PSES115-18/19WC
Text
PSES379-19/20 GP
Award Date:
10 May 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CENTURION
CASE NO.: PSES379-19/20 GP
In the matter between:-
MOLOANTOA I.T RESPONDENT
and
GAUTENG DEPARTMENT OF EDUCATION APPLICANT
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 22January 2020,02 December 2021,02 March and
23 March 2022
CLOSING ARGUMENTS: 30 MARCH 2022
AGGRAVATING FACTORS: 20 APRIL 2022
DATE OF AWARD: 10 MAY 2022
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A : Enquiry by Arbitrator.
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. The enquiry was held on 22 January 2020, 02 December 2021, 02 March and 23 March 2022 respectively at the Council’s offices in Centurion.
2. The employee was represented by Mr T.L Lehabe an attorney. The employer was represented by Mr T.Shiphamele from the department. The proceedings were recorded digitally. The employee abandoned the proceedings when I refused to grant him further postponement on 23 March 2022. The reason for refusal are detailed in the postponement ruling dated 22 March 2022.
3. The parties were given until 30 March 2022, to submit closing arguments and 20 April 2022 for aggravating and mitigating factors respectively.The employer submitted accordingly. The employee failed to submit.
CHARGES PROFFERED AGAINST THE EMPLOYEE
4. The employer had levelled the following charges against the employee:
Allegation 1
4.1 It is alleged that during the period March 2019,while in your office,you
committed an act of misconduct in that, you sexually harassed a Grade 11
learner BT when you told her that you love her and showed
her condoms and told her that she is matured and knows what condoms are
used for.
In view of your actions,you are thus charged with misconduct in terms of
Section 18(1) (q) of the Employment of Educators,Act 76 of 1998 as amended.
Allegation 2
4.2 It is alleged that during the period 07 March 2019,while on duty you abused
your position as an educator in that you threatened Grade 11 learners
BT and RB that they would fail if they did not do what you wanted.
In view of your actions,you are thus charged with misconduct in terms of Section 18(1) (g) of the Employment of Educators,Act 76 of 1998 as amended.
Allegation 3
4.3 It is alleged that during the period January 2019,while in your office you
gave RB lunch money claiming to be blessing her and that you
were going to tell her what to do in return.
In view of your actions,you are thus charged with misconduct in terms of
Section 18(1) (q) of the Employment of Educators,Act 76 of 1998 as
amended.
ISSUE TO BE DECIDED
5. I am required to decide whether the employee had committed the offences as in allegations 1,2 and 3. Should I find the employee guilty as charged I must also determine the appropriateness of the sanction for the offences 1 and 2 as well as for further offences should I find him guilty as such.
SURVEY OF AND EVIDENCE AND ARGUMENTS
COMMON COURSE ISSUES
6. It is common course that the employee, Mr Molantoa is an educator at Tswasongo Secondary School.
EMPLOYER ’S EVIDENCE
7. Mapula Elizabeth Ntsontjo testified for the employer that she is an Educator at the school. B told her that she was taking transfer to another school because she had told her parent that Molantoa was making sexual advances to her. She said Molantoa had called her to the office and showed her condoms and told her that she knew what they are used for.
8. She reported the incident to the LO Educator and SADTU convenor who escalated it to the principal. BT mentioned that RB was bringing food to Molantoa, who gave her money to buy food at school.
9. During cross examination, she said BT told her that Molantoa showed her condom once. When the matter was reported to the principal, learners were called in, to explain what they knew. She had a cordial relationship with Molantoa.
10. RB testified that she went with RM to Molantoa and Mosiki ( Molantoa’s colleague)`s office. Molantoa and Mosiki told them to bring them food on Mondays in exchange for money. She would take lunchbox to Molantoa with RM, in exchange for money. As times went on, she went alone to Molantoa in the absence of RM.
11. The other day Molantoa told her that as he blesses her, she must also bless him back. When he left the office she told RM what Molantoa told him.RM laughed and told her that she knew what he meant.She confided what Molantoa told him only to RM.Her understanding was that he wanted to sleep with her. She told this incident to the educators,when they were called to the office. She stopped bringing him food because she thought he might touch or do things that would end up sleeping with her.
