ELRC156-22/23MP
Text
ELRC156-22/23MP
Award Date:
08 August 2022
Case Number: ELRC156-22/23MP
Commissioner: E Maree
Date of Award: 8 August 2022
In the inquiry between
Mpumalanga Department of Education
(Employer)
And
Sboniso Gumede
(Employee)
Employer representative: Ms. S. Chauke
Employee representative:
Mr. P. Tseke
Details of hearing and representation
1The inquiry by arbitrator regarding an alleged act of misconduct, set down in terms of Section 188A of the Labour Relations Act, 66 of 1995 ‘’the LRA’’ and Collective Agreement 3 of 2018, the ‘’CA’’ was heard on the 19th of July 2022 at Nokaneng Circuit office at Masoganeng.
2. The employee was represented by Mr. P. Tsheke an official from SADTU while the employer was represented by Ms. S. Chauke a Labour Relations Officer.
3. The arbitration was electronically recorded, and handwritten notes were taken. The process was also assisted by an intermediary, Ms. S.M. Mohaule-Mbowenii and council interpreter Mr. S. Kuzwayo.
4. The parties have agreed to submit written closing arguments on or before the 26th of July 2022.
Issues to be decided
5. I must determine if the employee was guilty of the charge of misconduct levelled against him. In the event of a finding of guilt, the appropriate sanction must be determined.
Background to the dispute
6. The employee, an educator, had been employed as such at the Thufane High School since 2017.
7. The charge levelled against the employee read as follows. Due to the fact that the charge relates to an allegation of sexual misconduct, and the learner is a minor, she will not be identified but referred to as ‘’the minor’’ or ‘’M’’. The identity of the learner was confirmed off the record by all the parties. The name in the charge sheet was also substituted in this manner.
Charge 1
‘’You committed misconduct in terms of Section 17(1) (c) of the Employment of Educators Act, 76 of 1998, as amended in that around March/April 2022 you had a sexual relationship with a learner where you are employed by the name of ‘’M’’ who is a grade 12 learner at Thufane High School’’
8. The employee admitted that the notice was received timeously on the 18th of May 2022, that he was informed of the right to be represented and was indeed represented by an official from SADTU. The employee also acknowledged that he understood the charge and pleaded ‘’not guilty’’.
9. It was however, contented on behalf of the employee by Mr. Tseke that there was not sufficient time to prepare – despite the timeous receipt of the notice – as the bundle of documents had only been received on the 18th of July 2022 and the authenticity could not be verified and that the matter must be postponed. Ms Chauke submitted on behalf of the respondent that the request to postpone is opposed and indicated that the bundle was send to the regional office of SADTU on the 23rd of June 2022.
10. After affording the applicant time to peruse the documents it was stated by Mr Tseke that ‘’some is correct and some not’’.
11. The request for postponement was denied as the bundle was exchanged timeously and consisted of whats app messages between the employee and the learner. The cell phone of the latter was available to support the printed messages contained in the bundle. It was also pointed out that the employer has the onus to proof the authenticity of the documents regarding those that were disputed, that the employee has the right to cross-examine and to provide his own evidence orally and by way of documents to counter the allegation against him.
Survey of evidence and argument
The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.
Employer’s evidence
12. The employer called two witnesses in order to prove, on a balance of probabilities, that the employee was guilty of misconduct.
13. The first witness Mr. Lesiba Abram Mmethi testified that he is the uncle of the learner and appointed as her legal guardian. He resides in Nokaneng and is a police official at the South African Police Service in Rust de Winter.
14. Mr Mmethi submitted that during April 2022 he saw behavioural changes in the learner who lives with him and who he regards as his daughter. She also calls him ‘’daddy’’. He heard her talking on the phone in ‘’a low tone’ and in a different language (Zulu) whilst she is Tswana speaking. He was surprised by this and asked himself ‘’who is she talking to?’’ especially as it sometimes occurred late at night which he noticed as he was working night shift.
15. According to Mr. Mmethi the leaner asked permission to meet friends at Mamohlake which he refused as it was a tavern. He also suspected that she was not meeting friends but ‘’someone else’’ as she had never asked permission to go to a tavern. He told her as much, but she denied it and showed him her phone to prove she was meeting friends. He saw on the screen the words ‘’mybabyboo’’ and love emojis.
16. Mr Mmethi further testified that he gives the phone to the learner on Fridays and takes it back on a Sunday as he ‘’did not want her to be disturbed by a phone’’. Due to the fact that he ‘’wondered what was going on’’, he opened the phone, as he had the password, when he took it back as usual on a Sunday. Upon opening the phone, he saw the same words and love emojis as when the learner showed him the phone previously. He then saw disturbing messages, sexual emojis and nude photos. This worried him and he wanted to determine who was sending such to the learner and then saw the name ‘’Gumede’’. He then put two and two together and realised it was the employee, who was the learners accounting teacher whom she had mentioned on occasion, stating amongst others that she now ‘’understood accounting better due to Gumede’’.
17. Mr Mmethi stated that he was ‘’angry and frustrated’’ as the messages were suggestive of a sexual relationship amongst others ones that referred to ‘’quickie after quickie’’ and one stating that ’’next year I am done with school and will live in town together, and not at school and no quickies but we will have raw sex’’.[Pages 7,8,20 36] ..
18. Mr Mmethi testified that he had mixed emotions regarding the next step he had to take. If he did not report the case, his daughter might later blame him for not protecting/helping her. If he reported the case, it might impact on her emotional well-being, that was fragile. He then decided to go to school where he discussed the issue with Mr Bopela who after listening to him, called the employee. It was the first time he saw the employee and told him what he found on his daughter’s phone, and how he felt about it. The employee apologised, stating that ‘’I do not know what I was doing’’ and offered to pay ‘’damages’ which he refused stating that he did not send his under aged daughter to school to ‘’make money of her’’ but to be educated. He also told the employee that he fails to see how he ‘’did not know’’ what he was doing.
