ELRC545-21/22GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD VIRTUALLY ON 22 MARCH 2022 ,13 MAY 2022, 07 JUNE 2022 & 09 JUNE 2022
Case Number: ELRC545-21/22GP
Arbitrator: Moraka Abel Makgaa
Date: 06 July 2022
In the matter between: -
Solidarity obo Anneke Smit Applicant
And
Education Department of Gauteng Respondent

ARBITRATION AWARD

DETAILS OF THE ARBITRATION AND REPRESENTATION
1 The arbitration hearing was held virtually over a period of four days. The employee was present and represented by Ms Lelanie du Plessis, a union official from Solidarity. The respondent was represented by Mr Parapara Mokgothadi, appointed by the respondent as its Labour Relations Officer.
2 The respondent submitted a bundle of documents made up of 11 pages, and it was marked “GDE1”. The applicant submitted a bundle of documents made up of 128 page, and it was marked “Solidarity 2”.
3 The proceedings were conducted in English and digitally recorded. The interpretation services for Afrikaans were offered by Mr Daniel Kova, a part-time interpreter for the ELRC.
ISSUES TO BE DECIDED
4 I am required to determine whether the dismissal of the applicant was both procedurally and substantively fair. Should I find that the dismissal was unfair, I am required to determine the appropriate remedy.
BACKGROUND TO THE MATTER
5 The factual background to the case of misconduct against the applicant is captured in the parties’ pre-arbitration minutes, particularly under the common cause and issues in dispute, and have been summarized hereunder. The following charges of misconduct were preferred against the applicant:
“Allegation 1
It is alleged that on 23 August 2019, while on duty as an educator at Hoërskool Montana, you conducted yourself in an improper, disgraceful or unacceptable manner in that you called a learner, i.e. Thembi Mokgotho, a “police monkey”.
In view of the above you are this charged in terms of section 18(1)(r) of the Employment of Educators Act, Act 76 of 1998 as amended.
Allegation 2
It is alleged that on 4 September 2019, while on duty as an educator at Hoërskool Montana, you conducted yourself in an improper, disgraceful or unacceptable manner by refusing to give a learner, Atang Malefo, permission to go to the toilet even though she told you that her menstruation periods started unexpectedly.
In view of the above you are thus charged in terms of section 18(1)(q) of the Employment of Educators Act, Act 76 of 1998 as amended”.
6 The disciplinary hearing was conducted on 21 October 2020, 22 October 2020 and 03 February 2021. The applicant was found guilty as charged and a sanction of dismissal was imposed. The outcome of the disciplinary hearing was communicated to the October 2020 in a letter signed by the Head of Department on 28 April 2021, which the applicant received during May 2021.
7 SAOU noted an appeal obo the applicant in a letter dated 11 May 2021. A request was made for the applicant to be given the opportunity to provide additional evidence, and to be provided with a copy of the record of the disciplinary hearing. The applicant appealed against both the finding and the sanction. The decision of the Member of the Executive Council (“MEC”) was communicated to the applicant in a letter dated 15 September 2021. Aggrieved by this decision the applicant referred an unfair dismissal dispute to the ELRC. The dispute could not be resolved at the conciliation stage, and a certificate of outcome was issued to this effect. The matter was referred to arbitration, which was conducted over a period of four days.
8 The applicant challenges her dismissal as being both procedurally and substantively unfair. At the commencement of the proceedings on 22 March 2022, I asked Ms Du Plessis to disclose the basis of the applicant’s procedural fairness challenge. It was indicated that the applicant’s challenge is founded on the excessive delay in charging the applicant and the respondent’s refusal to provide the applicant with audio recordings of the disciplinary hearing, which were requested during the appeal process.
9 Both parties filed written closing arguments, which have been taken into consideration in arriving at the conclusions herein. I am indebted to the parties’ representatives for their comprehensive and persuasive submissions, which included extensive reference to the relevant case law.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
10 Bophelo Mphelo testified under oath, and her testimony can be summarized as follows. She was one of the learners in the applicant’s class during 2019. The applicant taught them English and Biology. On 23 August 2019 a few of the learners were late for the Biology period, and Thembi Mokgotho was one of them. After a few minutes, Thembi started walking around in class towards the rubbish bin so that she could throw away the remains of what she was eating.
11 The applicant told Thembi to sit down. Thembi complained that the applicant was only focusing on her mistakes, and that she was always reprimanding her for doing wrong things but did not reprimand other learners the same way or to the same extent as she would do to her. That was when the applicant made a statement that Thembi was a police monkey. Everyone in class was shocked. She specifically asked the applicant as to whether she had indeed called Thembi a police monkey. The applicant didn’t say anything or clarify the statement she made. It was Deborah who said the applicant said ‘polisiemannetjie’ instead of saying ‘police monkey’. A few moments after what Deborah said, the applicant changed her statement and said she did not say ‘police monkey’, but she said ‘polisiemannetjie’.
12 The applicant was asked to read from the Beknopte Verklarende Woorde Boek dictionary about what is meant by the word ‘mannetjie’, and she said it means manlike dier ( leeu, kalkoen)”. The English version of mannetjie was said to be referring to a little man, male of an animal,chapie, japie ( bobejaan, male monkey, baboon, cock, a pigeon, jakaals). She then said that, even if the applicant could have said ‘polisiemannetjie’, it would have still been wrong for her to call Thembi ‘mannetjie’ because ‘mannetjie’ is the male term for an animal. It means by default it would mean the same thing as the word monkey.
13 She further testified that she was also in class during the incident of 04 September 2019. She was seating in the next row, directly behind Atang Malefo. Atang asked to go to the toilette. The applicant refused saying that they had an important work that they must write down. Atang asked for the second time. The applicant still refused. Another learner in the name of Andile, asked Atang as to what was going on. Atang told Andile that she was on her menstruation period. That was when Andile told the applicant that Atang was on her period, and that she must be allowed to go to the toilette. Eventually Atang went to the toilette without permission of the applicant.
14 Under cross examination, she testified that the applicant used to talk in English and Afrikaans interchangeably, especially when she was reprimanding someone. She did the same thing when talking to Thembi on the day of the incident relating to charge 1.
15 The applicant used to complain about lack of discipline involving specific learners, viz Dikeledi, Dimpho, Thembi and Atang, mostly as a result of late coming. She also complained about disrespect towards her, especially with regard to Thembi. After they had raised issues about the applicant’s teaching style, the principal came to class to speak to them. It was before the incident of 23 August 2019. She did not pay attention to what the principal was saying, hence she could not remember what he exactly said.
16 The phrase ‘police monkey’ refers to a monkey that is a police. She disagreed with the version that there is no term such as ‘police monkey’. For her monkey is the rude word and police is just an adjective, and that the word ‘monkey’ can be used with any other word to describe what the monkey is. The applicant said to Thembi that since she likes to police other people’s actions like the police would do, she should just be a ‘police monkey’.
17 She disagreed with the version that the applicant said, “can someone in class go and call the principal because it is like you always want a ‘polisie mannetjie’, meaning someone with authority who can come and instill discipline in class. She insisted that the applicant never said anything until Deborah spoke up for her. She disagreed that the pronunciation of the words ‘monkey’ and ‘mannetjie’ sound similar.
