ELRC 991-21/22GP
Text
ELRC 991-21/22GP
Award Date:
23 June 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN BRAAMFONTEIN (GAUTENG)
Case No ELRC 991-21/22GP
In the matter between
GAUTENG DEPT OF EDUCATION EMPLOYER
and
EB BARDEN EMPLOYEE
ARBITRATOR: Monde Boyce
HEARD: 26 April 2022 & 30 May 2022
CLOSING ARGUMENTS: 06 June 20222022
DATE OF AWARD: 23 June 2022
AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION:
[1] The matter was scheduled in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and the inquiry was held on 26 April 2022 at the Johannesburg North District offices in Braamfontein. The employee was represented by Mr Thando Hlatshwayo, a trade union representative from the trade union SADTU. Miss Eulenda Ramaru appeared for the employer.
[2] Both parties submitted bundles of documents and the bundles were accepted into evidence. The proceedings were digitally recorded. An interpreter as well as an intermediary were present. Because of the age of the learner, arrangements were made for the learner to testify from a point where she could not be seen or face the employee against whom the allegations of sexual assault were made.
THE ISSUE TO BE DECIDED:
[3] I am required to decide whether the employee is guilty of the two charges preferred against him by the department, and to make the appropriate award.
THE BACKGROUND TO THE DISPUTE:
[4] The employee is employed as an educator at Langlaagte Technical School. He has been employed by the Department since April 2016 and is teaching Natural Sciences. Two charges were preferred against the employee with the first charge being that of rape of a learner, Learner A and whose identity is not revealed because of her age. The second charge was that of the employee having allegedly threatened to kill Learner A if she told anyone about the rape.
[5] The employee pleaded NOT GUILTY to both charges.
SURVEY OF EVIDENCE AND ARGUMENT:
Employer’s Evidence
[6] The first witness called by the employer was Learner A. She testified that she was a learner at Langlaagte Technical High School between 2020 and 2021 and was doing Grade 8. Miss Matlala was her class teacher at Langlaagte Technical High School in 2021. Mr Barden taught her Natural Sciences in 2021. An incident occurred on 15 September 2021 where she was sent by her class teacher, Miss Matlala, to the office to fetch a class register and, on her way back to the class, she met Mr Barden at the corridor who asked her to follow him to his office. She waited at the door as he opened the door to his office. Inside the office, he offered her cold drink in a cup, which she drank. After she drank the drink, she felt drowsy. The employee, Mr Barden then took her to the table, tied a brown tape around her mouth and her hands, took off his pants and started raping her. She tried moving away and screamed but could not because there was a tape covering her mouth. After raping her, the employee told her to fix herself and not to tell anyone. He told her to go to class.
[7] She went back to the class where Mr Tokole, a student teacher was teaching Technology. Inside the class, she requested to go to the toilet, but she instead went to Grade 10 to tell a friend of hers, Leaner B, about what happened. She however did not enter the Grade 10 class but went back to the Technology class because she did not want to disturb the teaching that was taking place inside the class. During the break, she met Learner B at the stairs next to her classroom. Learner B asked her what was wrong with her because she did not look fine. She told Learner B that Mr Barden had raped her. She had not told other teachers and the principal because the employee had told her not to tell anyone about the incident. She would go to the office to fetch the attendance register as part of her daily duties and even if Miss Matlala did not aske them to, they would fetch the attendance register everyday.
[8] She reported the incident to her mother the following day after her mother had asked her why she was always asleep and looked drunk. Her mother panicked and asked her why she did not tell her about the rape when it happened the previous day. Her mother and her aunt took her to hospital. On arrival at the hospital, her mother and aunt told the doctor what happened. The doctor the ran some tests and thereafter told her mother and aunt that she had been raped and that the incident should be reported to the police. She spent a night at the hospital and was given pain killers and pills to flush the drugs out of her system. When she left the hospital, she was still drugged and would spend most of the time sleeping. She was the visited by an official from the department of education and the police also arrived.
[9] The police took her statement and, although she was drowsy, she gave details of what happened. The official from the department also asked how she was feeling and also asked her to relate what happened and soon after left. Her aunt, her mother and the police went to the school where the employee was arrested. She last attended school on 18 September 2021, and she did her schoolwork at home, and such work was sent via a WhatsApp group.