19. The principal then arrived to whom he re-told his story. The principal spoke to the employee who did not deny the allegations. He was told that the matter would be escalated. He confronted his daughter who denied that there was a sexual and/or romantic relationship but he had read the messages and it clearly shows a sexual relationship. The bundle contains some of the messages that he saw on the phone which he had retained since founding the messages. Not all the messages were printed as that would be over 300 pages.
20. The second witness, ‘’M’’ testified that she is 17 years old and is a learner at Tufane High School and currently in Grade 12. The cell phone number of the first page of the bundle of documents that contained whats app messages is that of the employee, Mr Gumede, her accounting teacher. She obtained his number from the whats app study group and they then ‘’started private conversations’’ as she ‘’made moves on him’’ and called him while he was in KZN. Mr Gumede wanted to know what was going on as they ‘’used to clash in the classroom’’ and she decided to tell him how she felt about him.
21. According to M, Mr Gumede told her that it ‘’was wrong to date a leaner’’ and said they should wait until December as he knew she would be finished with school. They knew of the policies that a teacher cannot date a learner and that doing so is wrong.
22. M stated that she ‘’had an obsession’’ with the employee and ‘’forced him to be in a relationship with me’’. She stated that ‘’at first he did not want it’ but she threatened him and said ‘’ if we do not have a relationship, I will ruin your career and commit suicide’’ and due to this he agreed to being in a relationship but he ‘’was not okey with it’’. She told him ‘’not to worry’’ as they ‘would do things secretly’’.
23. According to M they then had a relationship but she is not sure for how long and he was ‘’not really’’ her boyfriend but a ‘’person I had a vibe with’’ and was a person she ‘’wanted to know to move forward’’ but ‘’did not know him very well’’ and their relationship ‘’was based on the phone as they had never met’’ and ‘’did video calls’’.
24. M stated that she ‘’used to make up scenarios in my head’’ and thought ‘’how we would end up together’’. She ‘’imagined’’ their future and he ‘’did not really respond’’. He also did not ‘’make the first move’’ as she made it. She told him of the scenarios she had created and he ‘’just played along’’. There as a point where he ‘’gave me high hopes’’ that they would end up together. In the whats app messages, she called him by his name and sometimes ‘’my love’’. He also called her by her name and sometimes with other names, she cannot recall as it was long ago. The documents show their whats app messages, his photo [page 2] and a screenshot of a video call [page 3].
25. M submitted that the whats app messages on page 6 ‘’is from myself when I used another whats app and I send it to myself’’. She sent the messages from the employee’s phone to hers as she had his code and also had his whats app profile on her phone. She used both their phones to do this and obtained the employees phone from the staff room where he left it. She could open it as she knew his password which was his son’s name. She used to send him messages from his own phone while at school and sitting ‘’in the toilet’’ and he would be in class.
26. According to M the employee told her to ‘’stop it’’ and said she would get him dismissed. She then decided to stop sending herself messages from his phone.
27. During the investigation at the school she admitted she had a relationship with the employee and that he ‘’made the first move’’. This however, was not the truth. She wanted to hurt him and did not think that it is serious, and he can be dismissed. She lied to ‘’make him look bad.’
Employee’s evidence
28. The employee elected not to testify.
Analysis of evidence and Arguments
29. The onus in this matter was on the employer to prove, on a preponderance of probabilities that the workplace rule was contravened, and that the employee was guilty of the charge levelled against him namely having a sexual relationship with M, a 17-year-old learner.
30. The employer called two witnesses to testified on its behalf. The crux of this evidence was that the learner, M, was engaged in a sexual relationship with the employee as was shown by the whats app messages between them as contained in the bundle.
31. Mr. Mmethi, the legal guardian of M testified that due to concerns with M’s changed behaviour such as late night calls, talking in a low voice in Zulu [while she is Tswana] during such calls and asking permission to visit a tavern, he accessed the phone, he only gave to her over week –ends and found the whats apps. He expressed his shock and concern over the nature of the whats app that contained sexual language and nude photos and pointed to a sexual relationship between M and the employee. In support of this, he referred to some of the whats app’s in the bundle. He also stated that he found the name ‘’Sibusiso’’ in the messages and connected it to M’s Accounting teacher whom she had spoken off.
32. Mr Mmethi relayed his anguish over what he found and the steps he had to take. He stated that he considered not reporting the matter which could later lead to blame by M that he did not protect her, to reporting it and the impact it might have on M’s fragile emotional state. He then decided to report the matter at school, relayed what he found to Mr. Bopela, who called the employee to whom he also relayed what the found. Mr Mmethi stated that the employee responded by saying’’ I am sorry, I did not know what I was thinking’’ and offered to pay damages. According to Mr Mmethi he asked the employee how he could claim that he did not know what he was doing with an under aged child and declined the damages as he sent his daughter to school to be educated and not to make money off her.
33. The principal then arrived, was told by Mr Mmethi of what he found, and when he [the principal] questioned he employee about the allegations, he did not deny it.
34. Mr Mmethi was subjected to cross-examination that failed to destroy his credibility nor did it show untruths, improbabilities, or inconsistencies. He was a solid witness and his concern for M and his anguish over what he found was clear to see.
35. Mr Mmethi was bombarded during cross-examination with issues such as his understanding of teenagers, their sexual development, and the fact that he took M’s phone without her permission. To this Mr Mmethi stated that M is under aged, that the phone belongs to him and is just given to her over week ends. It was never disputed that M only had use of the phone over week ends, an important issue the relevance of which would be shown later in this award.
36. It was put to Mr Mmethi that M ‘’stalked’’ the employee, was ‘’insistent’’ and ‘’flirted with a young teacher’. Even if this is all true, the employee as an educator and an adult had the duty to distance himself and to take appropriate action to remove himself from the situation. This aspect would also be reflected upon later.
