PSES115-18/19WC
Text
ELRC296 -19/20LP
Award Date:
22 April 2022
Case Number : ELRC296 -19/20LP
Panellist : Ntsepeng Mookamedi
Date of Award : 22 April 2022
In the matter between
MMASELAELO ROSS BUTHANE.
(Employee)
And
DEPARTMENT OF EDUCATION (LIMPOPO PROVINCIAL ADMINISTRATION).
(Employer)
DETAILS OF THE HEARING AND REPRESENTATION.
[1] This is an Arbitration Award in relation to an Inquiry by Arbitrator which has been conducted between the employee (Mr Mmaselaelo Ross Buthane) and the employer (Department of Education, Limpopo Provincial Administration). The inquiry has been conducted in terms of the provision of section 188A (1) of the Labour Relations Act 66 of 1995 (hereinafter referred as the Act) read together with Clause 32 of Part C of the Constitution of the Education Labour Relations Council (ELRC). The inquiry took place on 26 August 2019, 13 September 2019, 31 January 2020 and was finalised on 4 April 2022.
[2] The proceedings of the inquiry were conducted through a closed television socket at Lephalale Magistrates’ Court for the duration of the testimony of the employer’s two witnesses who were learners at the time when the alleged two acts of misconduct preferred against the employee took place. The proceedings later took place at Waterberg District Office at Modimolle after the conclusion of the testimonies of the employer’s learner witnesses. The employee attended the inquiry and was at all material times, represented by Ms Mpho Smart and Mr Mpho Mokhithi, Managing Director and Senior Associate of the law firm, Mpho Mokhithi Incorporated Attorneys from Polokwane.
[3] The employer also attended the inquiry and was at all material times, represented by Mr Motopi David Seleka, a Senior Employment Relations Officer. Mrs Ramatsilele Mercy Kupa appeared in her official capacity an Intermediary on behalf of the ELRC. Mesdames Christina Mamokona and Mokgadi Mogale interpreted the proceedings of the inquiry from English to Sepedi and vice versa. Prior to the commencement of the inquiry, Mr Seleka, on behalf of the employer, submitted a single bundle of document as evidence and same was accepted as such and marked as “Bundle A”.
[4] The employee did not submit any bundle of document prior to the commencement of the inquiry. The employee’s case has been decided by means of oral evidence while the employer’s case has been decided by means of oral evidence as well as by means of documentary evidence respectively. At the conclusion of the inquiry, both parties submitted their oral closing arguments in support of their respective cases. I have accordingly considered both parties’ oral closing arguments in rendering the current Arbitration Award.
NATURE OF THE INQUIRY.
[5] The inquiry was instituted after the employer preferred two allegations of acts of misconduct against the employee in terms of section 188A (1) – (4) of the Labour Relations Act. The first allegation of an act of misconduct was to the effect that the employee engaged himself in a sexual intercourse with Ms X (a Grade 10 learner) at Mananye High School on 9 January 2019 or any date incidental thereto and by so doing, contravened the provision of section 17 (1) (b) of the Employment of Educators Act 76 of 1998.
[6] The second and last act of misconduct was to the effect that the employee, arising from the first allegation of act of misconduct, contravened the provision of section 18 (1) (a) of the Employment of Educators Act read together with Items 3.5 and 3.6 of the South African Council of Educators Act 31 of 2000. As a consequence of the legal obligation entrusted upon the Arbitrator in dealing with the evidence of two of the employer’s witnesses in the current inquiry, the identity of two of the employer’s learner witnesses shall be referred to as Learner A and B respectively.
[7] The employee vehemently denied the commission of the two alleged acts of misconduct preferred against him, hence the inquiry was put in full motion.
PRELIMINARY POINT.
[8] Prior to the commencement of the inquiry, Mr Mpho Mokhithi, on behalf of the employee made one preliminary point in relation to an oral application for legal representation. The Arbitrator allowed Mr Mokhithi to move such oral application for legal representation. The oral application was made in terms of Clauses 17.4.1, 17.4.2.2.4 and 23 of the ELRC Constitution.
ORAL APPLICATION FOR LEGAL REPRESENTATION.
The nature of the questions of law raised by the inquiry.
[9] The inquiry concerns questions of law in relation to sexual related misconduct which in the bigger scheme of things require legal interpretation of what constitutes sexual misconduct. The employee is employed as an Educator and does not possess any legal knowledge to enable him in navigating such legal interpretation and pursue legal argument in defending his case. As such, the employee could only manage to pursue such legal terrain subject to the assistance of a Legal Practitioner.
The complexity of the inquiry.
[10] The inquiry is so complex to an Educator in the position of the employee who in his twenty two years of service with the employer, has never been subjected to any similar process. The employee can only manage to traverse the complexity the inquiry with the assistance of a Legal Practitioner.
Public interest.
[11] The inquiry is more of a public interest because the employer has also instituted criminal proceedings against the employee before a criminal court. The nature of the inquiry has already attracted negative publicity on the part of the employee and also published in local newspapers around Lephalale town.
The comparative ability of the opposing party or their representative in dealing with the inquiry.
[12] The employer is represented by a Senior Labour Relations Practitioner, a specialist in the field of labour law as compared to the employee who is employed as an Educator. The employee stand to be prejudiced should his oral application for legal representation be denied.
THE EMPLOYER’S SUBMISSIONS.
Mr Motopi David Seleka, made an oral opposing application on behalf of the employer and submitted as follows:
The nature of questions of law raised by the inquiry.
[13] The inquiry does not raise any question of law. It is just a simple and straight forward misconduct which is well understood by the employee. The nature of the inquiry will not at any stage, require the employee to make any interpretation of the law.
The complexity of the inquiry.
[14] The inquiry is not in any manner whatsoever complex. It is just a straight forward inquiry. The inquiry stand to be complicated should the employee’s oral application be granted as Legal Practitioners thrive on raising legal technicalities which will defeat the objective of the ELRC Constitution of expeditious resolution of matters such as the current inquiry.
Public interest.
[15] Although it is common cause that the inquiry is a matter of public interest, members of the public are not directly involved in the proceedings of the current inquiry. Even if it could have been so that members of the public were to be involved in the proceedings current inquiry, members of the public were most likely to sympathise with the learner whose right to human dignity has already been violated by the employee’s unspeakable behaviour.
