ELRC 1030-21/22FS

Commissioner: Zoliswa Taba
Case No: ELRC 1030-21/22FS
Date of Award: 02 September 2022

In the ARBITRATION between:

FREE STATE PROVINCIAL DEPARTMENT OF EDUCATION
(Employer)

And

NAPTOSA OBO D. KHONGOANA
(Employee / union)

Details of hearing and representation
1. An inquiry by Arbitrator was set down in terms of section 188A of the LRA in Bloemfontein on 22 and 23 August 2022. In all matters in which an employer wants to take disciplinary action against an educator for alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the ELRC shall be mandatory. In this regard, I have noted section 3.3.1 of Collective Agreement 3 of 2018 of the ELRC.

2. The Employer in this matter is the Free State Provincial Education Department and the Employee is Mr D. Khongoana. Mr Dikotsi, an official from the trade union, NAPTOSA appeared for the Employee. The Employer was represented by Ms L. Cweba from the employee relations section.

Issue to be determined
3. I have to decide whether the employee committed misconduct as per the allegations levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction.

Background to the dispute
4. The employee is currently employed as an educator at Taiwe Secondary School. The employee was notified of the allegations on 25 February 2022. The matter was first set down in June 2022, but due to some challenges, parties could only narrow issues and deal with documents.

5. The allegations levelled against the employee are as follows: Charge 1- “You have contravened Section 17 (1) (b) of the Employment of Educators Act, 76 of 1998, in that on 28/11/2021, you committed an act of sexual assault when you had sex with “…”a grade 11 learner at Taiwe Secondary School where you are employed.

6. The learner turned 18 in July 2022 but due to the sensitivity of the facts of the case, the name of the learner will not be published in this award and she will be referred to as the “learner”. The name of the learner is captured in the record of the proceedings. For the same reasons the name is not used and due to the emotional state, the learner appeared to have been in, services of an intermediary, Ms T. Mokgwamme were used. The learner testified in camera where she could not see the employee and all those in the proceedings. All those in the proceedings including the employee and his representative could see the learner when she testified. Mr S. Skhasa provided interpretation services. Both the intermediary and the interpreter took an oath prior to rendering their services.

7. The employee conceded that he had given a lift to the learner and her friend from a tavern in the early hours of 28 November 2021 and the intention was to drop them off at their homes. The employee conceded that the learner went with him to his house. The alleged incident took place at the employee’s house but the employee denied having sex with the learner at his house. The learner was approximately seventeen years old at the time of the alleged incident. It is common cause that there were no other people or witnesses at the time the alleged incident took place at the employee’s house, it was just the employee and the learner.

8. The Employer submitted documents which formed part of the record. Parties requested to submit written closing arguments by no later than 30 August 2022 and such request was granted. The employer submitted its arguments on the agreed date and the employee only submitted it arguments on 01 September 2022. All arguments were considered, they are a matter of record and would not be recorded verbatim in this award. The employer called three witnesses and the employee called one witness to support his case. The proceedings were manually and digitally recorded. It must be noted that only evidence relevant to the allegations will appear in this award.

The survey of evidence and arguments
The employer’s case
1st witness: The learner
9. On 27 November 2022 around 7pm, she went with her friend Pulane and a family friend Tumelo to Etwatwa tavern. Later in the evening she became cold and asked one Reggy, who was a friend of Rethabile’s brother to borrow her a jersey. Rethabile was her other friend but was not with them on the day. She left with Reggy to fetch the jersey. Reggy had wanted for them to go inside the room where he was fetching the jersey but she did not want to. While standing outside she saw someone being stabbed. She became scared and entered the room. In the room she was Reggy’s friend sleeping with a girl. Reggy acted like someone who wanted to sleep with her. She was disturbed by what she saw and the fact that Reggy wanted to sleep with her. She cried and told Reggie she wanted to leave. Reggy’s friend told Reggy to let her go, she left and went back to the tavern.