12. During cross examination she testified that, she went with RM to Molantoa and Mosiki because RM was close to Mosiki. She was neither close to Mosiki nor Molantoa . Mosiki was RM’s class teacher. RM was not close to Molantoa. She did not recall who came up with the idea of bringing lunchbox in exchange for money .
13. RM offered to bring lunchbox to Mosinki. She did not remember who came up with the agreement between her and Molontoa . Molantoa was giving her R20 for the lunch box on Mondays. Sometimes she would take food to Molantoa alone and sometimes she would go with RM.
14. When Molantoa told her to return blessings she was alone. She denied that she was always with RM when she went to Molantoa’s office. The exchange of food arrangement made her get closer to Molontoa. The exchange took place in the office. Mosinki was not there as he left the school.Mosinki was there only on the first occasion when she brought food. When a version was put to her that Mosinki was always with Moloantoa she denied that. She said that Mosinki was transferred to another school in shortly after the exchange of food arrangement.
15. She stopped giving food to Molantoa after BT reported her matter. BT knew about her arrangement with Molantoa because she used to see her taking food to Molantoa and sometimes she would find herself with Molantoa in the office. She did not tell BT about the arrangement. She did not report Molantoa because she was scared. She did not understand what blessing meant. RM told her that she knew what it meant. She said RM would not be telling the truth if she denied that she told her that Molantoa asked her to bless him.
16. She said, what came in her mind was sex because RM explained to her what it meant. She did not tell her parents because they would be angry with her for giving teachers food.
17. In the meeting they were asked what they were doing in Molantoa`s office. Teachers were polite to them, the learners were crying because of the other learner`s narratives were heart wreaking.
EMPLOYEE’ S EVIDENCE
18. Isaac Thabiso Moloantoa testified that he had an agreement with RB to exchange lunchbox with money, R20.00 on Mondays. The agreement was initiated by RM that she would exchange food for money with Mosinki. Mosinki was RM `s class teacher. RB insisted that they have such arrangement. He would pay her R10.00 on Mondays and the other R10.00 on Tuesdays.
19. He was not teaching RB. He shared the office with Mosinki. He denied telling RB that she should bless him. RB was always coming with RM to the office when she brought food. She never came alone.In January she delivered the lunchbox once and Mosinki was there.
20. Mosinki left the school on 1 February 2019. He denied that he told her that if she did not give him what he wanted he would make her fail. It was not possible for him to fail her because he did not teach her.
21. She denied showing BT a condom. After he was suspended the principal made arrangement with him to continue offering accounting classes at his home from 5pm. He had a good relationship with the learners. The principal even provided him with chalkboard and furniture.
22. During cross examination he said he understood “blessing” in a religious way. The relationship he had with RB was not a misconduct. He denied asking RB to bless him.
23. He denied taking advantage of RB. BT took transfer and left the school for personal reasons not because of these allegations. Her mother told him, when she came to collect the transfer that she was relocating to Litchenburg to be close to her (BT’s) baby. She took the transfer around March before his suspension. He was still at the school when it closed on 15 March 2019, he was not suspended yet.The principal signed the report on 08 March 2019 which proves that he was still at school when the school closed.
24. RM testified that she is 20 years old. She was a friend to RB. Molantoa was his English teacher and Mosinki was teaching her history. She is the one who came up with the idea of bring lunchbox to Mosinki in exchange of money. RB also offered same to Molantoa in exchange of R20.
25. She did not bring food to Mosinki but RB brought food to Molantoa. She told Mosinki that she was playing. She always escorted RB to Molantoa, to give him food. She denied that RB told her that Molantoa wanted her to bless him. RB never went to Molantoa alone, without her.
26. During cross examination she confirmed that she was the one who came up with the idea of exchanging lunchbox for money between Mosinki and herself. Immediately when they left the office she told RB that she was playing. RB never went alone to Molantoa’s office. Refiloe lied when she said she was alone when Molantoa told her to bless him. She was with RB all the time when she went to the office. RB never confided to her about the blessing narrative.
27. When I asked her for clarity she said she was not with RB all the time at school. She said she would not know what RB was doing when she was not with her as they were in different classes. When asked by employer`s representative that it was possible that she could have gone to Molantoa`s office without her during this time. She said if she went alone, she could have told her
28. Malerato Ditabe testified for the applicant that she was 18 years old at the time of the incident. They were called to the principal’s office. There were learners, educators and the principal. It was tense and some learners were crying. They were forced to say things so to blame Molantoa. They put words into RB`s mouth. RB denied that the employee was blessing her. Mam Diphasitwe imposed on RB that Molantoa was her blesser.
