ELRC767-21/22WC

Commissioner: Jacques Buitendag
Case No.: ELRC767-21/22WC
Date of Award: 06 May 2022

In the INQUIRY between:


MR L J DAVIDS
(Union/Applicant)

and


DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)



PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This inquiry, in terms of section 188A of the Labour Relations Act, 66 of 1995 as amended (LRA), took place under the auspices of the Education Labour Relations Council (ELRC) on 11 March- and 12 April 2022 at the premises of Western Cape Education Department (WCED) in Cape Town. The proceedings were digitally recorded.

2. On 11 March 2022 Mr. Naidoo of NSW Attorneys represented the accused employee, Mr. Davids. The WCED was represented by its Labour Relations Officer, Ms. Diedericks. Ms. Mankay attended as interpreter and Ms. Titus as intermediary.

3. On 11 March 2022 the Inquiry was postponed on request of Mr. Naidoo to allow sufficient time for him and Mr. Davids to study the documents presented by the WCED and for Mr. Naidoo to take instructions from his client.

4. The parties have agreed to the matter continuing on 12 April 2022 at 09h00 at the WCED’s premises. Mr. Davids and his representative was absent on 12 April 2022.

RULING TO PROCEED IN THE ABSENCE OF MR DAVIDS

5. On 5 April 2022 Mr. Naidoo addressed the following email to me:
Without Prejudice
“Dear Mr Buitendag
The above matter and the arbitration proceeding scheduled for 12 April 2022 refers.

We hereby advise that the Department has elected to proceed with the hearing on the scheduled date despite our advices of our client’s intention to resign from his employment.

We hereby advise that our client is electing not to attend the scheduled proceedings and we appreciate that the Chairman may decide to proceed in abstentia.

We place on record that our client’s failure to attend the hearing should in no way be construed as an admission to the allegations made, which allegations our client strenuously denies.

Our client’s decision in this regard is inter alia premised on the fact that his participation in these proceedings are prejudicial to his preparations in the criminal charges being proceeded with against him involving the same learner/complainant.

It was a further consideration that based on our client’s fragile health conditions arising from the immense emotional duress that he has been placed under that it is not advisable for him to participate in these proceedings on medical grounds.

Finally regard was given to the effect of our client’s resignation whilst disciplinary proceedings are not yet disposed of and that accordingly our client would deemed to be discharged from service, with there being a permanent blot on his employment record. Therefore this was not a decision taken lightly by our client given the consequences to his future.

A further consideration was that by virtue of our client’s resignation and termination of his employment the need to put the learner/complainant through any undue stress or hardship would also be obviated. The additional savings on costs and valuable resources which would be applied to the conducting of the arbitration proceedings in these circumstances is a further obvious factor.

In view of the aforestated our client fails to see the rationale behind the intention of the Department and its insistence on proceeding with the arbitration hearing. Despite there being a real prospect that our client will be vindicated through this process he has elected to terminate his employment relationship, which would be a possible alternative outcome of the proceedings should he be found to have breached the employment relationship with the Department. Accordingly we reiterate what good purpose would be served to proceed with the arbitration hearing in these circumstances.

We further wish to respectfully submit that should the arbitration proceed in our client’s absence that careful regard be had to the rules of evidence and in particular the following:
1. The probative value of the evidence tendered;
2. The weight to be attached to single witness testimony; and
3. The veracity of evidence adduced and in particular whether the evidence is reliable and that the chain of evidence has been proven. In this regard in particular we believe expert evidence would need to be led. Evidence of a technical nature cannot be accepted at face value.

Kindly note that our client will require access to the recordings of the arbitration proceedings, a copy of which, will be sought once we are informed that same has been finalized.

We trust that you will respectfully be guided by the aforegoing.

Yours faithfully,
Zubin Naidoo
NSW Attorneys”

6. At the commencement of the proceedings on 12 April 2022 Ms. Diedericks submitted Mr. Davids’s resignations which she say was delivered to the Principal of Wesfleur Primary School on 11 April 2022. In the letter Mr. Davids requested that the WCED condone a shorter notice period as prescribed in the Employment of Educators Act 76 of 1998 (the Act).

