PSES115-18/19WC
Text
ELRC530-21/22GP
Award Date:
10 May 2022
Panellist: Themba Manganyi
Case No.: ELRC530-21/22GP
Dates of Hearing: 19 November 2021 & 25 February 2022
Date of Arguments: 08 March 2022
Date of Award: 10 May 2022
In the Inquiry by Arbitrator Hearing between
GAUTENG DEPARTMENT OF EDUCATION EMPLOYER
and
NDIFHEDZO MANENZHE EMPLOYEE
Employer’s representative: Ms Pulane Tafane
Employee’s representative: Self
Details of hearing and representation
1. The Inquiry by Arbitrator (s188A of the Labour Relations Act 66 of 1995 (“the LRA”), as amended) process was conducted on 19 November 2021 at Gauteng West District Office in Krugersdorp and on 25 February 2022 at the GDE Head Office in Marshalltown under the auspice of the Education Labour Relations Council (“the Council”).
2. The parties are the Gauteng Department of Education, the Employer and Mr Ndifhedzo Manenzhe (“Manenzhe”), the Employee. Ms Pulane Tafane (“Tafane”), the IR Officer, represented the Employer and Manenzhe represented himself.
3. Only the Employer submitted a bundle of documents into the record and the contents thereof were not disputed. The Employer also submitted a voice recording into the record. Parties were allowed to call and cross-examine witnesses. Minor witnesses testified with the aid of an intermediary and an interpreter. Parties agreed to submit their heads of arguments on or before 08 March 2022 and I duly received same. The proceedings were digitally recorded and the recordings thereof were retained by the Council.
Issue/s to be decided
4. I have to determine whether the two allegations that the Employer preferred against Manenzhe have merit or not. In the event that I find that they have merit, I would be required to determine the appropriate sanction.
Rights and the nature of the process
5. All the rights commensurate with a fair process and the nature of the process were explained to the parties. The parties confirmed that they understood the process. However, mid-process Manenzhe claimed that he did not understand the process. Manenzhe was on record that he will be representing himself and that he will not be calling any witnesses.
Allegations
6. The Employer preferred the following allegations against Manenzhe:
Allegation 1:
It is alleged that, during the month of April 2021, you were involved in a sexual relationship with GM a Grade 11 learner at Thuto Pele Secondary School where you are teaching.
You are hereby charged with misconduct in terms of Section 17(1)(b) of the Employment of Educators Act 76 of 1998 as amended.
Allegation 2:
It is alleged that, during the months May and June 2021, you were involved in a sexual relationship with KM, a Grade 11 learner at Thuto Pele Secondary School where you are teaching.
You are hereby charged with misconduct in terms of Section 17(1)(b) of the Employment of Educators Act 76 of 1998 as amended.
NOTE: THE NAMES OF THE LEARNERS (WHO ARE MINORS) HAVE BEEN CONCELEAD IN THIS AWARD TO PROTECT THEIR IDENTITIES.
Pleadings
7. Manenzhe pleaded NOT GUILTY to both allegations.
Survey of evidence and arguments
8. What follows hereunder is a summary of the evidence and not a verbatim account of what was stated during these proceedings. However, it must not be construed that I have disregarded some of the evidence. I only state what I considered to be of relevance for me to make a fair and reasonable determination in this matter.
The Employer’s case
9. Mr Moses Sinyosi (“Sinyosi”) testified under oath and stated that he was the Principal at Thuto Pele Secondary School and that he was the author of the letter on page 4 of the bundle of documents. He stated that he wrote this letter after GM’s boyfriend came to the school to complain about one of the Educators who had an affair with his girlfriend. The boyfriend did not know the name of the Educator, but he gave Sinyosi the cellphone number of the Educator. When Sinyosi called the cellphone number and Manenzhe answered the call. Sinyosi requested Manenzhe to come to his office. Manenzhe and the boyfriend did not know each other. However, there were text messages that the two were communicating on. He asked Manenzhe if it was true that he was having an affair with GM, but he denied that he had an affair with GM. He then dismissed the boyfriend and Manenzhe and he called GM. GM initially denied that she had an affair with Manenzhe, but she later conceded that she had an affair and that they had sexual intercourse twice or thrice at Manenzhe’s place in Toekomsrus.
10. Under cross-examination, he stated that GM could have denied that at first that she had an affair with Manenzhe maybe to protect him. He stated that the boyfriend came to report to the school after he had an altercation with Manenzhe on the text messages.