29. She was also accused of organising learners for the employee. She could not do that because the employee was having a relationship with her sister, who was not a learner at the school. Other learners were forced to admit that they were having romantic relationship with the employee. RB never mentioned a word about ``blessing``.
30. During cross examination she said that ``blessing `` was mentioned in the principal’s office. She did not know what was happening in Molantoa`s office. RM was also called to the principal`s office. RM said she was always accompanying RB to Molantoa`s office.
CLOSING ARGUMENTS
31. The employer’s representative argued that The South African Council of
Educators Act 31 of 200 states that ``an educator;
(a) should avoid any form of humiliation, and refrain from any form of abuse,
physical or psychological `;
(b) take reasonable steps to ensure safety of the learners `s and
(c) behave in a way that enhances the dignity and status of the teaching
profession and does not bring the profession into disrepute;.
32. The employer had proved on the balance of probabilities that Moloantoa had sexually harassed RB and failed to take reasonable steps to ensure her safety. The statement he made to RB suggested that he wanted to get intimate with her.The word blesser is used to refer to older men who prey on young and innocent girls.Her testimony was consistent.
33. Ntsonjo also gave reliable evidence that BT relocated to Lichtenberg because she reported that Molantoa was harassing her.By contrast, Molantoa`s evidence and that of his witnesses was not impressive.They were not credible and truthful witnesses.
34. Section 18 (1) (q) of the Employment of Educators Act states that dismissal is one of the sanctions for the offence committed by Moloantoa.Item 3 and 7.2. of SACE Code provides that an educator must respect the dignity , belief and constitutional rights of learners , shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners and must behave in a way that enhances the dignity and status of teaching profession that does not bring profession in dispute.
35. In deciding the verdict and the sanction the UN Convention on the Rights of
Children, which says that states must protect children from all forms of sexual
abuse must be considered. The employer prays that Molantoa should be
found guilty as charged.
ANALYSIS OF EVIDENCE AND ARGUMENT
Allegation 1
36. Ms Ntsontjo ‘s evidence is hearsay evidence. Both the employer’s
witnesses were not present when the alleged incident of BT took place.The
complainant BT did not testify. The court in Exxaro coal (Pty) Ltd v Chipana
and others ( JA161/17) [2019] ZALAC 52 interpreted section 3 of the Law of
evidence Amendment Act,45 of 1988 to mean that if there is no agreement to
receive hearsay evidence, it is to be excluded unless the interest of justice
requires its admission. The reason proferred by the employer why BT refused to
testify is not justifiable. The reason for her transfer to another school is
challenged by the employee and the employer failed to prove that it was related
to this case. The employer failed to provide proof of the reason for the transfer,
which it is alleged to form the basis for her failure to testify
37. It is the applicant’s unchallenged evidence that BT as of 2019 she had a child At the time that this enquiry started in September 2019 and September 2021 when the employer closed its case, BT was a major. She was old enough to decide for herself whether she wanted to persui her claim.Furthermore,the employer and BT had sufficient time of 2 years to decide on her evidence but have opted against her leading evidence.
38 . Admission of hearsay evidence will prejudice the employee. Therefore, I am
inclined to reject the evidence as it is not be in the interest of justice to admit
Ms Tsotjo and RB’s hearsay evidence.Accordingly, the employer has failed to
prove on the balance of probabilities that the employee committed the offence.
I do not find the employee guilty of this count.
Allegation 2
39. It is not in dispute that the employee did not teach RB and BT any
subject.He was also not their class teacher. The learners were doing Grade 11,
old enough to comprehend that he had no bearing on the outcome of their
performance. I find the employer’s version to be improbable . The employer failed
to discharge its onus . I find the employee not guilty of this count.
Allegation 3
40. In weighing the evidence presented before me, it is common cause that Molantoa had an arrangement with a learner that she brings him lunchbox on Mondays in exchange of money,R20. It is also not in dispute that the arrangement was implemented once in January and February 2019 in full. Molantoa justified the arrangement on the basis that it was RB who insisted. Yet he contends that the implentention of the arrangement was not an offence.Meaning,there was nothing wrong with the arrangement. This is contradiction.
