PSES115-18/19WC
Text
ELRC 623-21/22GP
Award Date:
06 May 2022
Case Number: ELRC 623-21/22GP
Commissioner: M.A. HAWYES
Date of Award: 06 May 2022
In the ARBITRATION between
Gauteng Department of Higher Education
(Employer)
And
I.M Ceba
(Employee)
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for an inquiry by arbitrator at the Sebokeng College in Sebokeng on the 31st January 2022, the 25th February 2022 and eventually finalized on the 30th March 2022.
2. After completion of the inquiry the parties requested the opportunity to submit written closing arguments by the 7th April 2022. The closing arguments were timeously received. My finding now follows.
3. Mr. L. Sekobolo, a union official from SADTU, represented the employee.
4. Mr. M.Ronyuza, a labour relations official, represented the employer.
ISSUE IN DISPUTE
5. The employee pleaded not guilty to one count of alleged misconduct.
6. It is common cause that the employer employs the employee as a Principal at Motlotlo Primary School.
7. It was alleged that on or around 27 August 2021, while on duty, at or near Motlotlo Primary School, you committed an act of misconduct in that you sexually assaulted MM, a grade 7 girl learner from the same school, in that you told her to sit on your lap and kissed her on the mouth. It is alleged that the employee breached the provisions of section 17 (1) (b) of the Employment of Educators Act, 76 of 1998 (as amended) (EEA).
8. Only the employer made use of a single bundle of documents.
SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT
9. On the first scheduled day of the inquiry (31st January 2022), neither MM, her father nor grandmother were present at the hearing. Ronyusa initially indicated that he was unaware of the reason for their absence since he had consulted with them and they were aware of the date of set down for the hearing. Ronyusa later advised me that he had received a message from the father and grandmother that they and MM no longer wanted to proceed with the matter.
10. I advised Ronyusa to discuss the implications of witnesses not attending the hearing with MM’s father and grandmother. He undertook to do so.
11. The arbitration continued on the 31st January 2022 with the leading of four educator witnesses namely Mr. L Rabodila, a PL 2 HOD at the school, Ms A. Moroenyane, Deputy Principal at the school, Mr. T. Tshoane, another PL 2 HOD at the school and the final educator witness was Ms. P. Sello, a foundation phase PL 2 HOD.
12. Rabodila testified, inter alia, that he is the class teacher of the learner and remembers that she came to him in class and reported that the Principal had taken her to his office for not wearing a mask on entering the school and also for not wearing a proper uniform. There he had attempted to kiss her.
13. Rabodila testified further that the employee was scared when she approached him. Under cross examination when asked why the learner had reported the matter to him, Rabodila stated that as the class teacher of the child the learner felt comfortable in approaching him. He later reported the incident to the Deputy Principal.
14. In response to a leading question Rabodila stated that MM had said that the Principal had wanted MM to sit on top of him and wanted to kiss her.
15. Rabodila testified that whilst he had a good working relationship with the Principal he was aware that other educators often had friction with the Principal in the way that he pursued certain work related challenges and functions.
16. When asked about the conspiracy of the School Management Team (SMT) against the Principal, he refuted the claims as unfounded because the SMT works well as a team.
17. Moroenyane testified that Rabodila reported the incident with MM to her. The father of MM came to the school on the Friday the 28th August 2021. The grandmother came to the school on the 31st August 2021.
18. Rabodila appeared to be alleging that MM had told her that the Principal had told MM to sit on top of him.
19. The SMT addressed the issue with the Principal, initiated by Rabodila, later that day and Moroenyane testified that she heard the Principal say that he did not know what made him do what he did to MM. Moroenyane later testified (translated from Sotho) that the Principal stated “What kind of devil could have possessed me to end up doing such a thing.” During re-examination Moroenyane specifically stated that she did not believe MM’s allegations.
20. Tshoane testified that Moroenyane approached her concerning the alleged incident and he in turn called Sello.
21. They approached MM who related the events of the morning. MM stated that she was taken to the Principal’s office. The Principal closed the door and MM sat on top of the Principal and he stuck his tongue into her mouth. The Principal promised her beautiful things in life- a beautiful lifestyle like him and he promised to teach her to drive his car.
22. Then one of the screeners came into the Principal’s office to assist with sanitizer.
23. The incident was later raised with the Principal at the SMT meeting. The granny of MM, who was present at the time, was angry and refused to see the Principal. This was on the Monday following the incident.
24. At the SMT meeting, Tshoane testified that she heard the Principal confess that he did not know what got into him. Tshoane testified that she took this to mean that the Principal knew about the incident in his office with MM.