11. Mr Goodman Dlamini (“Dlamini”) testified under oath and stated that the reason that he went to the school on 14 June 2021 was because Manenzhe threatened him in a text message that should he go to the school he (Manenzhe) would strike him with a lightening. He stated that he was dating GM and Manenzhe told him that GM was pregnant. GM and her friend KM confirmed that GM was pregnant. On 27 April 2021 when they were coming back from Key West, GM gave him her phone and he scrolled through her WhatsApp messages and he saw her conversations with Manenzhe. She had saved Manenzhe as Choma. When he asked GM about who was Choma, she said it was not someone important and he went to ask KM (GM’s friend) about this Choma person. KM confirmed that Choma was an Accounting Educator. He got the name of the Educator from the voice note. GM confirmed that it was Manenzhe and he was assisting her with Accounting. He testified that GM informed him that she went with Manenzhe to Randfontein. Manenzhe bought food and they also had wine. After that they engaged in a sexual intercourse without protection. He stated that Manenzhe and GM had sexual intercourse on three occasions, which is on 07, 17 and 24 April 2021.
12. He was referred to page 31 and 69 of the bundle and he confirmed that it was the WhatsApp conversations between him and Manenzhe. He testified that KM informed him that she had a sexual intercourse with Manenzhe. He confirmed that page 71 and 74 were WhatsApp conversations between KM and him. He stated that GM informed him that KM was a virgin when she had sexual intercourse with Manenzhe.
13. Under cross-examination, he stated that GM did not tell him that she had family issues and that she only mentioned that she was struggling because her mother was not working. He stated that he was aware that GM did not want to have his baby because she was afraid of her father, but GM told him that she would keep the baby. He reiterated that Manenzhe told him in his text that he would strike him with a lightening (see page 66 of the bundle). He could not recall where he got Manenzhe’s contact details. He stated that GM did not report him because Manenzhe was threatening her.
14. KM testified under oath and stated that she was 17 years old and was in Grade 11 in 2021 at Thuto Pele Secondary School and that Manenzhe was an Accounting Educator at the school. She stated that she started having WhatsApp conversations with Manenzhe requesting him to have Saturday’s classes for Accounting. At first, their conversations were school work related and after that they started talking about the status of their relationships. She told Manenzhe that she was single and Manenzhe told her that he had many girlfriends. She testified that she asked Manenzhe if they could have a relationship, but Manenzhe said that it was not possible for them to have a relationship and he gave her his brother’s numbers. She stated that she was referring to Manenzhe on page 71 when she said “Moguy” and Sir. She stated that she slept with Manenzhe on 08 and 16 May 2021 and on 02 June 2021. She stated that Manenzhe broke her virginity.
15. Under cross-examination, she confirmed that she attended the same class with GM and that she knew Dlamini through GM as he was GM’s boyfriend. She confirmed that Manenzhe told her twice or three times that he will not date her because she was a learner. She stated that there was no one who saw her getting into Manenzhe’s car. She stated that she did not have any prove that she was in his car or in his room. She stated that she did not see Manenzhe’s birth mark. She confirmed that Manenzhe asked for her profile picture. She confirmed that Manenzhe told her that it was unprofessional to complement her on her beauty. She stated that Manenzhe ejaculated inside her and gave her money to buy the morning after pills, but Manenzhe disputed that version.
16. GM testified under oath that she was in Grade 11 in 2021 at Thuto Pele Secondary School and Manenzhe taught her Accounting. She stated that Manenzhe called her whilst Tafane visited her home to investigate the case. She testified that Manenzhe told her that she must deny that he took her to his place and had sex. She stated that she had sexual intercourse with Manenzhe on 02, 17 and 24 April 2021 in his place at Toekomsrus. She stated that when they got to Manenzhe’s room on 02 April 2021, Manenzhe started touching her breasts and undressed her and had sex with her. After they had sex, Manenzhe asked her why was she having a big tummy and if she was pregnant. She stated that on 17 April 2021, Manenzhe picked her up at the Randfontein Road and took her to his place. When they got there, they chatted and Manenzhe wanted to have sex with her, but she refused. Manenzhe forcefully had sex with her and he took her home at around 18h00. She testified that Manenzhe picked her up again on 24 April 2021 at Randfontein Road and took her to this place. They had sex, but it was not forceful this time. She confirmed that the WhatsApp chats on page 39 – 42 were Manenzhe and Dlamini’s chats and the screenshots on the chat were hers while chatting with Manenzhe. She stated that she was chatting with Manenzhe about the first day that they met and had sexual intercourse.
17. Under cross-examination, she stated that she did not report the case on her own because Manenzhe was threatening her. She stated that Manenzhe asked her if she was pregnant and she only confirmed that she was pregnant after she has consulted. She confirmed that she gave Manenzhe Dlamini’s number after Manenzhe requested for it. She stated that Dlamini was the father of her baby because she was told when she consulted that she conceived in March 2021. She stated that when she went with Manenzhe at his place, she once found a lady there. She stated that her chats with Manenzhe prove that they had a relationship. She did not know where Manenzhe’s birth mark was positioned on his body.
