PSES115-18/19WC
Text
ELRC334-20/21 KZN
Award Date:
01 April 2022
Arbitrator: J.D. Vedan
Case Reference No.: ELRC334-20/21 KZN
Date of hearing: 17 March 2022
In the arbitration between:
Londiwe Nkosisithandile Lembethe Applicant/Employee party
and
Department of Higher Education and Training
(Coastal KZN TVET College) Respondent/Employer party
Applicant’s representative: Mr P. Nkabinde
Tel: 081 558 9151
E-mail: phakamani@nehawu.org.za
Respondent’s representative: Mr T. Mhlongo
Cell: 073 615 0664
E-mail: mhlongo.t@dhet.gov.za
DETAILS OF HEARING AND REPRESENTATION:
1. This arbitration was held at the Coastal TVET College, Durban City Campus, 1 Jameson Crescent, Congela, Durban on 30 September 2021, 8 November 2021, 19 November 2021, 30 November 2021, 27 January 2022, 7 March 2022 and concluded on 17 March 2022.
2. The Applicant, Londiwe Nkosisithandile Lembethe, was represented by Mr P. Nkabinde, a Union Official.
3. The Respondent, Department of Higher Education and Training (Coastal KZN TVET College), was represented by Mr T. Mhlongo, its representative.
BACKGROUND TO THE DISPUTE:
4. The Applicant began working for the Respondent on 17 January 2012, as a Post Level 1 Lecturer at its Appelsbosch Campus. On 18 June 2019 she received a notice to attend a disciplinary enquiry, was dismissed on 3 September 2020 after being found guilty of the charges levelled against her.
5. There was an investigation conducted and charges were levelled against the Applicant, which were as follows:
“Count 1: Alleged Fraud
During the month of July 2018 you unlawfully engaged in signing the documentation for an application for a student private accommodation through NSFAS and which you further failed to submit in accordance with the correct procedures thereby contravening the Employment of Educators Act, No. 76 of 1998 as per Section 18(1)(a).
Count 2: Engaged in a physical fight with a student
As a lecturer at Appelsbosch Campus, you engaged in a physical fight with a student, thereby contravening the Employment of Educators Act, No. 76 of 1998, as per Section 18 (1)(r), 18 (1)(t) and 18 (1)(u) as well as the Public Service Code of Conduct and SACE Code of Conduct.
Count 3: Bringing the Coastal KZN TVET College’s name into disrepute
The name of the college was tarnished as you misrepresented the college as a lecturer whereby, you assisted a family member to gain financially by obtaining rentals for NSFAS students’ private accommodation thereby contravening the Public Service Code of Conduct and/or contravening the Employment of Educators Act, No. 76 of 1998 as per Section 18 (1)(f).”
6. On 18 June 2019 the Applicant received a notice to attend a disciplinary enquiry, wherein she was found guilty of the charges levelled against her and dismissed on 3 September 2020. An appeal against the sanction was lodged by the Applicant, which was dismissed.
7. The Applicant on the other hand claimed that everything in the case was exaggerated. In respect of the first count the Applicant stated that there was no fraud. The accommodation is owned by her mother, Mrs Ntombenhle F. Lembethe, whom she sometimes assisted, as her mother is ill and aging. However her mother is the one who attends to the NSFAS forms, and it is the duty of the students to ensure the forms are submitted. She never signed any forms relating to NSFAS.
8. With regards to the second count the Applicant stated that the student concerned, Ms Nomusa Maphumalo, had come to her house with a stick and knobkerrie while she was not there. When the Applicant returned to her home she was attacked by Ms Maphumulo, who sat on top of the Applicant, and placed the stick across her neck. She was having difficulty breathing, and was forced to hit Ms Maphumulo on the face in order to stop her. The Applicant’s brother had to intervene in order to remove Ms Maphumulo from the Applicant.
9. The Applicant claimed that assault does not always warrant dismissal, and case law indicates that a thorough investigation needs to be done before an employee can be dismissed. However in this case the investigator failed to conduct a proper investigation, and establish who attacked first.
10. She denies that the name of the college was placed into disrepute, as the incident occurred outside the work premises.
11. The Applicant is of the view that she was unfairly dismissed, as there was nothing to show she was guilty of the charges. She has suffered serious prejudice, the loss of her dignity, respect and income. The Applicant did not challenge procedural fairness.
12. The relief sought by the Applicant is re-instatement with retrospective effect.
ISSUE TO BE DECIDED:
13. Whether the dismissal of the Applicant was substantively fair?
RESPONDENT’S EVIDENCE:
14. The first witness called by the Respondent was Ms Bongikele Ngcongo, a Financial Aid Officer at the Appelsbosch Campus, who dealt with the NSFAS applications for tuitions and allowances, which were for transport, hostel and private accommodation. It is her job to distribute the application forms, thereafter, work with the application forms, and send them to the central office, which is in KwaMakhutha.
15. According to Ms Ngcongo, she was approached by Ms Maphumulo in October 2018 enquiring about her NSFAS application that was submitted in July 2018, as she did not receive her funding for accommodation. Upon going through her lists, she found out that they had only received Ms Maphumulo’s application form for tuition, and not for private accommodation.
16. Ms Maphumulo advised her that the Applicant was supposed to submit her forms together with a few other students. After checking her lists again, she found that the other students were on her list for private accommodation, and it was the Applicant who had submitted these application forms. She then had advised Ms Maphumulo to check with the Applicant about her form.
17. Ms Ncgonco testified that she was telephoned by the Applicant in August 2018, at home, asking if the application forms can be submitted after the closing date, as her mother, who was the landlord, was not well. According to her, this was not the correct procedure, however she accepted this, as there was still time for her to submit the application forms to the central office, and she knew the students were in need of private accommodation fees.
18. When a student submits an application form, they have to sign on a list, and she hands them a tear-sheet as proof of submission. This tear-sheet was not handed to the Applicant when she submitted the application forms, as this can only be given to students.
19. It was around 15h15 when Ms Maphumulo had approached her on that day. Ms Maphumulo informed her that she will go to the Lembethe House and enquire from the Applicant.
20. The next day she was called by the Campus Manager, Mr Gwala, who informed her that there was an incident, wherein the Applicant and Ms Maphumulo had beaten each other, and to enquire if she had seen Ms Maphumulo on the prior day. She had advised him of their discussion.
21. Ms Ngcongo stated that the NSFAS application forms have an Affidavit attached to it, which needs to be completed by the landlords, and a copy of their Identity Document attached. The students have to submit the forms to her, and not the Lecturers.
22. In this case, she was aware that the Applicant’s mother was the landlord, and had seen her Identity Document before, and as the Applicant’s mother was in hospital, she agreed to accept the forms from the Applicant. Though the procedure was incorrect, she was trying to assist the students. This is not allowed by the college, and according to her it did not tarnish the reputation of the Department.
23. Under cross-examination, Ms Ngcongo testified that the forms were signed by Mrs Ntombenhle F. Lembethe. She re-iterated that she accepted the forms from the Applicant as her mother was sick.
24. She stated that she was not advised by Ms Maphumulo that she had been expelled from the Lembethe’s House. If a student is no longer residing at a premises the landlord cannot sign the form, the new landlord will have to attend to this.
25. They could have accepted a late application from Ms Maphumulo, however the appeals had already been closed by the time the student had enquired about it. It is the duty of the students to check on the status of their applications.
26. Under re-examination she stated that she did not believe that the Applicant handing in the forms was done to benefit the family. As a Lecturer she may have wanted to assist the students so that they could continue studying.
27. Ms Nomusa Maphumulo, the student concerned, was the second witness for the Respondent. She testified that she had enrolled for Public Management at the college in July 2018. She did not know anyone in Appelsbosch. The students had advised her of the accommodation at Lembethe House, which was close to the college.
28. On 28 July 2018, she was accompanied by her father to secure accommodation at the Lembethe House. Her monthly rental was to be R350-00, as she would be sharing a room. For the two days in July 2018, she had paid R175-00. Her father attempted to negotiate the rental for July 2018, which led to an argument of sorts, and she believes this is when the Applicant started disliking her.
29. She was given a base and two sponges to sleep on. However, the following day, when another student arrived, by the name of Nonphumelelo, it was discovered that there was a shortage of beds. The student, who was to be her roommate, was given a torn mattress to sleep on.
30. A month had gone by, and in the middle of September 2018 she checked on her NSFAS applications for tuition and accommodation. She was advised to take the form to her landlord, who was to attach her Identity Document and a letter from the Councilor, which she did. The Applicant advised her that she needs to fill in the forms and go to the Police Station. They were going to miss their deadline, but the Applicant advised them that she will fill the forms in herself, and hand it in.
31. The forms were handed to the Applicant when she was at the office. Zamathimande, Nontobeko, Phumelele and another lady had handed in the form together with the Applicant. She is not sure if the Applicant submitted the forms, or not, but they had no problems at the house.
32. Thereafter the Applicant had come to her and requested to take the sponges the witness was using, as there were new students that had come to the accommodation. When she asked how she must sleep on the base the Applicant advised her that she is being disrespectful, and that if she does not want to reside there she must leave. If she did not take all her things, the Applicant would throw it outside.
33. The following day Ms Maphumulo and her roommate, after returning from college, took their things and left, without speaking to the Applicant. In October 2018 they commenced staying at a new residence.
34. They were approached by someone from NSFAS and advised to go check whether they were appearing on the system to collect R3 600-00. Her roommate and some other students went and checked, and they had qualified. She went and spoke to Ms Ngcongo the following day, when it was discovered that she was not on the system.
35. Ms Maphumulo then went to the college to see the Applicant, but she was not there. She then decided to go to the Applicant’s home to enquire what had happened. At the Applicant’s home, she was advised by the Applicant’s mother that the Applicant was in Dalton, and she had to wait for her to return. The witness waited for the Applicant for about one to two hours.
36. When the Applicant arrived, she questioned the Applicant about her form, and why she is not getting her money. They started raising their voices, and the Applicant then assaulted her together with her mother. Thereafter the Applicant’s brother came and stopped them and pushed the witness out.
37. She was injured. She went to the hospital the same time, as she was six months pregnant, and the foetus was not moving. The Doctor wanted to keep her over-night; however she was starting exams the next day.
38. When she went to the college the next day, she was approached by the Student Representative Council (SRC) enquiring as to what had happened, as they could see her injuries. She had related what had happened, and was taken to Ms Gumede, the Liaison Officer, who took pictures of her injuries, and took the matter further to the Campus Manager.
39. Ms Maphumulo stated that she had submitted her application form to the Applicant as she was new at the college and did not know what was going on. She had a right to the NSFAS subsidy, and if the Applicant did not want to submit her form, she should have told her, and she would have submitted it herself.
40. The Applicant was a Lecturer and violated to the Code of Conduct when she assaulted a student. She also brought the college name into disrepute. Teaching had stopped at the college, and students had refused to attend classes, because they did not want the Applicant at the college.
41. Under cross-examination, she testified that she did not know anything about a stick and knobkerrie. She was carrying her handbag, which only contained question papers, when she went to the Lembethe House.
42. Ms Maphumulo denied that she was living at Lembethe House from 12 July 2018. She started living there around 27 July or 28 July 2018. She stated that the guesthouse belonged to the Applicant, and they were making payments to her.
43. The witness further added that she was pregnant at the time and would not have had the energy to assault the Applicant. She is not sure how the Applicant got her injuries, as she did not assault the Applicant.
44. Her parents did go to the Lembethes to apologise to them, as they did not like arguments, and they knew that the Applicant would be dismissed for assaulting a student. The Applicant’s older sister had even said that the Applicant will pay her the NSFAS money in December 2018, however she did not do so.
45. The Respondent called Ms Nokwanda Gumede, the Student Liaison Officer, as its third witness. She testified that her job is to give support to the students and ensure the rights of students are not violated.
46. She confirmed that the incident of the assault was reported to her in October 2018. She was advised by her intern, Ms Sinenhlanhla Buthelezi that the SRC was looking for her to report on an assault. She then telephoned the SRC Chairperson, Mr Lindokhuhle Benson Latha, who advised her that Ms Maphumulo had been assaulted by the Applicant.