10. When she arrived at the tavern, she told Pulane what she saw and told her that they needed to leave. Pulane said since they were girls and it was already now in the early hours of 28 November, she would ask the educators who were at the tavern to take them home as Tumelo who came with them was drunk and it was not safe to walk home. Pulane approached Mr Mohoalali, who was her teacher to ask for a lift. Mr Mohoalali was with the employee and they agreed. Before they could leave with the teachers, Tumelo came and caused a scene as he did not want them to leave with the teachers as he said he was the one who came with them. Later, they ended up leaving with the teachers using the employee’s car.

11. In the car, it was her, Pulane, Mr Mohoalali, the employee and Refuoe( a male). The employee started first at his house and went in for a short while then came back to the car. He then drove towards Mr Mohoalali’s house to drop him off. Outside Mr Moholoali’s house, the employee and Refuoe went out of the car. The employee called her outside and asked if she still wanted to go home and she said yes and confirmed that her mother was still at home. The employee asked her why she was boring after her response. She went back inside the car and told Pulane what the employee said. When they left Mr Moholoali’s place, she thought she would be next to be dropped off as her house was not that far from his house. The employee said he will drop her last as he wanted to go to 242, where after parties were held and such place was closer to the learner’s house. They then went to drop off Pulane. Pulane asked if she did not want to sleep over at her house but she said she wanted to go home. The next person to be dropped was Refuoe.

12. After dropping Refuoe, the employee asked her to sit Infront and she did. The employee asked her if she did not want to sleep with him for two minutes but she said no. Pulane texted her to check if she was ok. Her response was that she was bored as she did not know her enjoyment would end the way it did relating to the reason, she left the tavern and also to the employee. Pulane then called her but she told her that she will call back as she had noticed that the employee took another direction and wanted to ask where he was taking her. The employee told her that he wanted something so she must not be otherwise. She trusted the employee as he was a nice person and a parent so she thought he was just joking and that he will not do anything to harm her.

13. They drove to his house. He gave her the house keys to go inside the house while he went to close the gate. They entered the house through the kitchen. She again told the employee that she wanted to sleep at her house but the employee told her that she must sleep, he will take her home later and showed her the bedroom she had to sleep in. While she was in the bedroom, the employee entered the room with his trouser unzipped and asked her to kiss him and she refused. She told the employee that she was on her period and he just laughed and asked if it was the first time, she gets periods. He said no one would know, forcefully kissed her and asked her to touch his private part. She refused but the employee grabbed her hand and made her touch his private part.

14. The employee laid on the bed and asked her to give her a “blow job”, to lick his private part. She asked if she did the blow - job, the employee would take her home and he said yes. She did that but could not go any further. The employee then lowered her pants while on the bed. She tried fighting him off but could not then the employee put his private part “penis” inside her private part. She did not recall when the employee put on a condom and recalled him saying that he wanted to remove the condom. At that stage she was not saying anything, just crying and could not tell whether the condom was removed or not.

15. While busy, the employee felt that the sheets were too wet. He stood up to switch on the light only to see that there was blood on the sheets. She quickly stood up and wore her pants. The employee took the sheets away. He came back and asked her to kiss her as a sign that she was not angry at him. He laughed and said liquor was getting the better of her and told him not to tell Lerato about what had happened. Lerato was a grade 11 learner who was the employee’s girlfriend. He kissed her and said they could go. He dropped her by the open field around Mr Mohoalali’s house.

16. She went home and found her mother already left for work. She slept but woke up due to stomach pains she felt. She went to relieve herself only to see a condom falling off her. She also experienced heavy blood flow. She was scared, took a picture and texted Pulane to show her what had transpired. Pulane advised her to inform Tumelo. Tumelo came over and advised her to wrap the condom and take it with to the police station. They went to the police station and opened the case of rape. The employee was then arrested following the rape case.