The Employee’s case
18. Manenzhe testified under oath and he did not call any witness in his defense. He stated that GM told him about her home problems and she also said that she had a problem with her boyfriend (Dlamini) because he wanted a baby. He testified that GM wanted him to help her by pretending as if they were dating so that they can make Dlamini jealous so that Dlamini could leave her. Dlamini got hold of their WhatsApp chats and at that time GM discovered that she was pregnant. GM told him that she cannot separate with Dlamini and they (GM and Dlamini) decided to report him.
19. He testified that KM could have seen his WhatsApp chats with GM when they were acting and she decided to pursue him. He told KM that he cannot date her as she was a learner. He testified that GM, KM and Dlamini made up a story to take him down and that the trio is supporting each other. He denied that the voice on the recording was his voice. He stated that he threatened Dlamini because Dlamini kept on calling him until the mother of his baby left him. So he decided to hit back at Dlamini.
20. Under cross-examination, he confirmed that he agreed to assist GM by pretending that they were dating. He stated that when he assisted GM he thought about his profession, but he never thought that the matter will get to where it was. He stated that he told KM that he cannot date her because he did not want to hurt her. When he was referred to page 31, he stated that his apology was an instruction from GM and he was told to say that he would contribute R2 000, 00 towards the DNA test. It was put to him that he wanted to contribute the R2 000, 00 towards the DNA test because he had a relationship with GM and KM and that he was not sure who the father of GM’s child was. He disputed to ever having had a relationship with GM and KM. He stated that the conversation on page 35 regarding bribing was sent by GM to him so that he could forward it to Dlamini. He confirmed that he initiated the conversation with Dlamini after GM gave him Dlamini’s number. He stated that in some of his responses, he was responding to hurt Dlamini. On the issue of dating more girls at the school, he stated that he was just saying that so that it could look real because he was hurting Dlamini. He conceded that what he did was not professional.
Closing arguments
21. As indicated herein above that the parties submitted their heads of arguments in writing, I do not propose to restate them in this award as they are a matter of record. I will only make mention of them in my analysis whenever necessary.
Analysis of evidence and argument
22. It is the requirement of section 138(7) of the LRA, that a commissioner must issue an award with brief reasons.
23. It cannot be denied that the allegations that are levelled against Manenzhe are very serious in nature. The Employer preferred allegations against Manenzhe in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998 (“the Act”), as amended. Arbitrators are expected to impose a sanction of dismissal if an educator is found guilty on any of the listed cases of misconduct in section 17 of the Act. An educator’s previous record or any mitigating circumstances may not save the educator from dismissal because a guilty verdict goes automatically with a sanction of dismissal.
24. I was presented with two versions in this matter. In deciding which version is more probable, I have adopted the approach from the National Employers’ General Insurance Co Ltd v Jagers judgement where it is stated that where there are two mutually destructive versions, a party can only succeed if it satisfies the court on a balance of probabilities that its version is true and accurate and thus acceptable, and that the other version advanced by the opposing party is therefore false or mistaken and falls to be rejected. Obviously, one has to assess the credibility, reliability and demeanour of witnesses in the process.
25. I was mindful from the onset of these proceedings that Manenzhe was a lay person and I took pains to explain the process to him. However, I was taken aback when Manenzhe alleged when he was testifying that he did not understand the process and that he did not know that he had to put a version to the witnesses. This on its own made me to conclude that Manenzhe was being untruthful in these proceedings.
26. In these proceedings, the Employer bears the onus to proof, on a balance of probabilities, that the Employee is guilty as charged. The Employer’s witnesses impressed me as witnesses. They were credible and reliable in their evidence in chief and even during cross examination, they maintained their versions. They tendered their evidence coherently and honestly. On the other hand, Manenzhe employed a bare denial tactic throughout these proceedings and he was evasive in responding to most of the questions.
27. Tafane relied on the WhatsApp chats between Manenzhe and Dlamini, Manenzhe and GM and Manenzhe and KM to prove the Employer’s case. In his defense, Manenzhe stated that he was assisting GM to act as if they were dating in order to hurt Dlamini and that the WhatsApp chats between him and Dlamini were sent to him (Manenzhe) by GM in order for him to send to Dlamini. I find this version very unbelievable and disingenuous of Manenzhe to want this tribunal to believe that he took instructions from GM (a minor) in order to hurt Dlamini so that Dlamini can break up with GM. Even if I were to believe his version, he was still contravening the SACE Code of Professional Ethics.
28. It was KM’s evidence that she was the one who made advances for a relationship with Manenzhe (see page 12 – 27). At first, Manenzhe acted in manner that was expected of a model educator. He rejected KM’s advances and he even threatened KM that he will report her should she persist with her advances. However, Manenzhe did not report KM to anyone for reason only known to him.