47. She then met with Ms Maphumulo, and took the student to her office, to enquire as to what had happened. Ms Maphumulo informed her that she had gone to the Applicant’s home to enquire about her NSFAS allowance, as other students were paid out but not her. They got into an argument, and the Applicant assaulted her.
48. She said she had bruises on her back, and the witness could see bruises on the student’s face. She then had Ms Maphumulo remove her top, and she took photographs of the bruises to show to the Campus Manager when she reported the incident to him.
59. The Campus Manager then called the campus management for a meeting to inform them of what had occurred. The student had informed Ms Gumede that she was pregnant, and had gone to the Doctor, as she could not feel the baby. The SRC had suggested that they telephone the Police and report the matter.
50. Ms Gumede sought advice from the Captain of the Police Station, who informed her that the student must go back to the hospital and fill a J88 form. She then drove Ms Maphumulo to the hospital, and a case was opened at the Police Station.
51. There were many meetings held at the campus, at which the Applicant was present, and her family at some point. The parents of Ms Maphumulo were also present.
52. The witness stated that the Applicant’s conduct was not acceptable. She had violated clauses in her contract of employment, the Code of Conduct and the Code of Professional Ethics.
53. Under cross-examination, she stated that she did not request photographs to be taken of the Applicant, as her job is to support students. She confirmed that a student is not allowed to attack a Lecturer.
54. The student had informed her that she was no longer staying at the Lembethe House at the time of the incident. However, when the NSFAS forms were completed, she was staying at the Lembethe House.
55. She further added that there were many meetings held, at which she was present, however this is the first time she is hearing about a stick being pressed to the Applicant’s neck. There was no report that the Applicant had suffered injuries.
56. The last witness for the Respondent was Mr Marius Calitz, who is employed as the Employee Assistance Programme Manager since 2010 and is also currently the acting Student Support Manager.
57. He testified that he had received an appointment letter instructing him to investigate the matter, giving him certain rights to interview people, and access to documents in order for him to get the information needed to give a report on his findings. His report was submitted to the employer, and his recommendation was in line with the charges levelled against the Applicant. He was thereafter appointed as the Initiator.
58. Mr Calitz had attempted to set up a meeting with the Applicant to conduct the interview through Ms Shabalala from administration, however the Applicant was not available. He thereafter contacted the Campus Manager to arrange the appointment with the Applicant and the other people he needed to interview, which he did. When interviewing the Applicant, he took down notes and recorded the interview, as he sometimes had trouble with his writing.
59. With regards to count 1, Mr Calitz stated that fraud is a deliberate or intentional misguidance to gain unlawfully, or to deceive someone intentionally so that person loses a specific right. During the interview, the Applicant had admitted to taking Ms Maphumulo’s NSFAS application form and throwing it away. By not returning the form to the NSFAS Officer, or the student, she left the student under the impression that the form had been submitted, and therefore it was an intentional deception that cost the student her right to the NSFAS allowance.
60. At the interview, when he asked the Applicant what she had done with Ms Maphumulo’s form, the Applicant had advised him that she had received the forms at the library, and on seeing Ms Maphumulo’s form she threw it away. She also stated that when Ms Maphumulo went to her about the form both parties raised their voices, whereupon Ms Maphumulo pushed her, and then the fight started.
61. However at the disciplinary enquiry, the Applicant had denied this, and pleaded not guilty to the charges. Everything he put to her was denied.
62. He stated that the NSFAS rules clearly state that no Lecturer should be involved in the supplying of transport or accommodation to student. By taking the forms the Applicant became involved. She overstepped her role as Lecturer and broke the rules.
63. With regards to count 2, he found that a fight did take place between the Applicant and Ms Maphumulo. They did not deny it. His investigation stopped when he established that there was a fight.
64. Mr Calitz was of the view that Ms Maphumulo’s rights were violated. She was expecting the bursary, as all her friends had received the bursary. She had suffered emotional, financial and physical abuse, as a result of this.
65. His impression from all the evidence was that even though the Applicant stated that the premises was rented by her mother, the Applicant also said that she contributed towards the expenses of the house. If her mother received income from the students, it meant that the Applicant benefitted indirectly, as the income made the expenses balance. He had addressed the staff before about not getting involved in the letting of premises.
66. After the investigation, he came to the conclusion that the Applicant had violated clauses in her contract of employment, the Code of Conduct and the Code of Professional Ethics. Getting involved with students outside the learning environment creates a risk, which is linked to the dignity and status of the Educator’s profession. The Applicant’s behaviour still reflects as an employee of the college when interacting outside. Everything that happened brought down the image of the college.
67. Mr Calitz stated that he does not trust the Applicant. He is of the view that at the interview, she was honest and open, however at the disciplinary enquiry she totally changed her version. She had taken forms from the student, and then took the law into her own hands by deciding whose to submit, and who’s not to. After she had assaulted a student, they also cannot trust her in front of a class of students. For the employer the trust relationship has broken down irretrievably.
68. Under cross-examination, he stated that he is not aware if the Applicant’s parents owned the boarding house before 2012. The Applicant had indicated to him that she was assisting her mother, as her mother is old. However, according to him, there is a difference between for example assisting a person to get an income and assisting a person to change a lock.
69. He confirmed asking the Applicant about accommodation at her home previously, as he was assisting an intern, and not a student.
70. He does not believe that the Applicant was under the impression that he was there to counsel her. The meeting had been arranged by the Campus Manager, and they were informed that he was the investigator. There could have been no confusion, as there are procedures to be followed for the Employee Assistance Programme, which started with a referral being done.
71. Mr Calitz stated that at the disciplinary enquiry the Applicant stated that she put her arm up, and Ms Maphumulo hit her with the stick. However, the Applicant now claims that she was strangled. There was no real evidence of the injuries sustained by the Applicant.
72. The witness further stated that he does not have an ethical dilemma in doing investigations. Had he felt that the employee was being targeted, he would have supported the employee. He was tasked to investigate the assault but had also picked up the fraud.
APPLICANT’S EVIDENCE:
73. The Applicant testified that she was employed as a Lecturer at the Appelsbosch TVET College, lecturing tourism. Some of her duties were registration for students, preparing lesson plans, classroom management, assessing students, and lecturing as well.
74. She gave a brief overview of how the Appelsbosch Missionary came to be and stated that due to all the facilities being built and employees coming from outside, there was a need for accommodation. Her parents saw the opportunity to build cottages and provide accommodation to these employees. While her parents were still working, they started building the cottages, and when her father retired, he used his pension monies to expand the accommodation. She was not even born when her parents started leasing the cottages.
75. The Applicant testified that Ms Maphumulo came to the area on 12 July 2018 when the college opened for the second semester. One afternoon she had heard her mother speaking to some people who were looking for accommodation. Her mother is old, and in poor health, and so she called the Applicant and requested her to show them the rooms. One of the ladies was Ms Maphumulo, and she had a baby with her, who looked to be about ten months old. Her mother advised Ms Maphumulo that children are not allowed to stay with students.
76. On the Sunday, Ms Maphumulo arrived with her father. The Applicant’s mother and Ms Maphumulo’s father then discussed the rental, which was to be R350-00 per month, and R175-00 for July 2018, as Ms Maphumulo had arrived in the second week. The Applicant was then requested by her mother to take Ms Maphumulo and her father to the room.
77. The first time her mother had asked her to show Ms Maphumulo the room she was busy and had made them wait. When she went out Ms Maphumulo commented that they had to wait a long time for such a young person and could not believe that the Applicant was a Lecturer, and this made the Applicant feel that Ms Maphumulo looked down on her.
78. At the end of July 2018, a Ms Gwala arrived, and she shared the room with the Applicant. Everything was okay for a while, and then the problems started.
79. Whenever the elder Mrs Lembethe went to check on the rooms and the yard, Ms Maphumulo would have complaints. She refused to empty the bins, and clean the toilets, as was done by the other tenants. There were empty liquor bottles in the yard, which the other tenants said came from Ms Maphumulo’s room. The tenants also complained of excessive noise from Ms Maphumulo’s room.
80. When the Applicant’s mother would address this with Ms Maphumulo, she would back chat and behave rudely towards the elder Mrs Lembethe. The Applicant’s mother then decided that Ms Maphumulo should leave and advised her in mid-August 2018 that she must vacate the room by the end of August 2018. Ms Maphumulo had obtained alternate accommodation not far from the Lembethe House.
81. The Applicant testified that in August 2018, while she was at work, students that resided at the Lembethe House, namely Zamathimande, Phumelele Gwala, Nono Ndlovu, Thabisile Simangele, and Lindo, approached her in the library asking her to take their NSFAS forms for her mother to fill out, as the deadline was approaching. She refused to accept the forms and asked them to hand them to her mother or brother, as she does not deal with the accommodation.
82. Later that day, when she was at home Thabisile Simangele and Zamathimande came to the house with the forms in a brown envelope. The elder Mrs Lembethe was admitted at Midlands Hospital having undergone knee surgery, so she took the envelope and put it aside for her mother, who was due back home the next day. She spoke to her mother over the phone and advised her about the forms and the deadline. Her mother asked her to phone Ms Bongikele Ngcongo to ask her if she will accept the forms if it is brought late, which the Applicant did, and Ms Ngcongo agreed to accept the forms.
83. When her mother returned from the hospital, she completed the forms, put them back in the envelope, and handed the envelope to the Applicant to deliver to Ms Gumede, which the Applicant did. She stated that she was not present when the forms were being signed, as she is not involved in the administration of the cottages. Ms Maphumulo was not one of the students who met her in the library, nor did the other students mention anything about her form.
84. Thereafter everything was normal. From September 2018 Ms Maphumulo and her roommate were no longer living with them.
85. The Applicant stated that on the morning of 31 October 2018 her mother was not well, and the Applicant advised her that she will go to the pharmacy in Dalton to get her medication. She attended college and carried out her duties. She then left at 15h00 and went to the pharmacy. Upon arriving home, she parked her car in the garage, and entered the house carrying the medicine and some groceries. She went to the kitchen where her mother was.
86. Upon the Applicant entering the kitchen, Ms Maphumulo also entered the kitchen from the door leading to the outside. She grabbed a stick from the pantry, which the Applicant believes Ms Maphumulo hid there, and started hitting the Applicant, calling her names and swearing at her. Ms Maphumulo had a broken broom stick and a knobkerrie.
87. Ms Maphumulo hit her on her forehead. The Applicant tried to block the strikes with her arm, however her right hand is weak due to an accident she was involved in. She used her left hand to hold the stick. There was pushing and shoving, and as the Applicant was still in her high heels she stumbled and fell. Ms Maphumulo immediately got on top of the Applicant, put the stick on her neck and pressed down. She started to lose her breath and started hitting Ms Maphumulo on her face so that she would let go of her. However, she did not.
88. The Applicant’s mother and children were watching the assault take place. Her mother then started shouting for help, and her brother came in and pulled Ms Maphumulo off the Applicant. He then escorted Ms Maphumulo to the gate, and as she was leaving, she was still swearing, and said that she wants the Applicant fired from work. The neighbours and tenants had gathered outside because of the chaos.
89. The Applicant had left behind her brown woolen hat and the stick when she was escorted out of the premises.
90. She had called the Police after the incident. They had promised to come to the house, however they did not.
91. The next day she went to work, as she had to prepare her students for their examination. She reported the matter to the campus management, and the NEHAWU representative, Mr Ndwalane, who is also their staff representative. She also reported the incident to the Campus Manager, Mr Gwala. However, he advised her that they will not intervene, as it was a physical fight that occurred outside the college premises. It is a matter for the Police.
92. The Applicant telephoned the Police again on 1 November 2018, who advised her that they will be coming. She could feel the pains on her neck, forehead and arm, and her forehead had started swelling. On 2 November 2018 she went to the Police herself, as she realised that they were not going to come out.
93. She also went to the Doctor on the same day, and a J88 form was filled out. She could not find this document previously, and therefore it was not submitted at the disciplinary enquiry.
94. She stated that the following week, while at work, she was called by the Campus Manager to his office. Upon arriving she was advised that Ms Maphumulo and her family were there to see her. The Campus Manager, the Student Liaison Officer, Mr Ndwalane, three SRC members, Ms Maphumulo, her father, her uncle and two other males who had no part in the matter, although one of whom was a former student of the college, were present.