18 She testified that the same learners who were late during the first incident were late on the day of the second incident. Atang asked to go to the bathroom, but the applicant refused saying that Atang was already late for class and that they were busy with important exam work. A few minutes after Atang asked again. The applicant refused. That was when Atang told the applicant that she needed to go to the toilette because her situation was very serious. That was when Andile asked Atang as to what was wrong with her. Atang told Andile that she was on her menstruation period. Andile then told the applicant that Atang was on her period and should be allowed to go to the toilette. Atang to the applicant that if she is not allowed to go to the toilette, she was going to make a mess of herself which would make her embarrassed.
19 She denied the version that Atang never asked to go to the toilette, but it was Andile who asked on her behalf. She also disagreed with the version that the applicant did not refuse but only asked whether it could not wait because it was almost towards break. She insisted that the applicant did not give Atang permission to go to the toilette. Atang just got up and left the classroom.
20 Amahle Kulungile Mcotheli testified under oath, and her evidence can be summarized as follows. On 23 August 2019 the applicant called Thembi Mokgotho a police monkey. It was during a Life Science lesson. She was busy with her class work and as a result missed the beginning part of the conversation between Thembi and the applicant. She suddenly heard a commotion that was going on in class. There was back and forth conversation between Thembi and the applicant. She corroborated Bophelo’s evidence in as far as it related to the allegation that Thembi complained about being treated unfairly and differently by the applicant.
21 They saw the principal walking on the passageway. Thembi then said let us call the school Principal so that he can come and deal with this matter. That was when the applicant said to Thembi “if you want to be like a police monkey go ahead and do whatever you want to do”. The applicant only said, ‘I said polisiemannetjie’ after being asked three times by the learners as to whether she had indeed said ‘police monkey’.
22 Regarding the google information, she testified that when a search is made for the phrase ‘police monkey’ the images of monkeys on police uniform pop up.
23 In as far as the incident of 04 October 2019 is concerned, she testified that she was also busy with her school work when she heard commotion in class. She heard Atang asking the applicant whether she could be allowed to go to the bathroom because she had started her menstruation period. The applicant did not want to give her permission to go to the bathroom saying that it was the time for exam work. The applicant only allowed Atang to go to the bathroom after Atang and other learners asked many times. There were no specific learners she heard speaking or requesting the applicant to let Atang to the bathroom.
24 Under cross examination, she testified that she was not sure as to whether Thembi was walking in class. She had not heard the applicant saying can one of the learners go and call the principal. She conceded that the word ‘mannetjie’ is a diminutive word for the word ‘man’. She indicated that Thembi may have been near her desk, may also refer to an animal, and as such it has a racial connotation.
25 She disagreed with the version that there is no such a term as ‘police monkey’ because the words ‘police’ and ‘monkey’ go together and may be used in a colloquial manner. She conceded that the google information refers to pictures of monkeys in police uniform, and that such information does not refer to a definition of the phrase ‘police monkey’. She further testified that certain colloquial words cannot always be found in a dictionary or google because not everything is a reliable source.
26 Regarding the bathroom incident, she testified that she does not know if Atang asked first or whether it was Andile who asked first but what she knows was that the applicant asked Atang whether she really needed to go to the toilette and as to whether it was that urgent. She eventually allowed Atang to go to the bathroom.
27 Atang Malefo testified under oath, and her evidence can be summarized as follows. On 23 August 2019 they were attending a Life Science class. There was some kind of conflict or tension between Thembi and the applicant. Thembi saw the principal walking in the corridor. She said, “let me go and tell the principal about what is happening in the classroom”. That was when the applicant said, “if you want to be a police monkey go ahead and be a ‘police monkey’’. After there was a reaction or commotion in the classroom, the applicant changed her statement saying that she did not say police monkey but ‘polisie mannetjie’. She could not remember what was it that Thembi was doing in the classroom which caused tension between her and the applicant.
28 She testified that when one searches the concept ‘police monkey’ on google it shows a bunch of monkeys dressed in police uniform. According to her, the google pictures suggested that it does not matter as to which word is used with monkey. Monkey is the rude word; it is derogatory because the has been used by white people referring to black people. She further testified that she has never heard a white person referring to a black person as a police monkey, but she has heard white people referring to black people as monkeys.
29 Just like Bophelo, she was also asked to read the meaning of the word ‘mannetjie’ from Beknopte Verklarende Woorde Boek. In her opinion it does not matter whether the concept ‘police monkey’ exist or not. The fact of the matter is that the word ‘monkey’ is offensive regardless of any other adjective it is being used with. Referring to Thembi as ‘polisiemannetjie’ is also extremely offensive in the sense that Thembi was not only being referred to as an animal, but she was also referred to as a male animal. She was also being referred to as a man whereas she is a woman.
30 Regarding the bathroom incident, she testified that when walking into the Life Science class she was not experiencing any menstruation period. A few minutes after entering the classroom she started her menstruation period. She told Andile who was in front of her, that she started her menstruation period and she needed to go to the bathroom. Andile told the applicant that Atang needed to go to the bathroom. The applicant refused. She also asked the applicant who said that they needed to do exam work. Other learners also told the applicant that Atang needed to go to the bathroom. It was just back and forth arguments until she, out of frustration, said she needed to go to the bathroom because she had started her menstruation period. The applicant then said that as a grown up girl she needed to know how to control these things. She eventually said, ‘ag just go’. That was when she stood up and went to the bathroom.
31 Under cross examination, she testified that there were moments in the classroom where the applicant switched from English to Afrikaans. She did not hear Deborah or any other learner saying that the applicant did not say ‘police monkey’ but ‘polisiemannetjie’. There was a time when the principal came to the class to speak to them, but she could not remember the sequence of events. For most of the time the principal was reprimanding the class, telling them that they needed to be well behaved and not to be disruptive.
32 There was a time when the applicant complained to the class about being disruptive, learners eating in the classroom, late coming and walking around in class while she was teaching. There was also a language barrier between the applicant and other learners in the sense that she used to switch from English to Afrikaans.
33 There was a time when the applicant asked her whether it was really necessary for her to go to the bathroom. She could not remember whether they were busy with exam work, and she also could not remember whether the applicant said they were busy with important exam work. The applicant finally allowed her to go to the bathroom.
34 She could not silently stand up and go to the applicant because there could have been fresh blood stains on her skirt and on the chair. She agreed that in any event she was going to stand up and walk out of the classroom to the toilette, but the difference is that walking out quickly was not the same as standing in front of the class. She could not go and stand behind the applicant’s desk and ask her for a permission while facing the class because she understood that to be the applicant’s space. Secondly, she has never done that.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENTS
35 The applicant testified under oath, and her evidence can be summarized as follows. She started working for the respondent since 2012. She was attached to at Hoerskool Montana. During the time of the two incidents she was teaching Biology in Grades 11 and 12 . She specifically had problems with the following learners: Dikeledi, Atang Malefo, Andile Koka, Dimpho Moyo, Thembi Mokgotho, Danika Grobler and Amahle Mcgotheli. The problem included late coming. She spoke to a number of her colleagues, which included the Disciplinary Head, the Departmental Head and the School Principal, about her problems and frustrations with these learners. This resulted with the Disciplinary Head, the Departmental Head and the School Principal deciding to come and observe what was going on in class during her lessons.
