ELRC1046-20/21EC
Text
ELRC1046-20/21EC
Award Date:
21 July 2022
Case Number: ELRC1046-20/21EC
Commissioner: MBULELO SAFA
Date of Award 21 July 2022
In the ARBITRATION between: -
DEPARTMENT OF EDUCATION: EASTERN CAPE
Applicant
And
ABEI KUFENI NGWENYA
Respondents
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter set down for arbitration on the 13 May 2022 at Lusikisiki Children’s Court and at Maluti Education offices on the 20 June 2022.
2. The Applicant was represented by Mr Loyiso Mashoai who is their Labour Relations Official and the Respondent represented himself on the first day and represented by Dr P. Leboea from SADTU on the 20 June 2022.
3. The intermediary appointed by the ELRC was Ms Xana.
4. The proceedings were recorded in an audio recorder.
ISSUES TO BE DECIDED
5. Whether or not the Respondent is guilty of the charges proffered against him by the Applicant and to make an appropriate award/sanction in terms of section 18(3) of the Employment of Educators Act.
BACKGROUND TO THE ISSUE
6. The Respondent is employed by the Applicant as an educator at Mokheseng Secondary School in the Alfred Ndzo West District of the Applicant. He is employed in terms of the Employment of Educators Act.
7. The proceedings here are in terms of ELRC Collective Agreement 3 of 2018 which provides that it is mandatory that in misconduct cases where the allegations against the educator relate to alleged sexual misconduct against a learner the matter must be dealt with as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act.
SURVEY OF EVIDENCE AND ARGUMENT
8. The Applicant submitted one bundle of documents and led oral evidence through one witness. The Respondent submitted one bundle of documents and led evidence through one witness.
APPLICANT’S EVIDENCE AND ARGUMENT
9. The first witness of the Applicant was a school child whose name is withheld, but for the purposes of this award she will be called Complainant. She testified in camera because she is the minor (16 years).
10. Complainant testified that she was doing grade 10 at the school and that she knew the Respondent since when she was doing grade 8 as the Respondent was her Mathematics and Natural Science educator.
11. She testified that the Respondent used to go and park his car in front of the gate at her(Complainant’s) home. Her home is operating a tuck shop.
12. She said that on the 25 November 2021 the Respondent came to buy airtime. The Respondent had a small chat with the grandmother of Complainant whilst Complainant was trying to get the airtime. Complainant went out with the gadget for the airtime in order to get a place with a signal. After some time, Complainant informed the Respondent that the airtime voucher was ready after which the Respondent got inside the tuck-shop to get the airtime.
13. She said on getting inside the Respondent produced a R100 note and went on to touch the breasts and private part of the Complainant. He did that two times whilst they were inside the tuck-shop. She said the Respondent further said that he wanted to ‘ukugqobhoza’ the witness.
14. The witness said she thought the Respondent meant he wanted to break her virginity when he said he was going to ’gqobhoza’ her.
15. When the witness asked why was the Respondent doing what she did not like the Respondent said he loved the witness. He then left.
16. After the Respondent has left the witness said she ran to her father who was in the fields to tell him what has just happened. The father, together with Complainant went to the school where they met the principal and deputy principal, and the Respondent was called to the office also. The witness explained what had happened and went on to tell them that the Respondent has been doing that since 2020. She also told them that the Respondent kissed her in the mouth. Asked why she did not report it she said she was afraid the Respondent was going make her fail.
17. When asked to respond the Respondent said the witness had a grudge against him and he said he did not know why the witness was doing that. He said the witness was young enough to be his child.
18. The witness further told the gathering that she was not the only child who has experienced that from the Respondent. She mentioned another learner called Lizeka.
19. After the meeting she said her father went back to the fields. She said that after school the Respondent came to her home again and enquired about the whereabouts of her father.