95. The family had come to hear the Applicant’s version of what had happened. They also stated that they did not want this matter to go further and wanted to make peace. While they were in the office, a small group of students started protesting outside the room. None of the students were boarders at the Lembethe House or students that she had taught. Ms Maphumulo’s uncle said they did not want the students to be a part of this. The meeting was then adjourned, and security was called to escort her to her car.
96. The next day she was called by the Head of Department, Mr Bhengu, and advised not to report to work, as they were not sure what the students would do to her or her vehicle.
97. She then stayed at home the whole week, during which time the Police came to take statements, as Ms Maphumulo had opened a case against her. The Applicant’s mother had also reported to their Induna as to what had occurred.
98. On that Sunday, Mr Latha had arrived at her house with their neighbour, Mr Zondi, and Ms Maphumulo’s parents, who wanted to have a meeting with them. The Applicant’s older sister was at their house that day and was part of the meeting. The Maphumulo’s wanted to apologise for their daughter’s behaviour, and they wanted to make peace. They also wanted to cleanse the Lembethe House, as carrying weapons into another house is not allowed in their culture. The Maphumulo’s would need to give them an animal as payment.
99. The Applicant stated that her sister had enquired about the NSFAS issue, and they were advised by Mr Maphumulo that there is no need to worry about that, as they are the ones that need to pay the Lembethes.
100. Ms Maphumulo apologised to the Applicant, and also to the elder Mrs Lembethe for her bad behaviour, and hugs were exchanged. Mr Maphumulo pleaded for the cases to be dropped, as they wanted peace. It was agreed that Mr Latha would inform the SRC of the outcome, so that they in turn could inform the students. They were also to write a report to hand in to management.
101. The next day was their day to appear in Court. The Police had fetched both the Applicant and Ms Maphumulo to take to New Hanover Magistrate’s Court so that they could withdraw their respective cases. According to the Applicant, during the journey while Ms Maphumulo and her were talking she became aware that Ms Maphumulo was pregnant, as she stated that her behaviour was due to her pregnancy. Ms Maphumulo also advised her that sometimes when Mr Maphumulo is angry he breaks windows, and that she gets her “hot head” from him.
102. She stated that she decided to go back to work the next day, as things were back to normal. Mr Phakamani Khoza, a member of the SRC, apologised to the Applicant, and said the story was very different from what they had heard.
103. The examinations took place, and then there was marking. One day Ms Khoza, her supervisor, advised her that Mr Calitz was looking for her. She then advised Ms Khoza that she did not require his services. The campus then closed for 2018.
104. In 2019 there was no mention of the incident, until May 2019, when a certain Nomusa informed her that the issue was still pending with Mr Calitz. However, she did not hear anything, until one day when a student was sent to call her urgently for Ms Khoza, who advised her that Mr Calitz was there. Ms Khoza said that she had informed Mr Calitz that the Applicant did not require his services, however he still came.
105. The Applicant met with Mr Calitz in the sick bay room. He enquired about the incident with Ms Maphumulo. She told him that she does not want to talk about it, however he insisted on getting information. She then narrated the story to him. He had a note pad and was writing, but she did not see if he was recording the interview. He did not ask her for a statement, and nothing was communicated to her after that meeting. Mr Calitz did not inform her that he was the investigator, nor was there anything in writing advising her of the investigation.
106. She denied advising Mr Calitz that she threw away Ms Maphumulo’s application form. She had not looked into the envelope, and therefore would not have known if Ms Maphumulo’s from was there. She had also advised him that she did not oversee the renting of the rooms, as her mother did that. The Applicant had further advised him that it was Ms Maphumulo who had come to her home and attacked her.
107. Under cross-examination, the Applicant stated that this was the first time she had made a request to Ms Ngcongo to submit the forms late, and this was only because her mother was in hospital and could not sign before the deadline. She only assisted because a lot of students drop out due to not getting funding.
108. She stated that if her mother is not at home, and the students come with anything for her mother she will take it, or her brother, including rent. She was not doing anything outside her work. As a daughter, she was assisting her mother. However, everything belongs to her mother. She did not derive any income from the rental money pertaining to the Lembethe House.
109. The Applicant stated that she hit Ms Maphumulo in self-defense, as Ms Maphumulo was choking her, and she was dying. She is a very sympathetic person and did not know Ms Maphumulo was pregnant at the time. She claimed that Mr Ndwalane had taken photographs of her injuries, however they were deleted.
110. She further added that she requested for a lesser sanction in her appeal, as it is better than a dismissal. However, she was not admitting guilt.
111. The next witness called by the Applicant was Nonduduzo Khoza, a senior Lecturer at the Campus, who was also the Supervisor of the Business Studies Division, and therefore the Supervisor of the Applicant.
112. She testified about the character of the Applicant, stating that the Applicant is an introverted person. She came to the college, did her work, and then left. For all the years that she knew the Applicant, there was nothing untoward she could say about her. She had received no complaints about the Applicant and had no problem with her attendance.
113. The witness brought with her a copy of the attendance register for 31 October 2021. She however could not bring the original attendance book as there are currently auditing taking place at the college.
114. She stated that on 12 March 2019, Mr Calitz had approached her saying he needed to speak to the Applicant to give her support. The Applicant had refused to meet with him, saying that she has a private Doctor who is giving her counselling. She had advised Mr Calitz of this, however he insisted on meeting the Applicant. She then went back to the Applicant and advised her to go and hear what Mr Calitz has to say.
115. In July 2020, Ms Gumede had come to the witness after receiving an application form from the Applicant. Ms Gumede advised her that she is not comfortable enrolling the Applicant. Ms Khoza then went to Mr Gwala and advised him of this. He had phoned the Academic Head, Ms Ngcobo, asking for advice. He then advised her to keep the form aside, as there are a lot of things to be cleared about the Applicant.
116. Under cross-examination, she stated that she had heard about the incident through the grapevine and had seen a scratch on the Applicant’s face. She could not just act on hearsay and was waiting for something in writing.
117. The second witness for the Applicant was Mr Kwaziwakhe Kingdom Ndwalane, who is employed by the Respondent, and currently based at the central office as the Programme Co-ordinator for Business Studies. From 2012 to 2020 he was a Post Level 1 Lecturer at the Appelsbosch Campus. He was also a staff representative, and a NEHAWU Shop Steward.
118. The Applicant was a colleague of his, and a member of the same Trade Union. He testified that the Applicant had informed him that she was attacked by a student, who went to the Applicant’s house, and who had strangled her. He could see marks and bruises on the Applicant’s neck, and a scar on her forehead, which was swollen.
119. He had conducted his own investigation by speaking to Ms Ngcongo, as the issue was related to NSFAS. Ms Ngcongo had advised him that the student had approached her, and that she had said she will sort it out her own way.
120. Thereafter there was a meeting between the parents of the student, the management, the SRC, the Applicant and himself. The parents wanted to find out the other side of the story, as according to them they knew what their child was capable off. During the meeting there was a commotion as the learners were protesting and saying that the Applicant should be dismissed. The parents said that they do not want their child to be used for internal issues.
121. There were a large number of students, and the meeting had to be adjourned due to the commotion. The Applicant was not protected, and he had to accompany her so that she would not be attacked. There was a misrepresentation that the Applicant had attacked the student, however the SRC was able to calm the students down eventually.
122. He was of the view that there was no proper investigation held. A neutral person should have been appointed, and not someone who was tasked with student support and also involved in the Employee Assistance Programme. The investigation was not formal and transparent. The Applicant should have been made aware of the investigation, however Mr Calitz had represented himself as the person who was going to counsel the Applicant.
123. Mr Ndwalane believes that Ms Maphumulo is not an honest person, as he had previously caught her cheating during an assessment.
124. The third witness for the Applicant was Mrs Ntombenhle F. Lembethe, who is the mother of the Applicant. She testified that Lembethe House is owned by herself and her husband. They started building the cottages in 1980 to provide accommodation for students and Teachers.
125. She testified that Ms Maphumulo had come to her in July 2018, with a baby who was around six months old, looking for accommodation. Ms Maphumulo was given a room that she would be sharing. She confirmed the rental, as previously stated by Ms Maphumulo and the Applicant.
126. In August 2018, while she was in hospital, she received a call from the Applicant advising that the students had forms that needed to be filled urgently. She advised the Applicant to keep the forms for her, so that she can sign it when she returns. She also asked the Applicant to speak to Ms Ngcongo, and to advise her of the situation and that the forms will be delayed.
127. Upon her return home, she found the envelope on her dresser, and she proceeded to complete the forms. According to Mrs Lembethe, Ms Maphumulo’s form was not there, and if it had been there, she would have kept it aside, and given it back to Ms Maphumulo, as she was living at Ma Zondi’s place.
128. She stated that during her stay, Ms Maphumulo was very disrespectful, and she did not listen. There were empty liquor bottles and paper found around the yard, that the students claimed were Ms Maphumulo’s. They also complained that they are the only ones that clean the toilets and not Ms Maphumulo. The witness wanted the contact details of Ms Maphumulo’s father, as she wanted to advise him about what was going on. She had advised Ms Maphumulo that if she continues with her behaviour, she will have to ask her to leave.
129. However there was no change in her behaviour. The tenants also complained about the noise she was making. Mrs Lembethe had had enough of her and had advised Ms Maphumulo that she must leave by the end of August 2018.
130. She confirmed that on 31 October 2018 there was an incident. She confirmed the Applicant’s evidence as regards her illness on the day, and that the Applicant went to Dalton to purchase medication for her. She further added that, at around 16h00 or 17h00, while she was in her room there was a banging sound coming from the kitchen door. She had advised whoever it was that she was inside. She then heard footsteps, and when she opened her eyes, she saw that Ms Maphumulo had entered her bedroom.
131. She could see that Ms Maphumulo was upset, and she was carrying a stick and a knobkerrie. Ms Maphumulo asked for the Applicant and stated that the Applicant thinks she is highly educated, and she will show her. She then started using vulgar language and said that she wanted the Applicant terminated from work.
132. Mrs Lembethe then asked her to leave, and she did so, and Mrs Lembethe heard the kitchen door closing.
133. When the witness heard the Applicant arriving, she left her bedroom and went to the kitchen to wait for her, as she was told by the Applicant that she must move around to feel better. As the Applicant entered the kitchen, she hears the other door open, and Ms Maphumulo appeared.
134. Ms Maphumulo immediately hit the Applicant with the stick. All the groceries the Applicant had spilled to the floor, as Ms Maphumulo continued to hit her. The Applicant then fell and Ms Maphumulo sat on top of her, using the stick to suffocate the Applicant. The Applicant was trying to stop her, however she did not have power in her arm.
135. The Applicant’s children then came in and started shouting. The witness then went out into the veranda and started screaming saying “This girl is assaulting my child”. Her son, who was in the other room, then came and removed Ms Maphumulo from the Applicant. Ms Maphumulo was still fighting, and her son took the stick from her. She did not want to leave the house, and her son had to chase her out.
136. Following the incident, Ms Maphumulo’s parents, Mr Zondi and Mr Latha from the college had come to their house to apologise for the incident. Ms Maphumulo attributed her behaviour to her pregnancy. Mrs Lembethe had not been aware that Ms Maphumulo was pregnant before this. She had accepted their apology and had shaken hands and hugged.
137. She stated that she had informed her children that if anyone comes to pay rent, they must accept it, and if someone had a complaint they must attend to it, especially her son as the Applicant is at college. They must record who is making the payments. However, she made it clear to them that the rental money has nothing to do with them, as it belongs to her.
138. The fourth witness for the Applicant was Ms Nandipha Ngcobo who is a neighbour of the Applicant. She testified that on 31 October 2018 when she was returning from a school where she was temporarily employed, she saw a short light skinned woman carrying a stick and knobkerrie and looking very upset. She knew her as a student who was renting in the area.
139. She had enquired from the lady why she was walking so fast, and why she was not wearing warm clothes as it was a cold day. She also told her she hopes she is not going to assault someone, and that she must not get arrested.
140. The lady was walking towards Lembethe House, however Ms Ngcobo did not pay attention as to whether she went there. She did hear someone shouting for help.