7. Ms. Diedericks submitted that the WCED did not condone a shorter notice period and she argued that the Inquiry proceeds in the absence of Mr. Davids and his representative.

8. Because Mr. Davids has tendered his resignation on 11 April 2022, the first question to be asked is whether Mr. Davids is still an employee? If he is not, the Inquiry cannot continue. This is so because a section 188A Inquiry by Arbitrator in terms of the Labour Relations Act 66 of 1995, read with ELRC Collective Agreement 3 of 2018, can only be conducted if an employee is accused of sexual misconduct against learners.

9. Section 15(1) of the Employment of Educators Act 76 of 1998 (EEA) however provides that “An educator may resign by giving 90 days’ notice in writing or such shorter notice as the employer may approve at the request of the educator.” In terms of section 15(1) the WCED must thus approve notice of an educator which is shorted than 90 days’ notice. This the WCED has not done. So, all though Mr. Davids has resigned he remains an employee of the WCED. The section 188A Inquiry by Arbitrator can thus continue.

10. The second question is whether it is fair to continue in the absence of Mr. Davids as Ms. Diedericks has argued?

11. In Old Mutual Life Assurance Co SA LTD v Gumbi (2007) 28 ILJ 1499 (SCA) the SCA confirmed that “an employee's entitlement to a pre-dismissal hearing is well recognized in our law, having as its source the common law or a statute which applies to the employment relationship between the parties. In recognizing this right our law is consistent with international law relating to pre-dismissal hearings. Having considered the provisions of the Constitution 1996, the LRA 1995, judicial authority and international law, the right to a pre-dismissal hearing imposes upon employers nothing more than the obligation to afford employees the opportunity of being heard before employment is terminated by means of a dismissal. Should the employee fail to take the opportunity offered, in a case where he or she ought to have, the employer's decision to dismiss cannot be challenged on the basis of procedural fairness.

12. In my view the WCED has offered Mr. Davids a chance to be heard and to defend himself against the allegation levelled against him. I have also postponed the Inquiry on 11 March 2022 on request of Mr. Davids’ legal representative to allow them an opportunity to fully prepare for the Inquiry.

13. It is clear from Mr. Naidoo’s email on behalf of his client that Mr. Davids has elected not to take part in this Inquiry. Mr. Davids has the benefit of a legal adviser, and from the contents of the email I conclude that Mr. Davids is aware of the consequences of his decision not to participate in this Inquiry. In these circumstances I find that it is not unfair for the Inquiry to continue in Mr. Davids’ absence.

THE ISSUE IN DISPUTE

14. I must determine whether Mr. Davids is guilty of the allegation of sexual misconduct that is levelled against him and if so, I must determine the appropriate sanction.

BACKGROUND

15. On 25 September 2018 the parties to the Education Labour Relations Council (ELRC) entered into Collective Agreement 3 of 2018 which provides for compulsory inquiries by arbitrators in cases of disciplinary action against educators charged with sexual misconduct in respect of learners.

16. On or about 11 January 2022 the WCED requested the ELRC to appoint an arbitrator for an inquiry into alleged sexual misconduct allegations leveled against Mr. Davids.

17. Mr. Davids is employed as a level 1 educator at Wesfleur Primary School in Atlantis.

18. The WCED has preferred the following charge against Mr. Davids:
Charge 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(dd) of the Employment of Educators Act, no. 76 of 1998, to be read with section 18(2)(b)(iv) of the Criminal Law Sexual Offences Act and Related Matters Amendment Act, in that during the 3rd term and or 4th term of 2021 you sexually groomed learner A, a grade 7 learner associated with Wesfleur Primary School by requesting explicit pictures from her via Instagram.”

19. The child / leaner referred to in charge is a minor and her identity is protected. The child will be referred to as “Learner A” in this award.

SUMMARY OF EVIDENCE AND ARGUMENT

20. Having considered the contents of the email referred to in paragraph 5, I have recorded a plea of not guilty on behalf of Mr. Davids.