The comparative abilities of the opposing party or their representative to deal with the inquiry.
[16] Should the employee’s oral application for legal representation be granted, such will result in uneven representation as the employer is represented by a Senior Labour Relations Practitioner and not a Legal Practitioner. In the premise, the employee’s oral application for legal representation stand to be denied as it may set a precedent for future inquiries.
RULING.
[17] After having considered the totality of the application and after having considered both parties’ submissions, I considered a plethora of authorities which militated in favour of the granting of the employee’s right to be legally represented in the current inquiry. The plethora of authorities included and but not limited to Commuter Handling Services (Pty) Ltd v Mokoena & Others [2002] 9 BLLR 843 (LC), Vaal Toyota (Nigel) v Motor Industry Bargaining Council & Others [2002] 10 BLLR 936 (LAC) etcetera.
[18] I also applied the ultimate objective test, namely, determining whether it would be unreasonable to expect the employee to deal with the inquiry without legal representation. My answer to the objective test was in the affirmative. Upon having considered and balanced all the factors which are applicable to an application for legal representation, I therefore found that it would be unreasonable to expect the employee to deal with the nature of the current inquiry without legal representation. I eventually granted the employee’s oral application to be legally represented in the current inquiry.
[19] I did so guided by a number of authorities (Secunda Supermarket cc t/a Secunda Spar & Another v Dreyer NO & Others [1998] 10 BLLR 1062 (LC), Afrox Ltd v Laka & Others [1999] 5 BLLR 467 (LC), Mthembu & Mahomed Attorneys v CCMA & Others [1998] 2 BLLR 150 (LC) to mention few of such authorities related to the application.
ISSUE TO BE DECIDED.
[20] I am required to decide whether or not the employee committed both acts or any of the two acts of misconduct as per Paragraphs 5 and 6 of the current Arbitration Award. Should I find that the employee committed any of the alleged acts of misconduct being the subject matter of the current inquiry, I will determine an appropriate disciplinary sanction.
THE EMPLOYER’S CASE.
The employer’s first witness, Ms X, testified under oath as follows:
[21] She is a 17 years old learner at Letupu High School. During the time of her testimony, she was a Grade 11 at Letupu High School. On 9 January 2019, she came back from school and at that time, she was in the company of her cousin, one certain Phuti Lekokotla and one certain Mr Jack Mothokwa. Immediately when she arrived at her residential place on the said day, she found her mother who was in the course of finalising her preparation to go to a church function. Her mother later left her alone at their residential place and went to a church function. She later took a rest inside the house. While she was in the course of taking a nap, Mr Buthane visited her residential house and at the time, he informed her that he brought a birth certificate of Phuti Lekokotla.
[22] Mr Buthane had a birth certificate in his possession. Soon afterwards, Mr Buthane gained access into her low cost house and asked her as to who was in her company. She immediately informed Mr Buthane that she was alone within the premises of her residential house. Mr Buthane immediately told her that he had long developed romantic feelings towards her. She rejected Mr Buthane’s romantic comments and told him that she was not in the business of engaging herself in a romantic relationship with older persons in his age group. Mr Buthane proceeded to ask her as to who was she romantically related to and she told him. She was later taken by surprise when Mr Buthane pushed her from a couch and began to unzip his trouser. She did her utmost best to push him from her but she was overpowered by Mr Buthane’s imposing figure.
[23] Mr Buthane immediately undressed her underwear in a forceful manner and began to rape her. The rape ordeal lasted a period of approximately fifteen minutes. Soon after the rape ordeal, Mr Buthane left her residential house and later returned back and told her that he came to collect his house keys. She later took a bath soon after Mr Buthane had left her residential place. Her mother came back from the church service at around 17h00 on 9 January 2019. She did not orally inform her mother about the rape incident, but only informed her mother about the rape ordeal by means of a short written note. Under the guardianship of her mother, she took along the same underwear she wore prior to the rape ordeal and the two of them immediately went to Tomburke Police Station where she deposed a sworn affidavit in relation to the rape ordeal which Mr Buthane committed on her on 9 January 2019.
[24] Once the two of them were done at Police Station, they went to Witpoort Hospital where she was offered medical counselling. During cross examination, she testified that she was a Grade 12 at Letupu High School. She also testified that during the date of the rape ordeal, Mr Buthane was an Educator at Mananye High School while she was a learner at Letupu High School. She used to commute from home to school using the same mini school bus with Mr Buthane’s children. Furthermore, that there was no causal link between the statement she deposed at in relation to the rape ordeal to the two allegations of misconduct being the subject matter of the current inquiry. The statement which she deposed at Tomburke Police Station does not in any way mention the name of Mr Buthane as the culprit (or the perpetrator) to her rape ordeal. She further testified that Mr Buthane brought a birth certificate which belonged to Phuti Lekokotla on 9 January 2019.
[25] Furthermore, that at the time when her mother went for a church service on 9 January 2019, her mother was in the company of Phuti Lekokotla. She no longer has any personal recollection as to when the rape ordeal lasted. She did not scream for help when Mr Buthane raped her. She further testified that immediately after she was raped by Mr Buthane, she was medically examined by one certain DR Thapelo Budeli.
The Respondent’s second witness, Ms Esther Gaboutlwelwe Molefe, testified under oath as follows:
[26] She is related to Ms X in the direct blood relationship as Ms X’s biological mother. On a particular Wednesday, she arrived at her residential house and found Ms X in a crying state. She would later ask Ms X her reason behind state of her sobering. Ms X did not give her an oral respond, save that Ms X went to her bedroom and on her return, Mr X presented her with a written short note. She later read the written note presented to her by Ms X. Once she was done having read the said written note, she realised that Ms X conveyed to her that Mr Buthane sexually assaulted her. She would later contact one of Ms X’s uncle and informed the latter about Ms X’s rape ordeal. Ms X’s uncle would later accompany her to a Police Station and the two of them opened a rape case against Mr Buthane. The two of them later took along Ms X to Witpoort Hospital where Ms X was taken through some medical assessment and counselling.
