. The second contradiction was in relation to the place of residence of the accused. In her evidence in chief, the witness was very adamant that the accused was staying at Amaoti area. But during cross examination, she stated that she did not know where the accused was staying.
40. The third contradiction was in relation to what happened in the morning of Saturday, 14 March 2020 at the accused’s place of residence. The witness stated that when they arrived at the accused’s place, she slept in the dining room with Mzolo and they had sex. However, she said when she woke up in the morning, she saw the accused who was undressed before her and she screamed. She went on to say that Mzolo, who was at the other room with Mandisa came out and asked what was the accused doing. In my view, this is highly improbable if Mzolo had slept with the witness as she had initially said in the dining room. Despite that, in her statement she stated that “we slept in the sofa after having sex with Mzolo. In the morning I felt a hand touching my private part and when I woke up, I saw Mr Mpofana and I asked him what he was doing. I screamed to wake up Mzolo because I did not know what he was doing”. The witness did not mention the issue of being touched in her private part in her evidence in chief. The only reasonable inference that can be draw from such failure and the contradictions thereof is that the accusing was not telling the truth. In my view, this clearly shows that the accused was slept in the sofa with Mzolo.
41. In light of these contradictions and improbabilities, and having applied the cautionary rule, I am of the view that the evidence of the employer’s witness should not be accepted without any evidence to corroborate it and it stands to be rejected.
42. Despite the above findings, it is clear from the evidence of the employer’s witness that she did not have any sex with the accused, but with Mzolo. In fact, she admitted this during cross examination. Therefore, the accused cannot be found guilty of having a sexual relationship with the witness, leaner number 2, as per the alternative charge. There was also no evidence in relation to leaner number 1.
43. The accused and his witness on the other hand gave a very credible and reliable testimony. They stood their ground even during cross examination. The accused was adamant that he does not stay at Amaoti and that he stays at Zwelisha in Verulam. His evidence about what happened after school was corroborated by his fiancée. Even though there was a contradiction about whether their kids slept alone or with granny when they went to a night vigil, but I am of the view that the contradiction is not material and does not go to the heart of the issues in dispute.
44. In light of the above findings, I am of the view that the accused version is more probable and believable when compared to that of the employer. As a result, I find the accused not guilty of both charges and the employer’s version is hereby dismissed.
AWARD
45. The accused, Thembinkosi Mpofana, is not guilty of both charges that were levelled against him.
46. There is no order as to costs.
Scelo V Mkhize - Panelist
BETWEEN:
DEPARTMENT PF BASIC EDUCATION – KWAZULU-NATAL the Applicant
and
THEMBINKOSI MPOFANA the Respondent
ARBITRATION AWARD
Case Number: ELRC16-21/22KZN
Last date of arbitration: 19 November 2021
Date of award: 12 April 2022
Arbitrator: Scelo V Mkhize
Education Labour Relations Council
ELRC Building, 261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.z
DETAILS OF THE HEARING
1. The matter was enrolled before me for an inquiry by arbitrator proceedings in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (the Act). The arbitration was held at Durban Teachers Centre on various dates being 15 June 2021, 24 August 2021, 03 September 2021, 08 October 2021 and 18 and 19 November 2021.
2. The Applicant, the Department of Basic Education, was represented by Mr Itumeleng Makhooe who is employed by the Applicant as a labour relations practitioner. The Respondent, Mr Mpofana, appeared in person and he was represented by Sbongiseni Chamane a trade union representative from SADTU.
3. The proceedings were held in English and were interpreted by various interpreters. Similarly, various intermediaries were used in the proceedings. The proceedings were also mechanically recorded.
BACKGROUND
4. The Applicant is the Department of Education KwaZulu Natal, a governmental department dully fulfilling its mandate in terms of the Constitution and in terms of the South African Schools Act 84 of 1996, with its provincial offices at 247 Burger street, Pietermaritzburg, KwaZulu Natal. I shall herein after refer to the Applicant as the “employer”.