141. On 2 November 2018, she had met the Applicant, who was coming from the Police Station, and that is when she found out what had happened. She could also see something on the Applicant’s forehead.
142. Under cross-examination, she stated that the lady did not have any bruises when she saw her.
143. The next witness was Mr Mcebo Lembethe, who is the younger brother of the Applicant. He testified that he was in the gym room at his home on 31 October 2018 when he heard his mother screaming for help.
144. He went to the kitchen, and there he found his sister lying on her back with Ms Maphumulo on top of her and pressing her neck with a stick. His mother and the Applicant’s children were also there. He separated them and pushed Ms Maphumulo behind him. She was still trying to attack the Applicant, and he chased her out of the gate.
145. Under cross-examination, he stated that if the Applicant is requested by their mother she helps with the cottages, but not often. He cannot confirm having seen the Applicant assist with the NSFAS forms.
146. He stated that when he removed Ms Maphumulo from the Applicant she already had bruises, and these were not new bruises. He further added that he did not know that Ms Maphumulo was pregnant and became aware of same when he was chasing her, and she said that she wanted the baby to get hurt in a way that would make the Applicant get dismissed.
147. The last witness for the Applicant was Mr Lindokhule Benson Latha, who was a student at the Appelsbosch Campus, and part of the leadership of the students in 2018. He testified that Ms Maphumulo had come to him and advised him that she was attacked by the Applicant when she went to enquire about her NSFAS application.
148. He stated that by the time they went into the meeting with campus management, they were informed that the matter will not be dealt with by the campus, as the incident had occurred outside the premises, and police cases had already been open. This was where they got to know the Applicant’s side, and they learnt that Ms Maphumulo had gone to the Lembethe House carrying sticks.
149. He believed that Ms Maphumulo has informed the students about the meeting, and that is how they ended up outside the room protesting. However, when the true narrative of what had occurred was relayed to the student, the situation normalised.
150. Mr Latha testified that he was approached by Ms Maphumulo and her parents to arrange a meeting with the Lembethes for them to apologise for her actions. In their culture if a person attacks another family or homestead, then that person will have to pay damages in the form of cattle or goat.
151. During the talks Ms Maphumulo’s family acknowledged that she was violent at times. She had confessed at the meeting that she was the one who attacked the Applicant carrying two sticks, and that she was trying to strangle the Applicant.
152. It was decided that because Ms Maphumulo was still a youngster, and the families were reconciling no damages would be paid.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
153. The onus rested on the Respondent to prove that the dismissal for misconduct is substantively fair on a balance of probabilities.
154. With regards to count 1, which is the allegation of fraud charge, it would seem that it was the student who had to make the submission of the documents for the private accommodation subsidy to Ms Bongikele Ngcongo. Furthermore, the date for the submission of the documents had elapsed, however Ms Ngcongo allowed the late submission, as she was still within time to submit the documents to head office.
155. One has to bear in mind that it was not disputed that the Applicant’s father and mother had started the boarding business at their home in the 1980s. They had built cottages, and it seems that the business was known as “Lembethe House”. They saw a need for students and Lecturers to be accommodated near the college, which started off as a Teachers Training College, and then went on to become a Nursing College, and thereafter became a Coastal College. This business commenced even before the Applicant had commenced her studies and had become a Lecturer at the college.
156. Based on this, I accept the Applicant’s version that she assisted her mother with aspects connected to the tenancy, when her mother was not available. There was no proof adduced that the Applicant had actually signed the documents for the students’ private accommodation, and I accept the Applicant’s version that the documents had been signed by her mother, and that she merely handed it over to Ms Ngcongo.
157. It may well be that Ms Maphumulo’s documents had been among the documents that had to be signed by the Applicant’s mother, and it may further well be that she had not submitted the document bearing in mind that Ms Maphumulo had been expelled from Lembethe House, under circumstances were the relationship had broken down between the landlord and the tenant.
158. However it cannot be said that she failed to submit the documents in accordance with the correct procedure, as even the correct procedure had been waived by Ms Ngcongo. Further there appears to be no duty on the landlord, or the proxy, to submit the documents. The students were the ones obliged to see that the documents were properly filled, and submitted to Ms Ngcongo, or to any other official in charge of these documents, if it pertains to any other institution.
159. I find with regards to count 1 that the Applicant is not guilty.
160. Furthermore fraud consists in unlawfully making, with intent to defraud, a misrepresentation which causes prejudice, and which is potentially prejudical to another. In this case the Applicant did not make a misrepresentation, although she may have withheld the form. However, as stated previously, there was no obligation on her to hand in the form.
161. The student could have followed up on this and made representations concerning her subsidy. Moreover, the student had already been expelled from the premises, after a stay of less than one and a half months.
162. There is no proof that the Applicant benefitted financially from the rental collected from the students, as whatever profits were derived were stated to be for the benefit of the elder Mrs Lembethe, and therefore this did not conflict with her duties as a Lecturer, as it could not be proven that she derived a benefit from the letting enterprise.
163. With regards count 3, which is bringing the college name into disrepute, I am of the view that the Applicant was assisting her mother, when her mother was not available, by collecting the rentals, and with other aspects relating to the administration of Lembethe House. However, this did not mean that she benefitted financially from the enterprise, nor did it mean that this conflicted with her duties, as a Lecturer. This is merely something one does as a duty to one’s parent, and as had been stated earlier the enterprise started long before the Applicant had completed her studies and became a Lecturer.
164. The charge as set out in count 3 related to the assisting of her mother in her business. It would have been more appropriate if she was charged for bringing the college’s name into disrepute as a result of the physical fight with the student, as indeed in this respect the college name was tarnished.
165. The subsidies were granted to the students, and the students in fact paid rentals to the elder Mrs Lembethe. While it is true that an employee of the college cannot benefit financially from the college by conducting another enterprise that interferes with her work, or was in conflict with her work, this cannot be said of the Applicant. So, I find her not guilty of count 3.
166. However with regards to count 2, which is the most serious charge, it would seem that Ms Maphumulo had gone to the Lembethe House in order to query about her forms. It would seem that prior to the Applicant returning from Dalton, Ms Maphumulo was told to wait for her. Then a shouting match occurred when the Applicant returned, and thereafter the tussle took place.
167. I find it inconceivable that Ms Maphumulo, who was six months pregnant at that stage, would go to the Lembethe House armed with a knobkerrie, and a stick, wanting to engage in a fight knowing she would be outnumbered by the people present there. To have done so would have been incredibly daring on her part.
168. Furthermore in her evidence before the disciplinary enquiry, the Applicant stated that Ms Maphumulo hit her with a stick on the arm. However, in a statement made to Mr Calitz on 12 March 2019, she did not give details of the assault. She just said that Ms Maphumulo came to her home, picked a fight and then everything started.
169. The photographs taken of Ms Maphumulo’s face, back and her shoulder shows serious bruising, and wounds, and shows that she was subjected to a severe beating. Whereas on the J88 form of the Applicant, which was done on 2 November 2018 two days after the incident, the Doctor refers to some bruises. However, we have no other physical evidence as proof. Her witness Ms Nonduduzo Khoza only referred to a scratch on her face.
170. The correct approach would have been for the Applicant to have engaged in a discussion with Ms Maphumulo, and then parted ways with her. It would seem that the Applicant lost her temper, and things got out of control.
170. It is true that the private lives of the employees are of no concern to the employer. However, this situation concerned a student and a Lecturer of the college and resulted in some upheaval at the college. So, the onus rests on the Respondent to prove that it had legitimate reasons to be concerned about the employee’s conduct outside working hours. No doubt the assault negatively affected the employment relationship, and also impacted on the need to maintain decorum and proper relationships between the students, the college and its employees.
172. The employee was obliged to obey the Respondent’s code of conduct, and in particular 3.2 of the Employee’s Code of Conduct, as set out in the Department of Higher Education and Training Code of Conduct, which is as follows:
“3.2 Employee and the Student
An Employee:
3.2.1 respects the dignity, beliefs and constitutional rights of all students, which includes the rights to privacy and confidentiality;
3.2.2 strives to enable students to develop a set of values consistent with the fundamental rights contained in the Constitution of South Africa;
3.2.3 acknowledges the uniqueness, individuality and specific needs of each student, guiding and encouraging each to realise his/her potential;
3.2.4 exercise authority with compassion;
3.2.5 promotes gender equality;
3.2.6 avoids any form of humiliation and refrains from any form of abuse, whether physical or psychological;”
173. In the matter of NUM v East Rand Gold & Uranium Co Ltd (1986) 7 ILJ 739 (IC) an employee was dismissed for assaulting a fellow employee on a company bus. In this case the Industrial Court ruled that the dismissal was justified, although the incident occurred outside the workplace, and after company hours. The relationship between the Lecturer and the student continues as such, even after work hours.
174. In Van Zyl v Duva Opencast Services (Edms) Bpk (1988) 9 ILJ (IC) an employee assaulted his supervisor in a mining village outside the work hours and was dismissed. Such an assault was held to have a negative impact on the other workers, and also the residents of the village. In this case one could see that there was a negative impact, as tension was created in the college between the students and administration when the student’s demanded administration takes action against the Lecturer. It must be shown that there was a nexus between the offence committed, the employer’s operational requirements, and its business.
175. As far as the witnesses are concerned, I find that Ms Maphumulo and the witnesses for the Respondent, namely Ms Bongikele Ngcongo, Ms Nokwanda Gumede, and Mr Marius Calitz, gave their evidence in a straightforward manner, and even admitted to some shortcomings, as when Ms Ngcongo stated that she would not accept any late submissions of NSFAS forms again.
176. Ms Maphumulo also gave evidence about the fact that she and the Applicant both withdrew charges against each other for the sake of peace. However, I accept her denial that no stick was applied to the Applicant, and that she did not have a knobkerrie or stick on her. I accept that the Applicant committed the assault by hitting Ms Maphumulo with her fists.
177. Ms Gumede further stated that there was no report that the Applicant had suffered injuries and confirmed that she took the photographs of Ms Maphumulo the following day. She also testified about Ms Maphumulo’s eye being swollen, and bruises on her back and shoulder.
178. As for Mr Calitz, I find that there was no conflict in his role as investigator in the case, as well as offering counselling and employee assistance.
179. As for the Applicant’s witnesses, her mother, Mrs Ntombenhle F. Lembethe, and her brother, Mr Mcebo Lembethe, who live in the same premises as her, and there is a suspicion that their evidence was tailor made to support the theory that Ms Maphumulo was the aggressor. They have motive for bias in the matter, and Mr Lembethe even made a sinister suggestion that Ms Maphumulo wanted the embryo, that she was carrying, to be injured so that the Applicant could be dismissed.
180. The three witnesses also gave different versions of when they found out that Ms Maphumulo was pregnant. The elder Mrs Lembethe stated that she found out on the day of the meeting with the families, the Applicant said she found out when they were travelling together to go and withdraw the case, and Mr Lembethe stated that it was on the day of the assault, when he was escorting Ms Maphumulo out of the premises.
181. Also the Applicant’s brother stated that the bruises were not new and had been incurred earlier in the day. However, the bruises were fairly visible. The Applicant and her mother did not say Ms Maphumulo came there with bruises. Furthermore, their neighbour, Ms Nandipha Ngcobo, stated that when she saw Ms Maphumulo she had no bruises. Mr Lindokhule Benson Latha had made a comment that the bruises looked fresh. Therefore, one can accept that the bruises were incurred as a result of the beating.
182. Mr Latha’s evidence was hearsay. Whereas previously he had campaigned against the Applicant with regards to the assault, he now indicates a different version of what he had previously held. There was no supporting evidence to confirm the statement that he stated Ms Maphumulo had made to her parents, and I cannot accept same.
183. It is also evident that the Applicant has not shown any remorse in the matter. She has persisted in her defence, and there is an element of dishonesty in that she stated that Ms Maphumulo arrived with the stick and the knobkerrie. This element of untruthfulness reinforced the Respondent’s decision to use dismissal as an appropriate sanction.
FINDINGS:
184. Taking all the above into consideration, I find the Applicant guilty of count 2, which is serious. This had the effect of destroying the trust relationship between the Respondent and the Applicant, so despite her almost seven years of service, I find that dismissal was the correct sanction in this matter.