21. I have considered all the evidence and arguments presented, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence and argument that I regard as necessary to substantiate my findings in the determination of this matter.

The WCED’s case
Evidence
22. The WCED presented a 56-page evidence bundle and called Learner A to testified under oath. She is now 14 years. In 2021 she was in Grade 7 at Wesfleur Primary School in Atlantis. She knows Mr. Davids as an educator at Wesfleur Primary School. She explained that Mr. Davids would have conversations with her at school and sometimes call her to come and see him. Their conversations was not school related.

23. When Mr. Davids send her invitation via Instagram she accepted the invitation and they started chatting on Instagram. She had a sad face emoji and he asked her why she is sad. She conveyed to him that she is sad because her father has passed away. Her father passed away in June 2021.

24. Learner A testified that her when phone broke and that she that stopped chatting with Mr. Davids on Instagram. When Mr. Davids asked her at school should why she is ignoring him, she explained that her phone has broken. Mr. Davids then suggested that she uses someone else’s phone. From there on she would borrow her mother’s phone and she and Mr. Davids would continue chatting on Instagram.

25. Leaner A was referred to a record of Instagram conversations contained in the evidence bundle. She identified Mr. Davids from his Instagram profile photo on page 6 and confirmed that pages 6-56 are a record of the Instagram conversations she had with Mr. Davids when she used her mother’s phone. The record contains conversations between Learner A and Mr. Davis from 7 September 2021 – 12 November 2021.

26. Leaner A was referred to conversation between her and Mr. Davids on page 7-8 where Mr. Davids wrote
“Still Waiting” and where he asked Leaner A to explain it in a word to him. Leaner A testified that she thought it meant that Mr. Davids was still waiting on her to send a photo or something of her. Learner A said that she felt uncomfortable. Responding to Mr. Davids’ text to explain it in a word Leaner A texted “Sexual Things”.

27. On page 9 and onwards the conversation went as follows:
Davids “Today I asked you again”
Learner A: “But you were walking and I was on the way to miss vandeross”
Davids: “Not just that moment. I asked you many times. And called you as well. So I guess you’re just messing with me”.
Learner A: “I literally don’t know how to act when iam around you I cont talk I get shy so jah”

28. Leaner A explained that Mr. Davids passed her in a corridor near Ms. Vandeross’s class and said to her that he is still waiting. She knew he referred to sexual things – to send him naked pictures of herself.

29. The conversation continues:
Davids:“Or wait. Show me rather”
Learner A:“How do you mean”
Davids: “Show me what you mean”.
Learner A: “How”
Davids: “A video or picture”,
Leaner A: “I can’t it’s my mom’s new phone”.
Davids: “Send it and delete it afterwards mos”.
Leaner A: “Really now. Whyy”
Davids: “Because I want to know”
Leaner A: “I don’t’ want to do it like that man”
Davids: “ First I want to know”
Learner A “ What do you want to know”
Davids: “What are you referring to”
Learner A: “What do you think”
Davids: “Show me”
Leaner A “Not on social media”
Davids: “But the other day I asked you and yoh also couldn’t say. OK then explain”
Learner A: “First start with kissing. All over the body a lot…Okay”
Davids: “And then”
Learner A: “Umm. What do you want to happen next”
Davids: “I’m asking you

30. Learner A testified here that she liked Mr. Davids.

31. The conversion continues:
Learner A: “And then you down on the …”
Davids: But that’s not the point”
Learner A: “hw do yu mean”
Davids: “I want you to tell me what you meant”
Leaner A: “About what”
Davids: “The thing I’ll do to you”
Learner A: “Do you want me to explain it to you but what wl you do if I explain it to you”
Davids: “Explain or show yes”
Learner: A “OK”
Davids: What question
Learner A: “About what will you do if I tl or show you”
Davids: “I will tell you after”
Learner A”Mm so you want me to tl you”
Davids: And show if possible”
Learner A: Really the only way iam going yo show you is in person”
Davids: “At least try now”
Learner A: Npe”
Davids: “Why not”

32. Leaner A testified that she did not want to show Mr. Davids because she was using her mother’s phone.

33. So the conversation continues:
Davids: “Like what”
Learner A: “Its your choice”
Davids: “Tell me”
Learner A: “Sorry I was busy dressing”
Davids: “OK”
Learner A: “JH. You never told me what you are gonna do after I told you..??? I literally don’t know how to act when iam around you I con’t talk I get shy”
Davids: “That’s why I’m saying rather send it”
Learner A: “Trust me I’m not messing with you”
Davids: “you are”
Learner A: I am not”
Davids: “I don’t believe you”
Learner A: “I don’t like it when it happens on the fhne” You look handsome today”.

