ELRC 951-21/22 GP

Case Number: ELRC 951-21/22 GP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 24th September 2022

In the HEARING between

Gauteng Department of Education

(Union/Applicant)

And

(Respondent)

Lesetja Stephen Mothoa

Employer representative:
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative:

Respondent’s address:

Telephone:
Telefax:
E-mail:


DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for an inquiry by arbitrator i.t.o section 188A of the Labour Relations Act, no 66 of 1995 (as amended) (LRA) for five days and was eventually finalized on the 13th September 2022. The arbitration was mostly held in person at the Gauteng Department of Education Head Office.
2. The parties requested and were granted the opportunity to submit written closing arguments by the 20th September 2022. Both sets of written arguments were timeously received and my award now follows.

3. Mr. S. Mlambo, a union official from SADTU represented the employee.

4. Ms. Kgomotso Tshiovhe, a labour relations official, represented the employer.

5. The parties made use of three bundles of documents. The employer bundle was marked ‘A’ and the Applicant utilized two bundles marked ‘B’ and ‘C’ respectively. Various additions were made to some of the bundles during the course of the arbitration.
6. The proceedings were digitally recorded, and detailed long hand notes were also kept.


ISSUE IN DISPUTE

7. Whether the Respondent has proven the rape allegations of a minor, against the Applicant as contained in section 17 (1) (b) of the Employment of Educators Act, no 76 of 1998 (as amended) (EEA).


BACKGROUND TO THE ISSUE IN DISPUTE AND COMMON CAUSE FACTS

8. The employer currently employs the employee as an educator (fitness coach) at Meredale Primary School.
9. It is common cause that the employee initially provided soccer training to pupils at the Meredale Primary on a private basis during 2015 and 2016. This after having inter alia acquired a bachelor’s degree in Sports Science at the University of Kwa-Zulu/Natal.
10. The Applicant indicated that he was inspired to study teaching and subsequently completed his degree and took up a full-time permanent teaching position at the school.
11. At the time of the alleged incident in 2017 the Applicant was already a permanent employee of the employer.
12. The employer alleged that during the year 2017, the employee sexually assaulted OM in that he raped her.

