ELRC583-19/20GP
Text
ELRC583-19/20GP
Award Date:
20 July 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT SANDTON
Case No: ELRC583-19/20GP
In the matter between
DEPARTMENT OF EDUCATION - GAUTENG Applicant - Employer
and
THOMAS SOMBANE Respondent - Employee
ARBITRATOR: Adv S Fourie
HEARD: 4 March 2021, 9 May 2022 and 1 July 2022;
FINALISED: (7 days to submit closing statements 7 July 2022)
DELIVERED: 20 July 2022
INQUIRY BY ARBITRATOR - ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The Inquiry by Arbitrator, was heard at the ELRC Centurion on 4 March 2021, the Department of Education Head Office on 9 May 2022 and finally a virtual platform on the 1st of July 2022. The Employee, Mr. Thomas Sombane (“Sombane”), was present and represented by Mr. Tiego Tawana from SADTU. The Employer was represented Mr. Sehlare Seshibe (“Seshibe”), its labour relations officer. It was compulsory for an intermediary service due to two minor witnesses although the witness’s identity is known to the parties. Ms. Edna Shibisi and Mule Padi served as intermediaries on different occasions. Mr. Herbert Matsenene and Busi Seoketsa as interpreters on different occasions. The proceedings were conducted in English and Setswana. I kept handwritten notes and was also digitally recorded.
THE ISSUES TO BE DETERMINED
2. This is an arbitration award in terms of Section 188A of the Labour Relations Act 66 of 1995, as amended (“LRA”) read with Clause 3.2 of the ELRC Dispute Resolution Procedure with section 3.2.1 of Collective Agreement 3 of 2018. This award is issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. The employee Thomas Sombane pleaded not guilty to the allegations listed hereunder to which I requested a plea explanation. I am required to determine whether the employee is guilty of the charge levelled against him and if so, to determine the appropriate sanction.
BACKGROUND TO THE DISPUTE
3. The employee, is employed by Respondent since 1992. At the time of this enquiry at Jubalee Secondary School, as a PL1 educator. The two charges levelled against Sombane reads:
3.1 You are charged with misconduct of improper, disgraceful and unaccepted manner in that during the period June 2019 or anytime incidental thereto, as an educator at Jubalee Secondary School, you came close to a female Learner A pointed at your private part and said “ufunani la kimi “. (what do you want from me), whilst you knew or ought to have known that it was wrong to do so. In view of the above, you are hereby charged in terms of Section 18 (1) (q) of the Employment of Educators Act,76 of 1998.
3.2 You are charged with misconduct of improper, disgraceful and unaccepted manner in that on the 31st of June 2019 or anytime incidental thereto, as an educator at Jubalee Secondary School, you came close to a female Learner A, brushed her thigh with your hand in the classroom, whilst you knew or ought to have known that it was wrong to do so. In view of the above, you are hereby charged in terms of Section 18 (1) (q) of the Employment of Educators Act,76 of 1998
SUMMARY OF THE EVIDENCE
4. This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and referred to as the LRA read with the changes as required by the context read with Section 188A (9) of the LRA. This award is not intended to be a verbatim transcript of the evidence led at the inquiry by arbitrator hearing but rather a determination with brief reasons for such determination.
5. Evidence relevant to the determination or to support any of the elements of fairness as required may be referred to. This however does not mean that I failed to consider other evidence or ignored such evidence in coming to my decision. The Employer submitted a bundle of documents (Bundle ‘ER’ 1 – 17 pages). The Employee submitted a bundle of documents (Bundle EE 1 -2 pages). Both parties accepted the bundle submitted for what it purports to be.
The Employer’s case
6. Mahose Tonic Mukwena, testified under oath. He is the principal at the school and the one who wrote ER11 after the Learner A’s father complained about sexual harassment. The farther reported that Sombane brushed her but not how and where. He then immediately investigated and requested the leaner to write a report which he took to the District Office. He also told her not to contact the educator. The learner told him that the Sombane brushed her and touched her but not in detail.
7. During cross examination he responded that the allegation of brushing took place in the classroom with all the learners present. The time the learner said the incident took place was during the third term and reported to Mukwena on the 2nd of August 2019. Nothing was reported to him during the second term. The parent indicated that the incident took place a day before the learner informed him about the incident.
8. Learner A (the Complainant), testified under a solemn affirmation through the intermediary that she was in grade 8 when the incident occurred. Sombane taught mathematics. Zanele was present at her table when it took place. During the second term, she was seated in the class when Sombane entered the classroom. They were laughing and Sombane came to her and touched her on the shoulder asking what she want from him. She stood up to demonstrate that when Sombane asked her what she wanted from him showing towards her vagina area. The second incident during the third term, she spoke to Learner B whilst they were busy with corrections. Sombane came to her and brushed her thigh. He said to wright down to which she screamed: “Hey Sir”. Sombane then said he was playing with her and moved away. They were three at her desk when it took place. Her desk is situated in the front of the class. Others at the other tables also saw what happened.
9. During cross examination, she responded that during the first incident her classmates were able to see what happened. She acknowledged that they laughed at Sombane’s shoes when he entered the classroom. She stated that Sombane then came to her saying in a low voice: “ufunani la kimi “. Sombane used his right hand to show to his private parts only focused on her and laughing. She then responded and the others with her Learner B and Zanele: “Hey Sir!” Learner B and other learners heard what Sombane said. She stated that when they laughed at Sombane, he came the her only because she was the only one wearing a skirt with Sombane seeing her thighs. Her classmates wear trousers and she was seated in the front of the class. Others who saw Sombane to point to his private parts were Zipukhutle and Khethiwe who were seated to the right. She stated that there were three rows in the class and she was seated in the middle row. She also stated that she was seated at the right corner with Learner B in the middle and Zanele to the corner.
10. She denied to have been a problematic learner. For her the meaning of ‘ufunani la kimi’ is that Sombane wanted something from her like sleeping with her. She thought so because Sombane pointed to his private parts. Being Zulu speaking, it was the first time she heard such words. She maintained to respond that she is not a problematic learner. She acknowledged that Sombane would give a “high five” to commend learners when doing well. Learner A reaffirmed that Sombane brushed her thigh. She was then referred to her statement where she also mentioned that he touched her not included in her testimony to which she did not respond to. She conceded that she disrespected Sombane when she laughed at his shoes. She conceded that disrespect is also being problematic but denied that she has provoked the teacher. For her, Sombane came to her being the only one wearing a shirt. She denied the statement that she was not the only one wearing a shirt and that it was her who wore a shirt of the ones seated in the front of the class and not in the whole class. She was sure whether Sombane saw her only wearing.