5. The Respondent is Thembinkosi Mpofana, who is employed by the employer at Dumehlezi Secondary School as an Educator and whom I shall herein after refer to as the “accused”.
6. On 26 March 2021, the employer charged the accused with two counts of misconduct arising from the alleged contravention of the Employment of Educators Act 76 of 1998 (the Educators Act). Consequently, the employer referred the matter to the Council for an inquiry by the arbitrator. The matter was then set down for an inquiry by the arbitrator, hence this arbitration award.
ISSUE TO BE DECIDED
7. In these proceedings, I am required to decide whether the accused is guilty of the charges levelled against him, in particular whether:
7.1. The accused contravened section 17 (1) (b) of the Employment of Educators Act 76 of 1998 (the Educators Act), in that on or about 13 March 2020, at his residence, he intentionally caused two female leaners enrolled in the same school where the accused is employed (viz Dumehlezi Secondary School), to be intoxicated before he sexually assaulted them. In order to protect the learners’ identity, I shall hereinafter refer to the first leaner as leaner number 1 and the second learner as learner number 2.
7.2. The accused contravened section 17 (1) (f) of the Educators Act, in that on or about 13 March 2020, the accused and Mr Mzolo caused learner number 2, a female learner then enrolled in the same school that the accused and Mzolo were employed (viz Dumehlezi Secondary School), to engage in a sexual relationship with them.
SURVEY OF EVIDENCE AND ARGUMENTS
Employer’s case
8. The employer called learner number 2 as its only witness and she testified as follows:
9. During or about 13 March 2019, she was 19 years old and she was attending school at Dumehlezi Secondary School. The accused and a certain Mr Mzolo were her educators in the same school.
10. On 13 March 2019 at about 18:30 to 19:00, near her homestead, they met the accused and Mzolo who were travelling in the accused’s motor vehicle. At that time, she was with her cousin, learner number 1. Then the accused and Mzolo asked them to go with them and they both agreed. Consequently, the accused and Mzolo drove off with them to another place in town where they bought them liquor.
11. Subsequently, the accused and Mzolo took them to another flat in town. She did not know who was the owner of the flat. They continued drinking liquor at that flat. While they were still drinking, her cousin, leaner number 1, said she wanted to go to sleep. The accused then showed leaner number 1 a room where she would sleep. She continued drinking liquor until late whilst Mzolo had decided to sleep on the sofa. When they wanted to go, the accused then went to wake up leaner number 1 and she was left with Mzolo. Subsequently they kissed each other and thereafter, they went to cubana night club. However, when they arrived at cubana they did not get inside, but the accused and Mzolo were talking to their friends. Afterwards, the accused suggested that they should go to his house. At that time, it was 03:00 in the morning. Consequently, they all went to the accused’s place, but she could not remember whether the accused house was at Dube village or Amaoti.
12. After they had arrived at the accused’s place, they continued drinking liquor. Subsequently, they had sex with Mzolo and consequently, she fell asleep in the sofa whilst undressed. When she woke up in the morning, she saw the accused in front of her and she screamed. Mzolo who was at the other room with leaner number 1 came out and asked what was the accused doing. She could not recall what the accused’s response was, but after that, the accused went out to buy food for them.
13. After they had food, they continued drinking liquor left overs. Thereafter, Mzolo told them that he had a class that he needed to attend at the school and he asked them to accompany him. On their way to the school, Mzolo bought a backet of KFC for the leaners he was going to see on that day. When they arrived at the school, they did not get inside, but they waited for them at Elangeni College. Mzolo came back with the backet of KFC and he told them that the leaners he was going to see had already left. Subsequently, they went to her home to have a bath and changed cloths. The accused and Mzolo waited for them outside their home.