29. KM testified that Manenzhe later told her that he wanted to break her virginity. This version was not challenged when KM was cross examined. I must indicate herein now that Manenzhe was informed that if a version is not challenged, I will consider that to be the gospel truth. Thus, I consider KM’s version as the gospel truth. Consequently, I find that Manenzhe eventually succeeded to have his way with KM and broke her virginity when they had their first sexual encounter on 08 May 2021 at his place of residence in Toekomsrus. Manenzhe defense in this regard was that KM would have seen his birth mark if they had slept together. I agree with Tafane’s closing argument that if the learners were never in Manenzhe’s place, they would not have known that his room had an en suite bathroom. I find Manenzhe’s version that he always posted his pictures being in his room not conclusive that a person could tell the set-up of the room from the photos.
30. I wish to deal with some of the chats between Manenzhe and the witnesses briefly and Manenzhe’s evidence to show that Manenzhe’s conduct was not acceptable and was in contravention with the SACE Act 31 of 2000. The SACE Act stipulates the Code of Professional Ethics for Educators (“the Code”) wherein it is stated that an Educator refrains from any form of sexual relationship with learners at school and uses appropriate language and behaviour in his or her interaction with learners, and acts in such a way as to elicit respect from learners.
• Manenzhe testified that he agreed to ‘act’ as if he was in a relationship with GM in order to hurt Dlamini – the Code prohibits any form of sexual relationship with learners;
• On page 31, Manenzhe apologized to Dlamini for what has happened between him and GM – in his defense, these chats from page 31 to 34 were sent by GM to him to send to Dlamini. I find this hard to believe after having read the whole chats. It would be expected of a reasonable man that when he realized that the ‘act’ was now turning ugly, he would have come clean with Dlamini that he was not actually dating GM, but he failed to so;
• On page 40, 41 and 47 Manenzhe stated that this was the acting part between her and GM – Manenzhe did not dispute GM’s version when she said she enjoyed her day with him (page 47), she was referring to their first encounter of engaging in sexual intercourse. I find that Manenzhe’s language with GM was not in keeping with the Code;
• On page 50 and 52, Manenzhe sent a WhatsApp to Dlamini alluding to the fact that he did not force GM and that GM was not the first girl that he has dated at the school – Manenzhe could not respond during cross-examination as to what he was referring to when he said he did not force GM to him;
• On page 66, Manenzhe sent a WhatsApp message to Dlamini telling him that if he (Dlamini) came closer to him, he (Dlamini) will struck him by thunder – at first, Manenzhe denied that he has ever threatened Dlamini, but he later conceded when he was referred to this chat. Therefore, I conclude that Manenzhe was economical with the truth;
• On page 71, KM confirmed to Dlamini that she took a decision to sleep with Manenzhe – this was a conversation where GM was not involved in. Therefore, it cannot be said that there was an ‘act’ or an instruction as Manenzhe had suggested on other conversations;
• The telephone voice note where it was alleged that Manenzhe called GM at the time Tafane visited GM to investigate the allegations against Manenzhe – Manenzhe denied that it was his voice on the recorded telephone conversation. I cannot say with conclusive conviction that it was his voice. However, at the same time, I cannot find any reason why Tafane would manipulate the said telephone conversation if it was not Manenzhe and GM who were talking.
31. After having considered all the evidence, I find Manenzhe’s assertion that Dlamini, GM and KM were conniving to take him down without any merit as I cannot find any nexus link between the evidence that was presented in this tribunal and the presence of a motive to connive against Manenzhe. Subsequently, I find that the Employer succeeded in discharging its burden of proof on a balance of probabilities on both allegations that were levelled against Manenzhe. Thus, I find Manenzhe guilty as charged on both allegations.
32. In their closing arguments, parties made submissions in line with the prescripts of section 120(3) of the Children’s Act 38 of 2005. Tafane argued that Manenzhe must be declared unfit to work with children at any stage and anywhere. On the other hand, Manenzhe argued that he has never raped or touched any of his learners’ private parts and that he did not have any relationship with GM or KM or any other learner. He prayed that I should find in his favour.
Award
I find that:
33. Mr Ndifhedzo Manenzhe is GUILTY of allegation 1 and 2 levelled against him. Consequently, Manenzhe is guilty of contravening the prescripts of section 17(1)(b) of the Employment of Educators Act 76 of 1998.
34. In view of my guilty finding, it is mandatory that I return a dismissal sanction as prescribed in section 17(1) of the Employment of Educators Act. Ttherefore, Mr Ndifhedzo Manenzhe is hereby dismissed with immediate effect from the Department of Education: Gauteng
35. I also find that Mr Ndifhedzo Manenzhe is unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the Council must, in terms of section 120(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the finding of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005 that Mr Ndifhedzo Manenzhe is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
36. I further find that the Educator, Mr Ndifhedzo Manenzhe as a consequence to the transgressions as referred to in paragraph 6 herein-above is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.