11. The incident happened during the second term which she reported to her farther. The reason she did not report it during the second term was that she reported it at home but her parents said she must not report it until it happens again because it could have been a mistake. Referring to ER12 paragraph 3 and ER15, contradicting her evidence, she responded that Sombane was busy writing on the board whilst they were talking. She was asked whether she was talking or writing to which she responded that they were writing and talking. She knew it to be wrong.
12. Learner B testified under a solemn affirmation through an intermediary that she was in grade 8 in 2019. Sombane taught them mathematics. She and Learner A was seated with each other at the right front side of the class. When Sombane entered, Learner A showed to Sombane’s shoes and they laughed at his shoes because it was funny. Sombane saw them laughing and came to Learner A brushing her thigh and said to wright. She remembers both incidents and think this was the second one.
13. She could not remember which incident occurred first but she could recall the second incident. Sombane was writing on the board whilst Learner A busy talking. Sombane then came to Learner A pointing at his private parts asking what it was she wanted from him. She was then requested to clarify the first and second incident. She stated that the first incident was with Learner A talking. Sombane then looked at them and came towards Learner A pointing at his private parts saying what it was she wanted from him. The second incident was when she and Learner A talked when Sombane entered the classroom. Learner A referred to his shoes and both laughed at Sombane’s shoes. Sombane placed his books on the table and came to Learner A, brushed her thigh and said to wright down. She never expected it from Sombane.
14. During cross-examination, referring to the two incidents which one occurred first, Learner B responded that it was the one concerning the thighs during the second term. She stated that Learner A told her to look at Sombane’s shoes. Sombane used his right hand to point to his private parts. Learns A’s reaction was to scream Ha! For her, Sombane was not in bad mood. She just kept silent. Learner A screamed with the class looking although it was not the whole class but the second row. She acknowledged that Sombane would brush a learner’s shoulder when he commends a learner on good work. This he would do to both genders. Sombane in the past commended her in such way but he never commended Leaner A in such way. She conceded that Learner A was problematic in class. She did not know the reason why Sombane approached Learner A and not her.
15. She confirmed that Learner A wore a skirt on the day with other learners also wearing skirts. She acknowledged that Sombane had no reason to make an advance towards Leaner A. He is also not the type of teacher who would make sexual advances towards learners. To the statement that Sombane look at female learners in another way, she replied that when they were seated with Learner C with wide open legs, Sombane entered and looked at Learner C. He then turned his back to the chalk board. It was stated that in her case Sombane looked away but in the case of Learner A, he brushed her. To this statement Learner B remained silent.
The Employee’s case
16. Learner C, testified under a solemn affirmation through an intermediary. She stated that she attended all classes with Sombane during 2019. For her, Sombane has a good relationship with learners. She never experienced Sombane to have touched learners inappropriately. He would commend learners who does well and correct the ones who needs to be corrected. She was seated in the front of the class and could see Learner A to her left. Learner A does not listen in class and always called to order. When Learner A was corrected she would not listen and do the same thing over again. They are seated three at a desk with Learner A on the left side.
17. Referring to the incident around the second term where it is alleged that Sombane pointed to his private parts talking to Learner A, Learner C responded that it never took place. The version where it is alleged that Sombane said “ufunani la kimi “to Learner A, Learner C denied that such incident took place. To Learner A’s statement that she said “Hey Sir” Learner C responded that when Learner A was called to order, she said “HA” meaning that she did not make a noise. Learner C denied that Sombane touched Learner A inappropriately. A teacher would not move around in a class to touch learners but would commend learners touching them on the shoulder. Referring to Learner B’s version about Sombane looking at Learner C in an inappropriate manner, she responded that she is Learner C and never experienced Sombane to have looked at her is such way.
18. During cross-examination, she never came late to school and attended when sick. She was seated in the second row behind Learner A. If Sombane would have talked softly towards Learner A, she would have heard it. She was called as a witness in that if there was a situation in class and Sombane would go to Learner A, it was to call her to order but she did not see if there was a situation between them. If such incident would have happened she would have seen it. She stated that Sombane has no issue with any learner but that Learner A was problematic on class.
19. It was presented to Learner C whether Learner A fabricated the story, to which Learner C responded that Learner A would be capable of doing it. To the question of Learner A being capable, she responded that they do not understand her behavior. A version of Learner B was that she heard Sombane talking in a soft voice saying ‘ufunani la kimi’ to which Learner C responded that both Learner A and B are friends and are lying. They both misbehaved in class not listening and troublesome. Referring to the “Hey Sir” Learner A used, Learner C responded that Learner A used it often when she was reprimanded.
20. Referring to the alleged incident of Sombane showing to his private parts with both Learner A and B corroborating each other, Learner C responded that they concocted with each other to lie and Learner A also lied to her parents. She also stated that Learner A and her friends did not like Sombane. She would have seen it if Sombane had placed his hand on Learner A’s thigh. She stated that the seating arrangement changed with Learner A and B and Zanele with them to change at the desk.
21. Learner D testified under a solemn affirmation through an intermediary. She stated that Sombane taught her mathematics during 2019. She has a good relationship with all the class mates also the troublesome ones. The troublesome learners were Learner A, Andhile, Sonabhile and Bongani. She was seated with Xolati as her friend. From where she was seated she could see and hear Learner A and B with Zanele seated with them. She denied the allegation towards Sombane as untruthful. Sombane would call troublesome learners to order and would commend learners participating in class. She denied the allegations against Sombane. The words uttered by Learner A – “Hi Sir”, Learner A uttered it many times when her mind is not at the class and Sombane would reprimand her she would respond with “Hi Sir”. She stated that she would relate to something bad is it happens with her friend in her presence but if it was told to her by someone she can forget about it. She cannot recall any day where Sombane looked to a girl inappropriately.
22. During cross examination, she stated that if Sombane would have done something bad he would not have done in a class where other learners could witness it. When Sombane would reprimand Learner A, he would be in the front of the class at the chalk board facing the class. When Learner A would utter the words “Hi Sir” it would be when Sombane call Learner A to order. When Learner A is called to order by a female teacher she would respond with the word: “Hi Mam”. She stated that when she was seated at the right side shoe could see but not when she was seated on the left side of the table.
23. Thomas Sombane testified oath. He stated that Learner A was one of his mathematics students during 2019. He cannot recall speaking Zulu in the class but only English. Should a learner need explanation in another language, he would ask another student who can speak such language to assist. For him Learner A liked playing in the class like other Learners but also troublesome like other learners. Learner A would listen to him but would repeat what she was doing. She would listen for the moment but he would leave her after a while. He has no reason to go closer to Learners except if he checks their books. He stated that with provocative learners it depends on the year group but would seek assistance form the HOD if needed. He never reported Learner A to the HOD.