20. He then drove to the fields where he went to talk to her father.
21. When the father of the witness came back from the fields he reported that the Respondent was concerned that the matter was going to affect his job. Her father also said the Respondent was contradicting himself as he was not denying the accusation but also not admitting it.
22. Witness stated that the Respondent did not have the reason and right to do what he did to her. She said that after the incident she did not look to him like before, did not trust him and was also not talking to him.
23. The Respondent would from time to time come to get R5 notes from the witness. She said she had been close to the Respondent and would talk to him about her personal problems like when she had a problem with her sibling. She said she that time she trusted the Respondent but things changed since the incident in November 2021.
RESPONDENT’S EVIDENCE AND ARGUMENT
24. The Respondent, Abei Kufeni Ngwenya, testified that the learners at the school had a tendency of being affectionate him. He said he sometimes had to report the cases to his supervisors. He referred to a document he submitted in his bundle to show that he reported a learner who was making moves on him.
25. He said that in the case of Complainant he did not see it coming otherwise he would have prevented it.
26. He said Complainant was one of his brilliant and favourable learners. She was always friendly and jolly towards him. She said Complainant would stop him when he was coming from work. He said she used to give the Respondent the R5 coins he was collecting, in exchange for notes.
27. He said if he wanted to buy anything he would go to the tuck shop with his spouse. He never went to the tuck shop alone. He said the distance between his place and the tuckshop was about two to three minutes’ walk. He said on the 25 November 2021 he was alone because he was coming from work.
28. She said each time Complainant saw him she would come running to bring him the R5 coins, she would ask when was she going to get a ride in his car. She would also ask about his child and also if she could come to visit them. Respondent said he would always refuse the offer to visit as he believed that his home was a personal space.
29. He also said her grandmother was a family friend and would ask that the Respondent must go with her to Johannesburg where she has relatives.
30. He said that on the 25 November 2021 he came to the tuck shop to buy airtime and found the grandmother of Complainant near the door. The grandmother called Complainant and asked her to assist the Respondent. He said Complainant was her usual jolly and laughing self. She asked what the Respondent was doing with the R5 coins and also asked when was the Respondent going to take her to the Gauteng province.
31. He said when Complainant came he gave her a R100 note for the R12 airtime he wanted to buy. When Complainant went inside the tuckshop to get the airtime the witness(Respondent) was left chatting to the grandmother of the Complainant. After some time, she came back with the airtime voucher. After that the witness left.
32. He said when he was at school on the same day he saw Complainant and her father and he(Respondent) was called to the office where there was also principal and deputy principal.
33. He said the father of Complainant stated that the Respondent started to harass Complainant in 2020 and the father had asked Complainant to tell the Respondent to stop what he was doing.
34. He testified that after the meeting he went to approach the father of Complainant who he met at the fields. He told him he wanted to know why he (father to Complainant) did not inform him(Respondent) about the matter since they had a good relationship. The father of Complainant responded that he had sent Complainant to ask him to stop what he was doing to Complainant. He said the purpose of going to Complainant’s father was to confront him about why he never mentioned the event of 2020 and also to tell him that he(Respondent) was not guilty of what he was accused of.
35. He said he asked the father why was he sending Complainant to bring him maize if he(Respondent) was harassing her, the father of Complainant said he had no problem with the Respondent. Respondent could not find an answer when he asked Complainant’s father why was he befriending the Respondent and at the same time accusing him of harassing his child.
36. He admitted that he did not challenge the version of Complainant when she testified and also in his own evidence in chief. He said he however did say that what Complainant was saying was a lie. He also admitted that what Complainant said in the meeting was what she wrote in her statement.
37. He said that after the incident of the 25 November 2021 he never spoke to Complainant as she wanted to distance himself from her. He said he did not deny the version of Complainant when she testified because he knew that he would get an opportunity to state his case when he testified. He denied that he said anything about ‘ukugqobhoza’. He also said ‘ukugqobhoza’ is not a Zulu work referring to breaking virginity.