Arbitrator: Themba Manganyi
Case No.: ELRC530-21/22GP
Dates of Hearing: 19 November 2021 & 25 February 2022
Date of Arguments: 08 March 2022
Date of Award: 10 May 2022
In the Inquiry by Arbitrator Hearing between
GAUTENG DEPARTMENT OF EDUCATION EMPLOYER
and
NDIFHEDZO MANENZHE EMPLOYEE
Employer’s representative: Ms Pulane Tafane
Employee’s representative: Self
Details of hearing and representation
1. The Inquiry by Arbitrator (s188A of the Labour Relations Act 66 of 1995 (“the LRA”), as amended) process was conducted on 19 November 2021 at Gauteng West District Office in Krugersdorp and on 25 February 2022 at the GDE Head Office in Marshalltown under the auspice of the Education Labour Relations Council (“the Council”).
2. The parties are the Gauteng Department of Education, the Employer and Mr Ndifhedzo Manenzhe (“Manenzhe”), the Employee. Ms Pulane Tafane (“Tafane”), the IR Officer, represented the Employer and Manenzhe represented himself.
3. Only the Employer submitted a bundle of documents into the record and the contents thereof were not disputed. The Employer also submitted a voice recording into the record. Parties were allowed to call and cross-examine witnesses. Minor witnesses testified with the aid of an intermediary and an interpreter. Parties agreed to submit their heads of arguments on or before 08 March 2022 and I duly received same. The proceedings were digitally recorded and the recordings thereof were retained by the Council.
Issue/s to be decided
4. I have to determine whether the two allegations that the Employer preferred against Manenzhe have merit or not. In the event that I find that they have merit, I would be required to determine the appropriate sanction.
Rights and the nature of the process
5. All the rights commensurate with a fair process and the nature of the process were explained to the parties. The parties confirmed that they understood the process. However, mid-process Manenzhe claimed that he did not understand the process. Manenzhe was on record that he will be representing himself and that he will not be calling any witnesses.
Allegations
6. The Employer preferred the following allegations against Manenzhe:
Allegation 1:
It is alleged that, during the month of April 2021, you were involved in a sexual relationship with GM a Grade 11 learner at Thuto Pele Secondary School where you are teaching.
You are hereby charged with misconduct in terms of Section 17(1)(b) of the Employment of Educators Act 76 of 1998 as amended.
Allegation 2:
It is alleged that, during the months May and June 2021, you were involved in a sexual relationship with KM, a Grade 11 learner at Thuto Pele Secondary School where you are teaching.
You are hereby charged with misconduct in terms of Section 17(1)(b) of the Employment of Educators Act 76 of 1998 as amended.
NOTE: THE NAMES OF THE LEARNERS (WHO ARE MINORS) HAVE BEEN CONCELEAD IN THIS AWARD TO PROTECT THEIR IDENTITIES.
Pleadings
7. Manenzhe pleaded NOT GUILTY to both allegations.
Survey of evidence and arguments
8. What follows hereunder is a summary of the evidence and not a verbatim account of what was stated during these proceedings. However, it must not be construed that I have disregarded some of the evidence. I only state what I considered to be of relevance for me to make a fair and reasonable determination in this matter.
The Employer’s case
9. Mr Moses Sinyosi (“Sinyosi”) testified under oath and stated that he was the Principal at Thuto Pele Secondary School and that he was the author of the letter on page 4 of the bundle of documents. He stated that he wrote this letter after GM’s boyfriend came to the school to complain about one of the Educators who had an affair with his girlfriend. The boyfriend did not know the name of the Educator, but he gave Sinyosi the cellphone number of the Educator. When Sinyosi called the cellphone number and Manenzhe answered the call. Sinyosi requested Manenzhe to come to his office. Manenzhe and the boyfriend did not know each other. However, there were text messages that the two were communicating on. He asked Manenzhe if it was true that he was having an affair with GM, but he denied that he had an affair with GM. He then dismissed the boyfriend and Manenzhe and he called GM. GM initially denied that she had an affair with Manenzhe, but she later conceded that she had an affair and that they had sexual intercourse twice or thrice at Manenzhe’s place in Toekomsrus.
10. Under cross-examination, he stated that GM could have denied that at first that she had an affair with Manenzhe maybe to protect him. He stated that the boyfriend came to report to the school after he had an altercation with Manenzhe on the text messages.