34. There are some videos sent by Learner A of which the content is not on the printed record and further conversation between her and Mr. Davids.
Some of the noteworthy conversations are Learner A texting Mr. Davids: “It is i swear when you enter the class or any room I’m in I get goosebumbs I get shy I don’t know how to act I cant’ look you in your eyes when I was busy in the copy room I did look at your pictures all the time” and later “I love everything about you” and “Now how can I make a way to kiss you at school”.

35. Then the following conversations of significance:
Learner A: ‘We can’t just keep talking about it we think to after about it I wanna get wild”
Davids: “How?”
Learner A: “Anyway. But you don’t make an effect. Effet”
Davids: “Show me first what you sent that last time”
Learner A: “I don’t have it anymore”
Davids: “Then that’s that. Explain how wild”
Learner A: Why”
Davids: Nevermind (with a loving heart emoji) I’m waiting”
Learner A: “I wanna be in a room alone with you look into each other’s eyes and touch each other and start kissing and kissing and kissing”
Davids: “Touch how?
Learner A: “In what way do you wanna touch you must also say so. Something”
Davids: “Show me”

36. Learner A: “You good I really wanna kiss you at school on Tuesday”
Davids: “First send what you wanted to send me”
Learner A: “Before I go to high school. What I don’t like to send stuff anymore”
Davids: “Ok so show me what you send me”
There is a missed video chat .
Davids: “That’s Why I don’t take you seriously”
Learner A: I couldn’t I am sleeping by my mom and my sis in washing the in the bathroom.
Davids: “Always Excuses. This time of night washing”
Learner A: “Yeah. Sooo. Okay then nothing as always”

Davids: “I want to see how serious you are first”
Learner A: “there I want this” – (with emojis and a tik video of a woman)
Davids: “Not what I wanna see”
Learner A: “What do you wanna see”

37. On 17 October a tik tok video appears (page 36 of the evidence bundle). Learner A testified that she made a tik tok video of herself wearing a two-piece swimming suit and sent it to Mr. Davids. The subsequent conversation between the two are as follows:
Mr. Davids: “So do it then”
Learner A: “I did that all I have what you gonna do with it”
Davids: “Make more”
Learner A: “Why you like it”
Davids: Don’t ask questions”
Learner A: “Why not you don’t like the answers. Ok I wont Mr. Davids (with loving heart emoji). That starts today” (with emojis)
Davids: “I am waiting”

38. There are further conversations between the two that is contained in the evidence bundle. Of significance is the that on 22 October 2021 at 21h11 Learner A send a tik tok video of herself to Mr. Davids. The video shows Learner A uncovered belly.
Davids responded: “I know you wanna send me more”
Learner A: “And I know you want more” She then send Mr. Davids two more tik tok videos of herself.

39. On 23 October 2021 Mr. Davids texted “I’m waiting”. Learner A respondent with “You gonna get more tonight” and she send another tik tok video of herself to Mr. Davids at 23h24. Mr. Davids responded on 24 October 2021at 09h41 with “That all?”

40. On 25 October 2021 Learner A send another tik tok video to Mr. Davids. He respondent with “Wanna see more than that”

41. On 26 October 2021 at 21h22 Learner A again send a tik tok video to Mr. Davids. The conversation after the video was sent is as follows:
Davids: “I wanna see more than that”
Learner A: “Ask and you shall receive”
Davids: “Please send me more than that”
Learner A: “More like what I’m blank”
Davids: “Like the others. But I wanna see more of what youre hiding”
Learner A: “What”
Davids: “Nevermind if you don’t understand”
Learner A: “I don’t’ Cont you explain”
Davids: “Its fine”
Learner A: “If you say so see you on Thursday”

42. On 28 October 2021 Learner A send another tik tok video to Mr. Davids with the words “No one. What should I send” On 29 October 2021 Mr. Davids responded with “Really??”