25. Sello testified that Tshoane came to her class with a learner who related the events of the morning. After being reprimanded for not wearing the correct school uniform, i.e. a school jersey, MM mentioned that the Principal called her to his office and put her on his lap, removed her mask and kissed her like a grown-up, tongue and all. When a screener came in the Principal pretended to help her to put her mask on.
26. Sello testified that the Principal later apologized to everyone including MM’s father stating that he didn’t know what got into him.
27. Sello testified further that that there no way in which members of the SMT could work against the Principal as they worked as a family and their relations with the Principal are healthy.
28. Sello refuted claims that the granny of MM could be influenced to work against the Principal.
29. On the 25th February 2022 the following witnesses testified in furtherance of the employer case namely Mr Sam Diamond, (MM’s father), Ms Selina Tsimong (MM’s aunt) and finally MM herself.
30. Diamond testified that on Friday the 27th August 2021, MM approached him together with her grandmother. He does not stay with the child. MM’s mother is deceased and the child stays with her maternal grandmother.
31. When she entered the school on the 27th August 2021 and she was not wearing a school jersey and the Principal asked her to wear one. MM told her that she returned to the Principal’s office with a book and the Principal kissed her.
32. Diamond testified that he immediately went to the school to confront the Principal and was ushered into the Principal’s office. Diamond reminded the Principal that he had done tiling work for him in the past. Diamond asked him why he did what he did and the Principal admitted that he did hug and kiss MM and that he was overwhelmed by Satan and he apologized and asked for forgiveness repeatedly.
33. Tsimong testified that she is MM’s biological aunt and MM had approached her on Friday the 27th August 2021 and did not find her at home. On the next day MM returned again and testified that when she arrived at the school on Friday the Principal was at the gate and reprimanded her for not having a school jersey on. MM explained that she had hung the jersey on a chair in class and forgot it there. MM had wanted to retrieve the school jersey from the classroom and the Principal insisted on accompanying her. He said he would provide her with a another jersey if hers could not be found.
34. They approached teacher Nnini Mosia, who spoke to the Principal and told him that MM regularly does not wear her uniform and likes boys. The Principal promised to caution her.
35. The Principal then took her back to his office and asked her how life is at home. He encouraged her to stop being playful and educate herself. He then gave her a hug. He then proceeded to sit down, unmasked her and kissed her. She jumped away and one of the sanitizing ladies came in and took MM away and promised to give her a mask. Although she had a mask the Principal held her mask in his hand and pretended as if she did not have one.
36. In class one of MM’s class mates saw her crying and encouraged her to speak to her class teacher. She then approached Sir (presumably Rabodila).
37. After school was out MM told her granny what had happened, the gran went to school and then sent the child to report the matter to her father. The father came to school and confronted the Principal who allegedly asked for forgiveness.
38. Later on she and MM’s granny reported the matter to the District office and were advised by a Mr Majola that the matter would be taken further.
39. The final witness was MM herself. She gave her date of birth as being the 18th January 2008 (14 yrs.). She is currently in grade 8 at another High School. In 2021 she was a grade 7 learner at Motlotlo Primary School. I found that the witness was capable of distinguishing between right and wrong and the hearing proceeded to hear her testimony.
40. MM testified that on the 27th August 2021, she went to school but she was not dressed in the right school uniform. The principal was standing at the gate with a screener. The Principal asked her where her jersey is. She went to class to fetch her jersey and did so alone. She later encountered Ma’am Nini who told the Principal that she liked boys. She later returned to the Principal’s office to show him that she had recovered her jersey. On arrival the Principal mentioned that she needed adult support. He gave her a hug and sat her down on his lap and kissed her. MM immediately stood up and a screener came in. The Principal held her mask in his hand and told the assistant teacher to give her a mask.
41. She was upset when she went to class and her friend noticed this and encouraged her to speak to her class teacher Mr Rabodila.
42. Later on in the day she was summoned to the staff room to give an account of what had happened. During the course of the meeting the Applicant asked for forgiveness because Satan had overwhelmed him. He wouldn’t do that again. Later after school she reported the incident to her grandmother who sent her to her father. Her father went to school later that afternoon. She also reported the matter to her aunt the next day. According to MM the Principal asked for forgiveness again, (she was not present when her father met the Principal).
43. It was argued on behalf of MM that she reported the matter quickly to her class teacher without any undue influence.
44. It was argued further that the Principal took advantage of MM because of educator Nnini’s information that she liked boys.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
45. The employee testified under oath and led the evidence of two witnesses namely Ms Puleng Sekhoto and Ms Dineo Mabuya.
46. The employee testified that he was at the school gate on the 27th August 2021 monitoring late coming and uniform as he usually does.