11. Mr Goodman Dlamini (“Dlamini”) testified under oath and stated that the reason that he went to the school on 14 June 2021 was because Manenzhe threatened him in a text message that should he go to the school he (Manenzhe) would strike him with a lightening. He stated that he was dating GM and Manenzhe told him that GM was pregnant. GM and her friend KM confirmed that GM was pregnant. On 27 April 2021 when they were coming back from Key West, GM gave him her phone and he scrolled through her WhatsApp messages and he saw her conversations with Manenzhe. She had saved Manenzhe as Choma. When he asked GM about who was Choma, she said it was not someone important and he went to ask KM (GM’s friend) about this Choma person. KM confirmed that Choma was an Accounting Educator. He got the name of the Educator from the voice note. GM confirmed that it was Manenzhe and he was assisting her with Accounting. He testified that GM informed him that she went with Manenzhe to Randfontein. Manenzhe bought food and they also had wine. After that they engaged in a sexual intercourse without protection. He stated that Manenzhe and GM had sexual intercourse on three occasions, which is on 07, 17 and 24 April 2021.
12. He was referred to page 31 and 69 of the bundle and he confirmed that it was the WhatsApp conversations between him and Manenzhe. He testified that KM informed him that she had a sexual intercourse with Manenzhe. He confirmed that page 71 and 74 were WhatsApp conversations between KM and him. He stated that GM informed him that KM was a virgin when she had sexual intercourse with Manenzhe.
13. Under cross-examination, he stated that GM did not tell him that she had family issues and that she only mentioned that she was struggling because her mother was not working. He stated that he was aware that GM did not want to have his baby because she was afraid of her father, but GM told him that she would keep the baby. He reiterated that Manenzhe told him in his text that he would strike him with a lightening (see page 66 of the bundle). He could not recall where he got Manenzhe’s contact details. He stated that GM did not report him because Manenzhe was threatening her.
14. KM testified under oath and stated that she was 17 years old and was in Grade 11 in 2021 at Thuto Pele Secondary School and that Manenzhe was an Accounting Educator at the school. She stated that she started having WhatsApp conversations with Manenzhe requesting him to have Saturday’s classes for Accounting. At first, their conversations were school work related and after that they started talking about the status of their relationships. She told Manenzhe that she was single and Manenzhe told her that he had many girlfriends. She testified that she asked Manenzhe if they could have a relationship, but Manenzhe said that it was not possible for them to have a relationship and he gave her his brother’s numbers. She stated that she was referring to Manenzhe on page 71 when she said “Moguy” and Sir. She stated that she slept with Manenzhe on 08 and 16 May 2021 and on 02 June 2021. She stated that Manenzhe broke her virginity.
15. Under cross-examination, she confirmed that she attended the same class with GM and that she knew Dlamini through GM as he was GM’s boyfriend. She confirmed that Manenzhe told her twice or three times that he will not date her because she was a learner. She stated that there was no one who saw her getting into Manenzhe’s car. She stated that she did not have any prove that she was in his car or in his room. She stated that she did not see Manenzhe’s birth mark. She confirmed that Manenzhe asked for her profile picture. She confirmed that Manenzhe told her that it was unprofessional to complement her on her beauty. She stated that Manenzhe ejaculated inside her and gave her money to buy the morning after pills, but Manenzhe disputed that version.
16. GM testified under oath that she was in Grade 11 in 2021 at Thuto Pele Secondary School and Manenzhe taught her Accounting. She stated that Manenzhe called her whilst Tafane visited her home to investigate the case. She testified that Manenzhe told her that she must deny that he took her to his place and had sex. She stated that she had sexual intercourse with Manenzhe on 02, 17 and 24 April 2021 in his place at Toekomsrus. She stated that when they got to Manenzhe’s room on 02 April 2021, Manenzhe started touching her breasts and undressed her and had sex with her. After they had sex, Manenzhe asked her why was she having a big tummy and if she was pregnant. She stated that on 17 April 2021, Manenzhe picked her up at the Randfontein Road and took her to his place. When they got there, they chatted and Manenzhe wanted to have sex with her, but she refused. Manenzhe forcefully had sex with her and he took her home at around 18h00. She testified that Manenzhe picked her up again on 24 April 2021 at Randfontein Road and took her to this place. They had sex, but it was not forceful this time. She confirmed that the WhatsApp chats on page 39 – 42 were Manenzhe and Dlamini’s chats and the screenshots on the chat were hers while chatting with Manenzhe. She stated that she was chatting with Manenzhe about the first day that they met and had sexual intercourse.
17. Under cross-examination, she stated that she did not report the case on her own because Manenzhe was threatening her. She stated that Manenzhe asked her if she was pregnant and she only confirmed that she was pregnant after she has consulted. She confirmed that she gave Manenzhe Dlamini’s number after Manenzhe requested for it. She stated that Dlamini was the father of her baby because she was told when she consulted that she conceived in March 2021. She stated that when she went with Manenzhe at his place, she once found a lady there. She stated that her chats with Manenzhe prove that they had a relationship. She did not know where Manenzhe’s birth mark was positioned on his body.