36 She further testified that on 23 August 2019 Thembi, and her friends were misbehaving in class. She saw the principal, Mr Jacobs, walking outside as she was standing at the window. She, out of desperation, asked as to whether one of the learners could not go and call the principal because it looked like learners always needed someone to police them. She was talking in English but at the end she used Afrikaans because her English had dried out.
37 The usage of the phrase ‘polisie mannetjie’ is a rhyme she had known for many years. The phrase refers to a small policeman, meaning that she needed someone with authority to come and help maintain discipline in class. She specifically used the word polisie because at that time it was already clear that someone needed to be present in class for purposes of maintaining discipline in class. Before the incident of 23 August 2019, the school principal came to class the previous week to speak to the learners because the situation was so bad. She never called Thembi a police monkey. She told her that she said ‘polisiemannetjie’ and the other learners, viz Deborah Friend, helped her to explain what she said.
38 She testified that on the day of the bathroom incident she was busy teaching, when Andile raised her hand and said Atang is requesting to go to the bathroom. She was surprised but when looking at her watch she realized that it was about 10 minutes towards break. She then asked as to whether it can’t wait so that she could finish explaining the topic. Atang was murmuring at the background. She then stood up and said she wanted to go to the bathroom because it was her menstruation period. She said if it was that much serious then she must go. She stood up and went to the toilette. Messrs Dawie and Smit were present in class when this incident occurred.
39 Regarding procedural fairness, she testified that on 02 October 2019 she received a letter signed by the acting District Director of Tshwane North on 18 September 2019. The letter contained allegations relating to the incidents of 23 August 2019 and 04 September 2019. She responded in a letter dated 07 October 2019, with the assistance of her lawyers giving reasons as to why she should not be charged with misconduct. She received a notice of the disciplinary hearing on 06 October 2020, and appeared at a disciplinary hearing on 21 and 22 October 2020. The disciplinary hearing was concluded on 03 February 2020
40 She received the outcome of the disciplinary hearing signed by the Head of Department (“HOD”) on 28 April 2021 wherein she was informed that she has been found guilty on both charges and that she has been dismissed. She, through SAOU, requested to be furnished with audio recordings of the disciplinary hearing because the respondent’s witnesses contradicted themselves during the disciplinary hearing. They were never provided with the requested information. The notice of appeal was read into the record. On 21 October 2021 she received the letter of the Member of Executive Council (“MEC”) dated 15 September 2021, dismissing her appeal.
41 Under cross examination, she testified that what bothered her was that Thembi as the person who laid the police monkey complaint did not testify during the disciplinary hearing. She has never called learners monkeys.
42 Regarding the bathroom incident, she testified that initially she did not think Atang’s situation was that much serious but after Atang’s explanation she allowed her to go. Normally she just allowed the learners to go to the toilette if being requested but in this instance, they were busy with an important topic relating to the oncoming examination. She hoped that it would have been in Atang’s interest for her to be present during the lesson. The second reason was that she had realized that it was just about 10 minutes towards break time. Thirdly, Atang was late for the class, and ordinarily when learners come late to class they may have already been to the toilette.
43 She insisted that she did not refuse to give Atang permission to go to the toilette, but she just asked as to whether it was really necessary for her to go to the toilette. She also did not ask Atang to give reasons as to why she wanted to go to the toilette. She agreed that her case was of a complex nature but believed that it was more about challenges of language.
44 The excessive delay was prejudicial to her in the sense that it was like a sword hanging over her head. Another concern was that the learners who had to testify in her defense were also completing their matric. She was not sure whether it would be possible for her to get such learners to come and testify as her witnesses.
45 Deborah Friend testified under oath and her testimony can be summarized as follows. During the time of the two incidents, she was a Grade 11 learner. The applicant was her Biology teacher at that time. In class she sat in the front row on the right hand side, and Demei Mcue sat next to her. Atang, Amahle and Gobler were disrespectful of the applicant. They were always complaining about the applicant’s teaching style.
46 On 23 August 2019 the applicant asked Thembi, who was walking around in class, to sit down. Thembi kept on laughing at the applicant and continued walking. The applicant said they ( learners) always needed a ‘polisiemannetjie’ so that there can be order in class. She further asked as to whether someone could go and call the principal. Thembi accused the applicant of calling her a ‘police monkey’. She spoke to Thembi in Afrikaans saying the applicant said ‘polisiemannetjie’ and not ‘police monkey’. The applicant was standing in front of her when she said can someone go and call the principal.
47 She never heard about the phrase ‘police monkey’. On 19 October 2019 she wrote a letter about what happened in class during the incident of 23 August 2019. She did that after being asked by the applicant to do so. She could not remember what happened with regard to the bathroom incident.
48 Under cross examination, she testified that she saw the principal coming from the Office towards their class, which was after everything had happened. On that day Thembi was talking and walking in class towards Dimpho. The learners on the left side of the class, viz Dimpho, Amahle, Dikeledi, Danieka and Bophelo, were talking but she could not understand what they were talking about because they were using one of the African languages. During that time the applicant was busy with the slides.
49 The statement ‘can someone go and call the principal because this class always needs a polisie mannetjie’, was made to the whole class, and not to a specific learner because the class was being disruptive. She denied that she responded on behalf of the applicant.
50 David Gerhardus Cornelius Du Plessis testified under oath, and his testimony can be summarized as follows. He has been the disciplinary Head since January 2016. His duties and responsibilities include dealing with disciplinary issues such as bullying, name calling and class disruptions. The applicant used to complain about a specific group of learners, which included Atang Malefo, Dimpho, for coming late to class, eating and drinking in class as well as walking in class while she was teaching.
51 The principal instructed him and Mr Smit to go to Grade 11 in order to observe what was happening during the applicant’s lessons. He was present in the classroom when the incident of 04 October 2019 occurred. Atang came to the class late. During the lesson one of the learners, in the name of Andile, asked whether Atang could go to the toilette. The applicant asked whether it was necessary for her to go to the toilette because break was not too far.
52 Under cross examination, he testified that the applicant never asked Atang to explain as to why she needed to go to the bathroom.
53 Jeanetta Hendrina Brits testified under oath, and here testimony can be summarized as follows. She testified about the information on the expert evidence report in so far as it related to her, which included her qualifications and research focus. Her qualifications included a Masters Degree in Setswana, which she obtained 2006, Honours Degree in Setswana, obtained in 2004 and Bachelor’s degree in Business Communication, obtained in 2003. All her qualifications were obtained at North West University. Her research focus is theoretical linguistics with reference to the orthography of Setswana (as well as other Sotho and Nguni languages), and applied linguistics with reference to language acquisition and human language technology.
54 She is a Language Practitioner at Academia ( which is a private Higher Education Institution), a part-time Lecturer of Setswana as a conversational language, and a research associate at the University of Johannesburg . Her work involves translating words from Setswana to Afrikaans and English. She defined applied linguistics as being about looking at the context in which words are used in practice, and this involves looking at the cultural background of the people involved in the conversation.
55 She testified that when analyzing the phrases ‘ police monkey’ and ‘polisiemannetjie’, they followed social linguistic analytic approach, which means they had to look at the context in which these language utterances were used as opposed to doing a grammar exercise. They also looked at the cultural aspect of the case because it involves people with different cultural backgrounds.