AWARD:
185. The application is dismissed.
186. There is no order as to costs.
J.D. VEDAN
ELRC Panellist
Case Reference No.: ELRC334-20/21 KZN
Date of hearing: 17 March 2022
In the arbitration between:
Londiwe Nkosisithandile Lembethe Applicant/Employee party
and
Department of Higher Education and Training
(Coastal KZN TVET College) Respondent/Employer party
Applicant’s representative: Mr P. Nkabinde
Tel: 081 558 9151
E-mail: phakamani@nehawu.org.za
Respondent’s representative: Mr T. Mhlongo
Cell: 073 615 0664
E-mail: mhlongo.t@dhet.gov.za
DETAILS OF HEARING AND REPRESENTATION:
1. This arbitration was held at the Coastal TVET College, Durban City Campus, 1 Jameson Crescent, Congela, Durban on 30 September 2021, 8 November 2021, 19 November 2021, 30 November 2021, 27 January 2022, 7 March 2022 and concluded on 17 March 2022.
2. The Applicant, Londiwe Nkosisithandile Lembethe, was represented by Mr P. Nkabinde, a Union Official.
3. The Respondent, Department of Higher Education and Training (Coastal KZN TVET College), was represented by Mr T. Mhlongo, its representative.
BACKGROUND TO THE DISPUTE:
4. The Applicant began working for the Respondent on 17 January 2012, as a Post Level 1 Lecturer at its Appelsbosch Campus. On 18 June 2019 she received a notice to attend a disciplinary enquiry, was dismissed on 3 September 2020 after being found guilty of the charges levelled against her.
5. There was an investigation conducted and charges were levelled against the Applicant, which were as follows:
“Count 1: Alleged Fraud
During the month of July 2018 you unlawfully engaged in signing the documentation for an application for a student private accommodation through NSFAS and which you further failed to submit in accordance with the correct procedures thereby contravening the Employment of Educators Act, No. 76 of 1998 as per Section 18(1)(a).
Count 2: Engaged in a physical fight with a student
As a lecturer at Appelsbosch Campus, you engaged in a physical fight with a student, thereby contravening the Employment of Educators Act, No. 76 of 1998, as per Section 18 (1)(r), 18 (1)(t) and 18 (1)(u) as well as the Public Service Code of Conduct and SACE Code of Conduct.
Count 3: Bringing the Coastal KZN TVET College’s name into disrepute
The name of the college was tarnished as you misrepresented the college as a lecturer whereby, you assisted a family member to gain financially by obtaining rentals for NSFAS students’ private accommodation thereby contravening the Public Service Code of Conduct and/or contravening the Employment of Educators Act, No. 76 of 1998 as per Section 18 (1)(f).”
6. On 18 June 2019 the Applicant received a notice to attend a disciplinary enquiry, wherein she was found guilty of the charges levelled against her and dismissed on 3 September 2020. An appeal against the sanction was lodged by the Applicant, which was dismissed.
7. The Applicant on the other hand claimed that everything in the case was exaggerated. In respect of the first count the Applicant stated that there was no fraud. The accommodation is owned by her mother, Mrs Ntombenhle F. Lembethe, whom she sometimes assisted, as her mother is ill and aging. However her mother is the one who attends to the NSFAS forms, and it is the duty of the students to ensure the forms are submitted. She never signed any forms relating to NSFAS.
8. With regards to the second count the Applicant stated that the student concerned, Ms Nomusa Maphumalo, had come to her house with a stick and knobkerrie while she was not there. When the Applicant returned to her home she was attacked by Ms Maphumulo, who sat on top of the Applicant, and placed the stick across her neck. She was having difficulty breathing, and was forced to hit Ms Maphumulo on the face in order to stop her. The Applicant’s brother had to intervene in order to remove Ms Maphumulo from the Applicant.
9. The Applicant claimed that assault does not always warrant dismissal, and case law indicates that a thorough investigation needs to be done before an employee can be dismissed. However in this case the investigator failed to conduct a proper investigation, and establish who attacked first.
10. She denies that the name of the college was placed into disrepute, as the incident occurred outside the work premises.
11. The Applicant is of the view that she was unfairly dismissed, as there was nothing to show she was guilty of the charges. She has suffered serious prejudice, the loss of her dignity, respect and income. The Applicant did not challenge procedural fairness.
12. The relief sought by the Applicant is re-instatement with retrospective effect.
ISSUE TO BE DECIDED:
13. Whether the dismissal of the Applicant was substantively fair?
RESPONDENT’S EVIDENCE:
14. The first witness called by the Respondent was Ms Bongikele Ngcongo, a Financial Aid Officer at the Appelsbosch Campus, who dealt with the NSFAS applications for tuitions and allowances, which were for transport, hostel and private accommodation. It is her job to distribute the application forms, thereafter, work with the application forms, and send them to the central office, which is in KwaMakhutha.
15. According to Ms Ngcongo, she was approached by Ms Maphumulo in October 2018 enquiring about her NSFAS application that was submitted in July 2018, as she did not receive her funding for accommodation. Upon going through her lists, she found out that they had only received Ms Maphumulo’s application form for tuition, and not for private accommodation.
16. Ms Maphumulo advised her that the Applicant was supposed to submit her forms together with a few other students. After checking her lists again, she found that the other students were on her list for private accommodation, and it was the Applicant who had submitted these application forms. She then had advised Ms Maphumulo to check with the Applicant about her form.
17. Ms Ncgonco testified that she was telephoned by the Applicant in August 2018, at home, asking if the application forms can be submitted after the closing date, as her mother, who was the landlord, was not well. According to her, this was not the correct procedure, however she accepted this, as there was still time for her to submit the application forms to the central office, and she knew the students were in need of private accommodation fees.
18. When a student submits an application form, they have to sign on a list, and she hands them a tear-sheet as proof of submission. This tear-sheet was not handed to the Applicant when she submitted the application forms, as this can only be given to students.
19. It was around 15h15 when Ms Maphumulo had approached her on that day. Ms Maphumulo informed her that she will go to the Lembethe House and enquire from the Applicant.
20. The next day she was called by the Campus Manager, Mr Gwala, who informed her that there was an incident, wherein the Applicant and Ms Maphumulo had beaten each other, and to enquire if she had seen Ms Maphumulo on the prior day. She had advised him of their discussion.
21. Ms Ngcongo stated that the NSFAS application forms have an Affidavit attached to it, which needs to be completed by the landlords, and a copy of their Identity Document attached. The students have to submit the forms to her, and not the Lecturers.
22. In this case, she was aware that the Applicant’s mother was the landlord, and had seen her Identity Document before, and as the Applicant’s mother was in hospital, she agreed to accept the forms from the Applicant. Though the procedure was incorrect, she was trying to assist the students. This is not allowed by the college, and according to her it did not tarnish the reputation of the Department.
23. Under cross-examination, Ms Ngcongo testified that the forms were signed by Mrs Ntombenhle F. Lembethe. She re-iterated that she accepted the forms from the Applicant as her mother was sick.
24. She stated that she was not advised by Ms Maphumulo that she had been expelled from the Lembethe’s House. If a student is no longer residing at a premises the landlord cannot sign the form, the new landlord will have to attend to this.
25. They could have accepted a late application from Ms Maphumulo, however the appeals had already been closed by the time the student had enquired about it. It is the duty of the students to check on the status of their applications.
26. Under re-examination she stated that she did not believe that the Applicant handing in the forms was done to benefit the family. As a Lecturer she may have wanted to assist the students so that they could continue studying.
27. Ms Nomusa Maphumulo, the student concerned, was the second witness for the Respondent. She testified that she had enrolled for Public Management at the college in July 2018. She did not know anyone in Appelsbosch. The students had advised her of the accommodation at Lembethe House, which was close to the college.
28. On 28 July 2018, she was accompanied by her father to secure accommodation at the Lembethe House. Her monthly rental was to be R350-00, as she would be sharing a room. For the two days in July 2018, she had paid R175-00. Her father attempted to negotiate the rental for July 2018, which led to an argument of sorts, and she believes this is when the Applicant started disliking her.
29. She was given a base and two sponges to sleep on. However, the following day, when another student arrived, by the name of Nonphumelelo, it was discovered that there was a shortage of beds. The student, who was to be her roommate, was given a torn mattress to sleep on.
30. A month had gone by, and in the middle of September 2018 she checked on her NSFAS applications for tuition and accommodation. She was advised to take the form to her landlord, who was to attach her Identity Document and a letter from the Councilor, which she did. The Applicant advised her that she needs to fill in the forms and go to the Police Station. They were going to miss their deadline, but the Applicant advised them that she will fill the forms in herself, and hand it in.
31. The forms were handed to the Applicant when she was at the office. Zamathimande, Nontobeko, Phumelele and another lady had handed in the form together with the Applicant. She is not sure if the Applicant submitted the forms, or not, but they had no problems at the house.
32. Thereafter the Applicant had come to her and requested to take the sponges the witness was using, as there were new students that had come to the accommodation. When she asked how she must sleep on the base the Applicant advised her that she is being disrespectful, and that if she does not want to reside there she must leave. If she did not take all her things, the Applicant would throw it outside.
33. The following day Ms Maphumulo and her roommate, after returning from college, took their things and left, without speaking to the Applicant. In October 2018 they commenced staying at a new residence.
34. They were approached by someone from NSFAS and advised to go check whether they were appearing on the system to collect R3 600-00. Her roommate and some other students went and checked, and they had qualified. She went and spoke to Ms Ngcongo the following day, when it was discovered that she was not on the system.
35. Ms Maphumulo then went to the college to see the Applicant, but she was not there. She then decided to go to the Applicant’s home to enquire what had happened. At the Applicant’s home, she was advised by the Applicant’s mother that the Applicant was in Dalton, and she had to wait for her to return. The witness waited for the Applicant for about one to two hours.
36. When the Applicant arrived, she questioned the Applicant about her form, and why she is not getting her money. They started raising their voices, and the Applicant then assaulted her together with her mother. Thereafter the Applicant’s brother came and stopped them and pushed the witness out.
37. She was injured. She went to the hospital the same time, as she was six months pregnant, and the foetus was not moving. The Doctor wanted to keep her over-night; however she was starting exams the next day.
38. When she went to the college the next day, she was approached by the Student Representative Council (SRC) enquiring as to what had happened, as they could see her injuries. She had related what had happened, and was taken to Ms Gumede, the Liaison Officer, who took pictures of her injuries, and took the matter further to the Campus Manager.
39. Ms Maphumulo stated that she had submitted her application form to the Applicant as she was new at the college and did not know what was going on. She had a right to the NSFAS subsidy, and if the Applicant did not want to submit her form, she should have told her, and she would have submitted it herself.
40. The Applicant was a Lecturer and violated to the Code of Conduct when she assaulted a student. She also brought the college name into disrepute. Teaching had stopped at the college, and students had refused to attend classes, because they did not want the Applicant at the college.
41. Under cross-examination, she testified that she did not know anything about a stick and knobkerrie. She was carrying her handbag, which only contained question papers, when she went to the Lembethe House.
42. Ms Maphumulo denied that she was living at Lembethe House from 12 July 2018. She started living there around 27 July or 28 July 2018. She stated that the guesthouse belonged to the Applicant, and they were making payments to her.
43. The witness further added that she was pregnant at the time and would not have had the energy to assault the Applicant. She is not sure how the Applicant got her injuries, as she did not assault the Applicant.
44. Her parents did go to the Lembethes to apologise to them, as they did not like arguments, and they knew that the Applicant would be dismissed for assaulting a student. The Applicant’s older sister had even said that the Applicant will pay her the NSFAS money in December 2018, however she did not do so.
45. The Respondent called Ms Nokwanda Gumede, the Student Liaison Officer, as its third witness. She testified that her job is to give support to the students and ensure the rights of students are not violated.
46. She confirmed that the incident of the assault was reported to her in October 2018. She was advised by her intern, Ms Sinenhlanhla Buthelezi that the SRC was looking for her to report on an assault. She then telephoned the SRC Chairperson, Mr Lindokhuhle Benson Latha, who advised her that Ms Maphumulo had been assaulted by the Applicant.
47. She then met with Ms Maphumulo, and took the student to her office, to enquire as to what had happened. Ms Maphumulo informed her that she had gone to the Applicant’s home to enquire about her NSFAS allowance, as other students were paid out but not her. They got into an argument, and the Applicant assaulted her.