37. With reference to the whats apps it was put to Mr Mmethi that it does not show a sexual relationship but only ‘’a romantic relationship’’. To this Mr Mmethi responded that the language used was of a sexual nature, pointing to a sexual relationship that could include a romantic relationship.
38. A big issue was also made about the evidence that the employee apologised and offered to pay damages. It was put to Mr Mmethi that the employee did not apologise for a relationship. To this Mr Mmethi responded that he approached the school about the relationship as shown by the whats apps, to which the employee, when confronted with such, promptly apologised and offered to pay damages. Mr Mmethi stated that this showed him that the employee was aware of the relationship and what apps that supports such.
39. I do find it strange that an innocent man would promptly apologise and offer to pay damages. If he was innocent why do this? It is human nature to vociferously deny guilt if indeed one is not. It needs to be said that guilty people also on many occasions proclaim their innocence, However, when faced with concrete evidence of wrong-doing, the employee chose the path of least resistance, stating he ‘’did not know what he was doing’’, apologised and offered to pay damages, probably hoping that it ‘would all go away’’ as so often happens in situations like this. He however, underestimated the nettle of Mr Mmethi, who wanted nothing of this as he stated that he sends his daughter to school to be educated and not to make money of her. This apology and offer of damages thus backfired in the employee’s face who probably did such, hoping the situation would then resolve itself.
40. Mr Mmethi’s evidence that the employee, when confronted by the principle about the allegations, did not deny the claims, was not disputed during cross-examination.
41. The attempts to paint Mr Mmethi in a bad light for ‘’taking the phone’’ without the permission of M, also failed. It seems that this line of questioning was done to show an infringement of her right to privacy. To this Mr Mmethi responded that it is his phone, he pays for it, has the password, and only gives it to his minor daughter over weekends. In view also of the fact that M is a minor I fail to see how such action could be an unjustified infringement.
42. The second witness, was M, the 17-year-old learner who turned out to be a deluded and untruthful witness. This being said, her initial evidence still supports the charge that there was a sexual relationship between herself and the employee.
43. M testified with great aplomb how she ‘’forced’’ the employee to be in a relationship with her. She stated that she ‘’had an obsession’’ with the employee and that he ‘’at first did not want it’ but she threatened him and said ‘’ if we do not have a relationship, I will ruin your career and commit suicide’’ and due to this he agreed to being in a relationship but he ‘’was not okey with it’’. She told him ‘’not to worry’’ as they ‘would do things secretly’’.
44. If this evidence is true the employee, an adult teacher is the most pusillanimous individual I have ever encountered. It boggles the mind that a 17-year-old schoolgirl can exert such a threat that an adult just meekly agrees to having a relationship. If indeed there were such threats – which I do not believe and reject – the employee could have reported such to any authority figure or even to M’s guardian in order to resolve the matter as it this stage, he had done nothing wrong. Instead, he chose to engage in a forbidden relationship, exposing himself to risk and possible dismissal. From the contents of the whats app, the employee was part of the relationship with great enthusiasm. Not once did he say, he was under threat or being forced, nor did he take any action to safeguard himself against the threat. It is even more concerning that an adult teacher if faced with a learner who threatens to commit suicide, fails to take immediate and appropriate action. I also reject the learners version that she ‘’made up scenarios’’ and that the employee ‘’just played along’’. Again, this would point to a person with absolutely no backbone.
45. I thus reject the evidence that the relationship was due to threats and accept that indeed there was a relationship and that it was of a sexual nature as is clear from the whats app messages.
46. I have no intention fully quoting all the vile whats app’s in this award but to show that there is overwhelming evidence of a sexual relationship, some will be quoted.
47. The first indication of a sexual relationship is the message on page 6 ‘’M not talking about the quickie bbe, mn nghkufun for like round after round’’. Mr Mmethi referred to this whats app and during cross-examination it was put to him that ‘’quickie’’ can mean anything. To this he responded that within the context of all the other messages, it clearly refers to a sexual relationship. On page 11 another reference to ‘’quickie’’ is made namely ‘’Lols quickie after quickie’.
48. On page 8 another conversation is captured, and it is then said ‘’’we’ve already fu….dd’’. This word is spelled out in the WhatsApp, but I refuse to do so, out of respect to others who will read this award.
49. The employee also expressed the following ’I wish we were in a school like Seabe where teaches often got their own offices’’ and later ‘’Babe the time we started dating I told you that I won’t be perfect babe you know that I don’t know how to speak love I’m still learning….’’
50, The following conversation is also captured when the employee said ‘’bcs you were so damn tight’’ with M responding ‘’and you liked it at the end of the day’’ followed by the response from the employee ‘’Bathong every guy wants a tight p***sy keep it like that bcs I’ll tell you if it is different’’.
51. The whats apps also contain photos of naked people in sexual positions that led to responses such as ‘’ ‘’is this your favourite’’ followed by responses and different photos that said ‘’that’s my favourite’’ or ‘’this could be us’’.
52. M testified that she had admitted the relationship during the investigation but that she had lied as she wanted to hurt the employee. She stated that her evidence during this process is the truth as she ‘’did not think it would reach this point’’. I find it strange that she would lie during the investigation as she wanted to hurt the employee who was by then exactly where she wanted him to be, namely in a relationship with her. If it was the other way around and he had rejected her, she could have had reason to lie about the existence of a relationship in order to ‘hurt him’’
53. M also testified that the relationship was only via whats app and video calls and that they had never met. This turns out to be untrue as M later, when her version deteriorated into the ridiculous, stated that she took the employee’s phone that he left unattended in the staff room, opened it with his password, and sent herself whats apps from his phone.
54. M stated that she did this while the employee was in the classroom and she ‘’was in the toilet’. She contented that the messages were sent during class times however, the times of some of the messages showed they were sent were at night, which ties in with the evidence of Mr Mmethi about late night calls and whispered conversations he overheard when M would speak in Zulu a language that was not her mother tongue. It was established during this process that Zulu is the vernacular of the employee.