56 In their analysis they looked at the use of the word ‘mannetjie’ with reference to the human class and also with reference to the animal class, as well as the prefix that may be used in this word. They did a comparative analysis of the words used or alleged to have been used by the applicant. In Afrikaans the stress or emphasis on pronunciation tend to be towards the end of the word whereas in African languages, the stress is on the second last syllable of a word. In as far as the word ‘monkey’ is concerned, the stress is on the second last syllable. It is possible that the words ‘monkey’ and ‘mannetjie’ may be heard as if they sound the same because of the level of stress in the pronunciation. Their conclusion is that it was highly unlikely that the applicant could have used the word ‘mannetjie’ referring to a learner as the male version of an animal as opposed to using it as a diminutive form of the word ‘man’
57 In response to the evidence given by the respondent’s witnesses, she testified that ‘mannetjie’ may also refer to the male version of an animal but disagreed that in the context it was used by the applicant it could not have referred to the learn as a male animal. The reason being that in the dictionary the first or most frequently used meaning of the word ‘mannetjie’ refers to the diminutive form of the word ‘man’.
58 She also disagreed with the version that in the context of this case, the rude word is ‘monkey’ and that the word ‘police’ is just an adjective or syllable, because in her view the word ‘police’ is a noun and not an adjectives. In Afrikaans the word ‘mannetjie’ can also be used to show endearment. She also testified that the phrase ‘polisiemannetjie’ is not the rudest word or a swear word to be used if someone is angry.
59 Under cross examination, she agreed that the word ‘mannetjie’ may, for instance, refer to ‘manlike deur’ but insisted that it is not the most frequent meaning in everyday life. The most frequent meaning of the word ‘mannetjie’ is with reference to a human being, i.e a small person that is a man. It depends on the context in which it was used. In the first place the word ‘mannetjie’ does not refer to an animal but to a human being but a recipient can interpret any word the way he or she likes. In the educational context like when one does an assignment dealing with animals, the word ‘ mannetjie’ may be combined with another word to make sure that reference is made to an animal, such as the ‘leeu’, and say ‘leeu mannetjie’, referring to a ‘vyfie’. This combination can be used in order to indicate that one is referring to a male or female version of that animal.
60 In the school or classroom set up, the first interpretation of the use of the word ‘ polisie’ may refer to someone who can keep law and order to protect the school community. If the word is used when referring to the school principal it may be perceived in a negative light, but it depends on the context in which it was used. In class if one uses the diminutive form of a word, it may be about showing endearment. The use of the phrase ‘polisiemannetjie’ may refer to the smaller version of a policeman.
61 Annelise de Vries also testified under oath, and her evidence can be testified as follows. She has the following qualifications: PhD in Applied Linguistics, obtained at University of Johannesburg in 2021, Master Degree in Afrikaans-Dutch, obtained in 2016, Honours Degree in Afrikaans-Dutch, obtained in 2013, BA Degree in Pastoral Counselling and Psychology, obtained in 2013 and BA Degree in Communication studies, obtained in 2012. All these degrees except her PhD were obtained at the University of North West. Her research focus is applied linguistics with reference to sociolinguistics, language planning and forensic linguistics. She is the Subject Head in the Department of Languages at Academia University. She defined applied linguistic is not being about language that is theoretical, but as being more about problems in real life.
62 When analyzing the two phrases at the center of the dispute in this case, they used a research methodology known as corpus linguistics, which concerns a research methodology that is being used to get an understanding of the meaning of words and utterances that are used in a specific language, in different contexts in real life. A corpus search can be used to see as to what meaning does most people attach to the use of a particular word or phrase.
63 Context is important, and it gives meaning to the use of a word or words. Even a dictionary gives context because it cannot function without a context. If one looks at any dictionary, there are numbers attached to the different meanings of a word. The numbers are in the order of frequency. The word ‘mannetjie’ in the etymology dictionary of Afrikaans or any other dictionary refers to ‘klein man’, which in English it means small man. It effectively means that the most frequent use of ‘klein man’ is for a small man. The second meaning of the word ‘mannetjie’ relates to the male version of an animal, which is the second most used explanation of the word ‘mannetjie’. The third one is about expressing irritation which is not necessarily a rude word.
64 In this case, she did a corpus search for the word ‘mannetjie’ in order to find out what is the most frequent meaning or explanation of this word in order to establish as what the applicant most probably meant when using this word. The results they got was 5530 meanings or explanations of the word ‘mannetjie’. Their conclusion was that the most frequent context of the word ‘mannetjie’ is that it refers to the first explanation in the dictionary, which is about ‘small man’, with the male version of an animal as the second frequent explanation, and the third explanation as being about expressing irritation.
65 In the context of this case, the connotative meaning of the phrase ‘polisie mannetjie’ was most probably about reference to small man or to express irritation as opposed to reference to the male version of an animal. If the applicant was dealing with a disruptive class, and she said ‘why do we always need a’ polisiemannetjie’ in class’, it could mean she was referring to a man with small posture or she was just expressing irritation but not referring to someone as a male animal. If one want to use the word ‘mannetjie’ for referring to an animal, he or she must use it with another word referring to an animal, eg ‘leeu mannetjie’.
66 In Afrikaans there is no concept such as a ‘police monkey’ either in spoken or written language. Such a combination is just weird and meaningless. She also could not find any literature making reference to the phrase ‘police monkey’. She therefore decided to dismiss the assertion that the applicant could have used the phrase ‘police monkey’.
67 As to the allegation that the applicant said to a learner in the name of Thembi ‘ just go and be a police monkey’, she testified that there is just no meaning to such a combination. It could have been different if it was said the applicant said ‘go and be a ‘polisiemannetjie’, because such a phrase could mean just go and oversee what the people are doing. In this context the phrase ‘polisiemannetjie’ would make sense.
68 Under cross examination, she testified that she also did a corpus search about the word ‘monkey’ in the context of the phrase ‘ police monkey’ and there were no hits, meaning that this phrase is not being used in real life or in any literature. There is no meaning attached to the phrase ‘police monkey’. If the applicant referred to a learner as ‘police monkey’, such an utterance would have been meaningless because the phrase ‘police monkey’ bears no meaning. Her opinion is that she might have said ‘polisiemannetjie’ because this phrase has meaning, especially in the context where discipline had to be maintained.
69 Regarding the version that the respondent did a google search for the meaning of the phrase ‘police monkey’, she testified that the first thing one needs to consider is the context, and secondly the methodology followed in obtaining the meaning of language utterances. Google search is not a scientific methodology, and it is also not a reliable corpus data base. As a linguist, working with language research, her view is that if one wishes to do speech and linguistic analysis such a person will have to follow the correct methodology, which is the certified corpus of that language. If one does not follow the correct methodology when trying to understand speech and language utterances such a person will inevitably arrive at incorrect results.
70 Regarding the meaning of the word ‘mannetjie’ from Beknopte Verklarende Woorde Boek, published in 1976, she testified that the first problem is that this version of the dictionary is very old. Secondly, it is outdated and not wide enough to have accommodated other new developments in the Afrikaans language. Thirdly, it also makes reference to ‘kareltjie’ (which is an archaic meaning for a little man) as one of the meanings of the word ‘mannetjie’. She insisted that the word ‘polisiemannetjie’ can also be used to refer to a female learner because it also refers to a profession and the role of a policeman, which is about maintaining law and order. That is why even in real life, reference is made to a policeman as opposed to saying a policewoman or polisie vrou. If ever reference was made to ‘ bobejaan’, the word ‘ mannetjie’ would have been used together with the word ‘bobejaan’.