ANALYSIS OF EVIDENCE AND ARGUMENT
38. As stated in paragraph 5 I have to make a finding whether the Respondent is guilty of the charges proffered by the Applicant.
39. The allegations the Respondent faced were that (1) he contravened section 17(1)(b) of the Employment of Educators Act in the he sexually harassed a learner, Complainant on several occasions since 2020, (2) he contravened section (1)(q) of the Employment of Educators Act in that he conducted himself in an improper, disgraceful and unacceptable manner by making sexual advances and touching the female learner and (3) he contravened section 18(1)(f) of the Employment of Educators’ Act in that he prejudiced the administration, discipline and efficiency of the Applicant by intentionally sexually harassing the learner and touching her inappropriately without her consent.
40. Like in most cases of sexual harassment there is an account of only two people who were present when the alleged incident occurred; the alleged perpetrator, the victim and the facts.
41. When faced with the mutually destructive versions, like in this case, the Supreme Court of Appeal in Stellenbosch Farmers Winery Group Ltd & Another v Martel et Cie & Others provided a technique where it said the court must make findings on the (i) credibility of the various factual witnesses, (ii) their reliability and (iii) probabilities.
42. The evidence of the Respondent was that before the incident of the 25 November 2021 he related well with Complainant, she was a favourable and bright learner and whenever she had an opportunity she would chat to the Respondent to the extent that she even shared her personal problems with him. Respondent also testified that he related well with both the father and grandmother of Complainant.
43. With this type of relationship existing there can be no reason that a motive can be suspected to be behind the allegations. It is not probable that Complainant would make the allegations out of the blue against someone she related so well with.
44. According to the statement written by Complainant on the 10 December 2021 she also informed other educators at the school about the conduct of the Respondent and they promised to talk to him. According to the statement of Complainant’s father he was also informed about the harassment and he asked Complainant to tell the Respondent that if he did not stop the abuse he was doing to the Complainant he was going to report him(Respondent) to the authorities. In his evidence the Respondent confirmed that Complainant’s father said that in the meeting at the office of the principal and also when they met at the fields.
45. This is consistent with the evidence of Complainant that the harassment started way back in 2020. There is no evidence presented that the Respondent denied the allegation that he had been harassing Complainant for some time. Even when the father of Complainant said he asked her to warn the Respondent and when he said this in the meeting with the principal and when they met at the fields there is no evidence that the Respondent ever protested or denied the allegation.
46. The Respondent did not initially dispute the version and allegations of the Complainant when she was testifying and when he(Respondent) was giving evidence in chief. The Respondent only disputed the allegations when he was prompted during the cross-examination. This to me shows that the rebutting of the Applicant’s version was an afterthought which was only done as a bare denial because the Respondent was prompted. Thus the Respondent was a less credible and unreliable witness who did not volunteer the information but had to be prompted.
47. The visit of the Respondent to complainant’s father after the case was reported at the school is open to various interpretations. According to the Respondent he went to meet Complainant’s father because he wanted to know from him why he(father) did not approach him(Applicant) about the matter since they were in good relationship. I have already stated that the response of the father was that he had previously sent Complainant with the warning to the Respondent to stop the harassment. According to the statement from the father of Complainant the Respondent went to him to the fields in order to ask for forgiveness.
48. To me visiting the father of the victim soon after the complaint was laid with the authorities amounted to interfering with and defeating the ends of justice. This can only be done if the person has something to hide. Thus the credibility and reliability of the Respondent becomes questionable.
49. After what had happened at the tuck-shop on the 25 November 2021 Complainant ran to her father in the fields. Complainant and Respondent testified that the two of them were friendly to each other and were often discussing a lot of things about the family of Complainant and Respondent. When the two related so well with each other it was not probable that Complainant would just run to her father after their engagement at the tuck-shop unless something unusual had happened. The probabilities then favour the version of the complainant(Complainant) that the Respondent sexually harassed Complainant.