55. Therefore the version of M that she send herself messages from the employees phone while at school is not true. She clearly sent some of the messages from her own phone at night, when she had it in her possession. It is also fortuitous that she correctly guessed the password to be the name of the employee’s son. When asked to explain this, M stated that she tried various passwords and then ‘remembered’’ that the employee often talks of his son during class and when she tried his name as password was able to open the employees phone.
56. This version has already been rejected as untrue but if this was done, one cannot help but wonder if the employee would not have missed his phone that so often ‘’disappeared’’ and if then when he used it, would not have seen strange whats app’s on his phone. They were clearly not deleted, hence the bundle of 50 pages containing such. The evidence that if all messages were printed it would have amounted to a voluminous bundle of over 300 pages was not disputed.
57. M testified that she had the employees whatsapp profile on her own phone and was thus able to send herself whats apps from his phone. This far-fetched version was not supported in any way and is clearly untrue.
58. M testified that they knew of the policy that educators cannot have relationships with learners but that despite this, the employee agreed to a relationship based on her threats. Again, if knowing such, appropriate action from the employee would be to have divulged the threats and to insist on protection and not to engage in a forbidden relationship.
59. At the outset of the process the employee and his representative were given an opportunity to study the documents and stated that ‘’some is correct and some note’’. This vague contention was not supported by any evidence nor clarified in any way and the absence of evidence from the employee exacerbated this dilemma. The evidence of Mr Mmethi, who quoted specific whats app’s was not destroyed during cross-examination and it was not put to him that it was untrue and/or that the messages were false. There was also no version put to him as to the origin of the messages such as that the employee’s phone was used and/or was hacked by M and/or that M created his profile on her phone.
60. The phone of M was present at the process and if doubt existed regarding the veracity of the whats app’s was available as substantiation.
61. The employee elected not to provide a version, most probably based on the erroneous belief that he was exonerated by the evidence of M. This clearly is a fallacious belief and a serious misjudgement of the evidence presented. In Bargaining Council for the Furniture Manufacturing Industry, KwaZulu Natal v UKD Marketing CC and others (2013) 34 ILJ 96(LAC) it was held that an adverse inference may be drawn against a party for failing to testify only if the evidence of the other party calls for a reply. The application of this rule requires that the evidence that the party faces must have been of such a nature that at the time of the other party closing its case, there was sufficient evidence to enable the court to say, having regard to the absence of any explanation, the other party’s version was more probable than not. It was argued on behalf of the employee in closing that he was given the bundle on short notice and was prejudiced when he was not given a postponement as he could have called witnesses to show there was no relationship. This I find difficult to believe, as no detail was given regarding such ‘’evidence’’ and the only person who might have done this, was the employee. .
62. The evidence presented on behalf of the employer, who had the onus to proof the guilt of the employee on a preponderance of probabilities, clearly points to a sexual relationship.
62. The evidence of Mr Mmehti was supported by whats app messages between M and the employee that shows a sexual relationship. As already indicated, I accept the evidence that M presented that she admitted during the investigation to such relationship and that this evidence is supported by the evidence of Mr Mmethi and said whats apps. I have already rejected her version for the reasons given, namely her contention that she had send the messages to herself as she had the employee’s whats app profile on her phone and/or took his phone and sent the messages from it to her own phone.
63. The learner, M, is currently 17 years old. At the outset of the process, she was asked questions to get an understanding of her knowledge and awareness of telling the truth. She stated that she understood the difference between lying and telling the truth as well as the consequences of lying. She also indicated that she understood what it means to take the oath and took such. During the process she testified via zoom =the camera was off = was assisted by a qualified intermediary who sat with her in a room, adjacent to the one, the rest of the parties where in. A council interpreter also assisted her in her mother tongue.
64. It however occurred during the process that she often spoke in English before the interpreter and/or intermediary could assist and seemed capable of handling herself and providing evidence. Based on the conflicting versions given by M, she was treated as hostile and subjected to cross-examination by the employer’s representative with the same opportunity given to the employee representative.
65. There was no evidence presented nor did M create the impression or in any way alluded to the fact that she was fearful and/or was in any way threatened, forced or was promised anything in return for changing her evidence. It seems probable that her change of heart was based on the fact that there might be an ongoing relationship between her and the employee and/or her desire to protect him from the consequences of their relationship. Thus, her attempts to renege of her earlier admission of a relationship is rejected and in fact was supported in this process by oral and documentary evidence.
66. In IMB South Africa (Pty) Ltd v CCMA and other (JR 64/2014) (2016) ZALCJHB 267l; (2016) (LC) 151 (handed down on 19 April 2016) the Court held that is the duty of a Commissioner to adopt a holistic approach to the body of evidence presented and to place all in its proper context.
67. Therefore given the evidence presented, the respondent succeeded in proving the charge against the employee.
Award
68. I therefore make the following award:
“The employee, Sboniso Gumede is found guilty of the charge levelled against him that reads as follows
‘’You committed misconduct in terms of Section 17(1) (c) of the Employment of Educators Act, 76 of 1998, as amended in that around March/April 2022 you had a sexual relationship with a learner where you are employed by the name of ‘’M’’ who is a grade 12 learner at Thufane High School’’
69. Section 17(1)(c) stipulates as follows
‘’An educator must be dismissed if found guilty of
( 3 ) having a sexual relationship with a learner of the school where he/she is employed’’
70. The employee, Sboniso Gumede is thus dismissed with immediate effect.
71. It is also found that Sboniso Gumede is found unsuitable to work with children in terms of Section 120(4) of the Children’s Act 38 0f 2005.
72. The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director-General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children’s Act 38 of 2005 that Mr Sboniso Gumede is unsuitable to work with children for the Director-General to enter his name as contemplated in section 120 part 8 of the register..