41. If there was nothing wrong with the arrangement ,he would not justify it and go to the extend of calling another learner to corroborate his evidence that he did not initiate the arrangement but that she was the one who came up with the idea. I find it probable that he knew that the arrangement was not appropriate,as between the educator and a learner. This arrangement and the relationship that followed, is the basis of the offence that he had been charged for.
42. It is immaterial as who initiated or insisted that the arrangement be implemented. His contention is misdirected. I disagree with Molantoa that as an educator he could allow learners to induce him to act inappropriately and hide behind those learners.
43. The employee’s witness Malerato was not a reliable witness. During examination in chief she testified that the “ blessing” was never mentioned in the office when they were called in but contradicted herself during cross examination when she admitted that the word was uttered.Meanwhile,RM admitted that she was in the same class as RB and that she was not always with RB.She further admitted that it was possible that RB could have gone to Molantoa’s offince whilst she was in the class.
44. RM went on to cover crack up by stating that RB could have told her if she went to Molantoa alone. This version suggests that RB was sharing her every movement with her.There is no explanation why she would guard every move of RB.Gleaning from her testimony she claims to be playing RB‘s guard which is not probable. This for me proves that she was trying very hard to protect Molantoa and her testimony is fabricated to serve that purpose. I do not find RM to be a credible witness.Therefore, I am persuaded that RM’s testimony that seeks to provide Molantoa with alibi fails.
45. RB’s evidence was consistent without contradiction through out that Molantoa asked her to bless him in exchange of the money. I have indicated above that I am persuaded that Molantoa had asked RB to bless him. I find probable that RB had informed RM that Molantoa asked her to bless him.She is denying for the sake of covering up for Molantoa. This is corroborated by Lerato’s contradictory testimony that I have highlighted above.
46. I find Molantoa to be disingenuous to suggest that his understanding for blessing was only in terms of religious connotation.The version is not probable because the blessing was in relation to the exchange of money that he was giving RB.The blessing could not have been within the religious context. There is no explanation of any other way that RB, could return Molantoa’s blessing other than in an improper form. This is supported by the fact that Molantoa had facilitated this inappropriate arrangement which created a platform for him to get close to RB.Their relationship was moving beyond educator learner relationship.Their relationship was only based on this inappropriate arrangement.
47. Molantoa testified that he had a good relationship with the principal to the extend that ,the principal contravened the employer’s suspension conditions by allowing him to continue to offer classes to the lenears after hours at his home.He even provided him with furniture. This version was not put to the employer’s witnesses for test. Ntsonjo’s testimony that she had a cordial relationship with Molantoa was not challenged. If I were to accept Molantoa’s testimony that he had a good relationship with the Principal and cordial relationship with Ntsonjo,I find no plausible explanation from him why they would fabricate the charge.Furthermore, there is no plausible explanation why RB would lie about him.
48. In the premise, I am satisfied that the employer has discharged its onus in proving on the balance of probabilities that the employee had committed count 3 offence Therefore, I find the employee guilty as charged on count 3.
49. Aggravating factors: The employer submitted that Molantoa’s conduct makes a continued employment relationship intolerable as teachers who act in this manner, cannot be trusted, especially when he did not show remorse.He was not remorseful hence, he pleaded not guilty and wasted the time of the department.
50. The nature of his job is significant than his personal circumstances. The employer is responsible for enforcing discipline and to set an example to all employees that there are profound consequences when one commits an offence and it will not go unpunished. The appropriate sanction is dismissal.
SANCTION
51. Misconduct in terms of Section 18(1) (q) of the Employment of
Educators,Act 76 of 1998 does not carry a mandatory dismissal sanction. The offence is not serious but it has potential of developing into a serious one. The respondent failed to address me on the employee ‘s disciplinary record. I am inclined to assume that he is the first offender. I do not agree with the employer that the trust relationship has been irretrievably broken down.The employee deserves an opportunity to redeem himself.
52. I find that a written warning valid for 12 months, is an appropriate sanction that will deter the employee from committing the same or similar offence.Furthermore, it will serve as a corrective and progress disciplinary measure for the employee.
Signed and dated at Pretoria on this 10th day of May 2022.