24. In relation to the second allegation, he did not brush Learner A’s thighs. Learners are seated at tables on chairs with rows in between. Learner A was seated at the table next to the window in the first row but the students rotate. Learners would have been able to observe Learner A from where she was seated. Sombane had no idea what could have led to the allegations levelled against him.
25. During cross examination, he has more than 29 years’ experience in Mathematics at different schools using languages such as English as the medium, Zulu, Venda and Tsonga mixed. It is rare to explain in Zulu and use only English. When he would reprimand learners, he would speak load. The version of Learner A and B is that Sombane spoke softly to which he responded that when he speaks nicely it would be soft. In relation the second allegation Learner C and D were seated on the left side not able to see to which Sombane responded that he cannot say because they rotate.
SUBMISSIONS IN ARGUMENT
26. Both parties agreed to submit arguments (inclusive of mitigating and aggravating circumstances) within 7 days. The Employer’s submissions were carefully considered, but will not be repeated here, as the contents basically mirror what was put during the leading of evidence and cross-examination in the arbitration hearing itself.
ANALYSIS OF EVIDENCE AND ARGUMENT
27. Written arguments inclusive of aggravating and mitigating evidence were submitted. I do not intend to summarise it here in detail. In short it was submitted on behalf of the employer that the employer has proved the charge levelled against the applicant and that dismissal should be the required sanction.
28. In order for a dismissal to be fair, Section 188A of the Labour Relations Act requires and Inquiry by arbitrator. An employer may, with the consent of the employee or in accordance with a collective agreement, request a council, an accredited agency or the Commission to appoint an arbitrator to conduct an inquiry into allegations about the conduct or capacity of that employee. The onus is on the employer to prove the allegations levelled against the employee is in accordance with substantive fairness. The parties in this matter agreed that I am required to determine under substantive fairness, whether the employee, Thomas Sombane during June 2019, came closer to Learner A and pointed to his private parts saying “ufunani kimi” (what do you want from me). Also whether came close to Learner A and brushed her thigh with his hand in the classroom.
29. It is common cause that Sombane taught mathematics to all the learners who testified during the arbitration. It is common cause that all the learners who testified herein were seated in the front of the class nearby each other.
Substantive Fairness – whether the alleged incidents took place -
30. I am guided by item 7 of the Code of Good Conduct on Dismissals contained in Schedule 8 to the LRA (hereinafter referred to as "the Code") which requires me to consider whether or not the employee contravened a rule regulating conduct in or of relevance to the workplace referring to misconduct in terms of section 18(1)(q) of the Employment of Educators, Act 76 of 1998 as amended. Section 18(1) (q) of the Employment of Educators, Act 76 of 1998, reads ‘while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner’.
;
31. Sombane pleaded not guilty to the allegations levelled against. In Moahlodi v East Rand Gold & Uranium Co Ltd (1998) 19 ILJ (IC) the court formulated the test as follows: an employer need not to be satisfied beyond reasonable doubt that an employee has committed the offence. We must remind ourselves that this is not a criminal trial and that the employer is therefore not required to prove the guilt of the Applicant beyond a reasonable doubt. The standard of proof in civil proceedings and arbitrations, is a balance of probabilities see Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC). The test for deciding whether something has been proved on a balance of probabilities, is whether the version of the party bearing the onus, is more probable than not, see Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A) at 157D.
32. In other words, the evidence must show that the existence of the fact in dispute is more probable than its non-existence. The difference between a possibility and a probability is that when something is possible, it can or could have happened. When something is probable, it most likely will or did happen. In determining probabilities, evidence is assessed against human experience, logic and common sense see Hoffmann en Zeffertt the South African Law of Evidence 4th ed 102. In order to resolve factual disputes, a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie 2003 (1) SA 11 (SCA) at 14I par 5. The Court further remarked as follows: “As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanor in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it…But when all factors are equipoised probabilities prevail " (at 14I - 15E par 5 per Nienaber JA)
33. The charges against the Sombane involve some form of sexual misconduct in relation to Learner A who is a child. The Constitutional Court in Bothma v Els and Others 2010 (2) SA 622 (CC) par 47, has recognised that: sexual molestation of children generally takes place behind closed doors and is committed by a person in a position of authority over the child and that it is difficult to obtain eye-witness corroboration. In this instance the allegations directs to an open classroom with learners present and not behind closed doors. Seshibe’s notion is that Sombane spoke in a soft voice for other learners not to hear although it was Learner A’s version that Learner B and other learners heard what Sombane said. This in my view is unlikely because of Learner B’s contradictory evidence (see below) and Learners C and D who did not hear or see what Learner A alleged. It is unlikely for Sombane to have standing in front of a classroom filled with learners and then focus on one Learner in seated in front being Learner A and then shoe to his private parts.
34. Learner A stated that the first incident took place during the second term and the second incident during the third term of 2019. When the incidents took place, she was in grade 8. She stated that they were three seated at her desk when it took place with other learners nearby who also saw what happened. It is an established principle that the evidence of children should be treated with caution and that a tribunal must fully appreciate the dangers inherent in the acceptance of such evidence - see Woji v Santam Insurance Co Limited (A) at 1028B – D. Although all the Learners identities are disclosed, I have indeed approached their evidence with caution. The parties in this matter agreed that I have to decide under substantive fairness whether Sombane is guilty of the allegation. It is alleged that Sombane approached Learner A, showed towards his private parts saying “ufunani kimi” (what do you want from me) and whether he brushed Learner A’s thigh with his hand. I am required to determine whether Sombane is guilty of the alleged misconduct in terms of section 18(1)(q) of the Employment of Educators Act. Sombane pleaded not guilty to the allegations levelled against him.
35. Seshibe presented Learner A, Learner B and the Principal in support of the employer’s case. Sombane, testified with Learner C and Learner D in support of his case. In relation to the hearsay evidence presented by Mukwena, in Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for Chemical Industry & Others (JA51/10) [2013] ZALAC 16 (handed down on 19 July 2013), the Court with approval referred to the matter of Southern Sun Hotels and that of Swiss South Africa, confirmed the principle that hearsay evidence is allowed if it is in the interest of justice and that it was not irregular for the arbitrator to have relied on the hearsay evidence as the evidence was confirmed by other evidence. In addition, arbitrators have even more leeway than civil courts in determining what evidence should be admitted (Le Monde Luggage CC t/a Pakwells Petje v Commissioner Dunn & others [2007] 10 BLLR 909 (LAC) at paragraph 17); Naraindath v CCMA & others [2006] 6 BLLR 716 (LC) at paragraph 26). What is more important than admissibility is the weight a commissioner ultimately attaches to evidence such as hearsay when making inferences to deduce the facts of a case. In this instance Mukwena wrote to the employer E11 after Learner A’s farther approached him who reported that Sombane brushed her but not how and where. He immediately asked Learner A to write a report which he took to the District Office. Mukwena stated that Learner A told him that the Sombane brushed her and touched her but not in detail. Although not in detail the second charge only relate to brushing and not touching with the first charge not referring to any brushing or touching.