[10] The second witness, Mr Terence Baron Molefe, testified that he is currently employed at Langlaagte Technical High School as a principal. He has been a principal at the school for twelve years. He knows the employee as a teacher for Natural Sciences and as the Head of Department (HOD) for Sciences. Learner A was a learner at his school and was doing Grade 9 in 2021. He is not sure where Learner A currently attends school but does know that a request for her transfer was made, and Learner A last attended classes at his school in 2021. The information related to the charges came to his attention on a date police officers visited the school on 20 September 2021. On arrival at the school, the police were then accompanied by Learner A, her mother and other two adults which he later understood to be Learner A’s aunt and her husband. When police arrived at his office, they told him that they were looking for Mr Barden and sought him regarding rape allegations levelled against him. They did not explain anything much save for stating that they came to arrest Mr Barden. Mr Barden was then arrested at his class.
[11] As the school, he as the principal had, after the employee’s arrest, called the Circuit Manager, Mr Toka, and he also wrote a report which he submitted to the district office. He was at the school the incident occurred. He did not pick up anything unusual that related to the incident on 20 September 2021.
[12] Miss Pontso Nyathi was called as the employer’s third witness. Learner A is her niece who attended school at Langlaagte Technical High School as a Grade 9 learner in 2021. She is not willing to reveal the current school Learner A is attending for safety reasons. On 19 September 2021 she and her husband went to visit Learner A at her mother’s house. When they arrived at the house, they found Learner A sleeping and she kept telling them that she had a headache. She and her husband then left. At around 21h00 they went back to Learner A's home to fetch the children they had left there. They still found Learner A sleeping, and they then suspected that it was not only headache that Learner A was suffering from. They pressed her to tell her what the problem was, but Learner A did not say what it was that was a problem. She had then asked that she take Learner A with her to her house, and Leaner A agreed.
[13] When they got to her house, her mother kept calling them saying that she was worried. She eventually managed to convince Learner A to go to a clinic. They went to Linksfield Netcare Hospital. On arrival at the hospital, a nurse asked them what the problem was. She by then, suspected that Learner A was sexually violated. The nurse took the leaner to the examination room where it was confirmed that the learner had been raped. A doctor was called, and the doctor used a test kit to perform tests. The doctor did all the tests including the HIV test and was given other medication including the medication to prevent pregnancy. Learner A told the doctor that the employee raped her. While they were still at the hospital, Learner A’s father called and told them that he found a tight underwear under the Learner A’s bed and that it had blood on it. She still has the picture of the underwear. Learner A was discharged the following day after all the tests had been conducted.
[14] Police came the following day, but they observed that Learner A was still drowsy and not in a position to give a statement. The police came back at a later stage and took the statement where Learner A confirmed that she had been raped by the employee. She would not be surprised if the employee denied the allegation because of the seriousness of offence.
Employee’s Evidence
[15] Mr Emanuel Bruce Barden, the employee, testified that he is not guilty of all the allegations levelled against. The rape incident referred to in the charge sheet did not occur and he is thus not guilty. Learner A was a leaner in the Natural Science class he teaches and his relationship with all the learners is professional, he has never dated any of the learners and he views them as his children. He shares an office with a lady teacher, Miss Denise. Not only does he share the office with her, but she keeps her belongings and has her own keys to the office they share. He finds it bizarre that he would be accused of engaging in such conduct in instances where the fellow teacher could walk in and out of the office at any time. He is confused and do not understand the reasons why he would be accused of raping learner A. When being arrested at the school, he went through a period of shock and remembers asking questions about what was happening. He thought that after the passage of weeks, he thought the learner would have retracted the allegation.
[16] As educators, they do not send learners to fetch attendance registers from other teachers. Registers are kept at the secretary’s office and are not kept by the teachers. He did not give learner A any drink because she was never in his office. He has no information on the drug tests conducted. The allegations are the figment of learner A’s imagination. The only time he has been close to learner A has been when he taught her in his class. That the other learner, learner B is mentioned in the statement as having been told about what happened but was not called to testify surprised him. Leaner A did not tell the truth when she said she was a class captain as she never was. He has no vendetta against learner A’s family and has never had any encounter with her family. He has had no dealings with the family, and he does not know what motivates the vendetta learner A’s family has against him.