14. Subsequently, they went back to the flat in town again. When they arrive, they found that there were other people in the flat, eight boys and one girl. Again, Mzolo and another gentlemen went out to buy some liquor for them. They came back with another gentlemen who was selling cocaine. They called them into another room to smoke cocaine. After that they went back to the dining room. Mzolo called her to the room and they had sex again. While they were in the room, the accused knocked and asked that they should go to Mojos. However, they did not get to Mojos because Mzolo’s motor vehicle had a problem. As a result, they asked the accused to drop them home. On their way, the accused bought another liquor at Malambane butchery. He suggested that they must also braai meat at the butchery, but they refused. After that they went to Mr Gasa’s place and thereafter they went home.
15. Under cross examination, she was asked about her statement where she said the accused and Mzolo were coming from the nearby tavern. In her response, she said it was dark in the evening at about 19:00. When she was asked what did she meant when she said afterschool, she stated that they were coming from school in the afternoon. She conceded that the school finishes at 14:00 on Friday. When she was asked where were they between 14:00 to 19:00, she stated that she was at home and leaner number 2 came to her. Thereafter, they went to a nearby tavern. She further stated that she said afterschool because it was already around 19:00.
16. She was further asked why they agreed to go and drink alcohol with the accused and Mzolo knowing very well that they were their teachers. In her response, she stated that they were board and it was not the first time they drank liquor. But she conceded that they have never drank liquor with the teachers before. When it was put to her that the accused wife will say that the accused was at home on the date of the incident at 19:00 h00, she stated that she did have a watch, but they eventually went to the accused home and his wife was not there.
17. She was also asked whether she knew where the accused was residing. In her response, she stated that the accused was residing at Amaoti. When it was put to her that the accused did not live at Amaoti, she stated that she did not really know where the accused was residing, but when they left, the accused said they were going into his house and there were even his belongings in that house. It was put to her that the accused house is at Zwelisha next to Verulam. In response, she stated that she did not say exactly at Amaoti, but it is the same area. The accused’s house is like an RDP house. She stated that the accused’s RDP house has an open plan with dinning and kitchen combined and another room.
18. She denied that she was influence by Sizwe Mchunu because Mchunu did not get well with the accused. But she conceded that Mchunu is her neigbour. She stated that she reported the issue to Mcunu because sometimes teachers are judgemental. She once reported an incident to a certain Mr Gasa and the teachers were judgemental.
19. When she was asked why she did not open a criminal case that the accused gave them alcohol and drugs. In response, she stated that, with regard to alcohol, she was over age. With regard to drugs, it did not cross her mind to open a criminal case. She also conceded that the accused did not sleep with her.
20. During re-examination, she confirmed that she slept in the dining room with Mzolo and they had sex, while the accused slept in the other room with leaner number 1. She did not know whether they had sex or not.
Employee’s case
First witness
21. The accused called two witnesses in support of his case. The accused was the first witness to testify and he testified as follows:
22. He is employed by the employer at Dumehlezi Secondary School as an educator. He has been employed as such for the past five years.
23. He knows leaner number 2 who is the complainant and the employer’s witness in this matter. He was teaching her from 2015 to 2020. He had an ordinary relationship with her.
24. He stated that on the day in question, 13 March 2020, he left school as usual and he gave his colleague, Mr Zolo a lift. He dropped Mzolo on the road called new road and proceeded to his place of residence at Zwelisha in Verulam. That is where he was residing at the time of the alleged incident and he is still residing there even today. He stays there with the mother of his children and his two children. He arrived home at about 15:30. He stayed at home with his family for a while and subsequently, he went to a night vigil with his fiancee at his neighbour’s residence. They came back home in the morning at about 1:00 am and went to sleep. They woke up in the morning and they went to a funeral at his neigbour’s residence. After the funeral he remained at his neibour’s residence until 17:00. Subsequently, he went back home where he stayed with his family up until they went to sleep. His fiancee was always there with him.
25. He further stated that the house they were living in is his property. It is an RDP house with kitchen, dining room and one bedroom. The kitchen and the dining room is separated by a wall. He never made any renovations to this house since he bought it.