50. Dr Leboea for the Applicant decried the fact that the complainant did not scream and run to her grandmother who was nearby but chose to run to her father in the fields. He also criticized the reaction of the complainant’s father when told about the sexual when he sent the same victim to advise the alleged perpetrator to stop it instead of dealing with the allegations head on. He also indicated surprise at the tardy reaction of the educators the complainant initially referred the complaint to.
51. Quoting its own dictum in Rustenburg Platinum Mines the Labour Court in Old Mutual Assurance SA Pty)Ltd v Makanda & Others held that ‘victims of sexual harassment react to their own ordeals and circumstances differently, and in most circumstances, long after the fact.’
52. The court further held that,
“Fear of the consequences of complaining to higher authority whether the complaint is made by the victim or a friend, often compels the victim to suffer in silence. That sexual harassment of an employee in an inferior position is despicable is only fully realized when one has to comfort a young girl crying her heart out in a quiet corner.”
53. The reaction of the complainant and the tardy reaction of the people to whom the harassment was initially reported is not different from what the Labour Court described above, that there is no standard response.
54. From the evidence led Complainant was close and friendly to the Respondent and would carry his bag to school, ask him about his family and also confided in him her personal problems. All these to me suggest that Complainant looked at the Respondent as someone who was family and someone she could trust. However, the Respondent betrayed that trust. He also betrayed the trust the parents of Complainant had on him.
55. Even when Complainant was testifying she appeared to be very angry and disappointed towards the Respondent and at some stage she was stopped when she wanted to ask questions to the Respondent (even though it was herself who was testifying). This showed that the complainant was still traumatized even on the date of the arbitration.
56. The Respondent also testified about learners at the school who were making moves on him. He even referred to a document which proved that another learner was even disciplined for having a go at him. However, having learners making moves at him does not suggest that the Complainant did the same and even if she did, it did not give the Respondent a license to sexually violate her.
57. The conclusion I can draw is that on a balance of probabilities the Respondent is guilty of charge 1 proffered against him by the Applicant. The Applicant did not lead evidence on the other charges and hence I cannot find the Respondent guilty thereto.
58. Section 5(1) of the Criminal Sexual Offences Amendment Act describes the sexual assault as when a person sexually violates a complainant.
59. Section 1 of the Criminal Sexual Offences Amendment Act defines sexual violation as an act which:-
“includes any act which causes—
(a) direct or indirect contact between the—
(i) genital organs or anus of one person or, in the case of a female, her breasts, and any part of the body of another person or an animal, or any object, including any object resembling or representing the genital organs or anus of a person or an animal;”
60. The act for which the Respondent has been found guilty involved the touching of the genital organs and the breasts of the complainant by the Respondent. What the Respondent did therefore meets the requirements of the definition of the sexual violation and consequently sexual offence on the learner(complainant).
61. In terms of section 17(1) of the Employment of Educators Act an educator must be dismissed if found guilty of committing an act of sexual assault on a learner. As I have found the Respondent guilty of sexual assault I am enjoined to impose a sanction of dismissal.
62. Section 50(1) of the Criminal Law (Sexual Offences and related matters) Amendment Act (the act) a person who is found guilty of sexual offence against a child in terms of the Act or any other law must have his name entered into the National Register for Sex Offenders. The parties did not address me on this point.
63. However, since the Respondent has been found guilty of sexual assault in terms of the Employment of Educators Act I am enjoined to make an order in terms of the inclusion of the name of the Respondent in the register.
In the circumstances I make the following award;
AWARD
64. The Respondent, Abei Kufeni Ngwenya, is found guilty of the charge of sexual assault on a learner of Mokheseng Secondary School.
65. The appropriate sanction being imposed is DISMISSAL which must be effected within seven (07) days from the date of receipt of this award.
66. The name of the Respondent should be included in the Register for Sex Offenders in terms of section 50(1) of the Criminal Law (Sexual Offences and related matters) Amendment Act of 2007.