[17] He had been jailed for over thirty (30) days and learner A and her parents were called by the Prosecutor from the National Prosecuting Authority (NPA). He thereafter received notice as contained on page B 15 of his bundle and dated 06 December 2021 from the Senior Prosecutor that the charge of rape against him was being withdrawn. The reason the NPA gave was that, after consultation between the complainant and the prosecutor, major contradictions came to light and that there was no chance of a successful prosecution. No medical records were attached or presented during the inquiry. He finds it surprising that medical records were not furnished during the inquiry. Even if there such records, nothing would link to him because he had no physical engagement with the learner.
[18] The employee’s first witness, Miss Lynn Pagel, testified that the employee is her colleague and has ten years working with him and has known him for ten years. She is currently employed by the school as an Administrator. Attendance registers and period registers stay in her office and do not stay with teachers or class captain. She knows learner A, and learner A was not a class captain. Two other learners were class captains respectively and leaner A was not one of them. Shew knows an educator by the name of Miss Matlala. It does not make sense that the register teacher for Grade 9 (4) teacher would want a register for the teacher for class Grade 9 (3).
[19] The next witness called was Miss Kelly Nichol Ashley Dennison. Her testimony was that she knows the employee and that he is her colleague at Langlaagte Technical School. She has worked at the school for two years. The working relationship between her and the employee was a cordial normal working relationship. She teaches Afrikaans at the school. She shares an office with the employee. Leaners and registers get attendance registers from the office. She does not know of any reputation of the employee dating learners.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
[20] In terms of Section 28 of the Constitution:
“Every child has a right –
“to be protected from maltreatment, neglect, abuse or degradation ”
Furthermore, the above Section also provides that:
“A child’s best interests are of paramount importance in every matter concerning the child”
[21] I have taken into account the evidence and closing arguments by both the employer and the employee. It is trite that a decision of guilt or not should be based on evidence presented. It is sufficiency of that evidence that must point to guilt or not of an accused employee. In other words, evidence led must, on a balance of probabilities, show that the employee is guilty of allegations levelled against him. I should also mention that in incidents of alleged sexual misconduct, it most often is the victim and the perpetrator that are involved, and these incidents rarely happen in the presence of witnesses. It therefore becomes important that evidence presented is carefully considered and weighed up. In this inquiry, no other witnesses were present during the alleged rape incident except the learner and the employee, if the rape did take place.
[22] I should perhaps also mention even at this early a stage that during evidence led, reference was made of the decision by the National Prosecuting Authority’s (NPA) Senior Prosecutor not to prosecute the employee. As such, the criminal charges were withdrawn against the employee and a letter to that effect was presented and read into evidence. What I should mention however is that the inquiry I am presiding over and any criminal processes that may have been undertaken are two separate processes and the employee’s criminal charge being withdrawn by the NPA has nothing to do with the present inquiry. As such, I do not attach any weight to the letter of withdrawal of criminal charges by the NPA.
[23] According to Learner A, she was raped by the employee in his office and that the employee had first given her a drink that was in a cup and which drink, after having drank it, made her drowsy. According to Learner A, the employee then proceeded to rape her on the table in the office. The employee denied the charges and denied that the incident ever took place. It may well be that Learner A was raped, but I cannot find that it has been proven, on a balance of probabilities that it was the employee who raped Learner A.
[24] In arriving at this conclusion, I took into account a number of factors. Firstly, even if I were to accept that the rape occurred, I would still reject that the employee was the culprit. Evidence should point to that possibility as I stated in the preceding paragraphs. The employee shares an office with another teacher, Miss Donelson who testified to this effect during the inquiry. The employee’s version and that of Miss Donelson in this regard was not gainsaid. The question that then begs an answer is that of whether the employee could have risked engaging in the rape act knowing fully well that Miss Donelson could walk in on them and catch him in the act. I am not convinced that the employee could have taken that risk. The employee did not strike me as naïve and, at least as far as evidence goes
[25] Secondly, Learner A gave two contradictory versions. In her written statement, she stated that she was sent by her class teacher, Miss Matlala to go and fetch the attendance register at the employee’s office. In her written statement, she stated this as a fact. Learner A then proceeded to state that she could not find the employee in his office and she went back to report same to Miss Matlala who told her to go back and wait for the employee. This version was however materially different from the one she gave during the inquiry to the effect that she went to fetch the register at the front office. When confronted with these differing versions during cross examination, and when asked which version should be believed, Learner A’s response was that the version she gave at the inquiry is the one that should be accepted. I however find that problematic.