The Employee’s case
18. Manenzhe testified under oath and he did not call any witness in his defense. He stated that GM told him about her home problems and she also said that she had a problem with her boyfriend (Dlamini) because he wanted a baby. He testified that GM wanted him to help her by pretending as if they were dating so that they can make Dlamini jealous so that Dlamini could leave her. Dlamini got hold of their WhatsApp chats and at that time GM discovered that she was pregnant. GM told him that she cannot separate with Dlamini and they (GM and Dlamini) decided to report him.
19. He testified that KM could have seen his WhatsApp chats with GM when they were acting and she decided to pursue him. He told KM that he cannot date her as she was a learner. He testified that GM, KM and Dlamini made up a story to take him down and that the trio is supporting each other. He denied that the voice on the recording was his voice. He stated that he threatened Dlamini because Dlamini kept on calling him until the mother of his baby left him. So he decided to hit back at Dlamini.
20. Under cross-examination, he confirmed that he agreed to assist GM by pretending that they were dating. He stated that when he assisted GM he thought about his profession, but he never thought that the matter will get to where it was. He stated that he told KM that he cannot date her because he did not want to hurt her. When he was referred to page 31, he stated that his apology was an instruction from GM and he was told to say that he would contribute R2 000, 00 towards the DNA test. It was put to him that he wanted to contribute the R2 000, 00 towards the DNA test because he had a relationship with GM and KM and that he was not sure who the father of GM’s child was. He disputed to ever having had a relationship with GM and KM. He stated that the conversation on page 35 regarding bribing was sent by GM to him so that he could forward it to Dlamini. He confirmed that he initiated the conversation with Dlamini after GM gave him Dlamini’s number. He stated that in some of his responses, he was responding to hurt Dlamini. On the issue of dating more girls at the school, he stated that he was just saying that so that it could look real because he was hurting Dlamini. He conceded that what he did was not professional.
Closing arguments
21. As indicated herein above that the parties submitted their heads of arguments in writing, I do not propose to restate them in this award as they are a matter of record. I will only make mention of them in my analysis whenever necessary.
Analysis of evidence and argument
22. It is the requirement of section 138(7) of the LRA, that a commissioner must issue an award with brief reasons.
23. It cannot be denied that the allegations that are levelled against Manenzhe are very serious in nature. The Employer preferred allegations against Manenzhe in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998 (“the Act”), as amended. Arbitrators are expected to impose a sanction of dismissal if an educator is found guilty on any of the listed cases of misconduct in section 17 of the Act. An educator’s previous record or any mitigating circumstances may not save the educator from dismissal because a guilty verdict goes automatically with a sanction of dismissal.
24. I was presented with two versions in this matter. In deciding which version is more probable, I have adopted the approach from the National Employers’ General Insurance Co Ltd v Jagers judgement where it is stated that where there are two mutually destructive versions, a party can only succeed if it satisfies the court on a balance of probabilities that its version is true and accurate and thus acceptable, and that the other version advanced by the opposing party is therefore false or mistaken and falls to be rejected. Obviously, one has to assess the credibility, reliability and demeanour of witnesses in the process.
25. I was mindful from the onset of these proceedings that Manenzhe was a lay person and I took pains to explain the process to him. However, I was taken aback when Manenzhe alleged when he was testifying that he did not understand the process and that he did not know that he had to put a version to the witnesses. This on its own made me to conclude that Manenzhe was being untruthful in these proceedings.
26. In these proceedings, the Employer bears the onus to proof, on a balance of probabilities, that the Employee is guilty as charged. The Employer’s witnesses impressed me as witnesses. They were credible and reliable in their evidence in chief and even during cross examination, they maintained their versions. They tendered their evidence coherently and honestly. On the other hand, Manenzhe employed a bare denial tactic throughout these proceedings and he was evasive in responding to most of the questions.
27. Tafane relied on the WhatsApp chats between Manenzhe and Dlamini, Manenzhe and GM and Manenzhe and KM to prove the Employer’s case. In his defense, Manenzhe stated that he was assisting GM to act as if they were dating in order to hurt Dlamini and that the WhatsApp chats between him and Dlamini were sent to him (Manenzhe) by GM in order for him to send to Dlamini. I find this version very unbelievable and disingenuous of Manenzhe to want this tribunal to believe that he took instructions from GM (a minor) in order to hurt Dlamini so that Dlamini can break up with GM. Even if I were to believe his version, he was still contravening the SACE Code of Professional Ethics.
28. It was KM’s evidence that she was the one who made advances for a relationship with Manenzhe (see page 12 – 27). At first, Manenzhe acted in manner that was expected of a model educator. He rejected KM’s advances and he even threatened KM that he will report her should she persist with her advances. However, Manenzhe did not report KM to anyone for reason only known to him.