Mbulelo Safa: ELRC Panelist
Commissioner: MBULELO SAFA
Date of Award 21 July 2022
In the ARBITRATION between: -
DEPARTMENT OF EDUCATION: EASTERN CAPE
Applicant
And
ABEI KUFENI NGWENYA
Respondents
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter set down for arbitration on the 13 May 2022 at Lusikisiki Children’s Court and at Maluti Education offices on the 20 June 2022.
2. The Applicant was represented by Mr Loyiso Mashoai who is their Labour Relations Official and the Respondent represented himself on the first day and represented by Dr P. Leboea from SADTU on the 20 June 2022.
3. The intermediary appointed by the ELRC was Ms Xana.
4. The proceedings were recorded in an audio recorder.
ISSUES TO BE DECIDED
5. Whether or not the Respondent is guilty of the charges proffered against him by the Applicant and to make an appropriate award/sanction in terms of section 18(3) of the Employment of Educators Act.
BACKGROUND TO THE ISSUE
6. The Respondent is employed by the Applicant as an educator at Mokheseng Secondary School in the Alfred Ndzo West District of the Applicant. He is employed in terms of the Employment of Educators Act.
7. The proceedings here are in terms of ELRC Collective Agreement 3 of 2018 which provides that it is mandatory that in misconduct cases where the allegations against the educator relate to alleged sexual misconduct against a learner the matter must be dealt with as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act.
SURVEY OF EVIDENCE AND ARGUMENT
8. The Applicant submitted one bundle of documents and led oral evidence through one witness. The Respondent submitted one bundle of documents and led evidence through one witness.
APPLICANT’S EVIDENCE AND ARGUMENT
9. The first witness of the Applicant was a school child whose name is withheld, but for the purposes of this award she will be called Complainant. She testified in camera because she is the minor (16 years).
10. Complainant testified that she was doing grade 10 at the school and that she knew the Respondent since when she was doing grade 8 as the Respondent was her Mathematics and Natural Science educator.
11. She testified that the Respondent used to go and park his car in front of the gate at her(Complainant’s) home. Her home is operating a tuck shop.
12. She said that on the 25 November 2021 the Respondent came to buy airtime. The Respondent had a small chat with the grandmother of Complainant whilst Complainant was trying to get the airtime. Complainant went out with the gadget for the airtime in order to get a place with a signal. After some time, Complainant informed the Respondent that the airtime voucher was ready after which the Respondent got inside the tuck-shop to get the airtime.
13. She said on getting inside the Respondent produced a R100 note and went on to touch the breasts and private part of the Complainant. He did that two times whilst they were inside the tuck-shop. She said the Respondent further said that he wanted to ‘ukugqobhoza’ the witness.
14. The witness said she thought the Respondent meant he wanted to break her virginity when he said he was going to ’gqobhoza’ her.
15. When the witness asked why was the Respondent doing what she did not like the Respondent said he loved the witness. He then left.
16. After the Respondent has left the witness said she ran to her father who was in the fields to tell him what has just happened. The father, together with Complainant went to the school where they met the principal and deputy principal, and the Respondent was called to the office also. The witness explained what had happened and went on to tell them that the Respondent has been doing that since 2020. She also told them that the Respondent kissed her in the mouth. Asked why she did not report it she said she was afraid the Respondent was going make her fail.
17. When asked to respond the Respondent said the witness had a grudge against him and he said he did not know why the witness was doing that. He said the witness was young enough to be his child.
18. The witness further told the gathering that she was not the only child who has experienced that from the Respondent. She mentioned another learner called Lizeka.
19. After the meeting she said her father went back to the fields. She said that after school the Respondent came to her home again and enquired about the whereabouts of her father.
20. He then drove to the fields where he went to talk to her father.
21. When the father of the witness came back from the fields he reported that the Respondent was concerned that the matter was going to affect his job. Her father also said the Respondent was contradicting himself as he was not denying the accusation but also not admitting it.