43. Then on 30 October 2021 Leaner A send Mr. Davids naked pictures of herself, exposing her breasts. Learner A testified that she send the pictures because Mr Davids was bothering her at school.

44. On 6 November 2021 (page 51 of the bundle of evidence) at 00:02 Mr. Davids texted the words “Waiting” The evidence bundle shows more conversations, video chats between them until 12 November 2021. Learner A testified that Mr. Davids wanted her to send him something about her “under parts” but she refused.

45. The mother of Learner A testified under oath. Her name and surname is not disclosed for the purposes of this award in order to protect the identity of Leaner A.

46. She explained that Learner A is her youngest daughter and that she has health problems and well as learning challenges.

47. She testified that one of her daughters found the Instagram conversations between Learner A and Mr. Davids on her phone. The end result was that charges were laid against Mr. Davids at the SAPS. Her daughter is still under the care of a psychologist.

Closing argument
48. At the conclusion of the evidence on 12 April 2022 Ms. Diedericks requested to submit written heads of arguments by no later than 19 April 2022. I received her heads of argument on this day. She argued that in light of the oral and documentary evidence of the Instagram messaging that it is clear that Mr. Davids exploited Learner A’s vulnerability as a 14-year-old. Ms. Diedericks submitted that Mr. Davids asked Learner A multiple times to send pictures and videos of herself to him during the day and even after midnight at times until he finally succeeded to get her to the point of sending naked pictures of herself to him, which is clear proof of the lengths he has gone to, to get in touch with her and to sexually groom her. Ms. Diedericks further submitted that child sexual exploitation is a form of sexual abuse where offenders use their power (physical, financial, or emotional) over a child or young person to abuse them sexually or emotionally and she argued the WCED request for the dismissal of Mr. Davids.

ANALYSIS OF EVIDENCE AND ARGUMENTS

49. The WCED bears the onus to proof the allegations levelled against Mr. Davids on a balance of probability.

50. In WESUSA & Others vs Jacobz 2000 8 BLLR 977 (LC), the Court remarked that “the onus will be discharged if the respondent can show credible evidence that its version is the more probable and acceptable version. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondents version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradictions is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that a the end of the day one can say with conviction that one version is false and be rejected with safety”. The onus will not be discharged by raising mere suspicions of misconduct.

51. The evidence of Leaner A and the record of the conversations between her and Mr. Davids on Instagram are central to this case.

52. The imaginativeness and suggestibility of children, their memory, understanding of the importance of telling the truth, their capacity of observation, recollection and narrative ability, their age, mental ability, and development is just some of the factors that our Courts have held to be considered when scrutinising the testimony of a child. I have considered these factors. I must hasten to add that this does not mean that the evidence of children should be approached on the basis of assuming that all children make false allegations, have poor memories or is highly suggestible. There used to be a cautionary rule that applied to the evidence of complainants in sexual cases. But this rule was abolished by the Supreme Court of Appeal in its decision S v Jackson 1998 1 SACR 470 (SCA). The court per Oliver JA held: “In my view the cautionary rule in sexual assault cases is based on an irrational and out-dated perception. It unjustly stereotypes complaints in sexual cases as particularly unreliable…The evidence in a particular case may call for a cautionary approach but it a far cry from the application of a general cautionary rule”.

53. Learner A was referred to the communication on Instagram between her and Mr. Davids and asked about certain events at school. I found her to have been shy in answering some questions. This was expected due to the nature of this Inquiry. What impress me was her openness to admit when she could not recall specific events. The general quality of her testimony and her consistency within the content and structure of her own evidence and that of the record of the Instagram conversation are also factors that I considered in examining her credibility as a witness. I conclude that from the evidence presented during this Inquiry, I have no reason to question the credibility of Learner A.