MG Rabyanyana
ELRC Panellist
CASE NO.: PSES379-19/20 GP
In the matter between:-
MOLOANTOA I.T RESPONDENT
and
GAUTENG DEPARTMENT OF EDUCATION APPLICANT
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 22January 2020,02 December 2021,02 March and
23 March 2022
CLOSING ARGUMENTS: 30 MARCH 2022
AGGRAVATING FACTORS: 20 APRIL 2022
DATE OF AWARD: 10 MAY 2022
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A : Enquiry by Arbitrator.
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. The enquiry was held on 22 January 2020, 02 December 2021, 02 March and 23 March 2022 respectively at the Council’s offices in Centurion.
2. The employee was represented by Mr T.L Lehabe an attorney. The employer was represented by Mr T.Shiphamele from the department. The proceedings were recorded digitally. The employee abandoned the proceedings when I refused to grant him further postponement on 23 March 2022. The reason for refusal are detailed in the postponement ruling dated 22 March 2022.
3. The parties were given until 30 March 2022, to submit closing arguments and 20 April 2022 for aggravating and mitigating factors respectively.The employer submitted accordingly. The employee failed to submit.
CHARGES PROFFERED AGAINST THE EMPLOYEE
4. The employer had levelled the following charges against the employee:
Allegation 1
4.1 It is alleged that during the period March 2019,while in your office,you
committed an act of misconduct in that, you sexually harassed a Grade 11
learner BT when you told her that you love her and showed
her condoms and told her that she is matured and knows what condoms are
used for.
In view of your actions,you are thus charged with misconduct in terms of
Section 18(1) (q) of the Employment of Educators,Act 76 of 1998 as amended.
Allegation 2
4.2 It is alleged that during the period 07 March 2019,while on duty you abused
your position as an educator in that you threatened Grade 11 learners
BT and RB that they would fail if they did not do what you wanted.
In view of your actions,you are thus charged with misconduct in terms of Section 18(1) (g) of the Employment of Educators,Act 76 of 1998 as amended.
Allegation 3
4.3 It is alleged that during the period January 2019,while in your office you
gave RB lunch money claiming to be blessing her and that you
were going to tell her what to do in return.
In view of your actions,you are thus charged with misconduct in terms of
Section 18(1) (q) of the Employment of Educators,Act 76 of 1998 as
amended.
ISSUE TO BE DECIDED
5. I am required to decide whether the employee had committed the offences as in allegations 1,2 and 3. Should I find the employee guilty as charged I must also determine the appropriateness of the sanction for the offences 1 and 2 as well as for further offences should I find him guilty as such.
SURVEY OF AND EVIDENCE AND ARGUMENTS
COMMON COURSE ISSUES
6. It is common course that the employee, Mr Molantoa is an educator at Tswasongo Secondary School.
EMPLOYER ’S EVIDENCE
7. Mapula Elizabeth Ntsontjo testified for the employer that she is an Educator at the school. B told her that she was taking transfer to another school because she had told her parent that Molantoa was making sexual advances to her. She said Molantoa had called her to the office and showed her condoms and told her that she knew what they are used for.
8. She reported the incident to the LO Educator and SADTU convenor who escalated it to the principal. BT mentioned that RB was bringing food to Molantoa, who gave her money to buy food at school.
9. During cross examination, she said BT told her that Molantoa showed her condom once. When the matter was reported to the principal, learners were called in, to explain what they knew. She had a cordial relationship with Molantoa.
10. RB testified that she went with RM to Molantoa and Mosiki ( Molantoa’s colleague)`s office. Molantoa and Mosiki told them to bring them food on Mondays in exchange for money. She would take lunchbox to Molantoa with RM, in exchange for money. As times went on, she went alone to Molantoa in the absence of RM.
11. The other day Molantoa told her that as he blesses her, she must also bless him back. When he left the office she told RM what Molantoa told him.RM laughed and told her that she knew what he meant.She confided what Molantoa told him only to RM.Her understanding was that he wanted to sleep with her. She told this incident to the educators,when they were called to the office. She stopped bringing him food because she thought he might touch or do things that would end up sleeping with her.
12. During cross examination she testified that, she went with RM to Molantoa and Mosiki because RM was close to Mosiki. She was neither close to Mosiki nor Molantoa . Mosiki was RM’s class teacher. RM was not close to Molantoa. She did not recall who came up with the idea of bringing lunchbox in exchange for money .
