ELRC245-22/23FS

IN THE EDUCATION LABOUR RELATIONS BARGAINING COUNCIL

THE INQUIRY-BY-ARBITRATOR BETWEEN

SUPERINTENDENT GENERAL
FREE STATE DEPARTMENT OF EDUCATION EMPLOYER

and

MR TOKELO SEDSON SETHOLE EMPLOYEE

Case No: ELRC245-22/23FS
Dates: 19 August 2022
Venue: DOE Provincial Office, Bloemfontein

AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This is the award in the disciplinary matter (Inquiry-By-Arbitrator) between the Free State Department of Education (the employer) and Mr Tokelo Sedson Sethole, the employee.

2. The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) took place on 11 August 2022 at the provincial offices of the employer in Bloemfontein. Both parties attended the Inquiry. The employer was represented by Ms Lindiwe Cweba, its Labour Relations Officer. The employee was present and represented by Mr RP Dikotsi, an Official from the trade union National Professional Teachers Organisation of South Africa (NAPTOSA).

3. The Inquiry was held under the auspices of the Education Labour Relations Council (hereinafter ‘the Council’) in accordance with section 188A of the Labour Relations Act (the LRA), read together with Clause 32 of the Council’s Dispute Resolution Procedure as well as the Council’s Collective Agreement dealing with inquiries by arbitrators. The award is issued in terms of section 138(7) of the LRA.

4. The proceedings were digitally recorded. Mr Seabelo D Skhasa was the interpreter and Mrs Thiti Mokgwamme the intermediary. Both were appointed by the Council. The parties requested at the end of the Inquiry to submit their closing arguments in writing by 18 August 2022, where after the award shall then follow. I have also requested the parties to address me on whether the employee “is unsuitable to work with children” in their closing arguments.

ISSUE TO BE DECIDED
5. I am called upon to decide whether the employee committed misconduct as per the allegation levelled against him. If I find that he did commit the alleged misconduct, I must decide on an appropriate sanction.

BACKGROUND TO THE DISPUTE
6. It is common cause that the employee is employed by the employer as a Post Level 1 Teacher in Accounting and Computer Application Technology since May 2016. The employee was based at the employer’s Nomsa Secondary School near Sasolburg. The alleged incidents took place over a period of time between 20 December 2020 and January/February 2021. The employee was notified of the allegations on 19 April 2022 and his rights were explained to him.

7. The allegations levelled against the employee are as follows:

Charge
You have contravened section 17 (1) (c) of the Employment of Educators Act , Act 76 of 1998 , in that in December 2020, you had a sexual relationship with grade 11 learner (name & surname) of Nomsa Secondary School where you are employed.

8. The employee pleaded not guilty to the charge. The employee was properly served with a notice to appear at the Inquiry and was provided with sufficient time to prepare for the case. His rights and obligations were also properly explained to him on the day of the Inquiry.

9. For purposes of this award, the name of the learner shall be kept confidential. The learner was 19 years old and in Grade 11 at the time when the alleged incident(s) took place. The alleged incident(s) took place at the private residence of the employee. The employee denied having a sexual relationship with the learner. The learner’s elder sister reported the incident(s) to the school management through a teacher whom they met at a maintenance court.

SURVEY OF EVIDENCE AND ARGUMENT

10. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.

Documentary Evidence

11. The parties handed-in the following documents as evidence:
Employer : The notice of the disciplinary hearing
Employee : DNA final report

Employer’s Case
12. “The Learner”, was sworn in and she testified as the first witness in the employer’s case. She started by explaining how her relationship with the employee commenced on 20 December 2020. The learner stated that she was busy taking a bath on that morning when the employee telephonically called her and asked her how she was doing. She stated that she told the employee what she was busy with, and the employee asked her to send him a ‘call back’ message once she is done with her bathing.

13. The learner testified that she did what they agreed upon and the employee subsequently called her again. She testified that the employee told her to meet her at a certain ‘Thomas’ Place’. The learner stated that she did what the employee requested and upon her arrival at ‘Thomas’ Place’ the employee then opened his car’s passenger door and invited her in. She stated that the employee re-introduced himself to her using his first name (Tokelo). The learner testified that the employee disclosed his feelings for her and told her to keep whatever he told her confidential.