22. Witness stated that the Respondent did not have the reason and right to do what he did to her. She said that after the incident she did not look to him like before, did not trust him and was also not talking to him.
23. The Respondent would from time to time come to get R5 notes from the witness. She said she had been close to the Respondent and would talk to him about her personal problems like when she had a problem with her sibling. She said she that time she trusted the Respondent but things changed since the incident in November 2021.
RESPONDENT’S EVIDENCE AND ARGUMENT
24. The Respondent, Abei Kufeni Ngwenya, testified that the learners at the school had a tendency of being affectionate him. He said he sometimes had to report the cases to his supervisors. He referred to a document he submitted in his bundle to show that he reported a learner who was making moves on him.
25. He said that in the case of Complainant he did not see it coming otherwise he would have prevented it.
26. He said Complainant was one of his brilliant and favourable learners. She was always friendly and jolly towards him. She said Complainant would stop him when he was coming from work. He said she used to give the Respondent the R5 coins he was collecting, in exchange for notes.
27. He said if he wanted to buy anything he would go to the tuck shop with his spouse. He never went to the tuck shop alone. He said the distance between his place and the tuckshop was about two to three minutes’ walk. He said on the 25 November 2021 he was alone because he was coming from work.
28. She said each time Complainant saw him she would come running to bring him the R5 coins, she would ask when was she going to get a ride in his car. She would also ask about his child and also if she could come to visit them. Respondent said he would always refuse the offer to visit as he believed that his home was a personal space.
29. He also said her grandmother was a family friend and would ask that the Respondent must go with her to Johannesburg where she has relatives.
30. He said that on the 25 November 2021 he came to the tuck shop to buy airtime and found the grandmother of Complainant near the door. The grandmother called Complainant and asked her to assist the Respondent. He said Complainant was her usual jolly and laughing self. She asked what the Respondent was doing with the R5 coins and also asked when was the Respondent going to take her to the Gauteng province.
31. He said when Complainant came he gave her a R100 note for the R12 airtime he wanted to buy. When Complainant went inside the tuckshop to get the airtime the witness(Respondent) was left chatting to the grandmother of the Complainant. After some time, she came back with the airtime voucher. After that the witness left.
32. He said when he was at school on the same day he saw Complainant and her father and he(Respondent) was called to the office where there was also principal and deputy principal.
33. He said the father of Complainant stated that the Respondent started to harass Complainant in 2020 and the father had asked Complainant to tell the Respondent to stop what he was doing.
34. He testified that after the meeting he went to approach the father of Complainant who he met at the fields. He told him he wanted to know why he (father to Complainant) did not inform him(Respondent) about the matter since they had a good relationship. The father of Complainant responded that he had sent Complainant to ask him to stop what he was doing to Complainant. He said the purpose of going to Complainant’s father was to confront him about why he never mentioned the event of 2020 and also to tell him that he(Respondent) was not guilty of what he was accused of.
35. He said he asked the father why was he sending Complainant to bring him maize if he(Respondent) was harassing her, the father of Complainant said he had no problem with the Respondent. Respondent could not find an answer when he asked Complainant’s father why was he befriending the Respondent and at the same time accusing him of harassing his child.
36. He admitted that he did not challenge the version of Complainant when she testified and also in his own evidence in chief. He said he however did say that what Complainant was saying was a lie. He also admitted that what Complainant said in the meeting was what she wrote in her statement.
37. He said that after the incident of the 25 November 2021 he never spoke to Complainant as she wanted to distance himself from her. He said he did not deny the version of Complainant when she testified because he knew that he would get an opportunity to state his case when he testified. He denied that he said anything about ‘ukugqobhoza’. He also said ‘ukugqobhoza’ is not a Zulu work referring to breaking virginity.
ANALYSIS OF EVIDENCE AND ARGUMENT
38. As stated in paragraph 5 I have to make a finding whether the Respondent is guilty of the charges proffered by the Applicant.