13. RM offered to bring lunchbox to Mosinki. She did not remember who came up with the agreement between her and Molontoa . Molantoa was giving her R20 for the lunch box on Mondays. Sometimes she would take food to Molantoa alone and sometimes she would go with RM.
14. When Molantoa told her to return blessings she was alone. She denied that she was always with RM when she went to Molantoa’s office. The exchange of food arrangement made her get closer to Molontoa. The exchange took place in the office. Mosinki was not there as he left the school.Mosinki was there only on the first occasion when she brought food. When a version was put to her that Mosinki was always with Moloantoa she denied that. She said that Mosinki was transferred to another school in shortly after the exchange of food arrangement.
15. She stopped giving food to Molantoa after BT reported her matter. BT knew about her arrangement with Molantoa because she used to see her taking food to Molantoa and sometimes she would find herself with Molantoa in the office. She did not tell BT about the arrangement. She did not report Molantoa because she was scared. She did not understand what blessing meant. RM told her that she knew what it meant. She said RM would not be telling the truth if she denied that she told her that Molantoa asked her to bless him.
16. She said, what came in her mind was sex because RM explained to her what it meant. She did not tell her parents because they would be angry with her for giving teachers food.
17. In the meeting they were asked what they were doing in Molantoa`s office. Teachers were polite to them, the learners were crying because of the other learner`s narratives were heart wreaking.
EMPLOYEE’ S EVIDENCE
18. Isaac Thabiso Moloantoa testified that he had an agreement with RB to exchange lunchbox with money, R20.00 on Mondays. The agreement was initiated by RM that she would exchange food for money with Mosinki. Mosinki was RM `s class teacher. RB insisted that they have such arrangement. He would pay her R10.00 on Mondays and the other R10.00 on Tuesdays.
19. He was not teaching RB. He shared the office with Mosinki. He denied telling RB that she should bless him. RB was always coming with RM to the office when she brought food. She never came alone.In January she delivered the lunchbox once and Mosinki was there.
20. Mosinki left the school on 1 February 2019. He denied that he told her that if she did not give him what he wanted he would make her fail. It was not possible for him to fail her because he did not teach her.
21. She denied showing BT a condom. After he was suspended the principal made arrangement with him to continue offering accounting classes at his home from 5pm. He had a good relationship with the learners. The principal even provided him with chalkboard and furniture.
22. During cross examination he said he understood “blessing” in a religious way. The relationship he had with RB was not a misconduct. He denied asking RB to bless him.
23. He denied taking advantage of RB. BT took transfer and left the school for personal reasons not because of these allegations. Her mother told him, when she came to collect the transfer that she was relocating to Litchenburg to be close to her (BT’s) baby. She took the transfer around March before his suspension. He was still at the school when it closed on 15 March 2019, he was not suspended yet.The principal signed the report on 08 March 2019 which proves that he was still at school when the school closed.
24. RM testified that she is 20 years old. She was a friend to RB. Molantoa was his English teacher and Mosinki was teaching her history. She is the one who came up with the idea of bring lunchbox to Mosinki in exchange of money. RB also offered same to Molantoa in exchange of R20.
25. She did not bring food to Mosinki but RB brought food to Molantoa. She told Mosinki that she was playing. She always escorted RB to Molantoa, to give him food. She denied that RB told her that Molantoa wanted her to bless him. RB never went to Molantoa alone, without her.
26. During cross examination she confirmed that she was the one who came up with the idea of exchanging lunchbox for money between Mosinki and herself. Immediately when they left the office she told RB that she was playing. RB never went alone to Molantoa’s office. Refiloe lied when she said she was alone when Molantoa told her to bless him. She was with RB all the time when she went to the office. RB never confided to her about the blessing narrative.
27. When I asked her for clarity she said she was not with RB all the time at school. She said she would not know what RB was doing when she was not with her as they were in different classes. When asked by employer`s representative that it was possible that she could have gone to Molantoa`s office without her during this time. She said if she went alone, she could have told her
28. Malerato Ditabe testified for the applicant that she was 18 years old at the time of the incident. They were called to the principal’s office. There were learners, educators and the principal. It was tense and some learners were crying. They were forced to say things so to blame Molantoa. They put words into RB`s mouth. RB denied that the employee was blessing her. Mam Diphasitwe imposed on RB that Molantoa was her blesser.