47. The employee testified further that a learner arrived (not wearing a mask and not wearing a proper uniform-inter alia no jersey). Upon realizing that the masks in his office were finished the employee went with the learner to Nnini Mosia (grade R HOD educator) who is the school uniform coordinator and MM was issued with a replacement jersey.
48. The employee then took MM back to his office to enquire why she was not properly dressed in school uniform since Fridays were not civvies days. MM was also wearing flip flops instead of proper shoes. MM sat opposite him at his desk. A screener came in looking for a letter referring learners to the clinic. A second screener also came in whilst MM was with him.
49. The employee testified that he reprimanded the employee for not wearing a school uniform and a mask and she later left with the second screener who obtained a cloth mask for her.
50. In the late afternoon of the 27th August 2021 the father of MM approached him and mentioned that there is an allegation that he had touched MM, taken her mask off, sat the child on his lap and kissed her.
51. The employee testified that he replied in Sotho: “I did not do what you say I did” The employee continued and said let me tell you what I did and the employee gave a full explanation. The employee ended by saying: “what Satanism would have overcome me to do such a thing”. The employee denied categorically that he asked for forgiveness from MM’s father.
52. The employee emphasized to MM’s father that latter had worked at his home in the past. Would he be the one to commit such a deed? The learner was not in the office at the time the conversation with her father took place.
53. On Monday he met the granny and aunt of MM together with Rabodila and Tshwane. The two ladies alleged that he had touched MM inappropriately. The granny did not want to talk to him.
54. The employee was summoned to an SMT meeting on the 30th August 2021 at lunch time. Deputy Principal raised the issue of him touching a learner inappropriately and kissing her.
55. The employee testified that he reiterated what Satanism would have overcome him to do such a thing. He emphasized that he had never admitted to having done the deed.
56. The employee testified that MM was not happy when he reprimanded her as he did so in front of other learners. He mentioned that he broke the Co-Vid regulations by allowing a child to enter the school premises without a face mask.
57. The employee then mentioned that he had a fight with certain teachers in 2020 when he was accused of embezzling school funds. The District investigated and he was found not guilty. These teachers were not happy with the District ruling that I be reinstated back at school. The employee testified that Tshwane was the main instigator as he is the SADTU representative. His relationship with the SMT was frosty at best. There was no sense of cohesion, solidarity and togetherness and the only time there was cohesion was when he issued instructions. The SMT were often unhappy with his decisions. The employee testified that he was mortified that the SMT members who had testified had declared that everything was running harmoniously at the school.
58. The employee contended that MM was influenced by SMT educators before the Monday SMT meeting. The employee believed that MM was young enough to be influenced and manipulated to spin a particular narrative.
59. The employee was cross examined about why MM’s father would fabricate testimony against him. The employee responded that MM’s father worked with his hands and could have been influenced by others to testify the way he did because he was angry with the employee.. The educators were frequently responsible for peppering the parents with misinformation. Although he was a SADTU member the SADTU site steward was fighting with him. There was also much infighting within the ranks of SADTU itself. Everyone was striving for a position where they would be adored and cherished.
60. Sekhoto testified that she was one of two screeners at the school gate on duty on the 27th August 2022. MM arrived and she was not in proper uniform. She was wearing slippers/sandals and a T-shirt. She had no mask.
61. They called the Principal to organize a mask for MM and the child went with the Principal.
62. The witness later went to the Principal’s office and opened the door without knocking. She found MM and the Principal standing about a meter apart. The Principal wore a mask and MM did not. The witness noted that the Principal was reprimanding MM for not wearing a mask.
63. When asked about the employee’s working relationship with teachers she stated that she did not see a good working relationship. She frequently heard numerous teachers complaining about the Principal.
64. Mabuya testified that she was also a screener at the school responsible for checking social distance, mask wearing and sanitization.
65. Another learner was sick and as per parental request the school was arranging a letter to take the learner to the local clinic. She went to the Principal’s office to get this document signed off. She noticed MM in the Principal’s office wearing jeans, flip flops, a yellow shirt and a school jersey. MM did not have a mask. The Principal asked her to organize a mask for MM and she left with the learner.
66. During re-examination Mabuya stated that she had not been at the school long and could not comment on the relations between educators and the Principal.
ANALYSIS OF EVIDENCE AND ARGUMENT
67. The onus rests on the Respondent to prove the allegation of misconduct against the employee on a balance of probabilities.
68. Despite the number of witnesses called on both sides the emphasis must be on the evidence of the complainant (MM) because she is the only one who gave first hand testimony of the actual alleged event.