[27] During the said time, she was in the company of one certain Jack as well as one certain Phuti. Since the period where Ms X detailed her rape ordeal to her, Ms X used to be isolated from other people and used to have some restless nights. She knows Mr Buthane as a good behaving person. On the day of the incident, she left her residential house and attended a church service. On her return, Ms X handed her the birth certificate which belonged to Phuti Lekokotla. During cross examination, she testified that at the time when Ms X’s rape incident took place she was at her residential house. She further testified that she relied on hearsay evidence in relation to the incident that led to the current inquiry. Furthermore, that a short written note which Ms X gave to her did not in any manner whatsoever, link Mr Buthane with any act of misconduct being the subject matter of the current inquiry.
Ms Maite Margaret Monama, the employer’s third witness, testified under oath as follows:
[28] She is an Acting Principal Educator at Letupu High School. She has been acting in the said position since the period 4 May 2017. During the period, January 2019, the former Principal Educator of Letupu High School made a protected disclosure to her. The protected disclosure was when Ms X’s mother disclosed to the Principal Educator that Ms X has been raped by Mr Buthane on 9 January 2019. On 22 January 2019, she wrote a letter and reported Ms X’s alleged rape ordeal to the employer’s Circuit Office (Palala North Circuit).
[29] She referred to a copy of the letter which appeared on Page 5 of the employer’s bundle of document. The reason for her to have reported Ms X’s alleged rape ordeal was upon Ms X’s biological mother having visited the school and reported the reason behind Ms X’s persistent absence from attending educational class sessions immediately after the period, January 2019. Soon after Ms X’s alleged rape ordeal was reported at the employer’s Circuit Office, the employer instituted an investigation team to investigate the veracity of the alleged incident.
[30] Ms X was attending educational class sessions when the investigation team commenced its investigation work. The employer’s investigation team interviewed Ms X as part of its investigation process. She happen to observe that Ms X was in an emotional state and kept on crying when the employer’s investigation team interviewed Ms X. She requested Ms X to write a statement and detail the rape incident and Ms X did so. She would later go through the written statement of Ms X and after having done so, it became apparent that Ms X’s written statement did not in any manner whatsoever, link Mr Buthane with any of the two allegations of acts of misconduct being the subject matter of the current inquiry.
Mr Kgabo Paulus Mpherwane, the last witness of the employer, testified under oath as follows:
[31] He is employed by the employer as a Principal Educator at Mananye High School. He has been employed in the same position since the year 1985. Mr Buthane is one of his colleague. The two of them worked with each other for a very long time. He does not have any personal knowledge regarding Mr Buthane’s commission of any of the acts of misconduct being the subject matter of the current inquiry. Mr Seleka made an oral application to declare Mr Mpherwane as a hostile witness. The employer prayed that the employee be found guilty based on the totality of the evidence presented during the course of the inquiry. The employer closed its case.
THE EMPLOYEE’S CASE.
Mr Mmaselaelo Ross Buthane testified in his personal capacity under oath as follows:
[32] He is employed as an Educator at Mananye High School. Ms X is best known to him. The two of them stay at the same village. On 9 January 2019, he reported for duty. While he was on duty one learner by the name of Ms Phuti Lekokotla approached him and presented him with a birth certificate. Ms Lekokotla requested him to take along the said birth certificate and deliver it at Ms X’s house after working hours. He agreed to Ms Lekokotla’s request and later went to Ms X’s residential house to deliver the said birth certificate on an even date. Upon his arrival at Ms X’s residential house he found Ms X and spoke to Ms X without gaining access to Ms X’s residential house. It is common cause that upon his arrival at Ms X’s residential house, he asked Ms X regarding the whereabouts of Ms X’s biological mother.
[33] Ms X told him that her biological mother went to attend a church function. He took the birth certificate and gave it to Ms X subject to a request that Ms X deliver it to her biological mother upon her return from the church function. At no stage did he ever conduct himself in an unprofessional manner on 9 January 2019 because he spent approximately a minute at Ms X’s residential house without gaining access to Ms X’s residential house. During cross examination, he testified that Ms Lekokotla requested him to deliver a birth certificate which belonged to one of her twin brother and that such birth certificate was to be delivered at Ms X’s residential house. He felt agreeable to Ms Lekokotla’s request and later delivered the birth certificate at Ms X’s residential place on an even date. The employer preferred spurious acts of misconduct which have not been factually and materially proven during the course of the inquiry. As a consequence thereof, the interest of fairness militates in favour of the dismissal of the employer’s case for lack of substance let alone merit to any of the two alleged acts of misconduct preferred against him. The employee closed his case.
ANALYSIS OF EVIDENCE, ARGUMENTS AND FINDINGS.
[34] The first witness of the employer, Ms X testified during her evidence in chief that the employee, Mr Mmaselaelo Ross Buthane raped her on 9 January 2019. Ms X further testified that her rape incident took place after school hours at her residential house. It was also Ms X’s evidence in chief that when Mr Buthane raped her, she just came back from school where she was in the company of her cousin, one certain Phuti Lekokotla and one certain Mr Jack Mothokwa. Ms X also testified that soon after Mr Buthane had raped her, she later reported the rape incident at Tomburke Police Station. She reported the rape case while she was under the guardianship of her biological mother, Ms Esther Gaboutlwele Molefe. Ms X further testified that once the rape case was reported at Tomburke Police Station, her mother took her for a medical examination at Witpoort Hospital on the same day. After having considered the testimony of Ms X, I find her evidence to be improbable, inconsistent as well as being incredible.
[35] I find the testimony of Ms X to be improbable because the probability of Ms X’s testimony depended largely on the evidence of Ms Phuti Lekokotla and Mr Jack Mothokwa whom the employer failed to call as witnesses during the course of the current inquiry. I also find Ms X’s testimony to have been characterised by internal and material contradictions because Ms X testified during her evidence in chief on Paragraphs 21 and 23 of the current Arbitration Award that Mr Buthane raped her on 9 January 2019. However, during cross examination (Paragraph 24 of the current Arbitration Award), Ms X testified that she does not associate Mr Buthane with her rape incident. In this context, the testimony of Ms X failed to establish a clear and logical connection between proving the facts in issue (facta probanda, being evidence to the effect that the employee, Mr Buthane) conducted himself in a manner which constitutes a misconduct as per Paragraphs 5 and 6 of the current Arbitration Award) as well as the fact in dispute (facta probantia) being that the rape incident took place on 9 January 2019.