17. During cross examination, she conceded that she had told other learners when they talked about good looking teachers that she had a crush on the employee but denied that she made up the issue of rape due to her crush. She maintained that Reggie did not say he wanted to sleep with her but his actions showed that, but he did not do anything to her. She maintained that the employee asked her to come out of the car. She maintained that she trusted that the employee who was a parent would not harm her, would allow her to sleep and leave the next day hence she went to his house. She maintained that the employee raped her even though she had informed him that she was in her periods.

2nd witness: Pulane Ntlatseng
18. She was 19 years old and had been a learner at the same school as that of the learner when the alleged incident happened. She was with the learner at the tavern on the day the incident took place. Her testimony was similar to the leaner’s one, as to the events which took place at the tavern; the reason they left the tavern; that she was the one who requested the lift from the teachers, and about who were all the people in the car.

19. She confirmed the routes taken and who was dropped off first up until she was the one dropped off around 4am. She confirmed that Mr Moholoali stayed at an area called Lusaka, the same area as the learner. She had asked the employee when dropping off Mr Moholoali why he was driving towards her house direction and not dropping the learner as he was leaving the Lusaka area. The employee had responded by saying he will drop the learner last as he wanted to go to a place called 242, which was closer to the learner’s place.

20. She confirmed that she had messaged the learner after she retired to bed to check on her and the learner had indicated that she was bored by the employee in one of her responses. She then asked if the employee had done something to her but no response came and she slept. She later received a message/ voice note from the learner who informed her that the employee had raped her and sent her a picture of a condom. The leaner explained on the voice note that the employee forced himself on her. Sh called her back but her phone just rang without an answer.

21. She could not tell her own mother about what had happened to the learner as they were preparing to go to church. She just informed the leaner on their chats that she will come to her after church and accompany her to the police station. After church, she learnt that the leaner was already at the police station and she took a taxi to meet her there. She found her with Tumelo and she was requested to make a statement as well.

22. She confirmed during cross examination that Tumelo was her friend and was the learner’s family friend. She conceded that they all had alcohol at the tavern but maintained that she had 2 cans of alcohol, the learner only had one but that Tumelo was drunk. Together with the learner, they started to drink after 12:00am as she waited for someone to send her money to buy alcohol. She disputed that Reggie had raped the learner and maintained that the learner told her that Reggie wanted to sleep with her but that did not happen. She conceded that Tumelo had tried to stop them from leaving with the teachers as he said that at their homes their parents knew that the two of them left with him and that he was the one who was supposed to take them back home.

23. She disputed that the employee was drunk and maintained that he was a little tipsy but was in control of everything he had been doing. She maintained that the employee had called out the learner to talk to her outside the car when the car stopped at Mr Mohoalali’s house. She maintained that the learner had informed her that the employee had asked for a blow-job and had raped her while she was in her periods.

3rd witness: Tumelo Manyane
24. He was a family friend of the learner and treated the learners like his younger sister. Pulane was his friend. On the day in question, they all went to a tavern and had some drinks. He was not sure whether the learner had any alcohol as he did not see her drinking. He had an issue with the two girls leaving with the teachers from the tavern as he did not trust the teachers as he was aware that some of the teachers had relationships with learners hence, he caused a scene at the tavern to stop the girls from taking a lift. Moreover, he was the one who brought the two girls at the tavern and was the one who was supposed to take them back home safe. His attempt to stop the girls from leaving with the teachers did not succeed and the girls left with the teachers.

25. On Sunday morning, 28 November 2021, when he arrived home from the tavern, he found a message on his phone as he had left his phone at home. It was the learner’s message requesting him to go to her house as something had happened. Upon arriving, the learner was crying. She informed him that the employee had raped her at his house after he had dropped all other people who were in the car with them. He asked her how it happened that she ended up at the employee’s house then the learner explained that the employee had said he would drop her last as he intended going to 242 which was closer to her house.

26. The learner explained how the employee forced himself on her, asking for a blowjob, kissing her and raping her while she was crying. She showed her the condom which was used by the employee which fell off her when she went to relieve herself. Since this story was serious and shocking, he advised her to cover the condom and take it with to the police station to report the incident. He accompanied her and was asked to remain with the learner when she made her statement since he was an adult and the learner was still a minor.