14. The learner testified that the employee then went out of the car and went to a nearby ATM and gave her a R100 note upon his return. She stated that the employee told her to spend it with her friends at a nearby tavern (Corner Café’) whilst he (the employee) will be busy hanging out with his friends. The learner stated that it so happened and that later-on, the employee sent one of his friends (a certain Vusi) to physically call her so that they must leave. She stated that the employee did not tell her where they were going to, and that the employee was aware that she was a learner at the time.

15. The learner stated that they left with the employee’s blue Polo Vivo vehicle to another tavern, whereafter they then went to the employee’s private residence. She stated that it was at the employee’s 1-room private residence in Dennisville where their sexual relationship started on the night of 20 December 2020. The learner stated that they (she and the employee) slept in the residence whilst his friend Vusi and his girlfriend spent the night in the vehicle. She stated that the sexual intercourse on that night took place without the usage of protection (condoms).

16. The learner testified that on the following day (21 December 2020), the employee and his friend dropped her off, nearby her home, whereafter they dropped-off Vusi’s girlfriend. She stated that she and the employee stayed in touch with one another through whatsapp (instant messaging services) communications.

17. The learner testified that again, on 27 December 2020, the employee walked into her at Corner Café’ tavern she was enjoying herself there with her cousin. She stated that the employee asked her when she will be leaving, and they had a conversation. The learner stated that she and her cousin left around midnight, just before the tavern closed. She stated that after midnight, the employee gave her a telephone call whereafter he went to pick her up at her residence. The learner stated that they went to the employee’s residence where they had intercourse again. She stated that the employee dropped her off at a nearby shop to her residence the later that morning.

18. The learner testified that in January 2021, she found out that she was pregnant. She stated that her sister asked her who the father was, and she replied that it is a teacher. The learner stated that she gave the employee’s number to her sister who in turn sent a whatsapp to the employee about the news. She stated that the employee then asked her sister why she (the learner) did not tell him.

19. The learner explained that there was tension between her and her boyfriend since November 2020. She stated that she only had sexual intercourse with the employee in December 2020. The learner testified that the employee came to their residence and told her that he does not deny anything but only wants to have a DNA test with the unborn foetus.

20. The learner testified that the employee was unsure whether the child is his. She stated that her elder sister refused to grant the employee his request of a DNA at that moment, and they subsequently agreed that a DNA test will only be done after the birth of the child. The learner stated that the employee then started to avoid her to a point where she attempted to commit suicide. She stated that the news about her pregnancy went viral.

21. The learner stated that her uncle then called for a meeting between them and the employee’s family. She stated that the employee again said at the meeting that he is not sure whether the child is his and his mother suggested that they wait until the baby is born to see whether the baby is his or not. The learner stated that the employee stopped making contact with her and blocked her on social media. She stated that she dropped out of school in shame of what happened.

22. The learner stated that the employee only visited her again after the school principal confronted him about the news. She stated that the applicant apologised to her because he was on the brink of losing his job. The learner stated that the baby was born on 5 September 2021 whereafter a DNA test was subsequently made through the Maintenance Court. She stated that the employee supported the baby financially after the boychild was born.

23. The learner stated that the employee visited her around four times in 2021 and that they continued with their sexual relationship even though she was pregnant. She stated that after 24 November 2021, a DNA test was undertaken and the results of which came back negative.

24. The learner testified that during June and July of 2022, the employee deposited into her bank account two amounts of money (R1000 and R700 respectively). She stated that neither did she ask any money from the employee nor did the employee tell her what the money was for. The learner stated that some two weeks before the sitting of this Inquiry, the employee met with her and asked her to withdraw this matter from the Council. She stated that the employee promised to sue the employer and to share the proceeds of the lawsuit in half with her. The learner stated that the week before the sitting of this Inquiry, the employee also asked her to speak to the employer’s representative (Ms Cweba) to persuade her to withdraw this case.