[36] I also find the oral testimony of Ms X to be incredible because if it was indeed that soon after Mr Buthane had finish raping her, Ms X reported such rape case at Tomburke Police Station as well as at Witpoort hospital, the employer would have led documentary evidence in the form of medical report detailing the extent of Mr Buthane’s penetration into any of Ms X’s private parts during the rape incident. Similarly, the employer would have presented documentary evidence in the form of J88 form (that is, a legal document which is usually completed by a Medical Practitioner detailing the extent of any injury which had been sustained by Ms X during such rape incident). Both the medical examination which Ms X testified to have been subjected immediately after the alleged rape incident as well as the J88 form have not been presented during the course of the current inquiry.
[37] To this end, I find the testimony of Ms X not only to be of poor probative evidentiary value, but also to be an improbable version which calls to be rejected in relation to the current inquiry. I am inclined to reject the testimony of Ms X as an improbable version because Ms X’s oral testimony has not been supported by an independent evidentiary material in the form of medical examination and J88 form which are usually used as relevant documentary evidence in the nature of the proceedings similar to the current inquiry. The second witness of the employer, Ms Esther Gaboutlwelwe Molefe testified during her evidence in chief that she is Ms X’s biological mother. Ms Molefe further testified during her evidence in chief that on the day of the rape incident, she had already left her residential house to attend a church related function in town (see Paragraph 26 of the current Arbitration Award).
[38] However, during cross examination, Ms Molefe testified that when Ms X’s rape incident took place on 9 January 2019, she was inside both Ms X and her residential house. To this end, I find the testimony of Ms Molefe to have been presented in a contradictory manner in relation to the current inquiry. Ms Molefe’s contradicting testimonies has been aptly recorded under Paragraphs 26 and 27 of the current Arbitration Award. The contradicting testimonies of Ms Molefe did nothing to prove the existence of the issue in dispute in this matter, (namely that not only was Ms X raped by Mr Buthane on 9 January 2019, but that Ms X’s rape took place inside Ms Molefe and Ms X’s residential house on the said day). The employer’s third witness, Ms Maite Margaret Monama testified that at the time of the conclusion of the current inquiry, she served as an Acting Principal Educator at Letupu High School. She further testified that during the period January 2019, the former Principal Educator of the same school and Ms Molefe disclosed to her that Mr Buthane allegedly raped Ms X (see Paragraph 28 of the current Arbitration Award) respectfully.
[39] After having considered the oral testimony of Ms Monama on Paragraph 28 of the current Arbitration Award, I find it to be amounting to hearsay evidence. Section 34 of the Law of Evidence Amendment Act 45 of 1988 defines hearsay evidence as evidence whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence. Ms Monama’s oral testimony amount to hearsay evidence because the probative value as well as the credibility of her evidence depended upon Ms Molefe and the former Principal Educator of Letupu High School. Ms Monama further testified that the employer’s investigation team conducted an investigation in relation to Ms X’s alleged rape by Mr Buthane (see Paragraph 30 of the current Arbitration Award).
[40] Furthermore, that at the time of such investigation, Ms X was attending her class sessions at Letupu High School when she observed Ms X to be in a sobering state when Ms X was being interviewed by the employer’s investigation team. Ms Monama subsequently requested Ms X to write a statement which informed her to behave in an emotional state during the investigation by the employer’s investigating team. It was also Ms Monama’s oral testimony that Ms X complied with her oral request. Upon Ms X having served her with a written statement, she observed that Ms X’s written statement did not in any manner whatsoever, link Mr Buthane with any act of misconduct being the subject matter of the current Arbitration Award. (see Paragraph 30 of the current Arbitration Award) respectfully. After having considered the totality of Ms Monama’s oral testimony, I find it to be of poor probative value in proving that the employee, Mr Buthane committed any of acts of misconduct which are recorded under Paragraphs 5 and 6 of the current Arbitration Award.
[41] The employer’s fourth and last witness, Mr Kgabo Paulus Mpherwane testified that he is employed by the employer as a Principal Educator at Mananye High School. He further testified that Mr Buthane is one of his colleague and that the two of them worked together for a very long time. Mr Mpherwane also testified that he did not have any personal knowledge regarding the nature of misconduct preferred against Mr Buthane being the subject matter of the current Arbitration Award. After having considered the oral testimonies of the employer’s witnesses in this matter, I find that none of them presented clear and logical connection between proving the fact in issue as well as the fact in dispute as explained under Paragraph 35 of the current Arbitration Award.
[42] On the contrary, I had to consider the evidence of the employee which comprised of a single witness. In terms of the general rules of the law of evidence, the trier of fact (an Arbitrator in casu), is expected to treat the evidence of a single witness with great caution. As an Arbitrator, I have considered the general rules of the law of evidence in analysing the evidence of the employee in the current inquiry. After having done so, I find that the evidence of the employee (Mr Buthane) was presented in a coherent as well as in a consistent manner in relation to the inquiry before me. The court in the matter of Combined Transport Services (Pty) Ltd v Buhle Zamokwakwe Miya and others (DA 15/2014) [2016] ZALAC 57 (handed down on 25 November 2016) reaffirmed the applicability of the “balance of probabilities” test in employment law matters, when it held that a proper assessment of evidence requires the attachment of more weight on the evidence that is consistent and or more probable.
[43] As an Arbitrator in the current inquiry, I have aligned myself with the legal principle as expressed in Combined Transport Services authority in dealing with the current inquiry. Having made such proper assessment, I find that the balance of probabilities favour a weighty consideration on the part of Mr Buthane’s evidence because his evidence was presented in a consistent manner throughout the course of the inquiry. The ineluctable conclusion that I am factually able to arrive based on the totality of the evidence presented before me is that the employee (Mr Mmaselaelo Ross Buthane) has not committed any of the two acts of misconduct being the subject matter of the current inquiry.
AWARD.
[45] On the balance of probabilities, I find that the employee (Mr Mmaselaelo Ross Buthane) did not commit any of the two acts of misconduct which the employer preferred against him and gave rise to the current inquiry.
[45] The allegations of acts of misconduct preferred against the employee (Mr Mmaselaelo Ross Buthane) are not supported by any material and factual evidentiary material and they are dismissed forthwith.