27. He confirmed during cross examination that he was drunk on the day but not that drunk not remember everything that happened. He confirmed that Puleng and himself had been drinking alcohol as soon as they found a seating spot at the tavern which could have been around 8pm. They had brought their own alcohol from home but could not confirm whether the learner had been drinking. What he could confirm is that both Pulane and the learner were not drunk. As to the employee, he was also tipsy but not drunk that he could not recall what he had been doing. He maintained that the learner had told him that the employee had raped her.

The employee’s case
1st witness: D. Khongoana
28. He was the employee in the matter and was not guilty of the allegation against him. He was at the tavern which the learner and her friend were at. He had a lot to drink on the day and he was drunk. Mr Mohoalali and himself had been celebrating the school soccer victory they had during the day and were drinking at the school soccer event. When they arrived at the tavern, they continued to drink alcohol. He was next to Mr Mohoalali when Pulane asked for a lift. Pulane had said that her friend, the learner almost got raped and they wanted to go home and requested a lift. He agreed to assist them but the learner’s ex- boyfriend, who was friends with Tumelo wanted to talk to the learner, as a result there were arguments between them and Tumelo. They finally left with the two girls.

29. The first stop was at his house as he wanted to switch off the lights. Mr Mohoalali had told them that they had to call it a night hence he went to drop him first. Mr Mohoalali had told the learner to also get off as they stayed in the same area but she said she was going to sleep at Pulane’s house. While they were at Mr Mohoalali’s place smoking outside the car, the learner voluntarily moved from the back to sit in the front seat. He then went to Pulane’s house to drop her and the learner but the learner changed her mind and said she wanted to be dropped at her house. The next to be dropped was Refuoe. After this the learner said she did not want to go home as the mother would not open for her, so she had no place to go. The learner changing where she wanted to be dropped made him furious. He asked if they should go to his house, the learner agreed.

30. Upon arriving at his house he gave the learner the key to open the house while he closed the gate. He entered the house and showed the learner a bedroom where to sleep. He then went to his car and continued drinking alcohol while he was listening to music. He then came back to the house and passed out at the lounge on his sofas. He woke up around 06:30am and saw that the gate was closed. He went to the room he left the learner at and saw that the learner was gone. He then visited his friends. He never kissed the learner; he never asked the learner to touch his private part and never had sexual intercourse with the learner. He never dropped the learner back after he left her in this house.

31. He maintained that the lift was asked because the allegation was that the learner was almost raped. He was drunk on the day but could drive. He maintained that the reason he took the learner to his house is because she said she had nowhere to go. He only became aware that the learner had a crush on him after the arrest.

2nd witness: K.P Sekgapane
32. He was with one of the adults who were in the car with the leaner and Pulane. He understood the reason for the learners to be in the car was for them to be dropped at their homes. When the vehicle arrived at Mr Mohoalali’s house to drop him off, Mr Mohoalali asked the learner to also get off as her house was not that far from his house. The learner said she would be sleeping at Pulane’s house as her mother would not open for her. When the car arrived at Pulane’s house, the learner changed her mind and said she would be going home, hence she was not dropped off with Pulane. The employee got a little agitated about the change of mind. After dropping Pulane, he was next to be dropped.

33. He confirmed during cross examination that at the time Mr Mohoalali told the learner to get off the car and walk home it was still dark, around 03:30am but that it was starting to lighten up. He maintained that the learner was the one who asked the lift twice. He became aware of the rape allegation on Monday.

Parties’ arguments
34. Relying on case laws, the employer argued that it had on balance of probabilities proved that the employee was guilty of the allegations through its witnesses. The employee had contravened the values and obligations prescribed by the Code of Professional ethics of Educators and falls under the category of those educators who abused children in schools and must be removed from the education system in order to protect the children. On the other hand, it was the employee party’s argument that the employee did not do what he was accused of. The witnesses of the employer all lied. The learner had consumed alcohol and tried to get favour from the employee immorally and should carry the responsibility of her drinking.