54. There is further no evidence before me that the printed record of the Instagram communications that formed part of the evidence bundle was manipulated or that contents was added that did not form part of the Instagram communication between Mr. Davids and Learner A. I further accept Leaner A’s testimony that it is indeed a printed record of the conversations that she had with Mr. Davids using her mother’s phone.

55. I will now discuss the charge against Mr. Davids. The charge referred to section 18(1)(dd) of the Employment of Educators Act 76 of 1998. This section reads as follows: “(1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she – (dd) commits a common law or statutory offence”.

56. Section 18 of the Criminal Law Sexual Offences Act and Related Matters Amendment Act contains the statutory offences of the sexual grooming of children and promoting the sexual grooming of a child. The offence (in terms of the charge against Mr. Davids) is found in section 18(2)(b)(iv). Section 18 falls under Part 2 which deals with the “Sexual exploitation and sexual grooming of children, exposure or display of or causing exposure or display of child pornography or pornography to children and using children for pornographic purposes or benefiting from child pornography. Under the heading “Sexual Grooming” section 18(2)(b)(iv) reads as follows: (2) A person ("A") who— (b) commits any act with or in the presence of B (the Child Complainant) or who describes the commission of any act to or in the presence of B with the intention to encourage or persuade B or to diminish or reduce any resistance or unwillingness on the part of B to— …(iv) be exposed to child pornography or pornography”.

57. The charge against Mr. Davids then goes on to explain that he allegedly sexually groomed learner A during the 3rd and or 4th terms of 2021, by requesting explicit pictures from her via Instagram.

58. It is important to understand what sexual grooming is. Sexual grooming of a child can be defined as “a gradual process of getting a child ready to engage in sexual relations by breaking down inhibitions over a period of time” (Centre for Applied Legal Studies & Tshwaranang Legal Advocacy Centre) and as “debriefing and establishing an emotional connection with a child to lower the child’s defenses for purposes of sexual abuse” as recently stated in a post by the South African Police Services.

59. Grooming behaviour are not uniform and can take physical, psychological, material and emotional forms, or a combination of these. The ultimate aims are to desentise the child and to lower the child’s sexual inhibitions and normalise adult-child sexual relations (Forms of educator-on-learner sexual misconduct redefined Susan Coetzee Department of Teacher Education, University of South Africa).

60. Grooming is the way in which somebody may get close to a child, with the intention of sexually exploiting them. Groomers engages in predatory conduct with an aim to gain the trust of a child, so they are able to manipulate or take advantage of them. Sometimes it may be hard to identify when someone is being groomed until after they have been sexually abused, because grooming behaviour can sometimes look like ‘normal’ caring behaviour. Examples of grooming behaviour may include: giving gifts, advice or special attention to a child to build a relationship or other emotional connection; making the child feel special or indebted to an adult; making close physical contact sexual, such as inappropriate tickling and wrestling or play fighting, openly or pretending to accidentally expose the victim to nudity, sexual material and sexual acts (this in itself is classified as child sexual abuse but can also be a precursor to physical sexual assault), controlling a child through threats, force or use of authority; making the child fearful to report unwanted behaviour.

61. Children are often groomed before they are sexually abused. At first, they may be tricked into thinking they are in a safe and normal relationship so they may not know it’s happening or may feel they have no choice but to be abused.

62. This is a nutshell is what grooming entails.

63. I will now deal with the evidence. I am persuaded by the evidence presented by Leaner A and by the Instagram communication between them as have I referred at length in the summary of the evidence that Mr. Davids used 1) the significant age gap between him and Leaner A, 2) his experience, and 3) his authority as an educator, to exercise inappropriate power or control over Leaner A. It is evident from the conversations between them that Leaner A, the victim in this case, believed they were in a friendly relationship with the possible expectation of a future loving relationship. Mr. Davids used his power over the minor child to coerce her and to eventually abuse her by achieving his goal to get her to send him inappropriate videos / pictures of a sextual nature. He was deceptive and manipulative in the way he went about grooming Leaner A. He first started by showing an interest Leaner A, inviting her to Instagram and then slowly at first and later repeatedly over an extended period of time asked her to reveal more of herself to him. Leaner A have entered into this fake loving relationship or friendship with the Mr. Davids but he slowly gaining more control over Leaner A to the point when he persuaded her to expose herself to him. After months, on 30 October 2021 he achieved in one of goals when Learner A send him pictures on Instagram of her exposed breasts. He sexually groomed Learner A.