[26] Learner A’s written statement, unlike the version she gave during the inquiry, was made after the alleged incident occurred and, that being the case, I can be reasonable expected that her recollection of events was likely more accurate than when she gave evidence during the inquiry. When pressed further as to whether, when she could not find the employee in his office, she went back to Miss Matlala to report same, she, in the inquiry, stated that she did not because Miss Matlala was not in the class. This is now materially different from the statement she gave where she stated as a fact that she went to inform Miss Matlala that the employee was not in his office and that Miss Matlala told her to go back and wait for the employee. Again, Learner A’s version during the inquiry that she was not sent by Miss Matlala and that she went to fetch the register on her own because she was a class captain and usually fetched the register was different from her version in the statement where she clearly stated that she was sent by Miss Matlala, the class teacher.
[27] There also was a version present ed by Learner A to the effect that she was a class captain. But this version was disputed by Miss Pagel, the employee’s witness who holds a position of Administrator and who deals with class attendance registers. This piece of evidence is relevant and important to the extent it is class captains who collect class attendance registers from the front office according to the principal’s evidence and also because, if Learner A was not a class captain, she could not have gone to fetch the attendance register, a responsibility that vests with class captains. Miss Pagel’s version was not disputed. Miss Matlala, who was Learner A’s class teacher was not called to testify to clarify the issue. The employer did send a letter to the Council and which letter appears to have been authored by Miss Matlala where she confirms that Learner A was a class captain. But this was after the fact. It is not part of evidence that was led and the employee and his representative did not have an opportunity to engage with the letter. As such, I do not deem it necessary to even deal with its contents.
[28] Learner A, in her written statement, also stated that while in the employee’s office, the employee came in and asked her what she was looking for, and she told him that she was sent by Miss Matlala. This version was again different from that she gave during the inquiry where she testified that she met the employee in the corridor and that the employee told her to follow her to the class. There is also another issue of Learner A’s version that after the alleged rape incident, she told Learner B about the alleged incident. While it was mentioned that Learner B was at the venue where the inquiry was held, he (Learner B) was not called to testify. While it was unclear to me why Learner B was not called to testify while he was the one informed about the alleged rape soon after it occurred, and information that would have added more weight to the employer’s version, it transpired, during the testimony of Learner A’s aunt, Mrs Nyathi, that while Learner A had stated that she had told Learner B about the alleged rape, she (Learner A), later stated that she had made a mistake. This would then possibly explain why Learner B was not called to testify in the inquiry.
[29] Mrs Nyathi, Learner A’s aunt did give evidence as to how the events unfolded up to the point where Learner A was taken to the hospital. But her evidence was largely hearsay in relation to the alleged rape and, while she attested to what the family did up to when the arrest of the employee took place and that the tests results showed that Learner A had been drugged and had been raped, such results were not made available and the circumstances of why they were not made available, and to the extent that any confidentiality considerations arose around their being made available, same was not raised by the employer during the inquiry. While Miss Nyathi also alluded, in her testimony, to comments made by other learners when Learner A’s family visited the school to the effect that the employee always passed inappropriate comments towards the learners and had told the learners that she loved Learner A, this evidence was hearsay and was not substantiated. As such, I attached no weight to it. Again, while the results, according to Miss Nyathi, showed that Learner A was raped, there are no basis that exist on which I can conclude that it is the employee that raped Learner A.
[30] I should mention, albeit in passing, that if the rape incident did occur and if the employee was indeed the culprit, there would be no debate as to the sanction that should be imposed on the employee. Dismissal, which would be the harshest of sanctions, would be warranted and I would not hesitate to impose same if evidence pointed to the employee’s guilt. This would be primarily because teachers stand in the place of parents and while learners are at school, teachers’ responsibility is that of looking after the welfare of learners and any unbecoming conduct by a teacher or a teacher engaging in inappropriate conduct with learners should not only be frowned upon, but such a teacher should be harshly dealt and such a teacher would further fall to be prevented from ever teaching. This is the fate that would befall the employee had I found that he committed the alleged rape. This would happen even in circumstances where he was criminally found not guilty, or the charge of rape withdrawn by the prosecuting authority.
[31] In the premises, I make the following award:
AWARD
[32] I find the employee, Mr Emanuel Bruce Barden, not guilty of both charges preferred against him.
[33] The employer is ordered to allow the employee to resume his duties.