Analysis of evidence and argument
35. The allegation against the employee is that he committed an act of sexual assault on a learner by having sex with the learner. It is common cause that the employee had been at the same tavern which the learner had visited. It is further common cause that the employee together with two other male friends gave the employee and Pulane a lift from the tavern. It is common cause that the employee dropped Mr Mohoalali first, followed by Pulane, then Refuoe and lastly the employee and the learner ended up at the employee’s house in the early hours of 28 November 2021.

36. What is in dispute is why the learner ended up at the employee’s house and what transpired at the employee’s house. The employee disputes having sex with the learner. It must be noted that where and when the alleged sexual incident happened, there were no witnesses present as it was only the employee and the learner. Other witnesses who testified were only present from the tavern and in the car used to transport the learner. The crux of the case is whether there was sex between the learner and the employee as this is what the allegation against the employee is premised upon. This therefore means that the version of the employee and the learner has to be tested against the allegation, taking into consideration what had transpired before the alleged incident took place. It must be noted that the employer in this matter had onus to lead evidence to prove on balance of probabilities that the employee is guilty as alleged.

37. A finding on a balance of probabilities is not merely a mechanical balancing of evidence-or for that matter, the number of witnesses on each side. In Selamolele v Makhado the approach to the question whether the onus has been discharged was dealt with as follows: “Ultimately the question is whether the onus on the party, who asserts a state of facts, has been discharged on a balance of probabilities and this depends not on a mechanical quantitative balancing out of the pans of the scale of probabilities but, firstly, on a qualitative assessment of the truth and/or inherent probabilities of the evidence of the witnesses and, secondly, an ascertainment of which of two versions is the more probable.”

38. In Assmang Ltd (Assmang Chrome Dwarsriver Mine) v CCMA and others , the Labour Court held that “it is possible for a commissioner to arrive at his decision simply on the probabilities and without having to make specific findings of the credibility of the witnesses. The Court further held, with reference to the decision in National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) that it is only where a consideration of the probabilities fails to indicate where the truth probably lies, that recourse is to an estimate of relative credibility”.

39. In this matter all witnesses testified that the learner was at a tavern on the day. The employee saw this minor learner from his school at a tavern but as her educator did not see anything wrong with a minor being at a tavern around morning hours although the law prohibits minors at places where alcohol is sold. In terms of the employee’s version, the lift was offered after it was related to him and Mr Mohoalali that someone almost raped a learner. With all this information and being informed about such a serious allegation, the employee did not see it fit to get the contact details of the learner’s parents to inform them of the ordeal their child almost went through or inform them that he was taking their girl child with at that time of the morning. The version that the lift was requested due to rape allegations was not put on the learner and Pulane during cross examination, therefore it remains untested and cannot be relied upon.

40. Furthermore, it was the employee’s evidence that the lift was offered with the purpose of taking the learner and Pulane to their respective homes. His version has always been that the learner was the one who changed her mind about sleeping at Pulane’s house, about being dropped off at her house and that the learner was the one who requested to sleep at his place but this version was also not put on the learner.

41. Even if the employee was to be given a benefit of doubt and his version was accepted on how the leaner ended up at his house, it must be noted that the employee offered the learner a lift with a purpose of dropping her at her house not at his house. It must be noted that no evidence was led that it was discussed in the car that the learner will sleep at the employee’s house while the other three passengers were around. Pulane said she knew that the learner would be dropped off at her house and Refuoe said the learner would be dropped off at Pulane’s house and later changed to say at her house.

42. When the learner changed her mind about her house and Pulane’s house as per the employee’s version, the employee failed to alert those who were with them in the car on the change of plans so everyone can know where the learner was although he was aware that those who were in the car knew nothing about the learner sleeping at his house. Instead, he decided to take the learner to his house without even seeking permission or informing her parents that she would be sleeping at his house.