69. MM’s testimony was almost not placed before this tribunal because all the witnesses expressed a reluctance to continue with the hearing and purposely did not attend the hearing on the 25th January 2022. It is only when they were confronted with the possible consequences of not attending that MM, her father and aunt attended the hearing on the next occasion. It is common cause that MM’s direct guardian (her grandmother) did not attend the hearing at all despite being warned to do so. I will return to an evaluation of this circumstantial aspect after it has been weighed up against the other evidence.
70. MM was not a model witness. She was sketchy on certain detail and had to be referred to her written statement to refresh her memory. Unfortunately numerous leading questions diminished the value of her evidence. MM testified that she arrived at the school wearing a mask but her version was contradicted by the employee, Sekhoto and Mabuya. No other witnesses corroborated that MM was wearing a mask when she entered the school. Mabuya corroborated the employee’s version that he had first taken MM to get a replacement jersey before taking her back to his office to reprimand her for not wearing a facemask. The version of MM that she had left her jersey in class and that it simply needed to be retrieved is improbable and not consistent with the sequence of events. If that were so there would have been no need to visit Mosia in the first place as the jersey could have been retrieved directly from the classroom.
71. That Mosia’s comment that MM was naughty and liked boys, served as a trigger to the employee to sexually abuse MM is improbable and not supported by the facts. Mosia was never called as a witness to verify that she even said these words.
72. MM also gave contradictory versions about what the employee allegedly did to her and this manifested in contradictory versions in the educator witnesses testimony. None of the educator witnesses made any mention that MM had told them that the Principal had hugged her before proceeding to kiss her and the educator witnesses further contradicted each other on where MM and the Principal were when the alleged kiss took place.
73. When MM accompanied her father to the school on the 27th August 2021 it is common cause that she was not in the room when her father spoke to the Principal yet she was able to state as a fact that the Principal apologized more than once to her father. I find that MM’s testimony reveals incidences (this being one of them) where it is probable that she has been coached
74. The Principal’s office is a busy place and it is improbable that the employee would risk discovery whilst engaging in the sexual furtive misconduct of hugging MM, placing her on his lap and giving her a French kiss. The testimony of Sekhoto and Mabuya serve to confirm just how easy the Principal could be disturbed. The employee himself would have been mindful of the risks of being caught in flagrante delicto.
75. The employer’s case rests heavily on the employee’s alleged confession made to educators of the SMT and to MM’s father. Firstly, it is improbable that the employee would admit to sexual misconduct in front of his educator colleagues and MM’s father well knowing the consequences of such action. Secondly, I find that the version of the various educator witnesses was contradictory in terms of what the employee actually said to them. I find that the employee’s exculpatory rhetorical question: i.e. what devil or Satanism would have induced him to do such a thing appears to have been twisted by all the witnesses to make it sound like a confession.
76. The employee’s version that his relationship with his SMT and other educators was troubled and frosty was, in a measure, corroborated by Sekhoto. The Respondent witnesses tried to paint a picture that all was rosy at the school but I picked up elements of dissent as the arbitration continued. The employer witnesses, for example, did not dispute that disciplinary action for embezzlement had been brought against the Principal by members of his own staff. It was likewise not disputed that he had been found not guilty of the charges and a number of staff members were unhappy with his reinstatement. The employee provided other unchallenged detail of why he suspected that he was being falsely framed by dissenting factions within SADTU.
77. I find that it is probable that MM’s father, aunt and grandmother could have been drawn into a conspiracy with the educators through the School Governing Body (SGB) and other influences. MM’s father was angered by the allegations against the employee and could have been swept up to strengthen the case against the employee by joining in the fray to misrepresent that the employee had confessed to his own misconduct. It must not be forgotten that MM’s father had expressed a reluctance to continue with the case until he was told of possible consequences should he not attend at the next sitting. The inconsistency is his conduct means that I cannot implicitly place trust in his version of events.
78. MM’s grandmother was the first family guardian to hear of the allegation against the employee but was unwilling to take the trouble to come to the hearing to give her account of events. She was later probably one of the main persons’ contending that she no longer wished to pursue the case against the employee. MM is young and impressionable and I find it probable that she was influenced by the adults (parents and educators) to concoct a serious allegation against the employee. Furthermore, MM is old enough to feel the sting of a reprimand and to feel anger and harbor feelings of revenge. I find that MM would have been a willing participant in any attempt to create and strengthen a false version against her Principal.
79. In conclusion I find that the balance of probabilities (despite all the employer witnesses) does not tip in favour of the employer’s case but at best hangs in the balance. The employer has not discharged the onus of proving its case against the employee.
RULING AND SANCTION
80. Due to a lack of evidence the employee is found not guilty of the allegation of sexual misconduct leveled against him.