64. Having considered all the evidence, I find Mr. Davids guilty of the charge levelled against.

65. The WCED has called for the dismissal of Mr. Davids.

66. It is trite that mitigating factors such as the personal circumstances of an employee should normally be considered before deciding the appropriate sanction. Mr. Davids has not attended this Inquiry and presented no mitigating arguments. I did however consider that 1) he is employed as a level 1 educator; 2) that no evidence was presented of him being found guilty of similar misconduct in the past; and 3) that he will probably find it difficult to secure employment in the education sector if he is dismissed.

67. I have also considered that the South African Constitution stipulates that every person has the right to human dignity (section 10) as well as freedom and security, including the right to bodily and psychological integrity (section 12). And that a child has the right to be protected from maltreatment, neglect, abuse, or degradation (section 28(1)(d)) and should not be required to commit acts that i) are inappropriate for a person of that child’s age; or ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral, or social development (section 28(1)). The Constitution also states that the best interest of the child shall be paramount in any matters affecting the child (section 28(2)). In this regard the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC, held that section 28 of the Constitution impresses an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance. Courts and administrative authorities are constitutionally bound to consider the effect their decision will have on children’s lives.

68. Further I considered the Code of Professional Ethics contained in section 3 of the South African Council for Educators (SACE), Act 31 of 2000, which provided that an educator must inter alia: respects the dignity and constitutional rights of learners; avoid any form of humiliation, and refrains from any form of abuse, physical or psychological; refrain from any form of sexual harassment (physical or otherwise) of learners; refrains from any form of sexual relationship with learners from any school; take steps to ensure the safety of the learner; and not abuse the position he or she holds for inter alia personal gain

69. Mr. Davids has unfortunately conducted himself contrary to this Code and he has failed dismally in his obligations as an educator. He was supposed to protect Learner A and not to manipulate, abuse and sexually groom her. Any form of sexual grooming cannot be tolerated in the South African school system.

70. I would like conclude with the following quote “Our children are our greatest treasure. They are our future. Those who abuse them tear at the fabric of our society and weaken our nation” Nelson Mandela (22 November 1997).

71. I find the summary dismissal of Mr. Davids to be the only appropriate sanction.

72. In terms of section 18(1)(q) of the Employment of Educators Act, it constitutes misconduct if an educator “while on du
73. Lastly, I have informed Ms. Diedericks at the commencement of the Inquiry that section 120(1) of the Children’s Act, No 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” Section 120(2) of the act provides that a finding that a person is unsuitable to work with children may be made by such forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children.

74. I informed Ms. Diedericks that the WCED may make such an application during the course of the proceedings or at the end of the proceedings. I can only make such a finding after the accused employee had an opportunity to make submissions why such finding should not be made.

75. The WCED representative did not make such an application either during or at the end of this inquiry. Whilst I can make such a finding on own accord, I find that in the absence of such an application by the WCED and in the absence of the accused employee not having had an opportunity to make submission as to why such a finding should not be made, I cannot make a finding at this stage as to whether or not the accused employee must be declared unsuitable to work with children (my emphasis). In these circumstances it will be more appropriate for the South African Council for Educators (SACE) to consider revoking the SACE certificate of Mr. Davids and declaring him unsuitable, in terms of the Children’s Act, to work with children.

AWARD
1. I find Mr. Davids guilty on charge 1.
2. The sanction is summary dismissal.
3. The WCED must inform Mr. Davids of the date of his summary dismissal.
4. The ELRC is directed to send a copy of this award to the South African Council for Educators (SACE) to consider revoking Mr. Davids SACE certificate and declaring him unsuitable, in terms of the Children’s Act to work with children.


ELRC Commissioner: Jacques Buitendag