RESPONDENTS’ SUBMISSIONS
71 The respondent’s closing arguments can be summarized as follows. The delay was occasioned by the investigations which had to be conducted by the employer for the purposes of assessing the strength of the accusations against the applicant in order to determine whether or not she had a case to answer. This included taking statements from all relevant parties about the incident.
72 The disciplinary proceedings could not be instituted immediately because it was during school holidays with educators being on holidays. The entire focus was directed to the examinations, as the core business of the Department of Education. The delay was also caused by the complex nature of the case in that it involved leaners and an educator in the same class. The National Disaster due to Covid 19 limited departmental officials from having physical contacts with schools.
73 The applicant has not cooperated with the investigator by,ineter alia, claiming to exercise her right to remain silent, and referring the employer to her legal representative and the union. The applicant was, at the time of responding to the letter of an intention to charge her expected to divulge the full story about what transpired in the classroom without hiding anything.
. 74 The applicant’s responses during the investigations and during the arbitration hearing re inconsistent, raising issues of credibility, reliability, independency and inherent probability. It is also submitted that the respondent’s witnesses had tendered a consistent version with regard to the allegation that the applicant has uttered the words ‘police monkey’ towards Thembi Mokgotho in the classroom in the presence of the learners.
75 The version of the applicant that her utterances were made in English but only towards the end of the sentence she used the words ‘polisie mannetjie’ was contradicted by her witnesses who said that the entire statement was uttered in Afrikaans. Regarding the meaning of the word ‘mannetjie’, it is submitted that the information from the Afrikaans dictionary indicated that the meaning of the word ‘mannetjie’ does not exclude the word ‘bobejaan’.
76 Extensive reference has been made to case law in an attempt to prove that the applicant should be understood to have used hate speech underpinned by racial connotation and discriminatory import against a disruptive and ill-disciplined learner. It is also submitted that in situations like in the present case, it is the views of the recipient community which must prevail as opposed to the views of the utterer’s community.
APPLICANTS’ SUBMISSIONS
77 The applicant’s procedural fairness challenge was founded on several grounds, which included allegations that the respondent had contravened the provisions of Schedule 2: the Disciplinary Code and Procedures for Educators, to the Employment of Educators Act 76 of 1998 (“the Educators Act”). Closely linked to this challenge is, it is submitted that the respondent’s failure or refusal to provide the applicant with the recordings of the disciplinary hearing and the respondent’s decision not to call Thembi Mokgotho as one of their witnesses both during the internal disciplinary hearing ant at the arbitration have also contributed to procedural unfairness. Just like Mr Mokgothani, Ms Du Plessis has also gone at great length in traversing the legal principles established by the various courts in cases dealing with inordinate delay. She specifically made submissions about the adverse findings which must be made against the respondent in this case for the excessive delay and other procedural defects incidental thereto.
78 Unlike what I did in respect of the respondent’s submissions, I have decided not to summarize the submissions made obo applicant, in any greater detail for the simple reason that the submissions are, in the main, a repeat of the evidence tendered during the arbitration hearing. Secondly, I intend to make reference, either directly or indirectly, to the applicant’s submissions at a later date stage.
ANALYSIS OF EVIDENCE AND ARGUMENTS
79 According to the onus contemplated in section 192 (2) of the LRA, once the existence of the dismissal is not in dispute, like it is the case in the present matter, the onus of proving the fairness of the dismissal of the employee rests on the shoulders of the employer. The fact that the applicant challenges her dismissal as being both procedurally and substantively unfair suggest that the respondent is required to prove that the applicant was dismissed for a fair reason and in accordance with a fair procedure .
PROCEDURAL FAIRNESS
80 The applicant’s procedural fairness challenge is based on the following two grounds. Firstly, it is the excessive delay in instituting and concluding the disciplinary proceedings. The second ground relates to the irregularities alleged to have been committed in relation to the appeal process. The applicant was dismissed for contravening section 18(1)(q) of the Educators Act. In as far as the procedure that must be followed when dealing with acts of misconduct in sub-section (1), sub-section (2) provides as follows:
“If it is alleged that an educator committed misconduct as contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures contained in Schedule 2”.
81 The purpose of the disciplinary code and procedures include “providing educators and the employer with a quick and easy reference for the application of disciplinary measures”. There are a number of other provisions which also suggest that the disciplinary enquiry must be as fair and expeditious as possible. To the extent relevant, item 2(b) and (g) of the disciplinary code and procedures provide as follows:
“2. Principles. - The principles underlying the Code and Procedure and any decision to discipline an educator are that –
(b) discipline must be applied in a prompt, fair, consistent and just manner;
(g) disciplinary proceedings must be concluded in the shortest possible time”.
82 Items 5 and 7 of the disciplinary code and procedures, in the relevant parts, provide as follows:
“5. Notice of enquiry for misconduct cases other than those contemplated in item 4.—
(1) The educator must be given written notice at least five working days before the date of the hearing.
7. Conducting disciplinary hearing.—
(1) The disciplinary hearing must be held within ten working days after the notice referred to in item 5 is delivered to the educator.
(18) The presiding officer must communicate the final outcome of the hearing to the employer and the educator within five working days after the conclusion of the disciplinary enquiry…”
83 There is no doubt that the time frames relating to the notice period and the number of days within which the disciplinary hearing must be held after the issuing of the notice of the disciplinary hearing, as well as the number of days within which the outcome of the disciplinary hearing must be communicated to both the employer and the educator have been expressly specified by the legislature. The same thing has not been done with regard to the period within which the disciplinary proceedings may or must be instituted and concluded, particularly after occurrence of the incident(s) under investigation. It is only in the case of a precautionary suspension or transfer where sub-item (3) of item 6 of the disciplinary code and procedures provides for specific times frames within which the disciplinary hearing must be concluded, following imposition of the precautionary suspension or transfer. To this end sub-item (3) read together with sub-item (2) provide as follows:


“6. Suspension
(2) In the case of misconduct in terms of section 18, the employer may suspend an educator in accordance with the procedure contemplated in subitem (1), or transfer the educator to another post if the employer believes that the presence of the educator may jeopardise any investigation into the alleged misconduct, or endanger the well-being or safety of any person at the work-place.
(3) (a) If an educator is suspended or transferred, the employer must do everything possible to conclude a disciplinary hearing within one month of the suspension or transfer.
(b) The presiding officer may decide on any further postponement. Such a postponement must not exceed 90 days from the date of suspension.
(c) If the proceedings are not concluded within 90 days, the employer must enquire from the presiding officer what the reasons for the delay are and give directions for the speedy conclusion of the proceedings.
(d) At the time of the enquiry contemplated in paragraph (c) the employer may, after giving the educator an opportunity to make representations, direct that the further suspension will be without pay”.