25. In cross-examination, the learner stood by her testimony and added that she has never given the employee her contact number to start with. She stated that she was planning on going to Thomas’ Place in any event after taking her bath on 20 December 2020. The learner stated that her cousin knew about her relationship with the employee and that she was not thinking about using protection during sex because she was intoxicated most of the time. She stated that her cousin (Lerato) saw them (Learner and employee) leaving together after midnight of 27 December 2020.

26. The learner stated that her pregnancy symptoms started with a bladder infection after which her other elder sister who happens to be a nurse organised a pregnancy test, the result of which came back positive. She stated that her family was very angry about the situation and wanted to report the employee to the school. The learner stated that the employee pleaded that they should not do it but requested that a family meeting be held in order to protect him.

27. The learner stated that she was ashamed of both the sexual relationship and the pregnancy. She stated that she also had intercourse with the employee in January 2021 and even though the DNA test came back negative, she did have a sexual relationship with the employee. The learner stated that the fact that the two of them had sexual intercourses and the request by the employee for a DNA test as well as the fact that the employee bought the baby clothes and the money given is all proof that they had a sexual relationship.

28. In re-examination, the learner clarified that the employee initiated the DNA process and that she would not consent to it if they did not have a sexual relationship. She stated that they had sex on all occasions when she went to the employee’s residence.

29. “Ms Jerminah”, (surname withheld for protection of learner), The learner’s Elder Sister, was sworn in and she testified as the second witness in the employer’s case. She stated that she came to know the employee through the pregnancy of the learner. Ms Jerminah stated that the learner missed her menstruation cycle in December 2020 and that through a pregnancy test and scans done on the learner it appeared that she fell pregnant in December 2020.

30. Ms Jerminah stated that in January of 2021, the learner had problems with her bladder which led to their other sister deciding to do a pregnancy test of the learner. She stated that she asked the learner who the father was, and the learner told her it’s the employee. Ms Jerminah confirmed that she took the initiative to inform the employee about the pregnancy. She stated that the employee insisted on a DNA test and committed at the same time to stand by the learner. Ms Jerminah stated that she drew an inference that the employee had had sex with the learner, thus the uncertainty about fatherhood.

31. Ms Jerminah confirmed that the employee fetched the learner from the hospital after giving birth and even bought clothes for the newborn. She confirmed that a DNA test was done which came back negative. Ms Jerminah stated that the employee even paid damages to the learner and asked them how he will be able to support the child if he loses his job. She stated that the two continued with their relationship after the birth of the child.

32. In cross-examination, Ms Jerminah stood by her testimony and stated that the learner was seven (7) weeks pregnant on 06 February 2021 according to their medical doctor. She stated that the matter was reported the first time later in the year after meeting a certain Mr Molahatji (a colleague of the employee) who advised them to give an affidavit to the school principal. Ms Jerminah stated that the learner was angry upon receipt of the negative DNA results and said that the employee must have manipulated the outcome of the test.

33. In closing arguments, the employer’s representative submitted that the employer’s witnesses were reliable and that their testimonies void any suspicions that this could be a fabrication or blackmail to destroy the employee’s reputation. She submitted that the employee’s defence was more a denial which was evasive of the truth. The representative submitted that the employer has a duty to outroot teachers who behave like the employee.

34. The representative submitted that Labour Appeal Court stated in Grey v Education Labour Relations Council and Others [2015] ZALAC 50 (23 October 2015) in terms of section 17 (1) (c) of the Employment of Educators Act of 1998 (EEA) it was imperative that an educator ‘found guilty of having had a sexual relationship with a learner of the school where he or she is employed “must be dismissed” from his or her employment.’ It regarded the prevalence of educator-on-learner sexual misconduct as constituting an abuse, “not only of the authority and responsibility vested in an educator, but of the rights of the child given that’… no child has equal power to say ‘no’ to a parental figure or to anticipate the consequences of sexual involvement with a caretaker. In such an unequal relationship the adult (educator) bears sole responsibility for… sexual activity with a minor”.