[34] The Council is directed to close the file.
Monde Boyce
Panelist: ELRC
Case No ELRC 991-21/22GP
In the matter between
GAUTENG DEPT OF EDUCATION EMPLOYER
and
EB BARDEN EMPLOYEE
ARBITRATOR: Monde Boyce
HEARD: 26 April 2022 & 30 May 2022
CLOSING ARGUMENTS: 06 June 20222022
DATE OF AWARD: 23 June 2022
AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION:
[1] The matter was scheduled in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and the inquiry was held on 26 April 2022 at the Johannesburg North District offices in Braamfontein. The employee was represented by Mr Thando Hlatshwayo, a trade union representative from the trade union SADTU. Miss Eulenda Ramaru appeared for the employer.
[2] Both parties submitted bundles of documents and the bundles were accepted into evidence. The proceedings were digitally recorded. An interpreter as well as an intermediary were present. Because of the age of the learner, arrangements were made for the learner to testify from a point where she could not be seen or face the employee against whom the allegations of sexual assault were made.
THE ISSUE TO BE DECIDED:
[3] I am required to decide whether the employee is guilty of the two charges preferred against him by the department, and to make the appropriate award.
THE BACKGROUND TO THE DISPUTE:
[4] The employee is employed as an educator at Langlaagte Technical School. He has been employed by the Department since April 2016 and is teaching Natural Sciences. Two charges were preferred against the employee with the first charge being that of rape of a learner, Learner A and whose identity is not revealed because of her age. The second charge was that of the employee having allegedly threatened to kill Learner A if she told anyone about the rape.
[5] The employee pleaded NOT GUILTY to both charges.
SURVEY OF EVIDENCE AND ARGUMENT:
Employer’s Evidence
[6] The first witness called by the employer was Learner A. She testified that she was a learner at Langlaagte Technical High School between 2020 and 2021 and was doing Grade 8. Miss Matlala was her class teacher at Langlaagte Technical High School in 2021. Mr Barden taught her Natural Sciences in 2021. An incident occurred on 15 September 2021 where she was sent by her class teacher, Miss Matlala, to the office to fetch a class register and, on her way back to the class, she met Mr Barden at the corridor who asked her to follow him to his office. She waited at the door as he opened the door to his office. Inside the office, he offered her cold drink in a cup, which she drank. After she drank the drink, she felt drowsy. The employee, Mr Barden then took her to the table, tied a brown tape around her mouth and her hands, took off his pants and started raping her. She tried moving away and screamed but could not because there was a tape covering her mouth. After raping her, the employee told her to fix herself and not to tell anyone. He told her to go to class.
[7] She went back to the class where Mr Tokole, a student teacher was teaching Technology. Inside the class, she requested to go to the toilet, but she instead went to Grade 10 to tell a friend of hers, Leaner B, about what happened. She however did not enter the Grade 10 class but went back to the Technology class because she did not want to disturb the teaching that was taking place inside the class. During the break, she met Learner B at the stairs next to her classroom. Learner B asked her what was wrong with her because she did not look fine. She told Learner B that Mr Barden had raped her. She had not told other teachers and the principal because the employee had told her not to tell anyone about the incident. She would go to the office to fetch the attendance register as part of her daily duties and even if Miss Matlala did not aske them to, they would fetch the attendance register everyday.
[8] She reported the incident to her mother the following day after her mother had asked her why she was always asleep and looked drunk. Her mother panicked and asked her why she did not tell her about the rape when it happened the previous day. Her mother and her aunt took her to hospital. On arrival at the hospital, her mother and aunt told the doctor what happened. The doctor the ran some tests and thereafter told her mother and aunt that she had been raped and that the incident should be reported to the police. She spent a night at the hospital and was given pain killers and pills to flush the drugs out of her system. When she left the hospital, she was still drugged and would spend most of the time sleeping. She was the visited by an official from the department of education and the police also arrived.
[9] The police took her statement and, although she was drowsy, she gave details of what happened. The official from the department also asked how she was feeling and also asked her to relate what happened and soon after left. Her aunt, her mother and the police went to the school where the employee was arrested. She last attended school on 18 September 2021, and she did her schoolwork at home, and such work was sent via a WhatsApp group.