DATED AT PRETORIA ON THIS 8th DAY OF AUGUST 2022
Council Commissioner
Commissioner: E Maree
Date of Award: 8 August 2022
In the inquiry between
Mpumalanga Department of Education
(Employer)
And
Sboniso Gumede
(Employee)
Employer representative: Ms. S. Chauke
Employee representative:
Mr. P. Tseke
Details of hearing and representation
1The inquiry by arbitrator regarding an alleged act of misconduct, set down in terms of Section 188A of the Labour Relations Act, 66 of 1995 ‘’the LRA’’ and Collective Agreement 3 of 2018, the ‘’CA’’ was heard on the 19th of July 2022 at Nokaneng Circuit office at Masoganeng.
2. The employee was represented by Mr. P. Tsheke an official from SADTU while the employer was represented by Ms. S. Chauke a Labour Relations Officer.
3. The arbitration was electronically recorded, and handwritten notes were taken. The process was also assisted by an intermediary, Ms. S.M. Mohaule-Mbowenii and council interpreter Mr. S. Kuzwayo.
4. The parties have agreed to submit written closing arguments on or before the 26th of July 2022.
Issues to be decided
5. I must determine if the employee was guilty of the charge of misconduct levelled against him. In the event of a finding of guilt, the appropriate sanction must be determined.
Background to the dispute
6. The employee, an educator, had been employed as such at the Thufane High School since 2017.
7. The charge levelled against the employee read as follows. Due to the fact that the charge relates to an allegation of sexual misconduct, and the learner is a minor, she will not be identified but referred to as ‘’the minor’’ or ‘’M’’. The identity of the learner was confirmed off the record by all the parties. The name in the charge sheet was also substituted in this manner.
Charge 1
‘’You committed misconduct in terms of Section 17(1) (c) of the Employment of Educators Act, 76 of 1998, as amended in that around March/April 2022 you had a sexual relationship with a learner where you are employed by the name of ‘’M’’ who is a grade 12 learner at Thufane High School’’
8. The employee admitted that the notice was received timeously on the 18th of May 2022, that he was informed of the right to be represented and was indeed represented by an official from SADTU. The employee also acknowledged that he understood the charge and pleaded ‘’not guilty’’.
9. It was however, contented on behalf of the employee by Mr. Tseke that there was not sufficient time to prepare – despite the timeous receipt of the notice – as the bundle of documents had only been received on the 18th of July 2022 and the authenticity could not be verified and that the matter must be postponed. Ms Chauke submitted on behalf of the respondent that the request to postpone is opposed and indicated that the bundle was send to the regional office of SADTU on the 23rd of June 2022.
10. After affording the applicant time to peruse the documents it was stated by Mr Tseke that ‘’some is correct and some not’’.
11. The request for postponement was denied as the bundle was exchanged timeously and consisted of whats app messages between the employee and the learner. The cell phone of the latter was available to support the printed messages contained in the bundle. It was also pointed out that the employer has the onus to proof the authenticity of the documents regarding those that were disputed, that the employee has the right to cross-examine and to provide his own evidence orally and by way of documents to counter the allegation against him.
Survey of evidence and argument
The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.
Employer’s evidence
12. The employer called two witnesses in order to prove, on a balance of probabilities, that the employee was guilty of misconduct.
13. The first witness Mr. Lesiba Abram Mmethi testified that he is the uncle of the learner and appointed as her legal guardian. He resides in Nokaneng and is a police official at the South African Police Service in Rust de Winter.
14. Mr Mmethi submitted that during April 2022 he saw behavioural changes in the learner who lives with him and who he regards as his daughter. She also calls him ‘’daddy’’. He heard her talking on the phone in ‘’a low tone’ and in a different language (Zulu) whilst she is Tswana speaking. He was surprised by this and asked himself ‘’who is she talking to?’’ especially as it sometimes occurred late at night which he noticed as he was working night shift.
15. According to Mr. Mmethi the leaner asked permission to meet friends at Mamohlake which he refused as it was a tavern. He also suspected that she was not meeting friends but ‘’someone else’’ as she had never asked permission to go to a tavern. He told her as much, but she denied it and showed him her phone to prove she was meeting friends. He saw on the screen the words ‘’mybabyboo’’ and love emojis.
16. Mr Mmethi further testified that he gives the phone to the learner on Fridays and takes it back on a Sunday as he ‘’did not want her to be disturbed by a phone’’. Due to the fact that he ‘’wondered what was going on’’, he opened the phone, as he had the password, when he took it back as usual on a Sunday. Upon opening the phone, he saw the same words and love emojis as when the learner showed him the phone previously. He then saw disturbing messages, sexual emojis and nude photos. This worried him and he wanted to determine who was sending such to the learner and then saw the name ‘’Gumede’’. He then put two and two together and realised it was the employee, who was the learners accounting teacher whom she had mentioned on occasion, stating amongst others that she now ‘’understood accounting better due to Gumede’’.
17. Mr Mmethi stated that he was ‘’angry and frustrated’’ as the messages were suggestive of a sexual relationship amongst others ones that referred to ‘’quickie after quickie’’ and one stating that ’’next year I am done with school and will live in town together, and not at school and no quickies but we will have raw sex’’.[Pages 7,8,20 36] ..
18. Mr Mmethi testified that he had mixed emotions regarding the next step he had to take. If he did not report the case, his daughter might later blame him for not protecting/helping her. If he reported the case, it might impact on her emotional well-being, that was fragile. He then decided to go to school where he discussed the issue with Mr Bopela who after listening to him, called the employee. It was the first time he saw the employee and told him what he found on his daughter’s phone, and how he felt about it. The employee apologised, stating that ‘’I do not know what I was doing’’ and offered to pay ‘’damages’ which he refused stating that he did not send his under aged daughter to school to ‘’make money of her’’ but to be educated. He also told the employee that he fails to see how he ‘’did not know’’ what he was doing.