36. Learner A’s statement (ER15) includes within the first allegation (about the words uttered “ufunani kimi”) that Sombane also brushed her back but such averment is not included in the first charge. She also did not testify about brushing her back but that Sombane came to her and touched her on the shoulder asking what she wanted from him. Learner A stated that Zanele was present at her table when it (the first incident) took place. Her statement differs in this regard indicating that Zanele, Learner B, Siphokuhle and Khethiwe was present. During cross examination she stated that Sombane then came to her saying in a low voice: “ufunani la kimi “which was not mentioned in her statement neither in evidence in main. She stated further during cross-examination that Sombane showed to his private parts only focused on her and laughing. Such laughing was also not referred to in her statement neither during evidence in main.
37. In relation to the first incident Learner A stated that Zanele was with her and in relation to the second incident Learner A indicated that Learner B was with her. Learner A and Learner B (whom is not Zanele) presented conflicting versions. Learner B stated that when Sombane entered they were both laughing at Sombane which is still relevant to the first charge. However, she confused the rest with the second charge when she stated that Sombane saw them laughing and came to Learner A brushing her thigh and said to wright. On clarification from Seshibe, Learner B stated that she remembers both incidents and think this was the second one. She was then requested to clarify the first and second incident to which she explained that the first incident was with Learner A talking. Sombane then looked at them and came towards Learner A pointing at his private parts saying what it was she wanted from him. The second incident was when she and Learner A talked when Sombane entered the classroom. Learner A referred to his shoes and both laughed at Sombane’s shoes. Sombane placed his books on the table and came to Learner A, brushed her thigh and said to wright down. On clarification, Learner B again confused the two incidents when she draws the laughing at Sombane’s shoes to the second incident but relevant to the first one.
38. Learner A contradicted herself when she stated that Sombane came to her and brushed her thigh (being the second charge) and said to wright down to which she screamed: “Hey Sir”. During cross examination, she confused it with the first charge when she stated that Sombane show to his private parts only focused on her and laughing. She then responded and the others with her Learner B and Zanele: “Hey Sir!”. Learner B contradicted Learner A in that when Sombane point to his private parts, (being the first charge) only Learner A’s reaction was to scream Ha!
39. For Learner A, Sombane came the her only because she was the only one wearing a skirt with Sombane seeing her thighs. Her classmates wear trousers and she was seated in the front of the class. Learner B confirmed that Learner A wore a skirt on the day with other learners also wearing skirts. This corroboration for whom worn a shirt and trousers on the day of one of the two alleged incidents concerned me to be a collusion of evidence.
40. In relation to the second charge, Learner A’s statement on ER15 do not mention the brushing of her thigh but merely brushing which is not in accordance with her version during evidence. The second charge reflect the thigh but not her statement. Learner B again confused the two incidents. She stated that the second incident was when she and Learner A talked when Sombane entered the classroom. Learner A referred to his shoes and both laughed at Sombane’s shoes which speaks to the first incident. Learner B testified about Sombane who inappropriately looked at Learner C who was seated with open legs. This allegation Learner C denied when she responded during cross-examination referring to Learner B’s version about Sombane looking at Learner C in an inappropriate manner, she responded that she is Learner C and never experienced Sombane to have looked at her is such way. Learner A maintained not to be a problematic learner. Learner B however conceded that Learner A was problematic in class which Learner C and D corroborated that Learner A was troublesome.
41. Learner B confirmed that Learner A wore a skirt on the day with other learners also wearing skirts contradicting Learner A who stated that she was only one wearing a skirt being the reason Sombane came to her. Learner B acknowledged that Sombane had no reason to make an advance towards Leaner A and that he is also not the type of teacher who would make sexual advances towards learners. This statement of Learner B corroborated Learner C and D who testified for Sombane. Both Learner C and D testified that they were seated close to Learner A and did not see or heard what Sombane has been accused of. I could not find contradiction to the evidence from Learner C and D.
42. Learner A only during cross-examination stated that Sombane allegedly said the words in a soft voice. Learner B never testified about a soft voice. Whether Learner A fabricated the story, Learner C responded that Learner A would be capable of doing it. To the question of Learner, a being capable, she responded that they do not understand her behavior and that both Learner A and B are friends and are lying. Learner C stated that they both misbehaved in class not listening and troublesome. Referring to the words “Hey Sir” Learner A used, Learner C responded that Learner A used it often when she was reprimanded which Learner D also testified about. She stated that when Sombane would reprimand Learner A, he would be in the front of the class at the chalk board facing the class. When Learner A would utter the words “Hi Sir” it would be when Sombane call Learner A to order. I am of the view that Learner A was indeed a troublesome learner. From Sombane testimony I could not depict a mere bare denial but truthful. He had no problem with Learner A but acknowledged her to be like other learners. She was troublesome but he never reported her but could deal with her in reprimanding her.
43. The question to be determined is not whether a witness (Learner A) is wholly truthful in all she says, but whether the Arbitrator in this instance, can be satisfied that the story which the witness tells, is a true one in its essential features (see Nicholas J in S v Oosthuizen 1982 (3) SA 571 (T) 576) Witnesses who reconstruct their observations frequently make mistakes (see Frank J in Johannes v South West Transport 1994 1 SA 200 (Nm HC) at 202C-D, quoting Lambrechts v African Guarantee & Indemnity Co 1955 3 SA 459 A). In this instance, Learners A and B could not corroborate each other for a true version of what they allege in bearing the onus. I find Learner A and B not to have been credible in their evidence. Learner A also contradicted herself in instances and to be unreliable and not trustworthy. There was some form of corroboration for the evidence of Learners C and D in relation to Learner A and B to be troublesome learners capable to collude with each other and to fabricate the evidence against Sombane. The Respondent failed to prove its case on a balance of probabilities that Sombane failed to refrain from improper physical contact with Learner A. It therefore flows that the Respondent’s case is less probable. I find Sombane not guilty to both the allegations levelled against him and that he did not contravene an offence in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 read with section 3.6 of South African Council of Educators Act 31 of 2000 which reads: thus ‘refrains from improper physical contact with learners’.
44. The SACE Code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). I am satisfied that employer failed to proof on a balance of probabilities that Sombane has irreparably destroyed the relationship of trust with the finding of not guilty to both the allegations.