[10] The second witness, Mr Terence Baron Molefe, testified that he is currently employed at Langlaagte Technical High School as a principal. He has been a principal at the school for twelve years. He knows the employee as a teacher for Natural Sciences and as the Head of Department (HOD) for Sciences. Learner A was a learner at his school and was doing Grade 9 in 2021. He is not sure where Learner A currently attends school but does know that a request for her transfer was made, and Learner A last attended classes at his school in 2021. The information related to the charges came to his attention on a date police officers visited the school on 20 September 2021. On arrival at the school, the police were then accompanied by Learner A, her mother and other two adults which he later understood to be Learner A’s aunt and her husband. When police arrived at his office, they told him that they were looking for Mr Barden and sought him regarding rape allegations levelled against him. They did not explain anything much save for stating that they came to arrest Mr Barden. Mr Barden was then arrested at his class.
[11] As the school, he as the principal had, after the employee’s arrest, called the Circuit Manager, Mr Toka, and he also wrote a report which he submitted to the district office. He was at the school the incident occurred. He did not pick up anything unusual that related to the incident on 20 September 2021.
[12] Miss Pontso Nyathi was called as the employer’s third witness. Learner A is her niece who attended school at Langlaagte Technical High School as a Grade 9 learner in 2021. She is not willing to reveal the current school Learner A is attending for safety reasons. On 19 September 2021 she and her husband went to visit Learner A at her mother’s house. When they arrived at the house, they found Learner A sleeping and she kept telling them that she had a headache. She and her husband then left. At around 21h00 they went back to Learner A's home to fetch the children they had left there. They still found Learner A sleeping, and they then suspected that it was not only headache that Learner A was suffering from. They pressed her to tell her what the problem was, but Learner A did not say what it was that was a problem. She had then asked that she take Learner A with her to her house, and Leaner A agreed.
[13] When they got to her house, her mother kept calling them saying that she was worried. She eventually managed to convince Learner A to go to a clinic. They went to Linksfield Netcare Hospital. On arrival at the hospital, a nurse asked them what the problem was. She by then, suspected that Learner A was sexually violated. The nurse took the leaner to the examination room where it was confirmed that the learner had been raped. A doctor was called, and the doctor used a test kit to perform tests. The doctor did all the tests including the HIV test and was given other medication including the medication to prevent pregnancy. Learner A told the doctor that the employee raped her. While they were still at the hospital, Learner A’s father called and told them that he found a tight underwear under the Learner A’s bed and that it had blood on it. She still has the picture of the underwear. Learner A was discharged the following day after all the tests had been conducted.
[14] Police came the following day, but they observed that Learner A was still drowsy and not in a position to give a statement. The police came back at a later stage and took the statement where Learner A confirmed that she had been raped by the employee. She would not be surprised if the employee denied the allegation because of the seriousness of offence.
Employee’s Evidence
[15] Mr Emanuel Bruce Barden, the employee, testified that he is not guilty of all the allegations levelled against. The rape incident referred to in the charge sheet did not occur and he is thus not guilty. Learner A was a leaner in the Natural Science class he teaches and his relationship with all the learners is professional, he has never dated any of the learners and he views them as his children. He shares an office with a lady teacher, Miss Denise. Not only does he share the office with her, but she keeps her belongings and has her own keys to the office they share. He finds it bizarre that he would be accused of engaging in such conduct in instances where the fellow teacher could walk in and out of the office at any time. He is confused and do not understand the reasons why he would be accused of raping learner A. When being arrested at the school, he went through a period of shock and remembers asking questions about what was happening. He thought that after the passage of weeks, he thought the learner would have retracted the allegation.
[16] As educators, they do not send learners to fetch attendance registers from other teachers. Registers are kept at the secretary’s office and are not kept by the teachers. He did not give learner A any drink because she was never in his office. He has no information on the drug tests conducted. The allegations are the figment of learner A’s imagination. The only time he has been close to learner A has been when he taught her in his class. That the other learner, learner B is mentioned in the statement as having been told about what happened but was not called to testify surprised him. Leaner A did not tell the truth when she said she was a class captain as she never was. He has no vendetta against learner A’s family and has never had any encounter with her family. He has had no dealings with the family, and he does not know what motivates the vendetta learner A’s family has against him.