19. The principal then arrived to whom he re-told his story. The principal spoke to the employee who did not deny the allegations. He was told that the matter would be escalated. He confronted his daughter who denied that there was a sexual and/or romantic relationship but he had read the messages and it clearly shows a sexual relationship. The bundle contains some of the messages that he saw on the phone which he had retained since founding the messages. Not all the messages were printed as that would be over 300 pages.
20. The second witness, ‘’M’’ testified that she is 17 years old and is a learner at Tufane High School and currently in Grade 12. The cell phone number of the first page of the bundle of documents that contained whats app messages is that of the employee, Mr Gumede, her accounting teacher. She obtained his number from the whats app study group and they then ‘’started private conversations’’ as she ‘’made moves on him’’ and called him while he was in KZN. Mr Gumede wanted to know what was going on as they ‘’used to clash in the classroom’’ and she decided to tell him how she felt about him.
21. According to M, Mr Gumede told her that it ‘’was wrong to date a leaner’’ and said they should wait until December as he knew she would be finished with school. They knew of the policies that a teacher cannot date a learner and that doing so is wrong.
22. M stated that she ‘’had an obsession’’ with the employee and ‘’forced him to be in a relationship with me’’. She stated that ‘’at first he did not want it’ but she threatened him and said ‘’ if we do not have a relationship, I will ruin your career and commit suicide’’ and due to this he agreed to being in a relationship but he ‘’was not okey with it’’. She told him ‘’not to worry’’ as they ‘would do things secretly’’.
23. According to M they then had a relationship but she is not sure for how long and he was ‘’not really’’ her boyfriend but a ‘’person I had a vibe with’’ and was a person she ‘’wanted to know to move forward’’ but ‘’did not know him very well’’ and their relationship ‘’was based on the phone as they had never met’’ and ‘’did video calls’’.
24. M stated that she ‘’used to make up scenarios in my head’’ and thought ‘’how we would end up together’’. She ‘’imagined’’ their future and he ‘’did not really respond’’. He also did not ‘’make the first move’’ as she made it. She told him of the scenarios she had created and he ‘’just played along’’. There as a point where he ‘’gave me high hopes’’ that they would end up together. In the whats app messages, she called him by his name and sometimes ‘’my love’’. He also called her by her name and sometimes with other names, she cannot recall as it was long ago. The documents show their whats app messages, his photo [page 2] and a screenshot of a video call [page 3].
25. M submitted that the whats app messages on page 6 ‘’is from myself when I used another whats app and I send it to myself’’. She sent the messages from the employee’s phone to hers as she had his code and also had his whats app profile on her phone. She used both their phones to do this and obtained the employees phone from the staff room where he left it. She could open it as she knew his password which was his son’s name. She used to send him messages from his own phone while at school and sitting ‘’in the toilet’’ and he would be in class.
26. According to M the employee told her to ‘’stop it’’ and said she would get him dismissed. She then decided to stop sending herself messages from his phone.
27. During the investigation at the school she admitted she had a relationship with the employee and that he ‘’made the first move’’. This however, was not the truth. She wanted to hurt him and did not think that it is serious, and he can be dismissed. She lied to ‘’make him look bad.’
Employee’s evidence
28. The employee elected not to testify.
Analysis of evidence and Arguments
29. The onus in this matter was on the employer to prove, on a preponderance of probabilities that the workplace rule was contravened, and that the employee was guilty of the charge levelled against him namely having a sexual relationship with M, a 17-year-old learner.
30. The employer called two witnesses to testified on its behalf. The crux of this evidence was that the learner, M, was engaged in a sexual relationship with the employee as was shown by the whats app messages between them as contained in the bundle.
31. Mr. Mmethi, the legal guardian of M testified that due to concerns with M’s changed behaviour such as late night calls, talking in a low voice in Zulu [while she is Tswana] during such calls and asking permission to visit a tavern, he accessed the phone, he only gave to her over week –ends and found the whats apps. He expressed his shock and concern over the nature of the whats app that contained sexual language and nude photos and pointed to a sexual relationship between M and the employee. In support of this, he referred to some of the whats app’s in the bundle. He also stated that he found the name ‘’Sibusiso’’ in the messages and connected it to M’s Accounting teacher whom she had spoken off.
32. Mr Mmethi relayed his anguish over what he found and the steps he had to take. He stated that he considered not reporting the matter which could later lead to blame by M that he did not protect her, to reporting it and the impact it might have on M’s fragile emotional state. He then decided to report the matter at school, relayed what he found to Mr. Bopela, who called the employee to whom he also relayed what the found. Mr Mmethi stated that the employee responded by saying’’ I am sorry, I did not know what I was thinking’’ and offered to pay damages. According to Mr Mmethi he asked the employee how he could claim that he did not know what he was doing with an under aged child and declined the damages as he sent his daughter to school to be educated and not to make money off her.
33. The principal then arrived, was told by Mr Mmethi of what he found, and when he [the principal] questioned he employee about the allegations, he did not deny it.
34. Mr Mmethi was subjected to cross-examination that failed to destroy his credibility nor did it show untruths, improbabilities, or inconsistencies. He was a solid witness and his concern for M and his anguish over what he found was clear to see.
35. Mr Mmethi was bombarded during cross-examination with issues such as his understanding of teenagers, their sexual development, and the fact that he took M’s phone without her permission. To this Mr Mmethi stated that M is under aged, that the phone belongs to him and is just given to her over week ends. It was never disputed that M only had use of the phone over week ends, an important issue the relevance of which would be shown later in this award.
36. It was put to Mr Mmethi that M ‘’stalked’’ the employee, was ‘’insistent’’ and ‘’flirted with a young teacher’. Even if this is all true, the employee as an educator and an adult had the duty to distance himself and to take appropriate action to remove himself from the situation. This aspect would also be reflected upon later.