AWARD
45. In the premises, I find Sombane not guilty of the charges levelled against him.
S Fourie
ELRC Arbitrator
Gauteng
Case No: ELRC583-19/20GP
In the matter between
DEPARTMENT OF EDUCATION - GAUTENG Applicant - Employer
and
THOMAS SOMBANE Respondent - Employee
ARBITRATOR: Adv S Fourie
HEARD: 4 March 2021, 9 May 2022 and 1 July 2022;
FINALISED: (7 days to submit closing statements 7 July 2022)
DELIVERED: 20 July 2022
INQUIRY BY ARBITRATOR - ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The Inquiry by Arbitrator, was heard at the ELRC Centurion on 4 March 2021, the Department of Education Head Office on 9 May 2022 and finally a virtual platform on the 1st of July 2022. The Employee, Mr. Thomas Sombane (“Sombane”), was present and represented by Mr. Tiego Tawana from SADTU. The Employer was represented Mr. Sehlare Seshibe (“Seshibe”), its labour relations officer. It was compulsory for an intermediary service due to two minor witnesses although the witness’s identity is known to the parties. Ms. Edna Shibisi and Mule Padi served as intermediaries on different occasions. Mr. Herbert Matsenene and Busi Seoketsa as interpreters on different occasions. The proceedings were conducted in English and Setswana. I kept handwritten notes and was also digitally recorded.
THE ISSUES TO BE DETERMINED
2. This is an arbitration award in terms of Section 188A of the Labour Relations Act 66 of 1995, as amended (“LRA”) read with Clause 3.2 of the ELRC Dispute Resolution Procedure with section 3.2.1 of Collective Agreement 3 of 2018. This award is issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. The employee Thomas Sombane pleaded not guilty to the allegations listed hereunder to which I requested a plea explanation. I am required to determine whether the employee is guilty of the charge levelled against him and if so, to determine the appropriate sanction.
BACKGROUND TO THE DISPUTE
3. The employee, is employed by Respondent since 1992. At the time of this enquiry at Jubalee Secondary School, as a PL1 educator. The two charges levelled against Sombane reads:
3.1 You are charged with misconduct of improper, disgraceful and unaccepted manner in that during the period June 2019 or anytime incidental thereto, as an educator at Jubalee Secondary School, you came close to a female Learner A pointed at your private part and said “ufunani la kimi “. (what do you want from me), whilst you knew or ought to have known that it was wrong to do so. In view of the above, you are hereby charged in terms of Section 18 (1) (q) of the Employment of Educators Act,76 of 1998.
3.2 You are charged with misconduct of improper, disgraceful and unaccepted manner in that on the 31st of June 2019 or anytime incidental thereto, as an educator at Jubalee Secondary School, you came close to a female Learner A, brushed her thigh with your hand in the classroom, whilst you knew or ought to have known that it was wrong to do so. In view of the above, you are hereby charged in terms of Section 18 (1) (q) of the Employment of Educators Act,76 of 1998
SUMMARY OF THE EVIDENCE
4. This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and referred to as the LRA read with the changes as required by the context read with Section 188A (9) of the LRA. This award is not intended to be a verbatim transcript of the evidence led at the inquiry by arbitrator hearing but rather a determination with brief reasons for such determination.
5. Evidence relevant to the determination or to support any of the elements of fairness as required may be referred to. This however does not mean that I failed to consider other evidence or ignored such evidence in coming to my decision. The Employer submitted a bundle of documents (Bundle ‘ER’ 1 – 17 pages). The Employee submitted a bundle of documents (Bundle EE 1 -2 pages). Both parties accepted the bundle submitted for what it purports to be.
The Employer’s case
6. Mahose Tonic Mukwena, testified under oath. He is the principal at the school and the one who wrote ER11 after the Learner A’s father complained about sexual harassment. The farther reported that Sombane brushed her but not how and where. He then immediately investigated and requested the leaner to write a report which he took to the District Office. He also told her not to contact the educator. The learner told him that the Sombane brushed her and touched her but not in detail.
7. During cross examination he responded that the allegation of brushing took place in the classroom with all the learners present. The time the learner said the incident took place was during the third term and reported to Mukwena on the 2nd of August 2019. Nothing was reported to him during the second term. The parent indicated that the incident took place a day before the learner informed him about the incident.
8. Learner A (the Complainant), testified under a solemn affirmation through the intermediary that she was in grade 8 when the incident occurred. Sombane taught mathematics. Zanele was present at her table when it took place. During the second term, she was seated in the class when Sombane entered the classroom. They were laughing and Sombane came to her and touched her on the shoulder asking what she want from him. She stood up to demonstrate that when Sombane asked her what she wanted from him showing towards her vagina area. The second incident during the third term, she spoke to Learner B whilst they were busy with corrections. Sombane came to her and brushed her thigh. He said to wright down to which she screamed: “Hey Sir”. Sombane then said he was playing with her and moved away. They were three at her desk when it took place. Her desk is situated in the front of the class. Others at the other tables also saw what happened.
9. During cross examination, she responded that during the first incident her classmates were able to see what happened. She acknowledged that they laughed at Sombane’s shoes when he entered the classroom. She stated that Sombane then came to her saying in a low voice: “ufunani la kimi “. Sombane used his right hand to show to his private parts only focused on her and laughing. She then responded and the others with her Learner B and Zanele: “Hey Sir!” Learner B and other learners heard what Sombane said. She stated that when they laughed at Sombane, he came the her only because she was the only one wearing a skirt with Sombane seeing her thighs. Her classmates wear trousers and she was seated in the front of the class. Others who saw Sombane to point to his private parts were Zipukhutle and Khethiwe who were seated to the right. She stated that there were three rows in the class and she was seated in the middle row. She also stated that she was seated at the right corner with Learner B in the middle and Zanele to the corner.
10. She denied to have been a problematic learner. For her the meaning of ‘ufunani la kimi’ is that Sombane wanted something from her like sleeping with her. She thought so because Sombane pointed to his private parts. Being Zulu speaking, it was the first time she heard such words. She maintained to respond that she is not a problematic learner. She acknowledged that Sombane would give a “high five” to commend learners when doing well. Learner A reaffirmed that Sombane brushed her thigh. She was then referred to her statement where she also mentioned that he touched her not included in her testimony to which she did not respond to. She conceded that she disrespected Sombane when she laughed at his shoes. She conceded that disrespect is also being problematic but denied that she has provoked the teacher. For her, Sombane came to her being the only one wearing a shirt. She denied the statement that she was not the only one wearing a shirt and that it was her who wore a shirt of the ones seated in the front of the class and not in the whole class. She was sure whether Sombane saw her only wearing.