Signature
NTSEPENG MOOKAMEDI
(ELRC PANELLIST).
Panellist : Ntsepeng Mookamedi
Date of Award : 22 April 2022
In the matter between
MMASELAELO ROSS BUTHANE.
(Employee)
And
DEPARTMENT OF EDUCATION (LIMPOPO PROVINCIAL ADMINISTRATION).
(Employer)
DETAILS OF THE HEARING AND REPRESENTATION.
[1] This is an Arbitration Award in relation to an Inquiry by Arbitrator which has been conducted between the employee (Mr Mmaselaelo Ross Buthane) and the employer (Department of Education, Limpopo Provincial Administration). The inquiry has been conducted in terms of the provision of section 188A (1) of the Labour Relations Act 66 of 1995 (hereinafter referred as the Act) read together with Clause 32 of Part C of the Constitution of the Education Labour Relations Council (ELRC). The inquiry took place on 26 August 2019, 13 September 2019, 31 January 2020 and was finalised on 4 April 2022.
[2] The proceedings of the inquiry were conducted through a closed television socket at Lephalale Magistrates’ Court for the duration of the testimony of the employer’s two witnesses who were learners at the time when the alleged two acts of misconduct preferred against the employee took place. The proceedings later took place at Waterberg District Office at Modimolle after the conclusion of the testimonies of the employer’s learner witnesses. The employee attended the inquiry and was at all material times, represented by Ms Mpho Smart and Mr Mpho Mokhithi, Managing Director and Senior Associate of the law firm, Mpho Mokhithi Incorporated Attorneys from Polokwane.
[3] The employer also attended the inquiry and was at all material times, represented by Mr Motopi David Seleka, a Senior Employment Relations Officer. Mrs Ramatsilele Mercy Kupa appeared in her official capacity an Intermediary on behalf of the ELRC. Mesdames Christina Mamokona and Mokgadi Mogale interpreted the proceedings of the inquiry from English to Sepedi and vice versa. Prior to the commencement of the inquiry, Mr Seleka, on behalf of the employer, submitted a single bundle of document as evidence and same was accepted as such and marked as “Bundle A”.
[4] The employee did not submit any bundle of document prior to the commencement of the inquiry. The employee’s case has been decided by means of oral evidence while the employer’s case has been decided by means of oral evidence as well as by means of documentary evidence respectively. At the conclusion of the inquiry, both parties submitted their oral closing arguments in support of their respective cases. I have accordingly considered both parties’ oral closing arguments in rendering the current Arbitration Award.
NATURE OF THE INQUIRY.
[5] The inquiry was instituted after the employer preferred two allegations of acts of misconduct against the employee in terms of section 188A (1) – (4) of the Labour Relations Act. The first allegation of an act of misconduct was to the effect that the employee engaged himself in a sexual intercourse with Ms X (a Grade 10 learner) at Mananye High School on 9 January 2019 or any date incidental thereto and by so doing, contravened the provision of section 17 (1) (b) of the Employment of Educators Act 76 of 1998.
[6] The second and last act of misconduct was to the effect that the employee, arising from the first allegation of act of misconduct, contravened the provision of section 18 (1) (a) of the Employment of Educators Act read together with Items 3.5 and 3.6 of the South African Council of Educators Act 31 of 2000. As a consequence of the legal obligation entrusted upon the Arbitrator in dealing with the evidence of two of the employer’s witnesses in the current inquiry, the identity of two of the employer’s learner witnesses shall be referred to as Learner A and B respectively.
[7] The employee vehemently denied the commission of the two alleged acts of misconduct preferred against him, hence the inquiry was put in full motion.
PRELIMINARY POINT.
[8] Prior to the commencement of the inquiry, Mr Mpho Mokhithi, on behalf of the employee made one preliminary point in relation to an oral application for legal representation. The Arbitrator allowed Mr Mokhithi to move such oral application for legal representation. The oral application was made in terms of Clauses 17.4.1, 17.4.2.2.4 and 23 of the ELRC Constitution.
ORAL APPLICATION FOR LEGAL REPRESENTATION.
The nature of the questions of law raised by the inquiry.
[9] The inquiry concerns questions of law in relation to sexual related misconduct which in the bigger scheme of things require legal interpretation of what constitutes sexual misconduct. The employee is employed as an Educator and does not possess any legal knowledge to enable him in navigating such legal interpretation and pursue legal argument in defending his case. As such, the employee could only manage to pursue such legal terrain subject to the assistance of a Legal Practitioner.
The complexity of the inquiry.
[10] The inquiry is so complex to an Educator in the position of the employee who in his twenty two years of service with the employer, has never been subjected to any similar process. The employee can only manage to traverse the complexity the inquiry with the assistance of a Legal Practitioner.
Public interest.
[11] The inquiry is more of a public interest because the employer has also instituted criminal proceedings against the employee before a criminal court. The nature of the inquiry has already attracted negative publicity on the part of the employee and also published in local newspapers around Lephalale town.
The comparative ability of the opposing party or their representative in dealing with the inquiry.
[12] The employer is represented by a Senior Labour Relations Practitioner, a specialist in the field of labour law as compared to the employee who is employed as an Educator. The employee stand to be prejudiced should his oral application for legal representation be denied.
THE EMPLOYER’S SUBMISSIONS.
Mr Motopi David Seleka, made an oral opposing application on behalf of the employer and submitted as follows:
The nature of questions of law raised by the inquiry.
[13] The inquiry does not raise any question of law. It is just a simple and straight forward misconduct which is well understood by the employee. The nature of the inquiry will not at any stage, require the employee to make any interpretation of the law.
The complexity of the inquiry.
[14] The inquiry is not in any manner whatsoever complex. It is just a straight forward inquiry. The inquiry stand to be complicated should the employee’s oral application be granted as Legal Practitioners thrive on raising legal technicalities which will defeat the objective of the ELRC Constitution of expeditious resolution of matters such as the current inquiry.
Public interest.
[15] Although it is common cause that the inquiry is a matter of public interest, members of the public are not directly involved in the proceedings of the current inquiry. Even if it could have been so that members of the public were to be involved in the proceedings current inquiry, members of the public were most likely to sympathise with the learner whose right to human dignity has already been violated by the employee’s unspeakable behaviour.