37. With reference to the whats apps it was put to Mr Mmethi that it does not show a sexual relationship but only ‘’a romantic relationship’’. To this Mr Mmethi responded that the language used was of a sexual nature, pointing to a sexual relationship that could include a romantic relationship.
38. A big issue was also made about the evidence that the employee apologised and offered to pay damages. It was put to Mr Mmethi that the employee did not apologise for a relationship. To this Mr Mmethi responded that he approached the school about the relationship as shown by the whats apps, to which the employee, when confronted with such, promptly apologised and offered to pay damages. Mr Mmethi stated that this showed him that the employee was aware of the relationship and what apps that supports such.
39. I do find it strange that an innocent man would promptly apologise and offer to pay damages. If he was innocent why do this? It is human nature to vociferously deny guilt if indeed one is not. It needs to be said that guilty people also on many occasions proclaim their innocence, However, when faced with concrete evidence of wrong-doing, the employee chose the path of least resistance, stating he ‘’did not know what he was doing’’, apologised and offered to pay damages, probably hoping that it ‘would all go away’’ as so often happens in situations like this. He however, underestimated the nettle of Mr Mmethi, who wanted nothing of this as he stated that he sends his daughter to school to be educated and not to make money of her. This apology and offer of damages thus backfired in the employee’s face who probably did such, hoping the situation would then resolve itself.
40. Mr Mmethi’s evidence that the employee, when confronted by the principle about the allegations, did not deny the claims, was not disputed during cross-examination.
41. The attempts to paint Mr Mmethi in a bad light for ‘’taking the phone’’ without the permission of M, also failed. It seems that this line of questioning was done to show an infringement of her right to privacy. To this Mr Mmethi responded that it is his phone, he pays for it, has the password, and only gives it to his minor daughter over weekends. In view also of the fact that M is a minor I fail to see how such action could be an unjustified infringement.
42. The second witness, was M, the 17-year-old learner who turned out to be a deluded and untruthful witness. This being said, her initial evidence still supports the charge that there was a sexual relationship between herself and the employee.
43. M testified with great aplomb how she ‘’forced’’ the employee to be in a relationship with her. She stated that she ‘’had an obsession’’ with the employee and that he ‘’at first did not want it’ but she threatened him and said ‘’ if we do not have a relationship, I will ruin your career and commit suicide’’ and due to this he agreed to being in a relationship but he ‘’was not okey with it’’. She told him ‘’not to worry’’ as they ‘would do things secretly’’.
44. If this evidence is true the employee, an adult teacher is the most pusillanimous individual I have ever encountered. It boggles the mind that a 17-year-old schoolgirl can exert such a threat that an adult just meekly agrees to having a relationship. If indeed there were such threats – which I do not believe and reject – the employee could have reported such to any authority figure or even to M’s guardian in order to resolve the matter as it this stage, he had done nothing wrong. Instead, he chose to engage in a forbidden relationship, exposing himself to risk and possible dismissal. From the contents of the whats app, the employee was part of the relationship with great enthusiasm. Not once did he say, he was under threat or being forced, nor did he take any action to safeguard himself against the threat. It is even more concerning that an adult teacher if faced with a learner who threatens to commit suicide, fails to take immediate and appropriate action. I also reject the learners version that she ‘’made up scenarios’’ and that the employee ‘’just played along’’. Again, this would point to a person with absolutely no backbone.
45. I thus reject the evidence that the relationship was due to threats and accept that indeed there was a relationship and that it was of a sexual nature as is clear from the whats app messages.
46. I have no intention fully quoting all the vile whats app’s in this award but to show that there is overwhelming evidence of a sexual relationship, some will be quoted.
47. The first indication of a sexual relationship is the message on page 6 ‘’M not talking about the quickie bbe, mn nghkufun for like round after round’’. Mr Mmethi referred to this whats app and during cross-examination it was put to him that ‘’quickie’’ can mean anything. To this he responded that within the context of all the other messages, it clearly refers to a sexual relationship. On page 11 another reference to ‘’quickie’’ is made namely ‘’Lols quickie after quickie’.
48. On page 8 another conversation is captured, and it is then said ‘’’we’ve already fu….dd’’. This word is spelled out in the WhatsApp, but I refuse to do so, out of respect to others who will read this award.
49. The employee also expressed the following ’I wish we were in a school like Seabe where teaches often got their own offices’’ and later ‘’Babe the time we started dating I told you that I won’t be perfect babe you know that I don’t know how to speak love I’m still learning….’’
50, The following conversation is also captured when the employee said ‘’bcs you were so damn tight’’ with M responding ‘’and you liked it at the end of the day’’ followed by the response from the employee ‘’Bathong every guy wants a tight p***sy keep it like that bcs I’ll tell you if it is different’’.
51. The whats apps also contain photos of naked people in sexual positions that led to responses such as ‘’ ‘’is this your favourite’’ followed by responses and different photos that said ‘’that’s my favourite’’ or ‘’this could be us’’.
52. M testified that she had admitted the relationship during the investigation but that she had lied as she wanted to hurt the employee. She stated that her evidence during this process is the truth as she ‘’did not think it would reach this point’’. I find it strange that she would lie during the investigation as she wanted to hurt the employee who was by then exactly where she wanted him to be, namely in a relationship with her. If it was the other way around and he had rejected her, she could have had reason to lie about the existence of a relationship in order to ‘hurt him’’
53. M also testified that the relationship was only via whats app and video calls and that they had never met. This turns out to be untrue as M later, when her version deteriorated into the ridiculous, stated that she took the employee’s phone that he left unattended in the staff room, opened it with his password, and sent herself whats apps from his phone.
54. M stated that she did this while the employee was in the classroom and she ‘’was in the toilet’. She contented that the messages were sent during class times however, the times of some of the messages showed they were sent were at night, which ties in with the evidence of Mr Mmethi about late night calls and whispered conversations he overheard when M would speak in Zulu a language that was not her mother tongue. It was established during this process that Zulu is the vernacular of the employee.