39. The allegations the Respondent faced were that (1) he contravened section 17(1)(b) of the Employment of Educators Act in the he sexually harassed a learner, Complainant on several occasions since 2020, (2) he contravened section (1)(q) of the Employment of Educators Act in that he conducted himself in an improper, disgraceful and unacceptable manner by making sexual advances and touching the female learner and (3) he contravened section 18(1)(f) of the Employment of Educators’ Act in that he prejudiced the administration, discipline and efficiency of the Applicant by intentionally sexually harassing the learner and touching her inappropriately without her consent.
40. Like in most cases of sexual harassment there is an account of only two people who were present when the alleged incident occurred; the alleged perpetrator, the victim and the facts.
41. When faced with the mutually destructive versions, like in this case, the Supreme Court of Appeal in Stellenbosch Farmers Winery Group Ltd & Another v Martel et Cie & Others provided a technique where it said the court must make findings on the (i) credibility of the various factual witnesses, (ii) their reliability and (iii) probabilities.
42. The evidence of the Respondent was that before the incident of the 25 November 2021 he related well with Complainant, she was a favourable and bright learner and whenever she had an opportunity she would chat to the Respondent to the extent that she even shared her personal problems with him. Respondent also testified that he related well with both the father and grandmother of Complainant.
43. With this type of relationship existing there can be no reason that a motive can be suspected to be behind the allegations. It is not probable that Complainant would make the allegations out of the blue against someone she related so well with.
44. According to the statement written by Complainant on the 10 December 2021 she also informed other educators at the school about the conduct of the Respondent and they promised to talk to him. According to the statement of Complainant’s father he was also informed about the harassment and he asked Complainant to tell the Respondent that if he did not stop the abuse he was doing to the Complainant he was going to report him(Respondent) to the authorities. In his evidence the Respondent confirmed that Complainant’s father said that in the meeting at the office of the principal and also when they met at the fields.
45. This is consistent with the evidence of Complainant that the harassment started way back in 2020. There is no evidence presented that the Respondent denied the allegation that he had been harassing Complainant for some time. Even when the father of Complainant said he asked her to warn the Respondent and when he said this in the meeting with the principal and when they met at the fields there is no evidence that the Respondent ever protested or denied the allegation.
46. The Respondent did not initially dispute the version and allegations of the Complainant when she was testifying and when he(Respondent) was giving evidence in chief. The Respondent only disputed the allegations when he was prompted during the cross-examination. This to me shows that the rebutting of the Applicant’s version was an afterthought which was only done as a bare denial because the Respondent was prompted. Thus the Respondent was a less credible and unreliable witness who did not volunteer the information but had to be prompted.
47. The visit of the Respondent to complainant’s father after the case was reported at the school is open to various interpretations. According to the Respondent he went to meet Complainant’s father because he wanted to know from him why he(father) did not approach him(Applicant) about the matter since they were in good relationship. I have already stated that the response of the father was that he had previously sent Complainant with the warning to the Respondent to stop the harassment. According to the statement from the father of Complainant the Respondent went to him to the fields in order to ask for forgiveness.
48. To me visiting the father of the victim soon after the complaint was laid with the authorities amounted to interfering with and defeating the ends of justice. This can only be done if the person has something to hide. Thus the credibility and reliability of the Respondent becomes questionable.
49. After what had happened at the tuck-shop on the 25 November 2021 Complainant ran to her father in the fields. Complainant and Respondent testified that the two of them were friendly to each other and were often discussing a lot of things about the family of Complainant and Respondent. When the two related so well with each other it was not probable that Complainant would just run to her father after their engagement at the tuck-shop unless something unusual had happened. The probabilities then favour the version of the complainant(Complainant) that the Respondent sexually harassed Complainant.