29. KM testified that Manenzhe later told her that he wanted to break her virginity. This version was not challenged when KM was cross examined. I must indicate herein now that Manenzhe was informed that if a version is not challenged, I will consider that to be the gospel truth. Thus, I consider KM’s version as the gospel truth. Consequently, I find that Manenzhe eventually succeeded to have his way with KM and broke her virginity when they had their first sexual encounter on 08 May 2021 at his place of residence in Toekomsrus. Manenzhe defense in this regard was that KM would have seen his birth mark if they had slept together. I agree with Tafane’s closing argument that if the learners were never in Manenzhe’s place, they would not have known that his room had an en suite bathroom. I find Manenzhe’s version that he always posted his pictures being in his room not conclusive that a person could tell the set-up of the room from the photos.
30. I wish to deal with some of the chats between Manenzhe and the witnesses briefly and Manenzhe’s evidence to show that Manenzhe’s conduct was not acceptable and was in contravention with the SACE Act 31 of 2000. The SACE Act stipulates the Code of Professional Ethics for Educators (“the Code”) wherein it is stated that an Educator refrains from any form of sexual relationship with learners at school and uses appropriate language and behaviour in his or her interaction with learners, and acts in such a way as to elicit respect from learners.
• Manenzhe testified that he agreed to ‘act’ as if he was in a relationship with GM in order to hurt Dlamini – the Code prohibits any form of sexual relationship with learners;
• On page 31, Manenzhe apologized to Dlamini for what has happened between him and GM – in his defense, these chats from page 31 to 34 were sent by GM to him to send to Dlamini. I find this hard to believe after having read the whole chats. It would be expected of a reasonable man that when he realized that the ‘act’ was now turning ugly, he would have come clean with Dlamini that he was not actually dating GM, but he failed to so;
• On page 40, 41 and 47 Manenzhe stated that this was the acting part between her and GM – Manenzhe did not dispute GM’s version when she said she enjoyed her day with him (page 47), she was referring to their first encounter of engaging in sexual intercourse. I find that Manenzhe’s language with GM was not in keeping with the Code;
• On page 50 and 52, Manenzhe sent a WhatsApp to Dlamini alluding to the fact that he did not force GM and that GM was not the first girl that he has dated at the school – Manenzhe could not respond during cross-examination as to what he was referring to when he said he did not force GM to him;
• On page 66, Manenzhe sent a WhatsApp message to Dlamini telling him that if he (Dlamini) came closer to him, he (Dlamini) will struck him by thunder – at first, Manenzhe denied that he has ever threatened Dlamini, but he later conceded when he was referred to this chat. Therefore, I conclude that Manenzhe was economical with the truth;
• On page 71, KM confirmed to Dlamini that she took a decision to sleep with Manenzhe – this was a conversation where GM was not involved in. Therefore, it cannot be said that there was an ‘act’ or an instruction as Manenzhe had suggested on other conversations;
• The telephone voice note where it was alleged that Manenzhe called GM at the time Tafane visited GM to investigate the allegations against Manenzhe – Manenzhe denied that it was his voice on the recorded telephone conversation. I cannot say with conclusive conviction that it was his voice. However, at the same time, I cannot find any reason why Tafane would manipulate the said telephone conversation if it was not Manenzhe and GM who were talking.
31. After having considered all the evidence, I find Manenzhe’s assertion that Dlamini, GM and KM were conniving to take him down without any merit as I cannot find any nexus link between the evidence that was presented in this tribunal and the presence of a motive to connive against Manenzhe. Subsequently, I find that the Employer succeeded in discharging its burden of proof on a balance of probabilities on both allegations that were levelled against Manenzhe. Thus, I find Manenzhe guilty as charged on both allegations.
32. In their closing arguments, parties made submissions in line with the prescripts of section 120(3) of the Children’s Act 38 of 2005. Tafane argued that Manenzhe must be declared unfit to work with children at any stage and anywhere. On the other hand, Manenzhe argued that he has never raped or touched any of his learners’ private parts and that he did not have any relationship with GM or KM or any other learner. He prayed that I should find in his favour.
Award
I find that:
33. Mr Ndifhedzo Manenzhe is GUILTY of allegation 1 and 2 levelled against him. Consequently, Manenzhe is guilty of contravening the prescripts of section 17(1)(b) of the Employment of Educators Act 76 of 1998.
34. In view of my guilty finding, it is mandatory that I return a dismissal sanction as prescribed in section 17(1) of the Employment of Educators Act. Ttherefore, Mr Ndifhedzo Manenzhe is hereby dismissed with immediate effect from the Department of Education: Gauteng
35. I also find that Mr Ndifhedzo Manenzhe is unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the Council must, in terms of section 120(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the finding of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005 that Mr Ndifhedzo Manenzhe is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
36. I further find that the Educator, Mr Ndifhedzo Manenzhe as a consequence to the transgressions as referred to in paragraph 6 herein-above is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.
Arbitrator: Themba Manganyi