48. She said she had bruises on her back, and the witness could see bruises on the student’s face. She then had Ms Maphumulo remove her top, and she took photographs of the bruises to show to the Campus Manager when she reported the incident to him.
59. The Campus Manager then called the campus management for a meeting to inform them of what had occurred. The student had informed Ms Gumede that she was pregnant, and had gone to the Doctor, as she could not feel the baby. The SRC had suggested that they telephone the Police and report the matter.
50. Ms Gumede sought advice from the Captain of the Police Station, who informed her that the student must go back to the hospital and fill a J88 form. She then drove Ms Maphumulo to the hospital, and a case was opened at the Police Station.
51. There were many meetings held at the campus, at which the Applicant was present, and her family at some point. The parents of Ms Maphumulo were also present.
52. The witness stated that the Applicant’s conduct was not acceptable. She had violated clauses in her contract of employment, the Code of Conduct and the Code of Professional Ethics.
53. Under cross-examination, she stated that she did not request photographs to be taken of the Applicant, as her job is to support students. She confirmed that a student is not allowed to attack a Lecturer.
54. The student had informed her that she was no longer staying at the Lembethe House at the time of the incident. However, when the NSFAS forms were completed, she was staying at the Lembethe House.
55. She further added that there were many meetings held, at which she was present, however this is the first time she is hearing about a stick being pressed to the Applicant’s neck. There was no report that the Applicant had suffered injuries.
56. The last witness for the Respondent was Mr Marius Calitz, who is employed as the Employee Assistance Programme Manager since 2010 and is also currently the acting Student Support Manager.
57. He testified that he had received an appointment letter instructing him to investigate the matter, giving him certain rights to interview people, and access to documents in order for him to get the information needed to give a report on his findings. His report was submitted to the employer, and his recommendation was in line with the charges levelled against the Applicant. He was thereafter appointed as the Initiator.
58. Mr Calitz had attempted to set up a meeting with the Applicant to conduct the interview through Ms Shabalala from administration, however the Applicant was not available. He thereafter contacted the Campus Manager to arrange the appointment with the Applicant and the other people he needed to interview, which he did. When interviewing the Applicant, he took down notes and recorded the interview, as he sometimes had trouble with his writing.
59. With regards to count 1, Mr Calitz stated that fraud is a deliberate or intentional misguidance to gain unlawfully, or to deceive someone intentionally so that person loses a specific right. During the interview, the Applicant had admitted to taking Ms Maphumulo’s NSFAS application form and throwing it away. By not returning the form to the NSFAS Officer, or the student, she left the student under the impression that the form had been submitted, and therefore it was an intentional deception that cost the student her right to the NSFAS allowance.
60. At the interview, when he asked the Applicant what she had done with Ms Maphumulo’s form, the Applicant had advised him that she had received the forms at the library, and on seeing Ms Maphumulo’s form she threw it away. She also stated that when Ms Maphumulo went to her about the form both parties raised their voices, whereupon Ms Maphumulo pushed her, and then the fight started.
61. However at the disciplinary enquiry, the Applicant had denied this, and pleaded not guilty to the charges. Everything he put to her was denied.
62. He stated that the NSFAS rules clearly state that no Lecturer should be involved in the supplying of transport or accommodation to student. By taking the forms the Applicant became involved. She overstepped her role as Lecturer and broke the rules.
63. With regards to count 2, he found that a fight did take place between the Applicant and Ms Maphumulo. They did not deny it. His investigation stopped when he established that there was a fight.
64. Mr Calitz was of the view that Ms Maphumulo’s rights were violated. She was expecting the bursary, as all her friends had received the bursary. She had suffered emotional, financial and physical abuse, as a result of this.
65. His impression from all the evidence was that even though the Applicant stated that the premises was rented by her mother, the Applicant also said that she contributed towards the expenses of the house. If her mother received income from the students, it meant that the Applicant benefitted indirectly, as the income made the expenses balance. He had addressed the staff before about not getting involved in the letting of premises.
66. After the investigation, he came to the conclusion that the Applicant had violated clauses in her contract of employment, the Code of Conduct and the Code of Professional Ethics. Getting involved with students outside the learning environment creates a risk, which is linked to the dignity and status of the Educator’s profession. The Applicant’s behaviour still reflects as an employee of the college when interacting outside. Everything that happened brought down the image of the college.
67. Mr Calitz stated that he does not trust the Applicant. He is of the view that at the interview, she was honest and open, however at the disciplinary enquiry she totally changed her version. She had taken forms from the student, and then took the law into her own hands by deciding whose to submit, and who’s not to. After she had assaulted a student, they also cannot trust her in front of a class of students. For the employer the trust relationship has broken down irretrievably.
68. Under cross-examination, he stated that he is not aware if the Applicant’s parents owned the boarding house before 2012. The Applicant had indicated to him that she was assisting her mother, as her mother is old. However, according to him, there is a difference between for example assisting a person to get an income and assisting a person to change a lock.
69. He confirmed asking the Applicant about accommodation at her home previously, as he was assisting an intern, and not a student.
70. He does not believe that the Applicant was under the impression that he was there to counsel her. The meeting had been arranged by the Campus Manager, and they were informed that he was the investigator. There could have been no confusion, as there are procedures to be followed for the Employee Assistance Programme, which started with a referral being done.
71. Mr Calitz stated that at the disciplinary enquiry the Applicant stated that she put her arm up, and Ms Maphumulo hit her with the stick. However, the Applicant now claims that she was strangled. There was no real evidence of the injuries sustained by the Applicant.
72. The witness further stated that he does not have an ethical dilemma in doing investigations. Had he felt that the employee was being targeted, he would have supported the employee. He was tasked to investigate the assault but had also picked up the fraud.
APPLICANT’S EVIDENCE:
73. The Applicant testified that she was employed as a Lecturer at the Appelsbosch TVET College, lecturing tourism. Some of her duties were registration for students, preparing lesson plans, classroom management, assessing students, and lecturing as well.
74. She gave a brief overview of how the Appelsbosch Missionary came to be and stated that due to all the facilities being built and employees coming from outside, there was a need for accommodation. Her parents saw the opportunity to build cottages and provide accommodation to these employees. While her parents were still working, they started building the cottages, and when her father retired, he used his pension monies to expand the accommodation. She was not even born when her parents started leasing the cottages.
75. The Applicant testified that Ms Maphumulo came to the area on 12 July 2018 when the college opened for the second semester. One afternoon she had heard her mother speaking to some people who were looking for accommodation. Her mother is old, and in poor health, and so she called the Applicant and requested her to show them the rooms. One of the ladies was Ms Maphumulo, and she had a baby with her, who looked to be about ten months old. Her mother advised Ms Maphumulo that children are not allowed to stay with students.
76. On the Sunday, Ms Maphumulo arrived with her father. The Applicant’s mother and Ms Maphumulo’s father then discussed the rental, which was to be R350-00 per month, and R175-00 for July 2018, as Ms Maphumulo had arrived in the second week. The Applicant was then requested by her mother to take Ms Maphumulo and her father to the room.
77. The first time her mother had asked her to show Ms Maphumulo the room she was busy and had made them wait. When she went out Ms Maphumulo commented that they had to wait a long time for such a young person and could not believe that the Applicant was a Lecturer, and this made the Applicant feel that Ms Maphumulo looked down on her.
78. At the end of July 2018, a Ms Gwala arrived, and she shared the room with the Applicant. Everything was okay for a while, and then the problems started.
79. Whenever the elder Mrs Lembethe went to check on the rooms and the yard, Ms Maphumulo would have complaints. She refused to empty the bins, and clean the toilets, as was done by the other tenants. There were empty liquor bottles in the yard, which the other tenants said came from Ms Maphumulo’s room. The tenants also complained of excessive noise from Ms Maphumulo’s room.
80. When the Applicant’s mother would address this with Ms Maphumulo, she would back chat and behave rudely towards the elder Mrs Lembethe. The Applicant’s mother then decided that Ms Maphumulo should leave and advised her in mid-August 2018 that she must vacate the room by the end of August 2018. Ms Maphumulo had obtained alternate accommodation not far from the Lembethe House.
81. The Applicant testified that in August 2018, while she was at work, students that resided at the Lembethe House, namely Zamathimande, Phumelele Gwala, Nono Ndlovu, Thabisile Simangele, and Lindo, approached her in the library asking her to take their NSFAS forms for her mother to fill out, as the deadline was approaching. She refused to accept the forms and asked them to hand them to her mother or brother, as she does not deal with the accommodation.
82. Later that day, when she was at home Thabisile Simangele and Zamathimande came to the house with the forms in a brown envelope. The elder Mrs Lembethe was admitted at Midlands Hospital having undergone knee surgery, so she took the envelope and put it aside for her mother, who was due back home the next day. She spoke to her mother over the phone and advised her about the forms and the deadline. Her mother asked her to phone Ms Bongikele Ngcongo to ask her if she will accept the forms if it is brought late, which the Applicant did, and Ms Ngcongo agreed to accept the forms.
83. When her mother returned from the hospital, she completed the forms, put them back in the envelope, and handed the envelope to the Applicant to deliver to Ms Gumede, which the Applicant did. She stated that she was not present when the forms were being signed, as she is not involved in the administration of the cottages. Ms Maphumulo was not one of the students who met her in the library, nor did the other students mention anything about her form.
84. Thereafter everything was normal. From September 2018 Ms Maphumulo and her roommate were no longer living with them.
85. The Applicant stated that on the morning of 31 October 2018 her mother was not well, and the Applicant advised her that she will go to the pharmacy in Dalton to get her medication. She attended college and carried out her duties. She then left at 15h00 and went to the pharmacy. Upon arriving home, she parked her car in the garage, and entered the house carrying the medicine and some groceries. She went to the kitchen where her mother was.
86. Upon the Applicant entering the kitchen, Ms Maphumulo also entered the kitchen from the door leading to the outside. She grabbed a stick from the pantry, which the Applicant believes Ms Maphumulo hid there, and started hitting the Applicant, calling her names and swearing at her. Ms Maphumulo had a broken broom stick and a knobkerrie.
87. Ms Maphumulo hit her on her forehead. The Applicant tried to block the strikes with her arm, however her right hand is weak due to an accident she was involved in. She used her left hand to hold the stick. There was pushing and shoving, and as the Applicant was still in her high heels she stumbled and fell. Ms Maphumulo immediately got on top of the Applicant, put the stick on her neck and pressed down. She started to lose her breath and started hitting Ms Maphumulo on her face so that she would let go of her. However, she did not.
88. The Applicant’s mother and children were watching the assault take place. Her mother then started shouting for help, and her brother came in and pulled Ms Maphumulo off the Applicant. He then escorted Ms Maphumulo to the gate, and as she was leaving, she was still swearing, and said that she wants the Applicant fired from work. The neighbours and tenants had gathered outside because of the chaos.
89. The Applicant had left behind her brown woolen hat and the stick when she was escorted out of the premises.
90. She had called the Police after the incident. They had promised to come to the house, however they did not.
91. The next day she went to work, as she had to prepare her students for their examination. She reported the matter to the campus management, and the NEHAWU representative, Mr Ndwalane, who is also their staff representative. She also reported the incident to the Campus Manager, Mr Gwala. However, he advised her that they will not intervene, as it was a physical fight that occurred outside the college premises. It is a matter for the Police.
92. The Applicant telephoned the Police again on 1 November 2018, who advised her that they will be coming. She could feel the pains on her neck, forehead and arm, and her forehead had started swelling. On 2 November 2018 she went to the Police herself, as she realised that they were not going to come out.
93. She also went to the Doctor on the same day, and a J88 form was filled out. She could not find this document previously, and therefore it was not submitted at the disciplinary enquiry.
94. She stated that the following week, while at work, she was called by the Campus Manager to his office. Upon arriving she was advised that Ms Maphumulo and her family were there to see her. The Campus Manager, the Student Liaison Officer, Mr Ndwalane, three SRC members, Ms Maphumulo, her father, her uncle and two other males who had no part in the matter, although one of whom was a former student of the college, were present.