50. Dr Leboea for the Applicant decried the fact that the complainant did not scream and run to her grandmother who was nearby but chose to run to her father in the fields. He also criticized the reaction of the complainant’s father when told about the sexual when he sent the same victim to advise the alleged perpetrator to stop it instead of dealing with the allegations head on. He also indicated surprise at the tardy reaction of the educators the complainant initially referred the complaint to.
51. Quoting its own dictum in Rustenburg Platinum Mines the Labour Court in Old Mutual Assurance SA Pty)Ltd v Makanda & Others held that ‘victims of sexual harassment react to their own ordeals and circumstances differently, and in most circumstances, long after the fact.’
52. The court further held that,
“Fear of the consequences of complaining to higher authority whether the complaint is made by the victim or a friend, often compels the victim to suffer in silence. That sexual harassment of an employee in an inferior position is despicable is only fully realized when one has to comfort a young girl crying her heart out in a quiet corner.”
53. The reaction of the complainant and the tardy reaction of the people to whom the harassment was initially reported is not different from what the Labour Court described above, that there is no standard response.
54. From the evidence led Complainant was close and friendly to the Respondent and would carry his bag to school, ask him about his family and also confided in him her personal problems. All these to me suggest that Complainant looked at the Respondent as someone who was family and someone she could trust. However, the Respondent betrayed that trust. He also betrayed the trust the parents of Complainant had on him.
55. Even when Complainant was testifying she appeared to be very angry and disappointed towards the Respondent and at some stage she was stopped when she wanted to ask questions to the Respondent (even though it was herself who was testifying). This showed that the complainant was still traumatized even on the date of the arbitration.
56. The Respondent also testified about learners at the school who were making moves on him. He even referred to a document which proved that another learner was even disciplined for having a go at him. However, having learners making moves at him does not suggest that the Complainant did the same and even if she did, it did not give the Respondent a license to sexually violate her.
57. The conclusion I can draw is that on a balance of probabilities the Respondent is guilty of charge 1 proffered against him by the Applicant. The Applicant did not lead evidence on the other charges and hence I cannot find the Respondent guilty thereto.
58. Section 5(1) of the Criminal Sexual Offences Amendment Act describes the sexual assault as when a person sexually violates a complainant.
59. Section 1 of the Criminal Sexual Offences Amendment Act defines sexual violation as an act which:-
“includes any act which causes—
(a) direct or indirect contact between the—
(i) genital organs or anus of one person or, in the case of a female, her breasts, and any part of the body of another person or an animal, or any object, including any object resembling or representing the genital organs or anus of a person or an animal;”
60. The act for which the Respondent has been found guilty involved the touching of the genital organs and the breasts of the complainant by the Respondent. What the Respondent did therefore meets the requirements of the definition of the sexual violation and consequently sexual offence on the learner(complainant).
61. In terms of section 17(1) of the Employment of Educators Act an educator must be dismissed if found guilty of committing an act of sexual assault on a learner. As I have found the Respondent guilty of sexual assault I am enjoined to impose a sanction of dismissal.
62. Section 50(1) of the Criminal Law (Sexual Offences and related matters) Amendment Act (the act) a person who is found guilty of sexual offence against a child in terms of the Act or any other law must have his name entered into the National Register for Sex Offenders. The parties did not address me on this point.
63. However, since the Respondent has been found guilty of sexual assault in terms of the Employment of Educators Act I am enjoined to make an order in terms of the inclusion of the name of the Respondent in the register.
In the circumstances I make the following award;
AWARD
64. The Respondent, Abei Kufeni Ngwenya, is found guilty of the charge of sexual assault on a learner of Mokheseng Secondary School.
65. The appropriate sanction being imposed is DISMISSAL which must be effected within seven (07) days from the date of receipt of this award.
66. The name of the Respondent should be included in the Register for Sex Offenders in terms of section 50(1) of the Criminal Law (Sexual Offences and related matters) Amendment Act of 2007.
Mbulelo Safa: ELRC Panelist