The comparative abilities of the opposing party or their representative to deal with the inquiry.
[16] Should the employee’s oral application for legal representation be granted, such will result in uneven representation as the employer is represented by a Senior Labour Relations Practitioner and not a Legal Practitioner. In the premise, the employee’s oral application for legal representation stand to be denied as it may set a precedent for future inquiries.
RULING.
[17] After having considered the totality of the application and after having considered both parties’ submissions, I considered a plethora of authorities which militated in favour of the granting of the employee’s right to be legally represented in the current inquiry. The plethora of authorities included and but not limited to Commuter Handling Services (Pty) Ltd v Mokoena & Others [2002] 9 BLLR 843 (LC), Vaal Toyota (Nigel) v Motor Industry Bargaining Council & Others [2002] 10 BLLR 936 (LAC) etcetera.
[18] I also applied the ultimate objective test, namely, determining whether it would be unreasonable to expect the employee to deal with the inquiry without legal representation. My answer to the objective test was in the affirmative. Upon having considered and balanced all the factors which are applicable to an application for legal representation, I therefore found that it would be unreasonable to expect the employee to deal with the nature of the current inquiry without legal representation. I eventually granted the employee’s oral application to be legally represented in the current inquiry.
[19] I did so guided by a number of authorities (Secunda Supermarket cc t/a Secunda Spar & Another v Dreyer NO & Others [1998] 10 BLLR 1062 (LC), Afrox Ltd v Laka & Others [1999] 5 BLLR 467 (LC), Mthembu & Mahomed Attorneys v CCMA & Others [1998] 2 BLLR 150 (LC) to mention few of such authorities related to the application.
ISSUE TO BE DECIDED.
[20] I am required to decide whether or not the employee committed both acts or any of the two acts of misconduct as per Paragraphs 5 and 6 of the current Arbitration Award. Should I find that the employee committed any of the alleged acts of misconduct being the subject matter of the current inquiry, I will determine an appropriate disciplinary sanction.
THE EMPLOYER’S CASE.
The employer’s first witness, Ms X, testified under oath as follows:
[21] She is a 17 years old learner at Letupu High School. During the time of her testimony, she was a Grade 11 at Letupu High School. On 9 January 2019, she came back from school and at that time, she was in the company of her cousin, one certain Phuti Lekokotla and one certain Mr Jack Mothokwa. Immediately when she arrived at her residential place on the said day, she found her mother who was in the course of finalising her preparation to go to a church function. Her mother later left her alone at their residential place and went to a church function. She later took a rest inside the house. While she was in the course of taking a nap, Mr Buthane visited her residential house and at the time, he informed her that he brought a birth certificate of Phuti Lekokotla.
[22] Mr Buthane had a birth certificate in his possession. Soon afterwards, Mr Buthane gained access into her low cost house and asked her as to who was in her company. She immediately informed Mr Buthane that she was alone within the premises of her residential house. Mr Buthane immediately told her that he had long developed romantic feelings towards her. She rejected Mr Buthane’s romantic comments and told him that she was not in the business of engaging herself in a romantic relationship with older persons in his age group. Mr Buthane proceeded to ask her as to who was she romantically related to and she told him. She was later taken by surprise when Mr Buthane pushed her from a couch and began to unzip his trouser. She did her utmost best to push him from her but she was overpowered by Mr Buthane’s imposing figure.
[23] Mr Buthane immediately undressed her underwear in a forceful manner and began to rape her. The rape ordeal lasted a period of approximately fifteen minutes. Soon after the rape ordeal, Mr Buthane left her residential house and later returned back and told her that he came to collect his house keys. She later took a bath soon after Mr Buthane had left her residential place. Her mother came back from the church service at around 17h00 on 9 January 2019. She did not orally inform her mother about the rape incident, but only informed her mother about the rape ordeal by means of a short written note. Under the guardianship of her mother, she took along the same underwear she wore prior to the rape ordeal and the two of them immediately went to Tomburke Police Station where she deposed a sworn affidavit in relation to the rape ordeal which Mr Buthane committed on her on 9 January 2019.
[24] Once the two of them were done at Police Station, they went to Witpoort Hospital where she was offered medical counselling. During cross examination, she testified that she was a Grade 12 at Letupu High School. She also testified that during the date of the rape ordeal, Mr Buthane was an Educator at Mananye High School while she was a learner at Letupu High School. She used to commute from home to school using the same mini school bus with Mr Buthane’s children. Furthermore, that there was no causal link between the statement she deposed at in relation to the rape ordeal to the two allegations of misconduct being the subject matter of the current inquiry. The statement which she deposed at Tomburke Police Station does not in any way mention the name of Mr Buthane as the culprit (or the perpetrator) to her rape ordeal. She further testified that Mr Buthane brought a birth certificate which belonged to Phuti Lekokotla on 9 January 2019.
[25] Furthermore, that at the time when her mother went for a church service on 9 January 2019, her mother was in the company of Phuti Lekokotla. She no longer has any personal recollection as to when the rape ordeal lasted. She did not scream for help when Mr Buthane raped her. She further testified that immediately after she was raped by Mr Buthane, she was medically examined by one certain DR Thapelo Budeli.
The Respondent’s second witness, Ms Esther Gaboutlwelwe Molefe, testified under oath as follows:
[26] She is related to Ms X in the direct blood relationship as Ms X’s biological mother. On a particular Wednesday, she arrived at her residential house and found Ms X in a crying state. She would later ask Ms X her reason behind state of her sobering. Ms X did not give her an oral respond, save that Ms X went to her bedroom and on her return, Mr X presented her with a written short note. She later read the written note presented to her by Ms X. Once she was done having read the said written note, she realised that Ms X conveyed to her that Mr Buthane sexually assaulted her. She would later contact one of Ms X’s uncle and informed the latter about Ms X’s rape ordeal. Ms X’s uncle would later accompany her to a Police Station and the two of them opened a rape case against Mr Buthane. The two of them later took along Ms X to Witpoort Hospital where Ms X was taken through some medical assessment and counselling.