11. The incident happened during the second term which she reported to her farther. The reason she did not report it during the second term was that she reported it at home but her parents said she must not report it until it happens again because it could have been a mistake. Referring to ER12 paragraph 3 and ER15, contradicting her evidence, she responded that Sombane was busy writing on the board whilst they were talking. She was asked whether she was talking or writing to which she responded that they were writing and talking. She knew it to be wrong.
12. Learner B testified under a solemn affirmation through an intermediary that she was in grade 8 in 2019. Sombane taught them mathematics. She and Learner A was seated with each other at the right front side of the class. When Sombane entered, Learner A showed to Sombane’s shoes and they laughed at his shoes because it was funny. Sombane saw them laughing and came to Learner A brushing her thigh and said to wright. She remembers both incidents and think this was the second one.
13. She could not remember which incident occurred first but she could recall the second incident. Sombane was writing on the board whilst Learner A busy talking. Sombane then came to Learner A pointing at his private parts asking what it was she wanted from him. She was then requested to clarify the first and second incident. She stated that the first incident was with Learner A talking. Sombane then looked at them and came towards Learner A pointing at his private parts saying what it was she wanted from him. The second incident was when she and Learner A talked when Sombane entered the classroom. Learner A referred to his shoes and both laughed at Sombane’s shoes. Sombane placed his books on the table and came to Learner A, brushed her thigh and said to wright down. She never expected it from Sombane.
14. During cross-examination, referring to the two incidents which one occurred first, Learner B responded that it was the one concerning the thighs during the second term. She stated that Learner A told her to look at Sombane’s shoes. Sombane used his right hand to point to his private parts. Learns A’s reaction was to scream Ha! For her, Sombane was not in bad mood. She just kept silent. Learner A screamed with the class looking although it was not the whole class but the second row. She acknowledged that Sombane would brush a learner’s shoulder when he commends a learner on good work. This he would do to both genders. Sombane in the past commended her in such way but he never commended Leaner A in such way. She conceded that Learner A was problematic in class. She did not know the reason why Sombane approached Learner A and not her.
15. She confirmed that Learner A wore a skirt on the day with other learners also wearing skirts. She acknowledged that Sombane had no reason to make an advance towards Leaner A. He is also not the type of teacher who would make sexual advances towards learners. To the statement that Sombane look at female learners in another way, she replied that when they were seated with Learner C with wide open legs, Sombane entered and looked at Learner C. He then turned his back to the chalk board. It was stated that in her case Sombane looked away but in the case of Learner A, he brushed her. To this statement Learner B remained silent.
The Employee’s case
16. Learner C, testified under a solemn affirmation through an intermediary. She stated that she attended all classes with Sombane during 2019. For her, Sombane has a good relationship with learners. She never experienced Sombane to have touched learners inappropriately. He would commend learners who does well and correct the ones who needs to be corrected. She was seated in the front of the class and could see Learner A to her left. Learner A does not listen in class and always called to order. When Learner A was corrected she would not listen and do the same thing over again. They are seated three at a desk with Learner A on the left side.
17. Referring to the incident around the second term where it is alleged that Sombane pointed to his private parts talking to Learner A, Learner C responded that it never took place. The version where it is alleged that Sombane said “ufunani la kimi “to Learner A, Learner C denied that such incident took place. To Learner A’s statement that she said “Hey Sir” Learner C responded that when Learner A was called to order, she said “HA” meaning that she did not make a noise. Learner C denied that Sombane touched Learner A inappropriately. A teacher would not move around in a class to touch learners but would commend learners touching them on the shoulder. Referring to Learner B’s version about Sombane looking at Learner C in an inappropriate manner, she responded that she is Learner C and never experienced Sombane to have looked at her is such way.
18. During cross-examination, she never came late to school and attended when sick. She was seated in the second row behind Learner A. If Sombane would have talked softly towards Learner A, she would have heard it. She was called as a witness in that if there was a situation in class and Sombane would go to Learner A, it was to call her to order but she did not see if there was a situation between them. If such incident would have happened she would have seen it. She stated that Sombane has no issue with any learner but that Learner A was problematic on class.
19. It was presented to Learner C whether Learner A fabricated the story, to which Learner C responded that Learner A would be capable of doing it. To the question of Learner A being capable, she responded that they do not understand her behavior. A version of Learner B was that she heard Sombane talking in a soft voice saying ‘ufunani la kimi’ to which Learner C responded that both Learner A and B are friends and are lying. They both misbehaved in class not listening and troublesome. Referring to the “Hey Sir” Learner A used, Learner C responded that Learner A used it often when she was reprimanded.
20. Referring to the alleged incident of Sombane showing to his private parts with both Learner A and B corroborating each other, Learner C responded that they concocted with each other to lie and Learner A also lied to her parents. She also stated that Learner A and her friends did not like Sombane. She would have seen it if Sombane had placed his hand on Learner A’s thigh. She stated that the seating arrangement changed with Learner A and B and Zanele with them to change at the desk.
21. Learner D testified under a solemn affirmation through an intermediary. She stated that Sombane taught her mathematics during 2019. She has a good relationship with all the class mates also the troublesome ones. The troublesome learners were Learner A, Andhile, Sonabhile and Bongani. She was seated with Xolati as her friend. From where she was seated she could see and hear Learner A and B with Zanele seated with them. She denied the allegation towards Sombane as untruthful. Sombane would call troublesome learners to order and would commend learners participating in class. She denied the allegations against Sombane. The words uttered by Learner A – “Hi Sir”, Learner A uttered it many times when her mind is not at the class and Sombane would reprimand her she would respond with “Hi Sir”. She stated that she would relate to something bad is it happens with her friend in her presence but if it was told to her by someone she can forget about it. She cannot recall any day where Sombane looked to a girl inappropriately.
22. During cross examination, she stated that if Sombane would have done something bad he would not have done in a class where other learners could witness it. When Sombane would reprimand Learner A, he would be in the front of the class at the chalk board facing the class. When Learner A would utter the words “Hi Sir” it would be when Sombane call Learner A to order. When Learner A is called to order by a female teacher she would respond with the word: “Hi Mam”. She stated that when she was seated at the right side shoe could see but not when she was seated on the left side of the table.
23. Thomas Sombane testified oath. He stated that Learner A was one of his mathematics students during 2019. He cannot recall speaking Zulu in the class but only English. Should a learner need explanation in another language, he would ask another student who can speak such language to assist. For him Learner A liked playing in the class like other Learners but also troublesome like other learners. Learner A would listen to him but would repeat what she was doing. She would listen for the moment but he would leave her after a while. He has no reason to go closer to Learners except if he checks their books. He stated that with provocative learners it depends on the year group but would seek assistance form the HOD if needed. He never reported Learner A to the HOD.