Employee’s Case

35. Mr Tokelo Sedson Sethole, the employee, was sworn in and he testified as the only witness in his case. He confirmed that he was with the learner on 20 December 2020 at Corner Café until close of business but denied having made a telephone call to the learner and declaring his love for her. The employee testified that the four of them (him, Learner, Vusi and Vusi’s girlfriend) were so drunk on that night that they decided to drive to his home.

36. The employee testified that they continued to consume alcohol upon their arrival at his place and he remembers sleeping on his couch on the night of 20 December 2020 and allowed the ladies to sleep on his bed. He denied having asked the learner for sex that night. He stated that he only gave the learner a lift, something which he regrets. The employee confirmed to having escorted the girls to their neighbourhood the following morning.

37. The employee further denied the allegation that he took the learner to his residence on 27 December 2020, for fear of conducting an unethical conduct which might affect his dignity. He stated that upon getting the pregnancy news in January 2021, he became scared because he does not know what happened on the night of 20 December when they were drunk. The employee stated that he insisted on a DNA test in light of the fact that the learner alleged that he (the employee) was the only one whom she slept with.

38. The employee denied having slept with the learner because of the DNA results as well as the fact (according to him) that he cannot remember having slept with the learner. He stated that he decided to sponsor the new-born financially because the learner threatened to report her to the authorities. He denied having deposited money into the learner’s bank account.

39. In cross-examination, the employee stated that he cannot remember how he had the learner’s cellphone number in his possession. He then stated that he cannot recall having had a telephone conversation with the learner on 20 December. The employee stated that the learner only visited his place once on 20 December 2020 and conceded that there might be a possibility that he had intercourse with the learner on that night. He stated that he does not know what happened on that night thus his request for a DNA test.

40. The employee stated that the learner told him that he was the only one whom she slept with. He stated that he did not know whether to put his version to the learner or not, because he was represented. He denied having slept several times with the learner and him requesting that the charges be dropped and believes that the learner had a motive against him. He denied having phoned the learner on 27 December 2020 and he stated that his mother passed-on before the birth of the child.

41. In closing arguments, employee’s representative submitted that the learner did not produce any evidence such telephone records, bank slips or message notifications including her cousin Lerota to proof her case. He submitted that the balance of probability standard was exploited in that the employer did not call witnesses to corroborate the versions of the learner.

42. The representative submitted that the allegation was not reasonable or satisfactorily proven. He submitted that a guilty finding would set a bad precedent in the township and put young working men in a vulnerable position. The representative submitted that the employee be found not guilty.

ANALYSIS OF EVIDENCE AND ARGUMENT

43. As stated previously, the employee pleaded not guilty to the charge levelled against him. The employer called two witnesses whose testimonies did not contradict one another. The employee was the only witness in his case and did not ask or summons his friend (Vusi) to corroborate his version.

44. It is the employer’s case, through its main witness, The learner, that the employee had a sexual relationship with the learner which is forbidden by law. Sexual relationships, as it is common knowledge, the interactions thereof mostly take place in private spaces. The employee’s defence is that a DNA test which was done between himself, and the learner’s newborn child vindicates him against the allegation of him having had sexual intercourses with the learner.

45. Now the learner testified in detail on how her sexual relationship with the employee unfolded and how it came to an end. Her elder sister, Jerminah, testified that the relationship continued even after the birth of the child until the DNA tests came back negative. The employee did not rebut or challenge this evidence during the cross-examinations of both the learner and Jerminah.

46. The charge against the employee stipulates the following:

CHARGE 1
You have contravened Section 17 (1) (c) of the Employment of Educators Act, No 76 of 1998, in that in December 2020, you had a sexual relationship with grade 11 learner (name and surname) of Nomsa Secondary School where you are employed.

47. Many other allegations were made by the learner and her sister, which ranges amongst others, that the employee admitted to having had intercourse with the learner in January 2021 after hearing the news about the pregnancy. What the employee wanted and insisted upon, was a DNA. The learner and Jerminah testified that the employee did not deny having had intercourse with the learner at the family meeting which has taken place. The only contention of the employee was that he is not the father of the child.