95. The family had come to hear the Applicant’s version of what had happened. They also stated that they did not want this matter to go further and wanted to make peace. While they were in the office, a small group of students started protesting outside the room. None of the students were boarders at the Lembethe House or students that she had taught. Ms Maphumulo’s uncle said they did not want the students to be a part of this. The meeting was then adjourned, and security was called to escort her to her car.
96. The next day she was called by the Head of Department, Mr Bhengu, and advised not to report to work, as they were not sure what the students would do to her or her vehicle.
97. She then stayed at home the whole week, during which time the Police came to take statements, as Ms Maphumulo had opened a case against her. The Applicant’s mother had also reported to their Induna as to what had occurred.
98. On that Sunday, Mr Latha had arrived at her house with their neighbour, Mr Zondi, and Ms Maphumulo’s parents, who wanted to have a meeting with them. The Applicant’s older sister was at their house that day and was part of the meeting. The Maphumulo’s wanted to apologise for their daughter’s behaviour, and they wanted to make peace. They also wanted to cleanse the Lembethe House, as carrying weapons into another house is not allowed in their culture. The Maphumulo’s would need to give them an animal as payment.
99. The Applicant stated that her sister had enquired about the NSFAS issue, and they were advised by Mr Maphumulo that there is no need to worry about that, as they are the ones that need to pay the Lembethes.
100. Ms Maphumulo apologised to the Applicant, and also to the elder Mrs Lembethe for her bad behaviour, and hugs were exchanged. Mr Maphumulo pleaded for the cases to be dropped, as they wanted peace. It was agreed that Mr Latha would inform the SRC of the outcome, so that they in turn could inform the students. They were also to write a report to hand in to management.
101. The next day was their day to appear in Court. The Police had fetched both the Applicant and Ms Maphumulo to take to New Hanover Magistrate’s Court so that they could withdraw their respective cases. According to the Applicant, during the journey while Ms Maphumulo and her were talking she became aware that Ms Maphumulo was pregnant, as she stated that her behaviour was due to her pregnancy. Ms Maphumulo also advised her that sometimes when Mr Maphumulo is angry he breaks windows, and that she gets her “hot head” from him.
102. She stated that she decided to go back to work the next day, as things were back to normal. Mr Phakamani Khoza, a member of the SRC, apologised to the Applicant, and said the story was very different from what they had heard.
103. The examinations took place, and then there was marking. One day Ms Khoza, her supervisor, advised her that Mr Calitz was looking for her. She then advised Ms Khoza that she did not require his services. The campus then closed for 2018.
104. In 2019 there was no mention of the incident, until May 2019, when a certain Nomusa informed her that the issue was still pending with Mr Calitz. However, she did not hear anything, until one day when a student was sent to call her urgently for Ms Khoza, who advised her that Mr Calitz was there. Ms Khoza said that she had informed Mr Calitz that the Applicant did not require his services, however he still came.
105. The Applicant met with Mr Calitz in the sick bay room. He enquired about the incident with Ms Maphumulo. She told him that she does not want to talk about it, however he insisted on getting information. She then narrated the story to him. He had a note pad and was writing, but she did not see if he was recording the interview. He did not ask her for a statement, and nothing was communicated to her after that meeting. Mr Calitz did not inform her that he was the investigator, nor was there anything in writing advising her of the investigation.
106. She denied advising Mr Calitz that she threw away Ms Maphumulo’s application form. She had not looked into the envelope, and therefore would not have known if Ms Maphumulo’s from was there. She had also advised him that she did not oversee the renting of the rooms, as her mother did that. The Applicant had further advised him that it was Ms Maphumulo who had come to her home and attacked her.
107. Under cross-examination, the Applicant stated that this was the first time she had made a request to Ms Ngcongo to submit the forms late, and this was only because her mother was in hospital and could not sign before the deadline. She only assisted because a lot of students drop out due to not getting funding.
108. She stated that if her mother is not at home, and the students come with anything for her mother she will take it, or her brother, including rent. She was not doing anything outside her work. As a daughter, she was assisting her mother. However, everything belongs to her mother. She did not derive any income from the rental money pertaining to the Lembethe House.
109. The Applicant stated that she hit Ms Maphumulo in self-defense, as Ms Maphumulo was choking her, and she was dying. She is a very sympathetic person and did not know Ms Maphumulo was pregnant at the time. She claimed that Mr Ndwalane had taken photographs of her injuries, however they were deleted.
110. She further added that she requested for a lesser sanction in her appeal, as it is better than a dismissal. However, she was not admitting guilt.
111. The next witness called by the Applicant was Nonduduzo Khoza, a senior Lecturer at the Campus, who was also the Supervisor of the Business Studies Division, and therefore the Supervisor of the Applicant.
112. She testified about the character of the Applicant, stating that the Applicant is an introverted person. She came to the college, did her work, and then left. For all the years that she knew the Applicant, there was nothing untoward she could say about her. She had received no complaints about the Applicant and had no problem with her attendance.
113. The witness brought with her a copy of the attendance register for 31 October 2021. She however could not bring the original attendance book as there are currently auditing taking place at the college.
114. She stated that on 12 March 2019, Mr Calitz had approached her saying he needed to speak to the Applicant to give her support. The Applicant had refused to meet with him, saying that she has a private Doctor who is giving her counselling. She had advised Mr Calitz of this, however he insisted on meeting the Applicant. She then went back to the Applicant and advised her to go and hear what Mr Calitz has to say.
115. In July 2020, Ms Gumede had come to the witness after receiving an application form from the Applicant. Ms Gumede advised her that she is not comfortable enrolling the Applicant. Ms Khoza then went to Mr Gwala and advised him of this. He had phoned the Academic Head, Ms Ngcobo, asking for advice. He then advised her to keep the form aside, as there are a lot of things to be cleared about the Applicant.
116. Under cross-examination, she stated that she had heard about the incident through the grapevine and had seen a scratch on the Applicant’s face. She could not just act on hearsay and was waiting for something in writing.
117. The second witness for the Applicant was Mr Kwaziwakhe Kingdom Ndwalane, who is employed by the Respondent, and currently based at the central office as the Programme Co-ordinator for Business Studies. From 2012 to 2020 he was a Post Level 1 Lecturer at the Appelsbosch Campus. He was also a staff representative, and a NEHAWU Shop Steward.
118. The Applicant was a colleague of his, and a member of the same Trade Union. He testified that the Applicant had informed him that she was attacked by a student, who went to the Applicant’s house, and who had strangled her. He could see marks and bruises on the Applicant’s neck, and a scar on her forehead, which was swollen.
119. He had conducted his own investigation by speaking to Ms Ngcongo, as the issue was related to NSFAS. Ms Ngcongo had advised him that the student had approached her, and that she had said she will sort it out her own way.
120. Thereafter there was a meeting between the parents of the student, the management, the SRC, the Applicant and himself. The parents wanted to find out the other side of the story, as according to them they knew what their child was capable off. During the meeting there was a commotion as the learners were protesting and saying that the Applicant should be dismissed. The parents said that they do not want their child to be used for internal issues.
121. There were a large number of students, and the meeting had to be adjourned due to the commotion. The Applicant was not protected, and he had to accompany her so that she would not be attacked. There was a misrepresentation that the Applicant had attacked the student, however the SRC was able to calm the students down eventually.
122. He was of the view that there was no proper investigation held. A neutral person should have been appointed, and not someone who was tasked with student support and also involved in the Employee Assistance Programme. The investigation was not formal and transparent. The Applicant should have been made aware of the investigation, however Mr Calitz had represented himself as the person who was going to counsel the Applicant.
123. Mr Ndwalane believes that Ms Maphumulo is not an honest person, as he had previously caught her cheating during an assessment.
124. The third witness for the Applicant was Mrs Ntombenhle F. Lembethe, who is the mother of the Applicant. She testified that Lembethe House is owned by herself and her husband. They started building the cottages in 1980 to provide accommodation for students and Teachers.
125. She testified that Ms Maphumulo had come to her in July 2018, with a baby who was around six months old, looking for accommodation. Ms Maphumulo was given a room that she would be sharing. She confirmed the rental, as previously stated by Ms Maphumulo and the Applicant.
126. In August 2018, while she was in hospital, she received a call from the Applicant advising that the students had forms that needed to be filled urgently. She advised the Applicant to keep the forms for her, so that she can sign it when she returns. She also asked the Applicant to speak to Ms Ngcongo, and to advise her of the situation and that the forms will be delayed.
127. Upon her return home, she found the envelope on her dresser, and she proceeded to complete the forms. According to Mrs Lembethe, Ms Maphumulo’s form was not there, and if it had been there, she would have kept it aside, and given it back to Ms Maphumulo, as she was living at Ma Zondi’s place.
128. She stated that during her stay, Ms Maphumulo was very disrespectful, and she did not listen. There were empty liquor bottles and paper found around the yard, that the students claimed were Ms Maphumulo’s. They also complained that they are the only ones that clean the toilets and not Ms Maphumulo. The witness wanted the contact details of Ms Maphumulo’s father, as she wanted to advise him about what was going on. She had advised Ms Maphumulo that if she continues with her behaviour, she will have to ask her to leave.
129. However there was no change in her behaviour. The tenants also complained about the noise she was making. Mrs Lembethe had had enough of her and had advised Ms Maphumulo that she must leave by the end of August 2018.
130. She confirmed that on 31 October 2018 there was an incident. She confirmed the Applicant’s evidence as regards her illness on the day, and that the Applicant went to Dalton to purchase medication for her. She further added that, at around 16h00 or 17h00, while she was in her room there was a banging sound coming from the kitchen door. She had advised whoever it was that she was inside. She then heard footsteps, and when she opened her eyes, she saw that Ms Maphumulo had entered her bedroom.
131. She could see that Ms Maphumulo was upset, and she was carrying a stick and a knobkerrie. Ms Maphumulo asked for the Applicant and stated that the Applicant thinks she is highly educated, and she will show her. She then started using vulgar language and said that she wanted the Applicant terminated from work.
132. Mrs Lembethe then asked her to leave, and she did so, and Mrs Lembethe heard the kitchen door closing.
133. When the witness heard the Applicant arriving, she left her bedroom and went to the kitchen to wait for her, as she was told by the Applicant that she must move around to feel better. As the Applicant entered the kitchen, she hears the other door open, and Ms Maphumulo appeared.
134. Ms Maphumulo immediately hit the Applicant with the stick. All the groceries the Applicant had spilled to the floor, as Ms Maphumulo continued to hit her. The Applicant then fell and Ms Maphumulo sat on top of her, using the stick to suffocate the Applicant. The Applicant was trying to stop her, however she did not have power in her arm.
135. The Applicant’s children then came in and started shouting. The witness then went out into the veranda and started screaming saying “This girl is assaulting my child”. Her son, who was in the other room, then came and removed Ms Maphumulo from the Applicant. Ms Maphumulo was still fighting, and her son took the stick from her. She did not want to leave the house, and her son had to chase her out.
136. Following the incident, Ms Maphumulo’s parents, Mr Zondi and Mr Latha from the college had come to their house to apologise for the incident. Ms Maphumulo attributed her behaviour to her pregnancy. Mrs Lembethe had not been aware that Ms Maphumulo was pregnant before this. She had accepted their apology and had shaken hands and hugged.
137. She stated that she had informed her children that if anyone comes to pay rent, they must accept it, and if someone had a complaint they must attend to it, especially her son as the Applicant is at college. They must record who is making the payments. However, she made it clear to them that the rental money has nothing to do with them, as it belongs to her.
138. The fourth witness for the Applicant was Ms Nandipha Ngcobo who is a neighbour of the Applicant. She testified that on 31 October 2018 when she was returning from a school where she was temporarily employed, she saw a short light skinned woman carrying a stick and knobkerrie and looking very upset. She knew her as a student who was renting in the area.
139. She had enquired from the lady why she was walking so fast, and why she was not wearing warm clothes as it was a cold day. She also told her she hopes she is not going to assault someone, and that she must not get arrested.
140. The lady was walking towards Lembethe House, however Ms Ngcobo did not pay attention as to whether she went there. She did hear someone shouting for help.
141. On 2 November 2018, she had met the Applicant, who was coming from the Police Station, and that is when she found out what had happened. She could also see something on the Applicant’s forehead.