24. In relation to the second allegation, he did not brush Learner A’s thighs. Learners are seated at tables on chairs with rows in between. Learner A was seated at the table next to the window in the first row but the students rotate. Learners would have been able to observe Learner A from where she was seated. Sombane had no idea what could have led to the allegations levelled against him.
25. During cross examination, he has more than 29 years’ experience in Mathematics at different schools using languages such as English as the medium, Zulu, Venda and Tsonga mixed. It is rare to explain in Zulu and use only English. When he would reprimand learners, he would speak load. The version of Learner A and B is that Sombane spoke softly to which he responded that when he speaks nicely it would be soft. In relation the second allegation Learner C and D were seated on the left side not able to see to which Sombane responded that he cannot say because they rotate.
SUBMISSIONS IN ARGUMENT
26. Both parties agreed to submit arguments (inclusive of mitigating and aggravating circumstances) within 7 days. The Employer’s submissions were carefully considered, but will not be repeated here, as the contents basically mirror what was put during the leading of evidence and cross-examination in the arbitration hearing itself.
ANALYSIS OF EVIDENCE AND ARGUMENT
27. Written arguments inclusive of aggravating and mitigating evidence were submitted. I do not intend to summarise it here in detail. In short it was submitted on behalf of the employer that the employer has proved the charge levelled against the applicant and that dismissal should be the required sanction.
28. In order for a dismissal to be fair, Section 188A of the Labour Relations Act requires and Inquiry by arbitrator. An employer may, with the consent of the employee or in accordance with a collective agreement, request a council, an accredited agency or the Commission to appoint an arbitrator to conduct an inquiry into allegations about the conduct or capacity of that employee. The onus is on the employer to prove the allegations levelled against the employee is in accordance with substantive fairness. The parties in this matter agreed that I am required to determine under substantive fairness, whether the employee, Thomas Sombane during June 2019, came closer to Learner A and pointed to his private parts saying “ufunani kimi” (what do you want from me). Also whether came close to Learner A and brushed her thigh with his hand in the classroom.
29. It is common cause that Sombane taught mathematics to all the learners who testified during the arbitration. It is common cause that all the learners who testified herein were seated in the front of the class nearby each other.
Substantive Fairness – whether the alleged incidents took place -
30. I am guided by item 7 of the Code of Good Conduct on Dismissals contained in Schedule 8 to the LRA (hereinafter referred to as "the Code") which requires me to consider whether or not the employee contravened a rule regulating conduct in or of relevance to the workplace referring to misconduct in terms of section 18(1)(q) of the Employment of Educators, Act 76 of 1998 as amended. Section 18(1) (q) of the Employment of Educators, Act 76 of 1998, reads ‘while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner’.
;
31. Sombane pleaded not guilty to the allegations levelled against. In Moahlodi v East Rand Gold & Uranium Co Ltd (1998) 19 ILJ (IC) the court formulated the test as follows: an employer need not to be satisfied beyond reasonable doubt that an employee has committed the offence. We must remind ourselves that this is not a criminal trial and that the employer is therefore not required to prove the guilt of the Applicant beyond a reasonable doubt. The standard of proof in civil proceedings and arbitrations, is a balance of probabilities see Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC). The test for deciding whether something has been proved on a balance of probabilities, is whether the version of the party bearing the onus, is more probable than not, see Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A) at 157D.
32. In other words, the evidence must show that the existence of the fact in dispute is more probable than its non-existence. The difference between a possibility and a probability is that when something is possible, it can or could have happened. When something is probable, it most likely will or did happen. In determining probabilities, evidence is assessed against human experience, logic and common sense see Hoffmann en Zeffertt the South African Law of Evidence 4th ed 102. In order to resolve factual disputes, a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie 2003 (1) SA 11 (SCA) at 14I par 5. The Court further remarked as follows: “As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanor in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it…But when all factors are equipoised probabilities prevail " (at 14I - 15E par 5 per Nienaber JA)
33. The charges against the Sombane involve some form of sexual misconduct in relation to Learner A who is a child. The Constitutional Court in Bothma v Els and Others 2010 (2) SA 622 (CC) par 47, has recognised that: sexual molestation of children generally takes place behind closed doors and is committed by a person in a position of authority over the child and that it is difficult to obtain eye-witness corroboration. In this instance the allegations directs to an open classroom with learners present and not behind closed doors. Seshibe’s notion is that Sombane spoke in a soft voice for other learners not to hear although it was Learner A’s version that Learner B and other learners heard what Sombane said. This in my view is unlikely because of Learner B’s contradictory evidence (see below) and Learners C and D who did not hear or see what Learner A alleged. It is unlikely for Sombane to have standing in front of a classroom filled with learners and then focus on one Learner in seated in front being Learner A and then shoe to his private parts.
34. Learner A stated that the first incident took place during the second term and the second incident during the third term of 2019. When the incidents took place, she was in grade 8. She stated that they were three seated at her desk when it took place with other learners nearby who also saw what happened. It is an established principle that the evidence of children should be treated with caution and that a tribunal must fully appreciate the dangers inherent in the acceptance of such evidence - see Woji v Santam Insurance Co Limited (A) at 1028B – D. Although all the Learners identities are disclosed, I have indeed approached their evidence with caution. The parties in this matter agreed that I have to decide under substantive fairness whether Sombane is guilty of the allegation. It is alleged that Sombane approached Learner A, showed towards his private parts saying “ufunani kimi” (what do you want from me) and whether he brushed Learner A’s thigh with his hand. I am required to determine whether Sombane is guilty of the alleged misconduct in terms of section 18(1)(q) of the Employment of Educators Act. Sombane pleaded not guilty to the allegations levelled against him.
35. Seshibe presented Learner A, Learner B and the Principal in support of the employer’s case. Sombane, testified with Learner C and Learner D in support of his case. In relation to the hearsay evidence presented by Mukwena, in Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for Chemical Industry & Others (JA51/10) [2013] ZALAC 16 (handed down on 19 July 2013), the Court with approval referred to the matter of Southern Sun Hotels and that of Swiss South Africa, confirmed the principle that hearsay evidence is allowed if it is in the interest of justice and that it was not irregular for the arbitrator to have relied on the hearsay evidence as the evidence was confirmed by other evidence. In addition, arbitrators have even more leeway than civil courts in determining what evidence should be admitted (Le Monde Luggage CC t/a Pakwells Petje v Commissioner Dunn & others [2007] 10 BLLR 909 (LAC) at paragraph 17); Naraindath v CCMA & others [2006] 6 BLLR 716 (LC) at paragraph 26). What is more important than admissibility is the weight a commissioner ultimately attaches to evidence such as hearsay when making inferences to deduce the facts of a case. In this instance Mukwena wrote to the employer E11 after Learner A’s farther approached him who reported that Sombane brushed her but not how and where. He immediately asked Learner A to write a report which he took to the District Office. Mukwena stated that Learner A told him that the Sombane brushed her and touched her but not in detail. Although not in detail the second charge only relate to brushing and not touching with the first charge not referring to any brushing or touching.