[17] He had been jailed for over thirty (30) days and learner A and her parents were called by the Prosecutor from the National Prosecuting Authority (NPA). He thereafter received notice as contained on page B 15 of his bundle and dated 06 December 2021 from the Senior Prosecutor that the charge of rape against him was being withdrawn. The reason the NPA gave was that, after consultation between the complainant and the prosecutor, major contradictions came to light and that there was no chance of a successful prosecution. No medical records were attached or presented during the inquiry. He finds it surprising that medical records were not furnished during the inquiry. Even if there such records, nothing would link to him because he had no physical engagement with the learner.
[18] The employee’s first witness, Miss Lynn Pagel, testified that the employee is her colleague and has ten years working with him and has known him for ten years. She is currently employed by the school as an Administrator. Attendance registers and period registers stay in her office and do not stay with teachers or class captain. She knows learner A, and learner A was not a class captain. Two other learners were class captains respectively and leaner A was not one of them. Shew knows an educator by the name of Miss Matlala. It does not make sense that the register teacher for Grade 9 (4) teacher would want a register for the teacher for class Grade 9 (3).
[19] The next witness called was Miss Kelly Nichol Ashley Dennison. Her testimony was that she knows the employee and that he is her colleague at Langlaagte Technical School. She has worked at the school for two years. The working relationship between her and the employee was a cordial normal working relationship. She teaches Afrikaans at the school. She shares an office with the employee. Leaners and registers get attendance registers from the office. She does not know of any reputation of the employee dating learners.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
[20] In terms of Section 28 of the Constitution:
“Every child has a right –
“to be protected from maltreatment, neglect, abuse or degradation ”
Furthermore, the above Section also provides that:
“A child’s best interests are of paramount importance in every matter concerning the child”
[21] I have taken into account the evidence and closing arguments by both the employer and the employee. It is trite that a decision of guilt or not should be based on evidence presented. It is sufficiency of that evidence that must point to guilt or not of an accused employee. In other words, evidence led must, on a balance of probabilities, show that the employee is guilty of allegations levelled against him. I should also mention that in incidents of alleged sexual misconduct, it most often is the victim and the perpetrator that are involved, and these incidents rarely happen in the presence of witnesses. It therefore becomes important that evidence presented is carefully considered and weighed up. In this inquiry, no other witnesses were present during the alleged rape incident except the learner and the employee, if the rape did take place.
[22] I should perhaps also mention even at this early a stage that during evidence led, reference was made of the decision by the National Prosecuting Authority’s (NPA) Senior Prosecutor not to prosecute the employee. As such, the criminal charges were withdrawn against the employee and a letter to that effect was presented and read into evidence. What I should mention however is that the inquiry I am presiding over and any criminal processes that may have been undertaken are two separate processes and the employee’s criminal charge being withdrawn by the NPA has nothing to do with the present inquiry. As such, I do not attach any weight to the letter of withdrawal of criminal charges by the NPA.
[23] According to Learner A, she was raped by the employee in his office and that the employee had first given her a drink that was in a cup and which drink, after having drank it, made her drowsy. According to Learner A, the employee then proceeded to rape her on the table in the office. The employee denied the charges and denied that the incident ever took place. It may well be that Learner A was raped, but I cannot find that it has been proven, on a balance of probabilities that it was the employee who raped Learner A.
[24] In arriving at this conclusion, I took into account a number of factors. Firstly, even if I were to accept that the rape occurred, I would still reject that the employee was the culprit. Evidence should point to that possibility as I stated in the preceding paragraphs. The employee shares an office with another teacher, Miss Donelson who testified to this effect during the inquiry. The employee’s version and that of Miss Donelson in this regard was not gainsaid. The question that then begs an answer is that of whether the employee could have risked engaging in the rape act knowing fully well that Miss Donelson could walk in on them and catch him in the act. I am not convinced that the employee could have taken that risk. The employee did not strike me as naïve and, at least as far as evidence goes
[25] Secondly, Learner A gave two contradictory versions. In her written statement, she stated that she was sent by her class teacher, Miss Matlala to go and fetch the attendance register at the employee’s office. In her written statement, she stated this as a fact. Learner A then proceeded to state that she could not find the employee in his office and she went back to report same to Miss Matlala who told her to go back and wait for the employee. This version was however materially different from the one she gave during the inquiry to the effect that she went to fetch the register at the front office. When confronted with these differing versions during cross examination, and when asked which version should be believed, Learner A’s response was that the version she gave at the inquiry is the one that should be accepted. I however find that problematic.