84 I am of the view that, in instances where an educator has not been precautionarily suspended or transferred, the disciplinary code and procedures must be interpreted as imposing time frames shorter than the 90 days contemplated in item 6(3). This is so for obvious reasons, which include the fact that the employer did not believe that the presence of such an educator may jeopardise any investigation into the alleged misconduct or endanger the well-being or safety of any person at the work-place. In instances where an educator (like in the present case) was not placed on precautionary measures envisaged in item 6, common sense suggests that it should be possible for the employer to institute and conclude the disciplinary proceedings in the shortest possible time.
85 In casu, the charges which were ultimately preferred against the applicant appear to be simple and straight forward. In fact, they are almost identical to the allegations which were communicated to the applicant in the letter of the acting District Director dated 18 September 2019. It means that even if it were to be argued that the matter was too complex such an argument would have only gone as far as the necessity of an expert evidence is concerned, which the respondent chose not to lead both during the disciplinary hearing and at arbitration.
86 The objective facts in this case, suggest that the disciplinary hearing was instituted on or about 02 October 2019, which was approximately 40 days after the first incident, and 28 days after the second incident. The date on which the acting District Director signed the letter of intention to charge the applicant suggests that the respondent became aware of the two incidents on or before 18 September 2019. It effectively means that the respondent acted within 28 days of becoming aware of the first incident, and within 12 days of becoming aware of the second incident. The 28 days may not be regarded as constituting an excessive delay in as far as the aspect of instituting the disciplinary proceedings is concerned but concluding the disciplinary proceedings on 15 September 2021, which was approximately 25 months after the incident of 23 August 2019, constituted an inordinate delay.
87 Turning to allegations of procedural unfairness relating to the appeal process, the submissions in the notice of appeal did not only include legal arguments. The applicant had raised a wide range of factual disputes, which included the allegation that the Presiding Officer's findings were not based on the material evidence placed before him. This was as good as saying that the Presiding Officer took into account irrelevant evidence and disregarded relevant evidence. It was also submitted that the “outcome of the disciplinary hearing be evaluated against the digital recordings to ensure the accuracy and veracity of the outcome”. In conclusion, the following sentences were written in bold letters:
“We hereby request you to provide me with a copy of the complete and full record of the proceedings to enable me to submit further grounds of appeal.
We reserve the right to advance further grounds of appeal after receipt of a copy of the above mentioned. In this regard we contend that these documents will show that the Presiding Officer could not have made the findings he did.
We wish to provide additional evidence to prove that the Presiding Officer erred in his sanction. Such further and additional evidence will be submitted together with our supplementary grounds of appeal after receipt of the copy of the record of the proceedings”.
88 The above evidence was not disputed or contradicted by the respondent. The evidence is therefore accepted as a true reflection of the submissions made obo the applicant with regard to the appeal process, as well as a true reflection of the conduct of the respondent, particularly after the outcome of the disciplinary hearing was communicated to the applicant.
89 Items 7 and 9 of the disciplinary code and procedures, in the relevant parts, provide as follows:
7. Conducting disciplinary hearing.—
“(7) The presiding officer must keep a record of the notice of the disciplinary hearing and of the proceedings.
(7A) (a) The record referred to in subitem (7) includes an electronic recording of the proceedings.
(b) A transcript of electronic recordings or a portion of the transcript of a recording may be made on request of the educator or his or her representative on payment of the prescribed fee contemplated in section 22 of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000). [Sub-item (7A) inserted by s. 13 (a) of Act No. 50 of 2002.]
9. Appeals.—
(1) An educator or an employer may appeal against a finding or sanction by making an application in accordance with Form E attached to this Schedule.
(3) On receipt of the application referred to in subitem (1), the Member of the Executive Council or the Minister, as the case may be, must request the employer to provide him or her with a copy of the record of the proceedings and any other relevant documentation.
(4) If the Member of the Executive Council or the Minister, as the case may be, chooses to allow further representations by the educator, or his or her representative or an employer, he or she must notify the educator or employer respectively of the date, time and place where such representations must be made”.
90 On a proper interpretation, item 9(3) imposes a legal duty on the Member of the Executive Council (“MEC”) to request the employer to provide him or her with a copy of the record of the proceedings and any other relevant documentation. It can safely be concluded that, at the time of deciding on the applicant’s appeal, the MEC was in possession of the record of the proceedings and any other relevant documentation. In other words, he was in a better position to provide what the applicant described as “the complete and full record of the proceedings”. Even if the MEC was not inclined to provide the applicant with a record of the disciplinary hearing, he ought to have at least considered the possibility of allowing an appeals hearing in accordance with item 9(4).
91 In Riekert v Commission for Conciliation Mediation and Arbitration and Others , the Labour Court dealt with the question whether the employer’s non-compliance with some aspects of its own disciplinary code rendered the applicant’s dismissal procedurally unfair. The employer suspended the employee on 17 January 2002 in connection with acts of misconduct which occurred on or about 03 December 2001. He was notified of the disciplinary hearing on 19 January 2002, appeared at a disciplinary hearing on 22 February 2002, found guilty of the offences he had been charged with, and dismissed on 28 February 2002. The employer’s disciplinary code and procedures included the following principles: ‘the disciplinary action must commence within a reasonable time after the offence has been committed, accurate records of any procedures must be maintained, and employees are entitled to a copy of the minutes which must fairly reflect the contents of the proceedings’.
92 The Labour Court disagreed with the arbitrating commissioner’s conclusion that the non-compliance by the employer with its own procedure did not render its conduct procedurally unfair. The Court said the following about why it is important for employers to comply with their own disciplinary codes and procedures:
“ I am in agreement with the proposition that disciplinary codes are guidelines and that an employer will not necessarily be regarded as having acted procedurally unfairly if it did not comply with certain specific parts of its code. I do not believe that the fact that there is clear case law to the effect that disciplinary codes are guidelines can under any circumstance be understood by employers as meaning that they may chop and change the disciplinary procedures they have themselves set as and when they wish. Employees (and employers) are entitled to expect that their employers (and employees) will comply with the prescribed rules of the game as far as disciplinary enquiries go (and for that matter, as far as all rules set in the workplace, for both employers and employees, are concerned). When an employer does not comply with aspects of its own disciplinary procedures, there must be good reason shown for its failure to comply with its own set of rules. An employer must justify the non-compliance with its own code and, having regard to all the relevant circumstances, the employer bears the onus to satisfy the objective requirement that their conduct was substantially fair, reasonable, and equitable”.
93 During the first day of the arbitration hearing, I requested Ms Du Plessis to disclose the specific aspects of procedural fairness they are challenging, and she identified excessive delay and the respondent’s failure or refusal to provide the applicant with audio recordings of the disciplinary hearing for purposes of her appeal. I indicated to her that, in the circumstances, it would not be necessary for the applicant or her witnesses to testify about what the Presiding Officer may have done or not done during the internal disciplinary hearing.
94 Mr Mokgothadi enquired as to whether he should deal with allegations relating to the inordinate delay before evidence is being led, and I explained to him that the most appropriate way would be by way of evidence, wherein the respondent will have to give reasons why there was such kind of a delay and as to why the requested information was not given to the applicant or her union in relation to the appeal process. Even during the proceedings, particularly when Ms Du Plessis wanted to cross examine some of the respondent’s witnesses about issues relating to the challenge on procedural fairness, I indicated to Ms Du Plessis that those witnesses, as they were learners at that time, cannot be expected to testify about what was clearly part of the respondent’s responsibilities. Mr Mokgothadi ought to have realized that someone else than the former learners would have been better positioned to give evidence as regards the procedural fairness aspect of the case.