43. As a responsible adult, who took a decision to assist a leaner who was troubled, he ought to have attempted to get hold of the parents or guardians of the learner and assured the leaner that if she was scared to go home, as her educator, she would speak to the parents on her behalf so she can be home safe.

44. His version was that the learner had said that she had nowhere to sleep, hence the suggestion of his place. This version is not probable. His own testimony was that the learner had indicated that she would sleep at Pulane’s house, if this is the case, when she changed her mind again, why did he not suggest Pulane’s house as his version is that she had wanted to be dropped off there? Why did he choose to believe the learner about not having a sleeping place although Pulane’s place had been mentioned and had been offered?

45. On the other hand, it is common cause that the learner stayed in the same area as that of Mr Moholoali. It was the learner and Puleng’s testimony that the employee had said that he would drop the learner last as he intended to go to the place called 242, which was closer to the employee’s house hence not dropped with Mr Mohoalali. Although the employee disputed the issue of dropping last, he did not dispute that he had said anything about going to 242 and that 242 was closer to the learner’s house. His testimony was that the learner wanted to be dropped at Pulane’s house but he failed to put this version on the learner during cross examination. The learner’s version around the issue of 242 was not disputed and is probable as it would make sense to be dropped off last if the employee intended to visit a place close to her house.

46. What needs to be appreciated is that whether it was the learner who kept changing her mind on where to be dropped off, the suggestion and the decision to drive to the employee’s house was made by the employee. The employee was the one who was an adult and it is not reasonable that he could have allowed a minor to decide for him on what had to happen on the day especially considering the reason why they all left the tavern. The conduct of the employee raises questions as to what his real intention was when he decided to ignore all this and take a minor girl to his house at such hours of the morning without alerting anyone.

47. As to what transpired at the employee’s house, the employee denied everything relating to sexual activities which the learner alleged took place. He disputed kissing and having sex with the learner. A false claim of sexual harassment or assault has very serious implications for the person against whom the allegations are made. Not only could such a person lose his job with very little hope of finding similar employment, but his family and community standing can be negatively affected. On the other hand, a true claim of sexual assault also has serious consequences on the victim, which may result in physical, emotional pain and phycological issues. Therefore, in dealing with this allegation, the circumstances of both the learner and the employee have to be carefully considered.

48. There was no evidence before me to suggest that the learner had any reason to fabricate lies against the employee. The learner had conceded without hesitance that she had said to other learners at school that she had a crush on the employee. For the learner to admit this at arbitration while she has claimed that she was raped by the employee is a clear indication that the learner came to the proceedings to just tell the truth and not hide anything. If her version was fabricated, it would have been easy for her to deny ever saying that she had a crush on the employee for the fear that such would be used as a reason to assume that it was the crush that she had which made her fabricate her version. No testimony was rendered that the learner had acted on her crush and probably made a move on the employee, a move which was rejected by the employee.

49. The learner clearly recalled the events that took place in the house, from how the employee forcefully kissed her; how he made her touch his private part and how he lowered her pants and penetrated her while she was in her periods. She was consistent in her version and never contradicted herself on the version about what transpired in the house. All that the employee did during cross examination was to deny what the learner said but failed to put his version across although I had reminded him during cross examination. I had clearly reminded the employee party that any evidence the employee intended testifying on, which was going to implicate the learner has to be put to the learner so she can respond, but such was not done.

50. Furthermore, the steps taken by the learner after the incident by informing her friend Pulane and Tumelo are consistent with the allegation she made. Moreover, why would she agree to take a condom which does not belong to the employee to the police station and submit it for DNA tests if she knew it did not belong to the employee? if indeed the condom was not used by the employee, the learner would not have handed it in as such evidence would absolve the employee from the allegation she made.