142. Under cross-examination, she stated that the lady did not have any bruises when she saw her.
143. The next witness was Mr Mcebo Lembethe, who is the younger brother of the Applicant. He testified that he was in the gym room at his home on 31 October 2018 when he heard his mother screaming for help.
144. He went to the kitchen, and there he found his sister lying on her back with Ms Maphumulo on top of her and pressing her neck with a stick. His mother and the Applicant’s children were also there. He separated them and pushed Ms Maphumulo behind him. She was still trying to attack the Applicant, and he chased her out of the gate.
145. Under cross-examination, he stated that if the Applicant is requested by their mother she helps with the cottages, but not often. He cannot confirm having seen the Applicant assist with the NSFAS forms.
146. He stated that when he removed Ms Maphumulo from the Applicant she already had bruises, and these were not new bruises. He further added that he did not know that Ms Maphumulo was pregnant and became aware of same when he was chasing her, and she said that she wanted the baby to get hurt in a way that would make the Applicant get dismissed.
147. The last witness for the Applicant was Mr Lindokhule Benson Latha, who was a student at the Appelsbosch Campus, and part of the leadership of the students in 2018. He testified that Ms Maphumulo had come to him and advised him that she was attacked by the Applicant when she went to enquire about her NSFAS application.
148. He stated that by the time they went into the meeting with campus management, they were informed that the matter will not be dealt with by the campus, as the incident had occurred outside the premises, and police cases had already been open. This was where they got to know the Applicant’s side, and they learnt that Ms Maphumulo had gone to the Lembethe House carrying sticks.
149. He believed that Ms Maphumulo has informed the students about the meeting, and that is how they ended up outside the room protesting. However, when the true narrative of what had occurred was relayed to the student, the situation normalised.
150. Mr Latha testified that he was approached by Ms Maphumulo and her parents to arrange a meeting with the Lembethes for them to apologise for her actions. In their culture if a person attacks another family or homestead, then that person will have to pay damages in the form of cattle or goat.
151. During the talks Ms Maphumulo’s family acknowledged that she was violent at times. She had confessed at the meeting that she was the one who attacked the Applicant carrying two sticks, and that she was trying to strangle the Applicant.
152. It was decided that because Ms Maphumulo was still a youngster, and the families were reconciling no damages would be paid.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
153. The onus rested on the Respondent to prove that the dismissal for misconduct is substantively fair on a balance of probabilities.
154. With regards to count 1, which is the allegation of fraud charge, it would seem that it was the student who had to make the submission of the documents for the private accommodation subsidy to Ms Bongikele Ngcongo. Furthermore, the date for the submission of the documents had elapsed, however Ms Ngcongo allowed the late submission, as she was still within time to submit the documents to head office.
155. One has to bear in mind that it was not disputed that the Applicant’s father and mother had started the boarding business at their home in the 1980s. They had built cottages, and it seems that the business was known as “Lembethe House”. They saw a need for students and Lecturers to be accommodated near the college, which started off as a Teachers Training College, and then went on to become a Nursing College, and thereafter became a Coastal College. This business commenced even before the Applicant had commenced her studies and had become a Lecturer at the college.
156. Based on this, I accept the Applicant’s version that she assisted her mother with aspects connected to the tenancy, when her mother was not available. There was no proof adduced that the Applicant had actually signed the documents for the students’ private accommodation, and I accept the Applicant’s version that the documents had been signed by her mother, and that she merely handed it over to Ms Ngcongo.
157. It may well be that Ms Maphumulo’s documents had been among the documents that had to be signed by the Applicant’s mother, and it may further well be that she had not submitted the document bearing in mind that Ms Maphumulo had been expelled from Lembethe House, under circumstances were the relationship had broken down between the landlord and the tenant.
158. However it cannot be said that she failed to submit the documents in accordance with the correct procedure, as even the correct procedure had been waived by Ms Ngcongo. Further there appears to be no duty on the landlord, or the proxy, to submit the documents. The students were the ones obliged to see that the documents were properly filled, and submitted to Ms Ngcongo, or to any other official in charge of these documents, if it pertains to any other institution.
159. I find with regards to count 1 that the Applicant is not guilty.
160. Furthermore fraud consists in unlawfully making, with intent to defraud, a misrepresentation which causes prejudice, and which is potentially prejudical to another. In this case the Applicant did not make a misrepresentation, although she may have withheld the form. However, as stated previously, there was no obligation on her to hand in the form.
161. The student could have followed up on this and made representations concerning her subsidy. Moreover, the student had already been expelled from the premises, after a stay of less than one and a half months.
162. There is no proof that the Applicant benefitted financially from the rental collected from the students, as whatever profits were derived were stated to be for the benefit of the elder Mrs Lembethe, and therefore this did not conflict with her duties as a Lecturer, as it could not be proven that she derived a benefit from the letting enterprise.
163. With regards count 3, which is bringing the college name into disrepute, I am of the view that the Applicant was assisting her mother, when her mother was not available, by collecting the rentals, and with other aspects relating to the administration of Lembethe House. However, this did not mean that she benefitted financially from the enterprise, nor did it mean that this conflicted with her duties, as a Lecturer. This is merely something one does as a duty to one’s parent, and as had been stated earlier the enterprise started long before the Applicant had completed her studies and became a Lecturer.
164. The charge as set out in count 3 related to the assisting of her mother in her business. It would have been more appropriate if she was charged for bringing the college’s name into disrepute as a result of the physical fight with the student, as indeed in this respect the college name was tarnished.
165. The subsidies were granted to the students, and the students in fact paid rentals to the elder Mrs Lembethe. While it is true that an employee of the college cannot benefit financially from the college by conducting another enterprise that interferes with her work, or was in conflict with her work, this cannot be said of the Applicant. So, I find her not guilty of count 3.
166. However with regards to count 2, which is the most serious charge, it would seem that Ms Maphumulo had gone to the Lembethe House in order to query about her forms. It would seem that prior to the Applicant returning from Dalton, Ms Maphumulo was told to wait for her. Then a shouting match occurred when the Applicant returned, and thereafter the tussle took place.
167. I find it inconceivable that Ms Maphumulo, who was six months pregnant at that stage, would go to the Lembethe House armed with a knobkerrie, and a stick, wanting to engage in a fight knowing she would be outnumbered by the people present there. To have done so would have been incredibly daring on her part.
168. Furthermore in her evidence before the disciplinary enquiry, the Applicant stated that Ms Maphumulo hit her with a stick on the arm. However, in a statement made to Mr Calitz on 12 March 2019, she did not give details of the assault. She just said that Ms Maphumulo came to her home, picked a fight and then everything started.
169. The photographs taken of Ms Maphumulo’s face, back and her shoulder shows serious bruising, and wounds, and shows that she was subjected to a severe beating. Whereas on the J88 form of the Applicant, which was done on 2 November 2018 two days after the incident, the Doctor refers to some bruises. However, we have no other physical evidence as proof. Her witness Ms Nonduduzo Khoza only referred to a scratch on her face.
170. The correct approach would have been for the Applicant to have engaged in a discussion with Ms Maphumulo, and then parted ways with her. It would seem that the Applicant lost her temper, and things got out of control.
170. It is true that the private lives of the employees are of no concern to the employer. However, this situation concerned a student and a Lecturer of the college and resulted in some upheaval at the college. So, the onus rests on the Respondent to prove that it had legitimate reasons to be concerned about the employee’s conduct outside working hours. No doubt the assault negatively affected the employment relationship, and also impacted on the need to maintain decorum and proper relationships between the students, the college and its employees.
172. The employee was obliged to obey the Respondent’s code of conduct, and in particular 3.2 of the Employee’s Code of Conduct, as set out in the Department of Higher Education and Training Code of Conduct, which is as follows:
“3.2 Employee and the Student
An Employee:
3.2.1 respects the dignity, beliefs and constitutional rights of all students, which includes the rights to privacy and confidentiality;
3.2.2 strives to enable students to develop a set of values consistent with the fundamental rights contained in the Constitution of South Africa;
3.2.3 acknowledges the uniqueness, individuality and specific needs of each student, guiding and encouraging each to realise his/her potential;
3.2.4 exercise authority with compassion;
3.2.5 promotes gender equality;
3.2.6 avoids any form of humiliation and refrains from any form of abuse, whether physical or psychological;”
173. In the matter of NUM v East Rand Gold & Uranium Co Ltd (1986) 7 ILJ 739 (IC) an employee was dismissed for assaulting a fellow employee on a company bus. In this case the Industrial Court ruled that the dismissal was justified, although the incident occurred outside the workplace, and after company hours. The relationship between the Lecturer and the student continues as such, even after work hours.
174. In Van Zyl v Duva Opencast Services (Edms) Bpk (1988) 9 ILJ (IC) an employee assaulted his supervisor in a mining village outside the work hours and was dismissed. Such an assault was held to have a negative impact on the other workers, and also the residents of the village. In this case one could see that there was a negative impact, as tension was created in the college between the students and administration when the student’s demanded administration takes action against the Lecturer. It must be shown that there was a nexus between the offence committed, the employer’s operational requirements, and its business.
175. As far as the witnesses are concerned, I find that Ms Maphumulo and the witnesses for the Respondent, namely Ms Bongikele Ngcongo, Ms Nokwanda Gumede, and Mr Marius Calitz, gave their evidence in a straightforward manner, and even admitted to some shortcomings, as when Ms Ngcongo stated that she would not accept any late submissions of NSFAS forms again.
176. Ms Maphumulo also gave evidence about the fact that she and the Applicant both withdrew charges against each other for the sake of peace. However, I accept her denial that no stick was applied to the Applicant, and that she did not have a knobkerrie or stick on her. I accept that the Applicant committed the assault by hitting Ms Maphumulo with her fists.
177. Ms Gumede further stated that there was no report that the Applicant had suffered injuries and confirmed that she took the photographs of Ms Maphumulo the following day. She also testified about Ms Maphumulo’s eye being swollen, and bruises on her back and shoulder.
178. As for Mr Calitz, I find that there was no conflict in his role as investigator in the case, as well as offering counselling and employee assistance.
179. As for the Applicant’s witnesses, her mother, Mrs Ntombenhle F. Lembethe, and her brother, Mr Mcebo Lembethe, who live in the same premises as her, and there is a suspicion that their evidence was tailor made to support the theory that Ms Maphumulo was the aggressor. They have motive for bias in the matter, and Mr Lembethe even made a sinister suggestion that Ms Maphumulo wanted the embryo, that she was carrying, to be injured so that the Applicant could be dismissed.
180. The three witnesses also gave different versions of when they found out that Ms Maphumulo was pregnant. The elder Mrs Lembethe stated that she found out on the day of the meeting with the families, the Applicant said she found out when they were travelling together to go and withdraw the case, and Mr Lembethe stated that it was on the day of the assault, when he was escorting Ms Maphumulo out of the premises.
181. Also the Applicant’s brother stated that the bruises were not new and had been incurred earlier in the day. However, the bruises were fairly visible. The Applicant and her mother did not say Ms Maphumulo came there with bruises. Furthermore, their neighbour, Ms Nandipha Ngcobo, stated that when she saw Ms Maphumulo she had no bruises. Mr Lindokhule Benson Latha had made a comment that the bruises looked fresh. Therefore, one can accept that the bruises were incurred as a result of the beating.
182. Mr Latha’s evidence was hearsay. Whereas previously he had campaigned against the Applicant with regards to the assault, he now indicates a different version of what he had previously held. There was no supporting evidence to confirm the statement that he stated Ms Maphumulo had made to her parents, and I cannot accept same.
183. It is also evident that the Applicant has not shown any remorse in the matter. She has persisted in her defence, and there is an element of dishonesty in that she stated that Ms Maphumulo arrived with the stick and the knobkerrie. This element of untruthfulness reinforced the Respondent’s decision to use dismissal as an appropriate sanction.
FINDINGS:
184. Taking all the above into consideration, I find the Applicant guilty of count 2, which is serious. This had the effect of destroying the trust relationship between the Respondent and the Applicant, so despite her almost seven years of service, I find that dismissal was the correct sanction in this matter.
AWARD:
185. The application is dismissed.
186. There is no order as to costs.
J.D. VEDAN
ELRC Panellist