95 I am satisfied that sufficient guidance was provided to the parties’ representatives as to how they were expected to prove their respective cases. The respondent has, nonetheless, elected not to lead any evidence, for both the excessive delay and in response to the complaints made as regards the appeal process. The respondent has instead chosen to only deal with the reasons for the inordinate delay, which were unfortunately advanced long after the parties had closed their respective cases. It is unacceptable for a party to try and introduce evidence, worse on issue which raised factual disputes, through heads of argument. The net effect of the respondent’s litigation strategy as regards procedural fairness is that the only version which is before me is that of the applicant. Ms Du Plessis has not only gone an extra mile in her analysis of the evidence before me, but she has also supported her submissions with the relevant case law and literature dealing with inordinate delay.
96 It is my conclusion that the respondent has not been able to discharge the onus of proving that the applicant’s dismissal was procedurally fair.

SUBSTANTIVE FAIRNESS
97 Before I could deal with the evidence relating to the two incidents which are at the heart of the present dispute, I wish to make quick comments on the respondent’s decision not to call Andile and Thembi as part of their witnesses. There is no doubt that these former learners appear to have been at the centre of the two incidents. Thembi could have, for instance, shed some light on what could have caused what was described by Amahle, Atang and Deborah as “commotion in class” or “ the back and forth” between Thembi and the applicant, or as to why the principal needed to be called or told about her differences with the applicant, and as to who ( between her and the applicant) said the principal should be called. Andile could have provided some clarity about the reason as to why she was the first one to ask a permission on behalf of Atang, and as to why did she not think it was advisable for her to stand up silently and go to the applicant so as to explain the reason why Atang needed to go to the toilette and as to why she had volunteered to make the request obo Atang.
98 It is also not clear as to why the respondent did not think it was necessary for them to call the departmental official(s) who investigated the two incidents, if ever such an investigation was conducted. Such an official(s) could have, in all probabilities, provided a relatively objective assessment of the two incidents, which appear to have been the symptoms of a protracted and unhealthy teaching and learning environment.
99 The last issue relates to the adverse findings I have been invited to make on the credibility of the respondent’s witnesses. This was, in the main, done by trying to suggest that the respondent’s witnesses had questionable conducts as well as a propensity of making false allegations and accusations against both the educators and the learners. This context was probably painted for purposes of suggesting that it was not unusual for Thembi, Atang and their friends to have decided to blow the two incidents out of proportion. Firstly, I do not think it is necessary for me to resolve any of the factual disputes in this case by way of making any credibility assessment based on the historical incidents or the general (mis)conduct of the respondent’ witnesses or of any other learner who may have been accused of a disruptive behaviour. Secondly, it appears to me that the reactions to the two incidents may have been spontaneous as opposed to being the outcome of a well-orchestrated plot to get rid of the applicant.
100 I wish to start with the incident of 04 September 2019 because it is comparatively less complex. All the witnesses, except Bophelo, who testified in this case were agreeable that the applicant had ultimately given Atang permission to go to the toilette. Bophelo was the only witness who testified that permission was never given, and that Atang left in defiance of the applicant whereas Deborah’s testimony was that she had no recollection of this incident. It appears to me that Charge 1 was either based on incorrect facts or badly couched. Simply put, Charge 1 was ill-fated.
101 Strictly speaking, the finding in paragraph 101 above, marks the end of the enquiry in respect of Charge 1. I have, however, decided to proceed with the analysis of the witnesses’ evidence in the event I may be wrong in the conclusion made in that paragraph. It appears to me that the only thing which the applicant was expected to have said was to give Atang an outright permission through Andile. What the respondent appears to have failed to appreciate is the responsibilities which may have been placed on the applicant, firstly as an educator, and secondly, in terms of the doctrine of in loco parentis.
102 Even before dealing with the question as to which version represents the truth about what the applicant said in response to Andile’s request obo Atanga, and later to Atang herself, there appears to be some convergence on the question that the lesson being taught had everyone to do with either a test or the end of year examinations. The second and third considerations should be linked to the undisputed evidence of the applicant and Mr Du Plessis, that Atang was, as usual, late for the lesson and that she had gone past toilettes on her way to the class. When taking into account all the circumstances, including the fact that the school principal had ended up bring some kind of a back-up to assist the applicant, the expectation that the applicant should have given an instant permission would have not been different from stripping the applicant of the little authority ( if any) that she may have been remaining with over the class in general, and particularly over Atang and the other learners whose conduct had necessitated the principal’s decision to deploy the Subject Head and the Head of discipline to Grade 11E.
103 As to what the applicant actually said, the evidence of Bophelo stand to be rejected because it is not only riddled with opinions and an exaggeration of what may have happened or being said in respect of this incident, but it is also not supported by the evidence of Amahle and Atang. Amahle, on her own version, testified that she missed what may have triggered the back and forth arguments between the applicant, Atang and the other learners. It is possible that she may have not had a full understanding of the whole context.
104 The applicant’s evidence that she asked as to whether it was really necessary, taking into account the fact that Atang came to class late, she was teaching an important topic for the examination and that it was about 10 minutes before break, was corroborated by Mr Du Plessis. I am persuaded that the applicant’s version is, on the balance of probabilities, the most probable version about what the applicant said with regard to the incident of 04 September 2019.
105 Turning to the incident of 23 August 2019, I have decided to first deal with dispute whether or not there is such as phrase as ‘police monkey’ for the simple reason that a finding on this question will determine whether or not it will still be necessary to proceed with the enquiry in respect of charge 1. Before getting deeper into the witnesses’ evidence, I think it is necessary for me to make remarks on the manner in which the issue of expert witnesses was handled by the parties’ representatives.
106 At the commencement of the proceedings on 13 May 2022, Ms Du Plessis indicated that she had sent an email to Mr Mokgothadi the previous day enquiring as to whether the respondent was intending to call an expert witness to come and deal with the linguistic aspect of the case, particularly the meanings of the phrases ‘police monkey’ and ‘polisiemannetjie’. Mr Mokgothadi’s response was that he had not had the opportunity of reading his emails as he was engaged in another arbitration proceedings. I proposed to the parties that the respondent be given the opportunity to consider whether to call expert witness(es), with the rider that the applicant will be allowed to lead evidence in respect of all their witnesses, with the exception of the expert witness(es), to finality. In the event the respondent decides to call expert witness(es), the respondent will be allowed to reopen its case in respect of expert evidence, before the applicant’s expert witness(es) could testify.
107 At the commencement of the proceedings on 07 June 2022, I was informed that Mr Mokgothadi had written an email on 17 May 2022 to Ms Du Plessis indicating that it was not necessary for any of the parties to lead expert evidence. I explained to the parties that a decision to call a particular witness or particular witnesses remains the discretion of each party and it is not necessarily subject to an agreement between the parties. The parties’ representatives were reminded about the reason and context for my decision on 13 May 2022. I also explained to the parties’ representatives the reason why I also believed expert evidence is relevant to the issues in dispute in this case. I once again indicated that the proposed approach I made on 13 May 2022 still stands, and further advised Mr Mokgothadi to try and find out as to whether it would not be possible for him to secure the services of an expert witness, even if it could be within the employ of the respondent in preparation for the arbitration hearing scheduled for 09 July 2022.