36. Learner A’s statement (ER15) includes within the first allegation (about the words uttered “ufunani kimi”) that Sombane also brushed her back but such averment is not included in the first charge. She also did not testify about brushing her back but that Sombane came to her and touched her on the shoulder asking what she wanted from him. Learner A stated that Zanele was present at her table when it (the first incident) took place. Her statement differs in this regard indicating that Zanele, Learner B, Siphokuhle and Khethiwe was present. During cross examination she stated that Sombane then came to her saying in a low voice: “ufunani la kimi “which was not mentioned in her statement neither in evidence in main. She stated further during cross-examination that Sombane showed to his private parts only focused on her and laughing. Such laughing was also not referred to in her statement neither during evidence in main.
37. In relation to the first incident Learner A stated that Zanele was with her and in relation to the second incident Learner A indicated that Learner B was with her. Learner A and Learner B (whom is not Zanele) presented conflicting versions. Learner B stated that when Sombane entered they were both laughing at Sombane which is still relevant to the first charge. However, she confused the rest with the second charge when she stated that Sombane saw them laughing and came to Learner A brushing her thigh and said to wright. On clarification from Seshibe, Learner B stated that she remembers both incidents and think this was the second one. She was then requested to clarify the first and second incident to which she explained that the first incident was with Learner A talking. Sombane then looked at them and came towards Learner A pointing at his private parts saying what it was she wanted from him. The second incident was when she and Learner A talked when Sombane entered the classroom. Learner A referred to his shoes and both laughed at Sombane’s shoes. Sombane placed his books on the table and came to Learner A, brushed her thigh and said to wright down. On clarification, Learner B again confused the two incidents when she draws the laughing at Sombane’s shoes to the second incident but relevant to the first one.
38. Learner A contradicted herself when she stated that Sombane came to her and brushed her thigh (being the second charge) and said to wright down to which she screamed: “Hey Sir”. During cross examination, she confused it with the first charge when she stated that Sombane show to his private parts only focused on her and laughing. She then responded and the others with her Learner B and Zanele: “Hey Sir!”. Learner B contradicted Learner A in that when Sombane point to his private parts, (being the first charge) only Learner A’s reaction was to scream Ha!
39. For Learner A, Sombane came the her only because she was the only one wearing a skirt with Sombane seeing her thighs. Her classmates wear trousers and she was seated in the front of the class. Learner B confirmed that Learner A wore a skirt on the day with other learners also wearing skirts. This corroboration for whom worn a shirt and trousers on the day of one of the two alleged incidents concerned me to be a collusion of evidence.
40. In relation to the second charge, Learner A’s statement on ER15 do not mention the brushing of her thigh but merely brushing which is not in accordance with her version during evidence. The second charge reflect the thigh but not her statement. Learner B again confused the two incidents. She stated that the second incident was when she and Learner A talked when Sombane entered the classroom. Learner A referred to his shoes and both laughed at Sombane’s shoes which speaks to the first incident. Learner B testified about Sombane who inappropriately looked at Learner C who was seated with open legs. This allegation Learner C denied when she responded during cross-examination referring to Learner B’s version about Sombane looking at Learner C in an inappropriate manner, she responded that she is Learner C and never experienced Sombane to have looked at her is such way. Learner A maintained not to be a problematic learner. Learner B however conceded that Learner A was problematic in class which Learner C and D corroborated that Learner A was troublesome.
41. Learner B confirmed that Learner A wore a skirt on the day with other learners also wearing skirts contradicting Learner A who stated that she was only one wearing a skirt being the reason Sombane came to her. Learner B acknowledged that Sombane had no reason to make an advance towards Leaner A and that he is also not the type of teacher who would make sexual advances towards learners. This statement of Learner B corroborated Learner C and D who testified for Sombane. Both Learner C and D testified that they were seated close to Learner A and did not see or heard what Sombane has been accused of. I could not find contradiction to the evidence from Learner C and D.
42. Learner A only during cross-examination stated that Sombane allegedly said the words in a soft voice. Learner B never testified about a soft voice. Whether Learner A fabricated the story, Learner C responded that Learner A would be capable of doing it. To the question of Learner, a being capable, she responded that they do not understand her behavior and that both Learner A and B are friends and are lying. Learner C stated that they both misbehaved in class not listening and troublesome. Referring to the words “Hey Sir” Learner A used, Learner C responded that Learner A used it often when she was reprimanded which Learner D also testified about. She stated that when Sombane would reprimand Learner A, he would be in the front of the class at the chalk board facing the class. When Learner A would utter the words “Hi Sir” it would be when Sombane call Learner A to order. I am of the view that Learner A was indeed a troublesome learner. From Sombane testimony I could not depict a mere bare denial but truthful. He had no problem with Learner A but acknowledged her to be like other learners. She was troublesome but he never reported her but could deal with her in reprimanding her.
43. The question to be determined is not whether a witness (Learner A) is wholly truthful in all she says, but whether the Arbitrator in this instance, can be satisfied that the story which the witness tells, is a true one in its essential features (see Nicholas J in S v Oosthuizen 1982 (3) SA 571 (T) 576) Witnesses who reconstruct their observations frequently make mistakes (see Frank J in Johannes v South West Transport 1994 1 SA 200 (Nm HC) at 202C-D, quoting Lambrechts v African Guarantee & Indemnity Co 1955 3 SA 459 A). In this instance, Learners A and B could not corroborate each other for a true version of what they allege in bearing the onus. I find Learner A and B not to have been credible in their evidence. Learner A also contradicted herself in instances and to be unreliable and not trustworthy. There was some form of corroboration for the evidence of Learners C and D in relation to Learner A and B to be troublesome learners capable to collude with each other and to fabricate the evidence against Sombane. The Respondent failed to prove its case on a balance of probabilities that Sombane failed to refrain from improper physical contact with Learner A. It therefore flows that the Respondent’s case is less probable. I find Sombane not guilty to both the allegations levelled against him and that he did not contravene an offence in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 read with section 3.6 of South African Council of Educators Act 31 of 2000 which reads: thus ‘refrains from improper physical contact with learners’.
44. The SACE Code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). I am satisfied that employer failed to proof on a balance of probabilities that Sombane has irreparably destroyed the relationship of trust with the finding of not guilty to both the allegations.
AWARD
45. In the premises, I find Sombane not guilty of the charges levelled against him.
S Fourie
ELRC Arbitrator
Gauteng