48. Whilst the two witnesses of the employer were testifying under cross-examination, the employee did not place his denials of the allegations to them. For instance, he did not dwell with the allegation of ‘sex during pregnancy’ with the learner whilst she was pregnant. The employee only denied these allegations during his examination-in-chief without having put his version to the witnesses of the employer during their cross-examinations.

49. The employee also never put it to the employer’s witnesses during their cross-examinations his denial about the several occasions on which they had sex and that the learner only visited his place once. He only raised his denials for the first during his examination-in-chief. Jerminah testified that the employee gave them (she and the learner) his commitment that he will he support the learner during her time of pregnancy.

50. Jerminah also stated that the employee paid damages for the fact that the learner felt pregnant and told them that he must be protected because he would not be in a position to maintain the child if he loses his job. The employee did not challenge this submission during the cross-examination of Jerminah. He only denied it during his own testimony.

51. This defence of the employee seems problematic in that the witnesses of the employer were never challenged to prove their submissions under their cross-examinations.

52. In NUM & Another v CCMA & Others the Court set aside an award where the Commissioner found for the Employee on facts that were not put to the Employer’s witnesses. It was held:

“[14] From the record, it is apparent that the Labour Court correctly determined that the allegation of racial abuse had not been put to the employer’s witnesses in cross-examination. The purpose of a proper cross-examination is to put a one-sided version, which often results from examination-in-chief, into proper perspective by eliciting facts which place a different complexion on the matter, or by demonstrating that the witness is untruthful. In eliciting from an opposing witness facts which are beneficial to the case of the cross-examiner’s client and to put such client’s opposing and contradictory version to the witness, the decision maker is placed in a position which permits evidence to be properly and appropriately assessed. Since key aspects of the employee’s case were not put to the employer’s witnesses in cross-examination and had not been canvassed in the evidence of those witnesses in chief, their version on such aspects was not placed before the Commissioner. The result was that the Commissioner was unable to determine the issue before him in the manner required”.

53. Based on the dictum of the Court, I do not have much in front of me to doubt or second guess the versions of the employer’s witnesses because the truthfulness of their versions was not challenged. In other words, the witnesses of the employer were not afforded an opportunity to express themselves on the denials of the employee.

54. Jerminah at one stage was told that the employee will come and deny that he ever slept with the learner. Jerminah replied that why then, would someone who never had intercourse with another person like the learner, demand a DNA test, make commitments of maintenance support, buy clothes for the unborn and provide financial support. The cross-examiner abandoned this line of questioning and did not pursue it further.

55. The employee is on record where he admitted that it is possible that he could have had sex with the learner on the night of 20 December 2020 but cannot remember because of the fact that he was intoxicated. I find the employee’s defence rather odd in that no reasonable teacher will leave with a learner from a tavern, probably have sex with her, demand DNA tests, provide financial and material support to the learner, etc. I am not persuaded that the employee has never had a sexual relationship with the learner.

56. Uncontested evidence was led that the employee knew that his conduct was wrong and that he could lose his employment should he be found guilty of the allegations. Jerminah testified that this was the reaction of the employee when he received the news about the pregnancy. The learner testified that in the car on 20 December 2020 at Thomas’ Place, the employee asked her to keep his feelings for her confidential. He did not challenge this under cross-examination. This shows that the employee knew from the onset that he was busy committing a serious misconduct which will have dire consequences for him.

57. The employee’s friend, one Vusi, was implicated in the case that he is a fellow teacher and friend of the employee and that he was even sent by the employee to call the learner and to tell the learner how the employee feels about her, and that the learner must go with them to Corner House on 20 December 2022. If the employee is truthful that he did not have a sexual relationship with the learner, surely, he would not have had a problem to call Vusi as a witness. The employee rather chose to deny that Vusi is a teacher. My inference is that the employee was trying to protect Vusi in one way or the other, taking into account the fact that Vusi also had a ‘girlfriend’ who was also dropped-off the following morning at some place, after they dropped-off the learner.