[27] During the said time, she was in the company of one certain Jack as well as one certain Phuti. Since the period where Ms X detailed her rape ordeal to her, Ms X used to be isolated from other people and used to have some restless nights. She knows Mr Buthane as a good behaving person. On the day of the incident, she left her residential house and attended a church service. On her return, Ms X handed her the birth certificate which belonged to Phuti Lekokotla. During cross examination, she testified that at the time when Ms X’s rape incident took place she was at her residential house. She further testified that she relied on hearsay evidence in relation to the incident that led to the current inquiry. Furthermore, that a short written note which Ms X gave to her did not in any manner whatsoever, link Mr Buthane with any act of misconduct being the subject matter of the current inquiry.
Ms Maite Margaret Monama, the employer’s third witness, testified under oath as follows:
[28] She is an Acting Principal Educator at Letupu High School. She has been acting in the said position since the period 4 May 2017. During the period, January 2019, the former Principal Educator of Letupu High School made a protected disclosure to her. The protected disclosure was when Ms X’s mother disclosed to the Principal Educator that Ms X has been raped by Mr Buthane on 9 January 2019. On 22 January 2019, she wrote a letter and reported Ms X’s alleged rape ordeal to the employer’s Circuit Office (Palala North Circuit).
[29] She referred to a copy of the letter which appeared on Page 5 of the employer’s bundle of document. The reason for her to have reported Ms X’s alleged rape ordeal was upon Ms X’s biological mother having visited the school and reported the reason behind Ms X’s persistent absence from attending educational class sessions immediately after the period, January 2019. Soon after Ms X’s alleged rape ordeal was reported at the employer’s Circuit Office, the employer instituted an investigation team to investigate the veracity of the alleged incident.
[30] Ms X was attending educational class sessions when the investigation team commenced its investigation work. The employer’s investigation team interviewed Ms X as part of its investigation process. She happen to observe that Ms X was in an emotional state and kept on crying when the employer’s investigation team interviewed Ms X. She requested Ms X to write a statement and detail the rape incident and Ms X did so. She would later go through the written statement of Ms X and after having done so, it became apparent that Ms X’s written statement did not in any manner whatsoever, link Mr Buthane with any of the two allegations of acts of misconduct being the subject matter of the current inquiry.
Mr Kgabo Paulus Mpherwane, the last witness of the employer, testified under oath as follows:
[31] He is employed by the employer as a Principal Educator at Mananye High School. He has been employed in the same position since the year 1985. Mr Buthane is one of his colleague. The two of them worked with each other for a very long time. He does not have any personal knowledge regarding Mr Buthane’s commission of any of the acts of misconduct being the subject matter of the current inquiry. Mr Seleka made an oral application to declare Mr Mpherwane as a hostile witness. The employer prayed that the employee be found guilty based on the totality of the evidence presented during the course of the inquiry. The employer closed its case.
THE EMPLOYEE’S CASE.
Mr Mmaselaelo Ross Buthane testified in his personal capacity under oath as follows:
[32] He is employed as an Educator at Mananye High School. Ms X is best known to him. The two of them stay at the same village. On 9 January 2019, he reported for duty. While he was on duty one learner by the name of Ms Phuti Lekokotla approached him and presented him with a birth certificate. Ms Lekokotla requested him to take along the said birth certificate and deliver it at Ms X’s house after working hours. He agreed to Ms Lekokotla’s request and later went to Ms X’s residential house to deliver the said birth certificate on an even date. Upon his arrival at Ms X’s residential house he found Ms X and spoke to Ms X without gaining access to Ms X’s residential house. It is common cause that upon his arrival at Ms X’s residential house, he asked Ms X regarding the whereabouts of Ms X’s biological mother.
[33] Ms X told him that her biological mother went to attend a church function. He took the birth certificate and gave it to Ms X subject to a request that Ms X deliver it to her biological mother upon her return from the church function. At no stage did he ever conduct himself in an unprofessional manner on 9 January 2019 because he spent approximately a minute at Ms X’s residential house without gaining access to Ms X’s residential house. During cross examination, he testified that Ms Lekokotla requested him to deliver a birth certificate which belonged to one of her twin brother and that such birth certificate was to be delivered at Ms X’s residential house. He felt agreeable to Ms Lekokotla’s request and later delivered the birth certificate at Ms X’s residential place on an even date. The employer preferred spurious acts of misconduct which have not been factually and materially proven during the course of the inquiry. As a consequence thereof, the interest of fairness militates in favour of the dismissal of the employer’s case for lack of substance let alone merit to any of the two alleged acts of misconduct preferred against him. The employee closed his case.
ANALYSIS OF EVIDENCE, ARGUMENTS AND FINDINGS.
[34] The first witness of the employer, Ms X testified during her evidence in chief that the employee, Mr Mmaselaelo Ross Buthane raped her on 9 January 2019. Ms X further testified that her rape incident took place after school hours at her residential house. It was also Ms X’s evidence in chief that when Mr Buthane raped her, she just came back from school where she was in the company of her cousin, one certain Phuti Lekokotla and one certain Mr Jack Mothokwa. Ms X also testified that soon after Mr Buthane had raped her, she later reported the rape incident at Tomburke Police Station. She reported the rape case while she was under the guardianship of her biological mother, Ms Esther Gaboutlwele Molefe. Ms X further testified that once the rape case was reported at Tomburke Police Station, her mother took her for a medical examination at Witpoort Hospital on the same day. After having considered the testimony of Ms X, I find her evidence to be improbable, inconsistent as well as being incredible.
[35] I find the testimony of Ms X to be improbable because the probability of Ms X’s testimony depended largely on the evidence of Ms Phuti Lekokotla and Mr Jack Mothokwa whom the employer failed to call as witnesses during the course of the current inquiry. I also find Ms X’s testimony to have been characterised by internal and material contradictions because Ms X testified during her evidence in chief on Paragraphs 21 and 23 of the current Arbitration Award that Mr Buthane raped her on 9 January 2019. However, during cross examination (Paragraph 24 of the current Arbitration Award), Ms X testified that she does not associate Mr Buthane with her rape incident. In this context, the testimony of Ms X failed to establish a clear and logical connection between proving the facts in issue (facta probanda, being evidence to the effect that the employee, Mr Buthane) conducted himself in a manner which constitutes a misconduct as per Paragraphs 5 and 6 of the current Arbitration Award) as well as the fact in dispute (facta probantia) being that the rape incident took place on 9 January 2019.