55. Therefore the version of M that she send herself messages from the employees phone while at school is not true. She clearly sent some of the messages from her own phone at night, when she had it in her possession. It is also fortuitous that she correctly guessed the password to be the name of the employee’s son. When asked to explain this, M stated that she tried various passwords and then ‘remembered’’ that the employee often talks of his son during class and when she tried his name as password was able to open the employees phone.
56. This version has already been rejected as untrue but if this was done, one cannot help but wonder if the employee would not have missed his phone that so often ‘’disappeared’’ and if then when he used it, would not have seen strange whats app’s on his phone. They were clearly not deleted, hence the bundle of 50 pages containing such. The evidence that if all messages were printed it would have amounted to a voluminous bundle of over 300 pages was not disputed.
57. M testified that she had the employees whatsapp profile on her own phone and was thus able to send herself whats apps from his phone. This far-fetched version was not supported in any way and is clearly untrue.
58. M testified that they knew of the policy that educators cannot have relationships with learners but that despite this, the employee agreed to a relationship based on her threats. Again, if knowing such, appropriate action from the employee would be to have divulged the threats and to insist on protection and not to engage in a forbidden relationship.
59. At the outset of the process the employee and his representative were given an opportunity to study the documents and stated that ‘’some is correct and some note’’. This vague contention was not supported by any evidence nor clarified in any way and the absence of evidence from the employee exacerbated this dilemma. The evidence of Mr Mmethi, who quoted specific whats app’s was not destroyed during cross-examination and it was not put to him that it was untrue and/or that the messages were false. There was also no version put to him as to the origin of the messages such as that the employee’s phone was used and/or was hacked by M and/or that M created his profile on her phone.
60. The phone of M was present at the process and if doubt existed regarding the veracity of the whats app’s was available as substantiation.
61. The employee elected not to provide a version, most probably based on the erroneous belief that he was exonerated by the evidence of M. This clearly is a fallacious belief and a serious misjudgement of the evidence presented. In Bargaining Council for the Furniture Manufacturing Industry, KwaZulu Natal v UKD Marketing CC and others (2013) 34 ILJ 96(LAC) it was held that an adverse inference may be drawn against a party for failing to testify only if the evidence of the other party calls for a reply. The application of this rule requires that the evidence that the party faces must have been of such a nature that at the time of the other party closing its case, there was sufficient evidence to enable the court to say, having regard to the absence of any explanation, the other party’s version was more probable than not. It was argued on behalf of the employee in closing that he was given the bundle on short notice and was prejudiced when he was not given a postponement as he could have called witnesses to show there was no relationship. This I find difficult to believe, as no detail was given regarding such ‘’evidence’’ and the only person who might have done this, was the employee. .
62. The evidence presented on behalf of the employer, who had the onus to proof the guilt of the employee on a preponderance of probabilities, clearly points to a sexual relationship.
62. The evidence of Mr Mmehti was supported by whats app messages between M and the employee that shows a sexual relationship. As already indicated, I accept the evidence that M presented that she admitted during the investigation to such relationship and that this evidence is supported by the evidence of Mr Mmethi and said whats apps. I have already rejected her version for the reasons given, namely her contention that she had send the messages to herself as she had the employee’s whats app profile on her phone and/or took his phone and sent the messages from it to her own phone.
63. The learner, M, is currently 17 years old. At the outset of the process, she was asked questions to get an understanding of her knowledge and awareness of telling the truth. She stated that she understood the difference between lying and telling the truth as well as the consequences of lying. She also indicated that she understood what it means to take the oath and took such. During the process she testified via zoom =the camera was off = was assisted by a qualified intermediary who sat with her in a room, adjacent to the one, the rest of the parties where in. A council interpreter also assisted her in her mother tongue.
64. It however occurred during the process that she often spoke in English before the interpreter and/or intermediary could assist and seemed capable of handling herself and providing evidence. Based on the conflicting versions given by M, she was treated as hostile and subjected to cross-examination by the employer’s representative with the same opportunity given to the employee representative.
65. There was no evidence presented nor did M create the impression or in any way alluded to the fact that she was fearful and/or was in any way threatened, forced or was promised anything in return for changing her evidence. It seems probable that her change of heart was based on the fact that there might be an ongoing relationship between her and the employee and/or her desire to protect him from the consequences of their relationship. Thus, her attempts to renege of her earlier admission of a relationship is rejected and in fact was supported in this process by oral and documentary evidence.
66. In IMB South Africa (Pty) Ltd v CCMA and other (JR 64/2014) (2016) ZALCJHB 267l; (2016) (LC) 151 (handed down on 19 April 2016) the Court held that is the duty of a Commissioner to adopt a holistic approach to the body of evidence presented and to place all in its proper context.
67. Therefore given the evidence presented, the respondent succeeded in proving the charge against the employee.
Award
68. I therefore make the following award:
“The employee, Sboniso Gumede is found guilty of the charge levelled against him that reads as follows
‘’You committed misconduct in terms of Section 17(1) (c) of the Employment of Educators Act, 76 of 1998, as amended in that around March/April 2022 you had a sexual relationship with a learner where you are employed by the name of ‘’M’’ who is a grade 12 learner at Thufane High School’’
69. Section 17(1)(c) stipulates as follows
‘’An educator must be dismissed if found guilty of
( 3 ) having a sexual relationship with a learner of the school where he/she is employed’’
70. The employee, Sboniso Gumede is thus dismissed with immediate effect.
71. It is also found that Sboniso Gumede is found unsuitable to work with children in terms of Section 120(4) of the Children’s Act 38 0f 2005.
72. The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director-General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children’s Act 38 of 2005 that Mr Sboniso Gumede is unsuitable to work with children for the Director-General to enter his name as contemplated in section 120 part 8 of the register..
DATED AT PRETORIA ON THIS 8th DAY OF AUGUST 2022
Council Commissioner