58. In Bargaining Council for the Furniture Manufacturing Industry, Kwazulu-Natal v UKD Marketing CC and Others 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. It is a prerequisite to the application of the rule that an adverse inference should be drawn from a party’s failure to call a witness that the evidence that the part faces must have been of such a nature that, at the time the other party closes 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.

59. Not only did the employee fail to challenge the versions of the employer’s witnesses with his own version under cross-examinations, so too did he fail to call a witness to corroborate his version. Further to that effect, the employee’s defence mainly turned around an assertion that the negative DNA result vindicated him from the allegation that he had sexual intercourse with the learner.

60. It is general knowledge around the world that testing for two similarities between DNA (deoxyribonucleic acid) allows family relationships to be established – or disproved – to an extraordinary high degree of certainty. A common use for a DNA test is to establish if a man is the biological father of a child, which is better known as paternity test. The case is front of me has little to do with the fatherhood of the baby of the learner, but everything to do with the sexual relationship which the employee had with the learner.

61. It is these odds in the employee’s defence which brings me to a finding that the learner’s version must be accepted as more probable on a balance of probabilities.

VERDICT

62. In the final analysis, the employee is hereby found guilty as charged by the employer for having had a sexual relationship with the learner who was based at the school where he was employed during and after December 2020.

SANCTION

63. Both parties have submitted closing arguments in writing to this Council, which I have duly considered. Of importance to note is that the standard of proof (balance of probabilities) is what is applicable in the civil law proceedings. I do not deem it necessary to allow further mitigating and aggravating circumstances based on the prescripts of the law.

64. Section 17(1)(c) of the Employment of Educators Act (the EEA) provides the following:

Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of -
……………
(c) having a sexual relationship with a learner of the school where he or she is employed;

65. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the EEA’s provisions dealing with incapacity, misconduct and appeals, provides the following:

Substitution of section 17 of Act 76 of 1998
10. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 17 of the
following section:
“Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of—
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner. student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or
other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e). (2) If it is alleged that an educator committed a serious misconduct I contemplated in subsection
(1), the employer must institute disciplinary proceedings in accordance with the disciplinary code
and procedures 35 provided for in Schedule 2.”

66. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having had a sexual relationship with the learner in accordance with section 10 of the ELAA. A dismissal therefore automatically follows a guilty finding. If put differently, one may also say that the employee is dismissed by operation of law after being found guilty of having had a sexual relationship with the learner of the school where he was employed at.

67. It follows that based on the provisions of the law (the ELAA) a dismissal is mandatory and the appropriate sanction which must be handed down on the employee. No further mitigating or aggravating circumstances can overrule this provision of the law. The employee in my view abused his authority as a teacher and betrayed the trust placed in him whilst standing in loco parentis towards the learner.
68. Having considered the facts of the case and the provisions of the law, I am duty bound to dismiss the employee.

69. The parties did not address me on whether the employee’s names must be recorded in the Child Protection Register if found guilty. Of cardinal importance is whether the Children’s Act (hereinafter ‘the CA’) is of relevance to the instance of the learner. Section 1 of the CA provides the following:

1 Interpretation
(1) In this Act, unless the context indicates otherwise-
‘child’ means a person under the age of 18 years;

70. It is clear from the definitional clause of the CA that a child is a person under the age of 18 years. The common cause evidence of this case is that the learner was already above the age of 18 years (19 years to be exact) at the time of the commencement of the sexual relationship with the employee. The provisions of the CA can therefore not be applied to the current case of the employee. Based on this evidence, I shall not make an order that the employee’s name be reported to the Director-General of the Department of Social Development.

71. In the premise, I make the following award:

AWARD

72. The employee, Mr Tokelo Sedson Sethole is found guilty of the charge of having had a sexual relationship with a learner as levelled against him by the employer, the Superintendent-General: Free State Department of Education.

73. The mandatory sanction of dismissal is imposed on Mr Tokelo Sedson Sethole with immediate effect.

This is done and dated on 19 August 2022 at Kimberley.


Adv. David Pietersen
ELRC COMMISSIONER

Inquiry-By-Arbitrator