51. The employee’s version that he simply fell asleep or passed out on the couch only to wake up and find the learner gone is less probable. Since the intention of allowing the learner to sleep at his house was to ensure that she was safe, upon waking up, and finding a minor girl child who was under his care gone from his house without a trace, as a responsible person, he would have checked the whereabouts of the learner to ascertain whether she was safe. This, he did not do. Therefore, his version is found wanting.

52. It is worth importance to note that the employee is an adult male, who alleges to have been drunk, took a minor girl in the odd hours of the morning to his private house without informing anyone, what was his real intention? He ensured that it was just him and the learner at his house and he was aware that without any person being aware that they were at his house, he could do anything he wished to do to the learner and there would not be witnesses or proof if the learner complained later. Furthermore, it must be noted that the whole version of what transpired in the house, was not put to the learner at all. Therefore, such testimony cannot stand as it was not tested.

53. Based on all evidence before me, I therefore find on balance of probabilities that the employee has committed an act of sexual assault on the learner in terms of section 17(1)(b). The employee’s conduct is extremely serious and is in contravention of section 17(1) (b) of the Employment of Educators Act (“the EEA”) which prohibits such conduct. I have particularly considered the EEA as well as the South African Council for Educators Code (“SACE Code”), as intended in the South African Council for Educators Act, 31 of 2000). I have also considered that the protection of learners and their interests is paramount, particularly as educators are leaders within the school environment as well as leaders within the community environment. The conduct of employee serves to destroy the relationship of trust between employee and employer.

54. Section 17 of the EEA provides dismissal as a mandatory sanction if an employee is found guilty of misconduct falling under this section and an arbitrator has no discretion to impose any other sanction, irrespective of mitigating circumstances. Having found that the employee did commit misconduct in terms of section 17 (1) (b) of the EEA, the sanction of dismissal is therefore imposed with immediate effect.

55. Section 120(1)(c) of the Children’s Act (“the Children’s Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 12 of the Children’s Act provides that “where such a finding is made, the person against whom such a finding was made, may have the finding reviewed by a court of law”. Section 120 (2) of the Children’s Act provides that “a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children”. The arbitrator may also make the finding on his/her own accord.

56. It must be noted that on the first seating of this case, the parties were made aware of the seriousness of the case and consequences that may fall on the employee if a finding of guilt was to be made, which is losing one’s job and a finding on suitability to work with children could be made. For these reasons and seeing that the employee’s witnesses and some documents he sought to rely on were not available, evidence was not heard on that day to allow the employee a fair opportunity to gather all his proof and be in a position to defend the allegations against him and also prepare himself in the event a guilt finding was made.

57. Furthermore, parties were given an opportunity to do their closing arguments in writing and were reminded again that they need to include any mitigating or aggravating factors. Although this was the case, only the employer party addressed these issues and pleaded for the employee to be removed from the education system. On the other hand, the employee party did not address any of the issues as required. Since a fair opportunity was given from the first seating, it is reasonable to deal with the suitability issue, more so when one considers the facts of this case.

58. The employee did not dispute the testimony proffered that he had a grade 11 girlfriend called Lerato who is also a learner at his school. If then the employee sees nothing wrong with having a romantic relationship with a minor/ learner, there is no guarantee that he would not repeat what he has done with another learner. It would also be reasonable to accept that since he had a learner as a girlfriend, sexual relationship with learners was a norm to him. Therefore, a safe education environment in the care of the employee cannot be guaranteed. Gender Based Violence has become a pandemic which we read about on social media and in the news. Young vulnerable girls in particular have become victims of this inhuman pandemic. My finding is aimed at the protection of children and in particular, vulnerable young girls who find themselves powerless. I therefore find the employee unsuitable to work with children.

Award
59. I impose the sanction of mandatory dismissal with immediate effect.

60. Mr D Khongoana is found to be unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005.

61. The General Secretary of the ELRC must, in terms of section 122 (1) of the Children’s Act, 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 that Mr D. Khongoana is unsuitable to work with children for the Director General to enter his name as contemplated in section 120 in part B of the register.

ELRC PANELIST: ZOLISWA TABA