MARK HAWYES
ARBITRATOR
Commissioner: M.A. HAWYES
Date of Award: 06 May 2022
In the ARBITRATION between
Gauteng Department of Higher Education
(Employer)
And
I.M Ceba
(Employee)
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for an inquiry by arbitrator at the Sebokeng College in Sebokeng on the 31st January 2022, the 25th February 2022 and eventually finalized on the 30th March 2022.
2. After completion of the inquiry the parties requested the opportunity to submit written closing arguments by the 7th April 2022. The closing arguments were timeously received. My finding now follows.
3. Mr. L. Sekobolo, a union official from SADTU, represented the employee.
4. Mr. M.Ronyuza, a labour relations official, represented the employer.
ISSUE IN DISPUTE
5. The employee pleaded not guilty to one count of alleged misconduct.
6. It is common cause that the employer employs the employee as a Principal at Motlotlo Primary School.
7. It was alleged that on or around 27 August 2021, while on duty, at or near Motlotlo Primary School, you committed an act of misconduct in that you sexually assaulted MM, a grade 7 girl learner from the same school, in that you told her to sit on your lap and kissed her on the mouth. It is alleged that the employee breached the provisions of section 17 (1) (b) of the Employment of Educators Act, 76 of 1998 (as amended) (EEA).
8. Only the employer made use of a single bundle of documents.
SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT
9. On the first scheduled day of the inquiry (31st January 2022), neither MM, her father nor grandmother were present at the hearing. Ronyusa initially indicated that he was unaware of the reason for their absence since he had consulted with them and they were aware of the date of set down for the hearing. Ronyusa later advised me that he had received a message from the father and grandmother that they and MM no longer wanted to proceed with the matter.
10. I advised Ronyusa to discuss the implications of witnesses not attending the hearing with MM’s father and grandmother. He undertook to do so.
11. The arbitration continued on the 31st January 2022 with the leading of four educator witnesses namely Mr. L Rabodila, a PL 2 HOD at the school, Ms A. Moroenyane, Deputy Principal at the school, Mr. T. Tshoane, another PL 2 HOD at the school and the final educator witness was Ms. P. Sello, a foundation phase PL 2 HOD.
12. Rabodila testified, inter alia, that he is the class teacher of the learner and remembers that she came to him in class and reported that the Principal had taken her to his office for not wearing a mask on entering the school and also for not wearing a proper uniform. There he had attempted to kiss her.
13. Rabodila testified further that the employee was scared when she approached him. Under cross examination when asked why the learner had reported the matter to him, Rabodila stated that as the class teacher of the child the learner felt comfortable in approaching him. He later reported the incident to the Deputy Principal.
14. In response to a leading question Rabodila stated that MM had said that the Principal had wanted MM to sit on top of him and wanted to kiss her.
15. Rabodila testified that whilst he had a good working relationship with the Principal he was aware that other educators often had friction with the Principal in the way that he pursued certain work related challenges and functions.
16. When asked about the conspiracy of the School Management Team (SMT) against the Principal, he refuted the claims as unfounded because the SMT works well as a team.
17. Moroenyane testified that Rabodila reported the incident with MM to her. The father of MM came to the school on the Friday the 28th August 2021. The grandmother came to the school on the 31st August 2021.
18. Rabodila appeared to be alleging that MM had told her that the Principal had told MM to sit on top of him.
19. The SMT addressed the issue with the Principal, initiated by Rabodila, later that day and Moroenyane testified that she heard the Principal say that he did not know what made him do what he did to MM. Moroenyane later testified (translated from Sotho) that the Principal stated “What kind of devil could have possessed me to end up doing such a thing.” During re-examination Moroenyane specifically stated that she did not believe MM’s allegations.
20. Tshoane testified that Moroenyane approached her concerning the alleged incident and he in turn called Sello.
21. They approached MM who related the events of the morning. MM stated that she was taken to the Principal’s office. The Principal closed the door and MM sat on top of the Principal and he stuck his tongue into her mouth. The Principal promised her beautiful things in life- a beautiful lifestyle like him and he promised to teach her to drive his car.
22. Then one of the screeners came into the Principal’s office to assist with sanitizer.
23. The incident was later raised with the Principal at the SMT meeting. The granny of MM, who was present at the time, was angry and refused to see the Principal. This was on the Monday following the incident.
24. At the SMT meeting, Tshoane testified that she heard the Principal confess that he did not know what got into him. Tshoane testified that she took this to mean that the Principal knew about the incident in his office with MM.