29. She was also accused of organising learners for the employee. She could not do that because the employee was having a relationship with her sister, who was not a learner at the school. Other learners were forced to admit that they were having romantic relationship with the employee. RB never mentioned a word about ``blessing``.
30. During cross examination she said that ``blessing `` was mentioned in the principal’s office. She did not know what was happening in Molantoa`s office. RM was also called to the principal`s office. RM said she was always accompanying RB to Molantoa`s office.
CLOSING ARGUMENTS
31. The employer’s representative argued that The South African Council of
Educators Act 31 of 200 states that ``an educator;
(a) should avoid any form of humiliation, and refrain from any form of abuse,
physical or psychological `;
(b) take reasonable steps to ensure safety of the learners `s and
(c) behave in a way that enhances the dignity and status of the teaching
profession and does not bring the profession into disrepute;.
32. The employer had proved on the balance of probabilities that Moloantoa had sexually harassed RB and failed to take reasonable steps to ensure her safety. The statement he made to RB suggested that he wanted to get intimate with her.The word blesser is used to refer to older men who prey on young and innocent girls.Her testimony was consistent.
33. Ntsonjo also gave reliable evidence that BT relocated to Lichtenberg because she reported that Molantoa was harassing her.By contrast, Molantoa`s evidence and that of his witnesses was not impressive.They were not credible and truthful witnesses.
34. Section 18 (1) (q) of the Employment of Educators Act states that dismissal is one of the sanctions for the offence committed by Moloantoa.Item 3 and 7.2. of SACE Code provides that an educator must respect the dignity , belief and constitutional rights of learners , shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners and must behave in a way that enhances the dignity and status of teaching profession that does not bring profession in dispute.
35. In deciding the verdict and the sanction the UN Convention on the Rights of
Children, which says that states must protect children from all forms of sexual
abuse must be considered. The employer prays that Molantoa should be
found guilty as charged.
ANALYSIS OF EVIDENCE AND ARGUMENT
Allegation 1
36. Ms Ntsontjo ‘s evidence is hearsay evidence. Both the employer’s
witnesses were not present when the alleged incident of BT took place.The
complainant BT did not testify. The court in Exxaro coal (Pty) Ltd v Chipana
and others ( JA161/17) [2019] ZALAC 52 interpreted section 3 of the Law of
evidence Amendment Act,45 of 1988 to mean that if there is no agreement to
receive hearsay evidence, it is to be excluded unless the interest of justice
requires its admission. The reason proferred by the employer why BT refused to
testify is not justifiable. The reason for her transfer to another school is
challenged by the employee and the employer failed to prove that it was related
to this case. The employer failed to provide proof of the reason for the transfer,
which it is alleged to form the basis for her failure to testify
37. It is the applicant’s unchallenged evidence that BT as of 2019 she had a child At the time that this enquiry started in September 2019 and September 2021 when the employer closed its case, BT was a major. She was old enough to decide for herself whether she wanted to persui her claim.Furthermore,the employer and BT had sufficient time of 2 years to decide on her evidence but have opted against her leading evidence.
38 . Admission of hearsay evidence will prejudice the employee. Therefore, I am
inclined to reject the evidence as it is not be in the interest of justice to admit
Ms Tsotjo and RB’s hearsay evidence.Accordingly, the employer has failed to
prove on the balance of probabilities that the employee committed the offence.
I do not find the employee guilty of this count.
Allegation 2
39. It is not in dispute that the employee did not teach RB and BT any
subject.He was also not their class teacher. The learners were doing Grade 11,
old enough to comprehend that he had no bearing on the outcome of their
performance. I find the employer’s version to be improbable . The employer failed
to discharge its onus . I find the employee not guilty of this count.
Allegation 3
40. In weighing the evidence presented before me, it is common cause that Molantoa had an arrangement with a learner that she brings him lunchbox on Mondays in exchange of money,R20. It is also not in dispute that the arrangement was implemented once in January and February 2019 in full. Molantoa justified the arrangement on the basis that it was RB who insisted. Yet he contends that the implentention of the arrangement was not an offence.Meaning,there was nothing wrong with the arrangement. This is contradiction.