26. He denied the charges that were levelled against him. He stated that one of the days at KwaNozaza, Ntuzuma, he was approached by a gentleman called Sizwe Nchunu and another guy who was unknown to him. Mchunu told him that he must stop dating his child’s mother, Phindile Cele, otherwise he would see what he would do to him. At that time the accused was travelling on foot as this was before he bought a motor vehicle. He did not take him serious as this was the first time he was threatened in this manner. He also did not deny having a sexual relationship with Cele.
27. He denied all the allegations made by leaner number 2 against him. He stated that he was very much shocked when he heard about these allegations. He was even more shocked when he received a letter from the school principal date 12 February 2020.
28. During cross examination, he was asked why he did not put his version to the employer’s witness so that she would comment about it, in particular, that her version was a fabrication. In response, he stated that it did not cross his mind and he also thought he would get his chance to state his case. When it was put to him that if the relationship between him and the employer’s witness was an average one that would mean that the witness is mental disturbed to make such a fabrication against him. In his response, he stated that this was possible if the witness was being used by someone else. He further stated that his mother, the grandmother of his kids, was staying in the same area, which is about a kilometer from his place of residence. When they went to the night vigil, they left the kids at home. He denied that his fiancee and his kids were not at home on the date of the incident. He also disputed the employer’s witness’s version that the kitchen and the dining area of his house was an open plan, not separated. He insisted that the employer’s witness was being used by certain people from his work and by Mchunu.
Second witness
29. The accused second witness was Nothando Noxolo Mthethwa who testified as follows:
30. She was a fiancée of the accused and she leaves with him at Zwelisha in Verulam. She knows about the allegations that were levelled against the accused. She stated that on the date of the alleged incident she was at home at Zwelisha. The accused was at work and he came back from work at about 16:00 to 17:00. After the accused had arrived home, she prepared food for him and thereafter, they stayed home for a while. After that they went to a night vigil at their neigbour’s residence. They were at the night vigil until 02:00 am and the accused was always with her. After the night vigil they went back home to sleep. They woke up in the morning and they went to a funeral at about 10:00. She stated that the accused did not go anywhere during that weekend.
31. About the description of the house, she stated that their house is a three roomed house with a kitchen, sitting room, bed room and bathroom. She confirmed the sketch of the house drawn by the accused.
32. During cross examination, she stated that when they went to a night vigil, the kids were left with the accused’s mother. When it was put to her that the accused stated that the kids were on their own at home, she insisted that they were left with the granny. She denied that there were any girls who came to the house on 13 March 2020. She also denied the description of their house as it was described by the employer’s witness.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
33. In these proceedings, I am required to decide whether the accused is guilty of the offences that were levelled against him, in particular, whether the accused intentionally caused learner number 1 and number 2 to be intoxicated before sexually assaulting them, alternatively, whether the accused caused leaner number 2 to engaged in a sexual relationship with him. If it is found in favour of the employer, I must determine an appropriate sanction in the circumstances.
34. The general rule applicable to all civil litigation and arbitrations is that whoever alleges a fact must prove it on a balance of probabilities. In David Johan Randles v Chemical Specialities Case No D28610, the Labour Court held, with reference to Pillay v Khrishna 1946 A 946, that – “if one person claims something from another in a court of law, then he has to satisfy the court that he is entitled to it. Therefore, the employer bears onus to prove that the accused is guilty of the offence.
Whether the accused is guilty of the offence
35. The Employer’s witnesses, leaner number 2, testified as how the events which led to the present charges came about. This appears in paragraphs 8 to 20 of the survey of evidence. The accused on the other hand denied these allegations in their entirety. In fact, the accused has raised a defense of an alibi, completely denying meeting with the witness on the day in question and contending that he was at home on the date of the incident. This then raises a dispute of facts between the employer’s version and the accused’s version.