25. Sello testified that Tshoane came to her class with a learner who related the events of the morning. After being reprimanded for not wearing the correct school uniform, i.e. a school jersey, MM mentioned that the Principal called her to his office and put her on his lap, removed her mask and kissed her like a grown-up, tongue and all. When a screener came in the Principal pretended to help her to put her mask on.
26. Sello testified that the Principal later apologized to everyone including MM’s father stating that he didn’t know what got into him.
27. Sello testified further that that there no way in which members of the SMT could work against the Principal as they worked as a family and their relations with the Principal are healthy.
28. Sello refuted claims that the granny of MM could be influenced to work against the Principal.
29. On the 25th February 2022 the following witnesses testified in furtherance of the employer case namely Mr Sam Diamond, (MM’s father), Ms Selina Tsimong (MM’s aunt) and finally MM herself.
30. Diamond testified that on Friday the 27th August 2021, MM approached him together with her grandmother. He does not stay with the child. MM’s mother is deceased and the child stays with her maternal grandmother.
31. When she entered the school on the 27th August 2021 and she was not wearing a school jersey and the Principal asked her to wear one. MM told her that she returned to the Principal’s office with a book and the Principal kissed her.
32. Diamond testified that he immediately went to the school to confront the Principal and was ushered into the Principal’s office. Diamond reminded the Principal that he had done tiling work for him in the past. Diamond asked him why he did what he did and the Principal admitted that he did hug and kiss MM and that he was overwhelmed by Satan and he apologized and asked for forgiveness repeatedly.
33. Tsimong testified that she is MM’s biological aunt and MM had approached her on Friday the 27th August 2021 and did not find her at home. On the next day MM returned again and testified that when she arrived at the school on Friday the Principal was at the gate and reprimanded her for not having a school jersey on. MM explained that she had hung the jersey on a chair in class and forgot it there. MM had wanted to retrieve the school jersey from the classroom and the Principal insisted on accompanying her. He said he would provide her with a another jersey if hers could not be found.
34. They approached teacher Nnini Mosia, who spoke to the Principal and told him that MM regularly does not wear her uniform and likes boys. The Principal promised to caution her.
35. The Principal then took her back to his office and asked her how life is at home. He encouraged her to stop being playful and educate herself. He then gave her a hug. He then proceeded to sit down, unmasked her and kissed her. She jumped away and one of the sanitizing ladies came in and took MM away and promised to give her a mask. Although she had a mask the Principal held her mask in his hand and pretended as if she did not have one.
36. In class one of MM’s class mates saw her crying and encouraged her to speak to her class teacher. She then approached Sir (presumably Rabodila).
37. After school was out MM told her granny what had happened, the gran went to school and then sent the child to report the matter to her father. The father came to school and confronted the Principal who allegedly asked for forgiveness.
38. Later on she and MM’s granny reported the matter to the District office and were advised by a Mr Majola that the matter would be taken further.
39. The final witness was MM herself. She gave her date of birth as being the 18th January 2008 (14 yrs.). She is currently in grade 8 at another High School. In 2021 she was a grade 7 learner at Motlotlo Primary School. I found that the witness was capable of distinguishing between right and wrong and the hearing proceeded to hear her testimony.
40. MM testified that on the 27th August 2021, she went to school but she was not dressed in the right school uniform. The principal was standing at the gate with a screener. The Principal asked her where her jersey is. She went to class to fetch her jersey and did so alone. She later encountered Ma’am Nini who told the Principal that she liked boys. She later returned to the Principal’s office to show him that she had recovered her jersey. On arrival the Principal mentioned that she needed adult support. He gave her a hug and sat her down on his lap and kissed her. MM immediately stood up and a screener came in. The Principal held her mask in his hand and told the assistant teacher to give her a mask.
41. She was upset when she went to class and her friend noticed this and encouraged her to speak to her class teacher Mr Rabodila.
42. Later on in the day she was summoned to the staff room to give an account of what had happened. During the course of the meeting the Applicant asked for forgiveness because Satan had overwhelmed him. He wouldn’t do that again. Later after school she reported the incident to her grandmother who sent her to her father. Her father went to school later that afternoon. She also reported the matter to her aunt the next day. According to MM the Principal asked for forgiveness again, (she was not present when her father met the Principal).
43. It was argued on behalf of MM that she reported the matter quickly to her class teacher without any undue influence.
44. It was argued further that the Principal took advantage of MM because of educator Nnini’s information that she liked boys.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
45. The employee testified under oath and led the evidence of two witnesses namely Ms Puleng Sekhoto and Ms Dineo Mabuya.
46. The employee testified that he was at the school gate on the 27th August 2021 monitoring late coming and uniform as he usually does.