41. If there was nothing wrong with the arrangement ,he would not justify it and go to the extend of calling another learner to corroborate his evidence that he did not initiate the arrangement but that she was the one who came up with the idea. I find it probable that he knew that the arrangement was not appropriate,as between the educator and a learner. This arrangement and the relationship that followed, is the basis of the offence that he had been charged for.
42. It is immaterial as who initiated or insisted that the arrangement be implemented. His contention is misdirected. I disagree with Molantoa that as an educator he could allow learners to induce him to act inappropriately and hide behind those learners.
43. The employee’s witness Malerato was not a reliable witness. During examination in chief she testified that the “ blessing” was never mentioned in the office when they were called in but contradicted herself during cross examination when she admitted that the word was uttered.Meanwhile,RM admitted that she was in the same class as RB and that she was not always with RB.She further admitted that it was possible that RB could have gone to Molantoa’s offince whilst she was in the class.
44. RM went on to cover crack up by stating that RB could have told her if she went to Molantoa alone. This version suggests that RB was sharing her every movement with her.There is no explanation why she would guard every move of RB.Gleaning from her testimony she claims to be playing RB‘s guard which is not probable. This for me proves that she was trying very hard to protect Molantoa and her testimony is fabricated to serve that purpose. I do not find RM to be a credible witness.Therefore, I am persuaded that RM’s testimony that seeks to provide Molantoa with alibi fails.
45. RB’s evidence was consistent without contradiction through out that Molantoa asked her to bless him in exchange of the money. I have indicated above that I am persuaded that Molantoa had asked RB to bless him. I find probable that RB had informed RM that Molantoa asked her to bless him.She is denying for the sake of covering up for Molantoa. This is corroborated by Lerato’s contradictory testimony that I have highlighted above.
46. I find Molantoa to be disingenuous to suggest that his understanding for blessing was only in terms of religious connotation.The version is not probable because the blessing was in relation to the exchange of money that he was giving RB.The blessing could not have been within the religious context. There is no explanation of any other way that RB, could return Molantoa’s blessing other than in an improper form. This is supported by the fact that Molantoa had facilitated this inappropriate arrangement which created a platform for him to get close to RB.Their relationship was moving beyond educator learner relationship.Their relationship was only based on this inappropriate arrangement.
47. Molantoa testified that he had a good relationship with the principal to the extend that ,the principal contravened the employer’s suspension conditions by allowing him to continue to offer classes to the lenears after hours at his home.He even provided him with furniture. This version was not put to the employer’s witnesses for test. Ntsonjo’s testimony that she had a cordial relationship with Molantoa was not challenged. If I were to accept Molantoa’s testimony that he had a good relationship with the Principal and cordial relationship with Ntsonjo,I find no plausible explanation from him why they would fabricate the charge.Furthermore, there is no plausible explanation why RB would lie about him.
48. In the premise, I am satisfied that the employer has discharged its onus in proving on the balance of probabilities that the employee had committed count 3 offence Therefore, I find the employee guilty as charged on count 3.
49. Aggravating factors: The employer submitted that Molantoa’s conduct makes a continued employment relationship intolerable as teachers who act in this manner, cannot be trusted, especially when he did not show remorse.He was not remorseful hence, he pleaded not guilty and wasted the time of the department.
50. The nature of his job is significant than his personal circumstances. The employer is responsible for enforcing discipline and to set an example to all employees that there are profound consequences when one commits an offence and it will not go unpunished. The appropriate sanction is dismissal.
SANCTION
51. Misconduct in terms of Section 18(1) (q) of the Employment of
Educators,Act 76 of 1998 does not carry a mandatory dismissal sanction. The offence is not serious but it has potential of developing into a serious one. The respondent failed to address me on the employee ‘s disciplinary record. I am inclined to assume that he is the first offender. I do not agree with the employer that the trust relationship has been irretrievably broken down.The employee deserves an opportunity to redeem himself.
52. I find that a written warning valid for 12 months, is an appropriate sanction that will deter the employee from committing the same or similar offence.Furthermore, it will serve as a corrective and progress disciplinary measure for the employee.
Signed and dated at Pretoria on this 10th day of May 2022.
MG Rabyanyana
ELRC Panellist