36. Our Courts have developed guidelines on how to deal with the dispute of facts in a particular case. In SFW Group Ltd and Another vs Martel et Cie and Others 2003 (1) SA 11 (SCA), it was held that in order to come to a conclusion on the disputed facts the court must make findings on the credibility of various factual witnesses, their reliability and probabilities. In Sasol Mining (Pty) Ltd vs Commissioner Ngeleni NO & Others (2011) 32 ILJ 723 (LC), it was held that the proper approach when resolving factual dispute is to make findings on the credibility and reliability of witnesses, which in turn entails finding on the witnesses’ condor, demeanor, contradictions in their evidence and an assessment of the probability of their testimony.
37. In the present case leaner number 1 was the only witness who testified in support of the employer’s version. It is trite that the evidence of a single witnesses must be treated with caution.
38. The evidence of the employer’s witness had material contradictions. The first material contradiction was in relation to the time the witness met with the accused and Mzolo on 13 March 2020. In her statement in page 6 of the common bundle, leaner number 2 stated that they met the accused and Mzolo after school when the accused and Mzolo were coming from the nearby tavern. However, in her evidence in chief, she stated that they met the accused and Mzolo at about 18:30 to 19:00 near their homestead. There was no mention of after school and that the accused and Mzolo were coming from a nearby tavern. The witness admitted that the school finishes at 14:00 on Fridays. When she was asked what she meant by after school, she stated that they were coming from school in the afternoon. The only reasonable inference that can be drawn from the witness’s interpretation of after school is that the witness meant immediately after school. She could not have meant the time between 18:30 to 19:00 in the evening. This is simple not after school. I see no reason why the witness would mention after school if she meant that they met them in the evening.
39. The second contradiction was in relation to the place of residence of the accused. In her evidence in chief, the witness was very adamant that the accused was staying at Amaoti area. But during cross examination, she stated that she did not know where the accused was staying.
40. The third contradiction was in relation to what happened in the morning of Saturday, 14 March 2020 at the accused’s place of residence. The witness stated that when they arrived at the accused’s place, she slept in the dining room with Mzolo and they had sex. However, she said when she woke up in the morning, she saw the accused who was undressed before her and she screamed. She went on to say that Mzolo, who was at the other room with Mandisa came out and asked what was the accused doing. In my view, this is highly improbable if Mzolo had slept with the witness as she had initially said in the dining room. Despite that, in her statement she stated that “we slept in the sofa after having sex with Mzolo. In the morning I felt a hand touching my private part and when I woke up, I saw Mr Mpofana and I asked him what he was doing. I screamed to wake up Mzolo because I did not know what he was doing”. The witness did not mention the issue of being touched in her private part in her evidence in chief. The only reasonable inference that can be draw from such failure and the contradictions thereof is that the accusing was not telling the truth. In my view, this clearly shows that the accused was slept in the sofa with Mzolo.
41. In light of these contradictions and improbabilities, and having applied the cautionary rule, I am of the view that the evidence of the employer’s witness should not be accepted without any evidence to corroborate it and it stands to be rejected.
42. Despite the above findings, it is clear from the evidence of the employer’s witness that she did not have any sex with the accused, but with Mzolo. In fact, she admitted this during cross examination. Therefore, the accused cannot be found guilty of having a sexual relationship with the witness, leaner number 2, as per the alternative charge. There was also no evidence in relation to leaner number 1.
43. The accused and his witness on the other hand gave a very credible and reliable testimony. They stood their ground even during cross examination. The accused was adamant that he does not stay at Amaoti and that he stays at Zwelisha in Verulam. His evidence about what happened after school was corroborated by his fiancée. Even though there was a contradiction about whether their kids slept alone or with granny when they went to a night vigil, but I am of the view that the contradiction is not material and does not go to the heart of the issues in dispute.
44. In light of the above findings, I am of the view that the accused version is more probable and believable when compared to that of the employer. As a result, I find the accused not guilty of both charges and the employer’s version is hereby dismissed.
AWARD
45. The accused, Thembinkosi Mpofana, is not guilty of both charges that were levelled against him.
46. There is no order as to costs.
Scelo V Mkhize - Panelist