[36] I also find the oral testimony of Ms X to be incredible because if it was indeed that soon after Mr Buthane had finish raping her, Ms X reported such rape case at Tomburke Police Station as well as at Witpoort hospital, the employer would have led documentary evidence in the form of medical report detailing the extent of Mr Buthane’s penetration into any of Ms X’s private parts during the rape incident. Similarly, the employer would have presented documentary evidence in the form of J88 form (that is, a legal document which is usually completed by a Medical Practitioner detailing the extent of any injury which had been sustained by Ms X during such rape incident). Both the medical examination which Ms X testified to have been subjected immediately after the alleged rape incident as well as the J88 form have not been presented during the course of the current inquiry.
[37] To this end, I find the testimony of Ms X not only to be of poor probative evidentiary value, but also to be an improbable version which calls to be rejected in relation to the current inquiry. I am inclined to reject the testimony of Ms X as an improbable version because Ms X’s oral testimony has not been supported by an independent evidentiary material in the form of medical examination and J88 form which are usually used as relevant documentary evidence in the nature of the proceedings similar to the current inquiry. The second witness of the employer, Ms Esther Gaboutlwelwe Molefe testified during her evidence in chief that she is Ms X’s biological mother. Ms Molefe further testified during her evidence in chief that on the day of the rape incident, she had already left her residential house to attend a church related function in town (see Paragraph 26 of the current Arbitration Award).
[38] However, during cross examination, Ms Molefe testified that when Ms X’s rape incident took place on 9 January 2019, she was inside both Ms X and her residential house. To this end, I find the testimony of Ms Molefe to have been presented in a contradictory manner in relation to the current inquiry. Ms Molefe’s contradicting testimonies has been aptly recorded under Paragraphs 26 and 27 of the current Arbitration Award. The contradicting testimonies of Ms Molefe did nothing to prove the existence of the issue in dispute in this matter, (namely that not only was Ms X raped by Mr Buthane on 9 January 2019, but that Ms X’s rape took place inside Ms Molefe and Ms X’s residential house on the said day). The employer’s third witness, Ms Maite Margaret Monama testified that at the time of the conclusion of the current inquiry, she served as an Acting Principal Educator at Letupu High School. She further testified that during the period January 2019, the former Principal Educator of the same school and Ms Molefe disclosed to her that Mr Buthane allegedly raped Ms X (see Paragraph 28 of the current Arbitration Award) respectfully.
[39] After having considered the oral testimony of Ms Monama on Paragraph 28 of the current Arbitration Award, I find it to be amounting to hearsay evidence. Section 34 of the Law of Evidence Amendment Act 45 of 1988 defines hearsay evidence as evidence whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence. Ms Monama’s oral testimony amount to hearsay evidence because the probative value as well as the credibility of her evidence depended upon Ms Molefe and the former Principal Educator of Letupu High School. Ms Monama further testified that the employer’s investigation team conducted an investigation in relation to Ms X’s alleged rape by Mr Buthane (see Paragraph 30 of the current Arbitration Award).
[40] Furthermore, that at the time of such investigation, Ms X was attending her class sessions at Letupu High School when she observed Ms X to be in a sobering state when Ms X was being interviewed by the employer’s investigation team. Ms Monama subsequently requested Ms X to write a statement which informed her to behave in an emotional state during the investigation by the employer’s investigating team. It was also Ms Monama’s oral testimony that Ms X complied with her oral request. Upon Ms X having served her with a written statement, she observed that Ms X’s written statement did not in any manner whatsoever, link Mr Buthane with any act of misconduct being the subject matter of the current Arbitration Award. (see Paragraph 30 of the current Arbitration Award) respectfully. After having considered the totality of Ms Monama’s oral testimony, I find it to be of poor probative value in proving that the employee, Mr Buthane committed any of acts of misconduct which are recorded under Paragraphs 5 and 6 of the current Arbitration Award.
[41] The employer’s fourth and last witness, Mr Kgabo Paulus Mpherwane testified that he is employed by the employer as a Principal Educator at Mananye High School. He further testified that Mr Buthane is one of his colleague and that the two of them worked together for a very long time. Mr Mpherwane also testified that he did not have any personal knowledge regarding the nature of misconduct preferred against Mr Buthane being the subject matter of the current Arbitration Award. After having considered the oral testimonies of the employer’s witnesses in this matter, I find that none of them presented clear and logical connection between proving the fact in issue as well as the fact in dispute as explained under Paragraph 35 of the current Arbitration Award.
[42] On the contrary, I had to consider the evidence of the employee which comprised of a single witness. In terms of the general rules of the law of evidence, the trier of fact (an Arbitrator in casu), is expected to treat the evidence of a single witness with great caution. As an Arbitrator, I have considered the general rules of the law of evidence in analysing the evidence of the employee in the current inquiry. After having done so, I find that the evidence of the employee (Mr Buthane) was presented in a coherent as well as in a consistent manner in relation to the inquiry before me. The court in the matter of Combined Transport Services (Pty) Ltd v Buhle Zamokwakwe Miya and others (DA 15/2014) [2016] ZALAC 57 (handed down on 25 November 2016) reaffirmed the applicability of the “balance of probabilities” test in employment law matters, when it held that a proper assessment of evidence requires the attachment of more weight on the evidence that is consistent and or more probable.
[43] As an Arbitrator in the current inquiry, I have aligned myself with the legal principle as expressed in Combined Transport Services authority in dealing with the current inquiry. Having made such proper assessment, I find that the balance of probabilities favour a weighty consideration on the part of Mr Buthane’s evidence because his evidence was presented in a consistent manner throughout the course of the inquiry. The ineluctable conclusion that I am factually able to arrive based on the totality of the evidence presented before me is that the employee (Mr Mmaselaelo Ross Buthane) has not committed any of the two acts of misconduct being the subject matter of the current inquiry.
AWARD.
[45] On the balance of probabilities, I find that the employee (Mr Mmaselaelo Ross Buthane) did not commit any of the two acts of misconduct which the employer preferred against him and gave rise to the current inquiry.
[45] The allegations of acts of misconduct preferred against the employee (Mr Mmaselaelo Ross Buthane) are not supported by any material and factual evidentiary material and they are dismissed forthwith.
Signature
NTSEPENG MOOKAMEDI
(ELRC PANELLIST).