108 At the commencement of the proceedings on 09 July 2022, I enquired from Mr Mokgothadi about the respondent’s decision on the issue of expert witness(es), and he informed me that he could not secure the services of any expert witness. I am satisfied that the respondent was given more than enough opportunity to decided whether it was necessary for them to adduce expert evidence, and they chose to proceed with the case without the assistance of expert witnesses.
109 The only source of reference which was used by the respondent to prove the existence of the phrase ‘ police monkey’ is a google search, which reflected a Thai language article showing pictures of several monkeys dressed in police uniform. All the witnesses of the respondent had somehow, though indirectly, conceded that the concept ‘police monkey’ may not be found in any reliable source of reference. The explanations of Bophelo and Atang were based on the understanding that the word ‘police’ is an adjective or a syllable, which in this case was used with the word ‘monkey’ to express the applicant’s racist remarks. Amahle’s explanation had, apart from insisting on the existence of the phrase, also suggested that the phrase ‘police monkey’ may be used as some form of a colloquial language.
110 Bophelo was the only witness on the side of the respondent who said something about the meaning of the phrase, ‘police monkey’ but she reached a cul de sac within a few seconds of being asked to use the phrase in a sentence. She then took refuge in the approach, which was later adopted by Amahle and Atang, by saying it does not matter as to which adjective or syllable is used with the word ‘monkey’, the rude word is ‘monkey’.
111 The overall problem with the respondent’s witnesses’ evidence with regard to the existence and meaning of the phrase ‘police monkey’ is the fact that their evidence appears to have been solely based on common sense and simple logic. This is probably the main reason why none of the respondent’s witnesses could say, with absolute certainty, that the phrase ‘police monkey’ exists or is being used either in any literature or in applied linguistics. The same criticism is applicable to what, in their view, the meaning of the phrase ‘police monkey’ is.
112 Another glaring defect in the testimonies of the respondent’s witnesses is their failure to find common ground on what exactly did the applicant say, as well as their inability to explain the context within which the applicant said what she is alleged to have said. The evidence of both Amahle and Atang, on their own versions, suggested that they had missed what may have happened before the applicant could say what she is alleged to have said.
113 Even Bophelo, who created the impression that she had witnessed the ‘police monkey’ incident, appears to have missed some of the details about this incident. She, for instance, appeared to have missed everything that had to do with the school principal. This is strange, especially given the fact that there was some convergence between the evidence of the applicant and Deborah, on the one hand, and that of Amahle and Atang about the principal walking in the passageway, and the fact that either the applicant or Thembi spoke about the need for the principal’s intervention. In other words, the respondent’s witnesses could not provide a coherent version about what exactly did the applicant say as well as the context within which the disputed utterances were made.
114 The applicant’s case, on the other hand, was based on a view which sought to suggest that the phrase ‘police monkey’ does not exist at all, and that even if it could have been used it would have meant nothing because it is meaningless. Even before one could consider the results of the research conducted by Ms Brits and Dr de Vries on the meanings of the phrases ‘police monkey’ and ‘polisiemannetjie’, the testimonies of the applicant and all her witnesses, all of whom are Afrikaans speakers, to the effect that they have never come across the phrase ‘police monkey’, suggest that it was indeed highly unlikely that the applicant could have used such a phrase as a way of expressing irritation towards Thembi.
115 I am also of the view that the applicant’s version that the utterances she made were intended to appeal for an assistance from someone in authority is the most probable version of what the applicant said on that day. This assertion is supported by the undisputed evidence relating to the prolonged strained relationship between the applicant and what Mr Du Plessis described as a specific group of girls which the applicant used to complain about , viz Andile, Dikeledi, Dimpho, Thembi and Atang, as well as the fact that the principal used to come to the class in order to talk to the learners about their disruptive behaviour, and that he had even directed that both Mr Du Plessis and Mr Smit should some times go and observe what was going on during the applicant’s lessons.
116 I am inclined to accept the understanding of Ms Brits and Dr de Vries that context is very important in any situation where one needs to have a proper understanding of the meaning and purpose of any written or spoken language. I am persuaded that there is a lot of merit in Dr de Vries’ criticism that: (i) it is possible that the applicant’s utterances may have been understood out of context, (ii) a wrong methodology may have been followed in obtaining the meaning of the disputed language utterances, (iii) google search is not a scientific methodology, and it is also not a reliable corpus data base.
117 Before dealing with the expert witnesses’ findings and conclusions on the meanings of the phrases ‘police monkey’ and ‘polisiemannetjie’, I wish to make few remarks about the comparative credentials of the parties’ witnesses with regard to the meanings of the two phrases. Both Ms Brits and Dr de Vries, are not only Afrikaans speakers but highly educated academics and researchers, particularly with regard to applied linguistics which is at the heart of the applicant’s dispute. Even Mr Mokgothadi never suggested that these witnesses cannot or should not be regarded as experts, particularly in both theoretical and applied linguistics. It is highly unlikely that the three former leaners who testified in support of the respondent’s case may have completed at least a junior degree. In any event, none of these learners had ever attempted to suggest that they are experts in any field of study, including theoretical and applied linguistics.
118 It is therefore unimaginable as to how the respondent would have thought the evidence of the former learners on the meaning of the two phrases could carry more probative value as compared to the evidence of the applicant’s expert witnesses, especially in a situation where the credentials of the two expert witnesses and a summary of the evidence they will be leading were made available to the respondent’s representative well in advance of the arbitration hearing.
119 I am of the view that the findings and conclusions of Ms Brits and Dr de Vries as regards the non-existence of the phrase ‘police monkey’ and the meaning which should be attributed to the phrase ‘ polisiemannetjie’ in the circumstances of this case, are more persuasive than the version of the respondent’s witnesses. It is therefore concluded that the applicant has on the balance of probabilities, used the phrase polisiemannetjie’ as opposed to using the phrase ‘police monkey’. It is also concluded that such language utterances were indeed intended to make an appeal for an intervention by someone in authority as opposed to being directed at Thembi because using the phrase towards Thembi would have served no logical purpose.
120 Consequently, it is my finding that the dismissal of the applicant was both procedurally and substantively unfair. The applicant is therefore entitled to the remedy of retrospective reinstatement to the date of her dismissal.

QUANTIFICATION
121 According to the applicant’s last salary advice, dated 20 September 2021, her basic salary was R25 778.00 per month. The amount of the arrear salary which must be paid to the applicant has been calculated from 01 October 2021 until the end of July 2022 which equals R257 780. 00.
AWARD
122 The respondent is ordered to reinstate the applicant from the date of her dismissal with back pay equivalent to 10 months’ remuneration, amounting R257 780. 00. The applicant must be reinstated in the position she held before the dismissal or in an equivalent post, on terms and conditions not less favourable than those that existed prior to her dismissal.
123 The arrear salary must be paid by not later than 31 August 2022 or in the next salary run upon receipt of this arbitration award by the respondent . This amount shall attract interest at the prescribed rate from 01 September 2022.
124 The applicant must report for duty at Hoerskool Montana on 01 August 2022.


MORAKA ABEL MAKGAA
ELRC PANELIST