47. The employee testified further that a learner arrived (not wearing a mask and not wearing a proper uniform-inter alia no jersey). Upon realizing that the masks in his office were finished the employee went with the learner to Nnini Mosia (grade R HOD educator) who is the school uniform coordinator and MM was issued with a replacement jersey.
48. The employee then took MM back to his office to enquire why she was not properly dressed in school uniform since Fridays were not civvies days. MM was also wearing flip flops instead of proper shoes. MM sat opposite him at his desk. A screener came in looking for a letter referring learners to the clinic. A second screener also came in whilst MM was with him.
49. The employee testified that he reprimanded the employee for not wearing a school uniform and a mask and she later left with the second screener who obtained a cloth mask for her.
50. In the late afternoon of the 27th August 2021 the father of MM approached him and mentioned that there is an allegation that he had touched MM, taken her mask off, sat the child on his lap and kissed her.
51. The employee testified that he replied in Sotho: “I did not do what you say I did” The employee continued and said let me tell you what I did and the employee gave a full explanation. The employee ended by saying: “what Satanism would have overcome me to do such a thing”. The employee denied categorically that he asked for forgiveness from MM’s father.
52. The employee emphasized to MM’s father that latter had worked at his home in the past. Would he be the one to commit such a deed? The learner was not in the office at the time the conversation with her father took place.
53. On Monday he met the granny and aunt of MM together with Rabodila and Tshwane. The two ladies alleged that he had touched MM inappropriately. The granny did not want to talk to him.
54. The employee was summoned to an SMT meeting on the 30th August 2021 at lunch time. Deputy Principal raised the issue of him touching a learner inappropriately and kissing her.
55. The employee testified that he reiterated what Satanism would have overcome him to do such a thing. He emphasized that he had never admitted to having done the deed.
56. The employee testified that MM was not happy when he reprimanded her as he did so in front of other learners. He mentioned that he broke the Co-Vid regulations by allowing a child to enter the school premises without a face mask.
57. The employee then mentioned that he had a fight with certain teachers in 2020 when he was accused of embezzling school funds. The District investigated and he was found not guilty. These teachers were not happy with the District ruling that I be reinstated back at school. The employee testified that Tshwane was the main instigator as he is the SADTU representative. His relationship with the SMT was frosty at best. There was no sense of cohesion, solidarity and togetherness and the only time there was cohesion was when he issued instructions. The SMT were often unhappy with his decisions. The employee testified that he was mortified that the SMT members who had testified had declared that everything was running harmoniously at the school.
58. The employee contended that MM was influenced by SMT educators before the Monday SMT meeting. The employee believed that MM was young enough to be influenced and manipulated to spin a particular narrative.
59. The employee was cross examined about why MM’s father would fabricate testimony against him. The employee responded that MM’s father worked with his hands and could have been influenced by others to testify the way he did because he was angry with the employee.. The educators were frequently responsible for peppering the parents with misinformation. Although he was a SADTU member the SADTU site steward was fighting with him. There was also much infighting within the ranks of SADTU itself. Everyone was striving for a position where they would be adored and cherished.
60. Sekhoto testified that she was one of two screeners at the school gate on duty on the 27th August 2022. MM arrived and she was not in proper uniform. She was wearing slippers/sandals and a T-shirt. She had no mask.
61. They called the Principal to organize a mask for MM and the child went with the Principal.
62. The witness later went to the Principal’s office and opened the door without knocking. She found MM and the Principal standing about a meter apart. The Principal wore a mask and MM did not. The witness noted that the Principal was reprimanding MM for not wearing a mask.
63. When asked about the employee’s working relationship with teachers she stated that she did not see a good working relationship. She frequently heard numerous teachers complaining about the Principal.
64. Mabuya testified that she was also a screener at the school responsible for checking social distance, mask wearing and sanitization.
65. Another learner was sick and as per parental request the school was arranging a letter to take the learner to the local clinic. She went to the Principal’s office to get this document signed off. She noticed MM in the Principal’s office wearing jeans, flip flops, a yellow shirt and a school jersey. MM did not have a mask. The Principal asked her to organize a mask for MM and she left with the learner.
66. During re-examination Mabuya stated that she had not been at the school long and could not comment on the relations between educators and the Principal.
ANALYSIS OF EVIDENCE AND ARGUMENT
67. The onus rests on the Respondent to prove the allegation of misconduct against the employee on a balance of probabilities.
68. Despite the number of witnesses called on both sides the emphasis must be on the evidence of the complainant (MM) because she is the only one who gave first hand testimony of the actual alleged event.