[26] Learner A’s written statement, unlike the version she gave during the inquiry, was made after the alleged incident occurred and, that being the case, I can be reasonable expected that her recollection of events was likely more accurate than when she gave evidence during the inquiry. When pressed further as to whether, when she could not find the employee in his office, she went back to Miss Matlala to report same, she, in the inquiry, stated that she did not because Miss Matlala was not in the class. This is now materially different from the statement she gave where she stated as a fact that she went to inform Miss Matlala that the employee was not in his office and that Miss Matlala told her to go back and wait for the employee. Again, Learner A’s version during the inquiry that she was not sent by Miss Matlala and that she went to fetch the register on her own because she was a class captain and usually fetched the register was different from her version in the statement where she clearly stated that she was sent by Miss Matlala, the class teacher.
[27] There also was a version present ed by Learner A to the effect that she was a class captain. But this version was disputed by Miss Pagel, the employee’s witness who holds a position of Administrator and who deals with class attendance registers. This piece of evidence is relevant and important to the extent it is class captains who collect class attendance registers from the front office according to the principal’s evidence and also because, if Learner A was not a class captain, she could not have gone to fetch the attendance register, a responsibility that vests with class captains. Miss Pagel’s version was not disputed. Miss Matlala, who was Learner A’s class teacher was not called to testify to clarify the issue. The employer did send a letter to the Council and which letter appears to have been authored by Miss Matlala where she confirms that Learner A was a class captain. But this was after the fact. It is not part of evidence that was led and the employee and his representative did not have an opportunity to engage with the letter. As such, I do not deem it necessary to even deal with its contents.
[28] Learner A, in her written statement, also stated that while in the employee’s office, the employee came in and asked her what she was looking for, and she told him that she was sent by Miss Matlala. This version was again different from that she gave during the inquiry where she testified that she met the employee in the corridor and that the employee told her to follow her to the class. There is also another issue of Learner A’s version that after the alleged rape incident, she told Learner B about the alleged incident. While it was mentioned that Learner B was at the venue where the inquiry was held, he (Learner B) was not called to testify. While it was unclear to me why Learner B was not called to testify while he was the one informed about the alleged rape soon after it occurred, and information that would have added more weight to the employer’s version, it transpired, during the testimony of Learner A’s aunt, Mrs Nyathi, that while Learner A had stated that she had told Learner B about the alleged rape, she (Learner A), later stated that she had made a mistake. This would then possibly explain why Learner B was not called to testify in the inquiry.
[29] Mrs Nyathi, Learner A’s aunt did give evidence as to how the events unfolded up to the point where Learner A was taken to the hospital. But her evidence was largely hearsay in relation to the alleged rape and, while she attested to what the family did up to when the arrest of the employee took place and that the tests results showed that Learner A had been drugged and had been raped, such results were not made available and the circumstances of why they were not made available, and to the extent that any confidentiality considerations arose around their being made available, same was not raised by the employer during the inquiry. While Miss Nyathi also alluded, in her testimony, to comments made by other learners when Learner A’s family visited the school to the effect that the employee always passed inappropriate comments towards the learners and had told the learners that she loved Learner A, this evidence was hearsay and was not substantiated. As such, I attached no weight to it. Again, while the results, according to Miss Nyathi, showed that Learner A was raped, there are no basis that exist on which I can conclude that it is the employee that raped Learner A.
[30] I should mention, albeit in passing, that if the rape incident did occur and if the employee was indeed the culprit, there would be no debate as to the sanction that should be imposed on the employee. Dismissal, which would be the harshest of sanctions, would be warranted and I would not hesitate to impose same if evidence pointed to the employee’s guilt. This would be primarily because teachers stand in the place of parents and while learners are at school, teachers’ responsibility is that of looking after the welfare of learners and any unbecoming conduct by a teacher or a teacher engaging in inappropriate conduct with learners should not only be frowned upon, but such a teacher should be harshly dealt and such a teacher would further fall to be prevented from ever teaching. This is the fate that would befall the employee had I found that he committed the alleged rape. This would happen even in circumstances where he was criminally found not guilty, or the charge of rape withdrawn by the prosecuting authority.
[31] In the premises, I make the following award:
AWARD
[32] I find the employee, Mr Emanuel Bruce Barden, not guilty of both charges preferred against him.
[33] The employer is ordered to allow the employee to resume his duties.
[34] The Council is directed to close the file.
Monde Boyce
Panelist: ELRC