69. MM’s testimony was almost not placed before this tribunal because all the witnesses expressed a reluctance to continue with the hearing and purposely did not attend the hearing on the 25th January 2022. It is only when they were confronted with the possible consequences of not attending that MM, her father and aunt attended the hearing on the next occasion. It is common cause that MM’s direct guardian (her grandmother) did not attend the hearing at all despite being warned to do so. I will return to an evaluation of this circumstantial aspect after it has been weighed up against the other evidence.
70. MM was not a model witness. She was sketchy on certain detail and had to be referred to her written statement to refresh her memory. Unfortunately numerous leading questions diminished the value of her evidence. MM testified that she arrived at the school wearing a mask but her version was contradicted by the employee, Sekhoto and Mabuya. No other witnesses corroborated that MM was wearing a mask when she entered the school. Mabuya corroborated the employee’s version that he had first taken MM to get a replacement jersey before taking her back to his office to reprimand her for not wearing a facemask. The version of MM that she had left her jersey in class and that it simply needed to be retrieved is improbable and not consistent with the sequence of events. If that were so there would have been no need to visit Mosia in the first place as the jersey could have been retrieved directly from the classroom.
71. That Mosia’s comment that MM was naughty and liked boys, served as a trigger to the employee to sexually abuse MM is improbable and not supported by the facts. Mosia was never called as a witness to verify that she even said these words.
72. MM also gave contradictory versions about what the employee allegedly did to her and this manifested in contradictory versions in the educator witnesses testimony. None of the educator witnesses made any mention that MM had told them that the Principal had hugged her before proceeding to kiss her and the educator witnesses further contradicted each other on where MM and the Principal were when the alleged kiss took place.
73. When MM accompanied her father to the school on the 27th August 2021 it is common cause that she was not in the room when her father spoke to the Principal yet she was able to state as a fact that the Principal apologized more than once to her father. I find that MM’s testimony reveals incidences (this being one of them) where it is probable that she has been coached
74. The Principal’s office is a busy place and it is improbable that the employee would risk discovery whilst engaging in the sexual furtive misconduct of hugging MM, placing her on his lap and giving her a French kiss. The testimony of Sekhoto and Mabuya serve to confirm just how easy the Principal could be disturbed. The employee himself would have been mindful of the risks of being caught in flagrante delicto.
75. The employer’s case rests heavily on the employee’s alleged confession made to educators of the SMT and to MM’s father. Firstly, it is improbable that the employee would admit to sexual misconduct in front of his educator colleagues and MM’s father well knowing the consequences of such action. Secondly, I find that the version of the various educator witnesses was contradictory in terms of what the employee actually said to them. I find that the employee’s exculpatory rhetorical question: i.e. what devil or Satanism would have induced him to do such a thing appears to have been twisted by all the witnesses to make it sound like a confession.
76. The employee’s version that his relationship with his SMT and other educators was troubled and frosty was, in a measure, corroborated by Sekhoto. The Respondent witnesses tried to paint a picture that all was rosy at the school but I picked up elements of dissent as the arbitration continued. The employer witnesses, for example, did not dispute that disciplinary action for embezzlement had been brought against the Principal by members of his own staff. It was likewise not disputed that he had been found not guilty of the charges and a number of staff members were unhappy with his reinstatement. The employee provided other unchallenged detail of why he suspected that he was being falsely framed by dissenting factions within SADTU.
77. I find that it is probable that MM’s father, aunt and grandmother could have been drawn into a conspiracy with the educators through the School Governing Body (SGB) and other influences. MM’s father was angered by the allegations against the employee and could have been swept up to strengthen the case against the employee by joining in the fray to misrepresent that the employee had confessed to his own misconduct. It must not be forgotten that MM’s father had expressed a reluctance to continue with the case until he was told of possible consequences should he not attend at the next sitting. The inconsistency is his conduct means that I cannot implicitly place trust in his version of events.
78. MM’s grandmother was the first family guardian to hear of the allegation against the employee but was unwilling to take the trouble to come to the hearing to give her account of events. She was later probably one of the main persons’ contending that she no longer wished to pursue the case against the employee. MM is young and impressionable and I find it probable that she was influenced by the adults (parents and educators) to concoct a serious allegation against the employee. Furthermore, MM is old enough to feel the sting of a reprimand and to feel anger and harbor feelings of revenge. I find that MM would have been a willing participant in any attempt to create and strengthen a false version against her Principal.
79. In conclusion I find that the balance of probabilities (despite all the employer witnesses) does not tip in favour of the employer’s case but at best hangs in the balance. The employer has not discharged the onus of proving its case against the employee.
RULING AND SANCTION
80. Due to a lack of evidence the employee is found not guilty of the allegation of sexual misconduct leveled against him.
MARK HAWYES
ARBITRATOR