SURVEY OF THE EMPLOYER EVIDENCE AND ARGUMENT

13. The Respondent lead the evidence of three witnesses namely the complainant OM, the complainant’s mother and the 2021 physical education teacher of the complainant (Claudioo Lopez) at a different primary school Nova Amande.
14. It is common cause that OM was born on the 7th December 2009 which at the time of the writing of this award makes her 12 years old.
15. OM alleges that the incident occurred in 2017 when she was in Grade 2 at Meredale Primary and 8 years old.
16. OM gave her testimony with the assistance of a professional intermediary and her testimony was recorded remotely i.e., not in the presence of the employee. OM did not require the services of an interpreter and was able to testify without any difficulty in English.
17. After questions I was satisfied that OM understood the difference between right and wrong and she undertook to speak the truth, the whole truth and nothing but the truth.
18. OM stated that on the last period of a Friday afternoon (she could not remember the date) she asked the substitute teacher if she could go to the bathroom. She was given permission to do so and left the classroom. When she got to the toilets, she noticed that the teacher had followed her in. The teacher then pushed her into a cubicle and told her to take off all her clothing.
19. He then put his private part in her vagina and told her that if she told anyone he would kill her. The teacher had entered her while she was standing and facing her and according to OM, he had entered her easily.
20. OM testified initially that she saw blood on the floor, and she later cleaned it up with a tissue. OM testified further that she had bruises on her thighs and wrists. She got dressed and went back to class and soon thereafter it was home time and she left with her nanny. OM later testified that she did not suffer much blood loss during the course of the alleged rape.
21. OM testified that she told no-one at Meredale School of what had happened. OM testified further that she lied to her mother and told her that she had been bullied by other girls and that she wanted to move to another school.
22. Her mother agreed and OM was moved to a private primary school Nova Amande in 2018. OM testified that after speaking to her physical education coach in 2021 when she was in grade 6, she opened up for the first time and told Mr. Claudio Lopez what had happened back in 2017 at Meredale Primary.
23. OM testified that she told Lopez that she had been raped. The incident was then reported to the school’s therapist who in turn told the school’s Dean. The Dean then called her parents and she left school early and went with her parents to a police station to officially lay a criminal charge.
24. OM’s case was referred to a specific unit that deals with children who have been abused and/or raped. OM testified that she was later taken to a hospital twice where she was eventually examined.
25. OM later accompanied her mother and the designated detective back to Meredale Primary.
26. Initial attempts to identify the alleged suspect were unsuccessful and OM’s sister later sourced a 2017 group photo of teachers from Facebook.OM was shown the pic in the presence of her mother and the detective and she pointed out the employee. OM stated that she did not know where the photograph came from.
27. OM testified that the employee had been substituting in her class on the Friday teaching her Afrikaans and she had never seen him before the alleged incident, nor had she seen him after that again.
28. OM testified that a few weeks later the detective took her to the police station, and she went to a room full of people and she was asked to point out the perpetrator if she could. She pointed out the employee again.
29. During cross-examination OM testified that she never physically spoke to Lopez, but she wrote him a letter after she had been encouraged to do so by a friend. OM spoke about being pushed into a cubicle and mentioned that there was blood everywhere which came from her private part.
30. OM specifically testified that when she pointed out the employee all the rest of the men were standing, only the Applicant was sitting.
31. Later during cross-examination OM testified that the employee had undressed her prior to raping her.
32. OM testified that a medical report was compiled after she was examined in 2021 and the report had been placed in the police docket. Because of an ongoing criminal investigation, the police were reluctant to hand over a copy of the report to the employer.
33. Lopez testified that whilst coaching OM during physical education he noticed that she was not well since she complained continually about her knees being sore. He sensed something was “bugging” her and he suggested that she write a letter.
34. Lopez testified that he later received a letter from OM delivered to him by Wyonelo (OM’s best friend-a guy). In fact, he received three letters. Lopez testified that the first letter disturbed him in that it described the alleged rape incident.
35. The second letter came approximately a week after the first and whilst referring to the alleged rape OM had speculated whether her parents had paid the suspect to rape her.
36. The third letter contained the picture of a flower and a thank you note to Lopez.
37. Lopez testified that the three letters were given to the police and as with the medical report the police had refused to hand over copies of the letters to the employer.
38. During cross-examination Lopez conceded that he could not say for certain whether the rape had taken place or not.
39. OM’s mother testified, inter alia, about the events after she came to hear of the alleged rape of her daughter. Her testimony is similar to that of OM and a little more detailed in respect of the alleged identification of the employee.
40. OM’s mother testified that her child was a happy child who got high marks but as the year progressed in 2017, she noticed that her child’s demeanor became more introvert and her school performance dropped.

SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT

41. The employee testified under oath and called a number of witnesses in support of his case.
42. The employee flatly denied raping OM and testified that he had never met her prior to this case.
43. The employee denied that he had ever substituted for an Afrikaans Grade 2 class in 2017. In fact, he had never taught Afrikaans. The employee testified further that it was against school policy for educators from the intermediate or advanced phase to substitute in the foundation phase.
44. The employee also produced a timetable and testified that he was in class teaching at the time or absent from the school on certain Fridays. The employee also produced a map and testified that it would have been impossible for him to have proceeded from his class to the toilet situated close to OM’s class teacher’s class in 2017 (Mrs. Ganie) without being noticed by someone.
45. The employee led the further evidence of Mrs. Ganie, Ms. Thupi, the employee’s HOD in 2017, Mrs. Penhall, the deputy principal at the school in 2017 and presently, Mr. Francis, the employees instructing attorney for the criminal case of rape that the employee faced in 2017 and finally, Mrs. Bosch, the psychologist based at the local district office.
46. All the school-based educators supported the employee’s testimony that no educators from the intermediate and advanced phase could ever substitute in a foundation phase class. I was referred to various policies in the bundles that appeared to support this arrangement.
47. Ganie’s testimony contradicted OM’s mother’s testimony that OM was an intelligent child with high marks. Ganie testified that OM had consistently throughout the year obtained low marks for critical subjects and OM had been earmarked for retention in Grade 2. OM’s parents had been advised more than once of this state of affairs during the course of the year but appeared to be in denial.
48. Penhall specifically testified, inter alia, that OM was not able to describe the perpetrator in any way before being shown the Facebook photograph.
49. Francis testified specifically on the events of the second identification of the employee. Francis testified that he and his client were not advised formally about any identification parade in terms of section 37 (1) (d) of the Criminal Procedure Act no 51 of 1977 (as amended) (CPA). Crucial procedures for a valid identity parade were also not followed, i.e., the parade was not properly constituted in that the suspects were not properly numbered and sat around in a room instead of in a line up in a separate room. OM had stood amongst them instead of being concealed from them. Further no photographs or any record was kept of the identification parade in the prescribed form. OM’s testimony that the employee was the only person seated in the room whilst the others stood was never contradicted.
50. Francis testified that he had 25 years of criminal law practice as an attorney and that he is fully acquainted on how a proper identification parade should be conducted. It was not for him to him to coach the police as to how they should do their work.
51. The final witness Bosch testified that she had sat in as an observer when OM was interviewed about the alleged rape at the Johannesburg South District office.
52. She noted that OM could not answer direct questions, she was anxious and kept looking at her mother as if to receive confirmation that she had answered the questions in the correct manner. OM’s mother would often interject and answer when OM was being asked questions.
53. Bosch testified that she was concerned about other underlying issues and referred OM for psychological assistance at the Teddy Bear Clinic. OM’s mother refused to accept the referral and Bosch was concerned that these underlying hidden issues needed to be uncovered by further investigation.
54. Bosch mentioned that it was strange that OM’s father (who lived with the family) had played virtually no role in investigating the alleged rape against his daughter. It was also testified that both the mother and father had busy jobs and OM spent much time in the care of her nanny. Concern was also raised about OM’s insinuations against her parents in the second letter that had been sent to Lopez. The insinuation goes further that the alleged rape claims may have been indicative of pure attention seeking behavior on the part of OM.
55. Bosch testified further that OM appeared to be hiding something in her life and she got the sense that OM was not telling the truth about the alleged rape.
56. Another warning sign for Bosch was that under normal circumstances a raped child would breakdown at some point. OM did not breakdown and she appeared to casually answer the questions without showing any emotion.
57. Bosch also testified that she found it strange that OM would testify that she was able to walk home without pain. After virgin rape there would be a lot of blood and pain even after the event. OM had also mentioned that she had screamed and yet no one heard anything.

ANALYSIS OF EVIDENCE AND ARGUMENT

58. The onus is on the employer to prove that the allegations of rape against the employee on a balance of probabilities.
59. The interests and protection of children are of major importance and enshrined in the Constitution of South Africa, 1996.
60. However, in seeking to protect the interests of the child it is important to carefully consider the merits of the case so as not to permit a travesty of justice.
61. The allegations of rape even in their unproven state have the potential to negatively impact the future of the employee and the decision in this case should be as unequivocal as possible.
62. Two crucial aspects must be decided in this case. Did an act of rape (as defined) ever occur and has the employee adequately been identified as the perpetrator of that rape. In considering this matter the facts at hand have all the trappings of a criminal trial and some of the principals of criminal law must by sheer necessity be imported to assist in evaluating the evidence.
63. OM was a single witness and in criminal law the evidence of a single witness must be treated with caution. The caution is heightened if one is dealing with a case involving sexual misconduct and if identity is in dispute. (The so called cautionary rules)
64. The evidence of a single witness must be satisfactory in all material respects
65. The evidence of OM is not satisfactory in all material respects. OM contradicted herself on the question of how much she bled during the alleged rape. I accept the evidence of Bosch that OM seemed detached from reality when recounting the events and did not show the classic symptoms of a genuine rape victim.
66. Added to the complexity are the time which OM took to come forward with the allegations of rape (4 years) and her tender age (8 years) when the incident allegedly occurred.
67. OM’s version is also contradictory and improbable in that she stated that she was threatened that she would be killed if she shouted yet in other evidence, Bosch testified that OM stated that she did scream. It seems improbable that if OM did scream, she would not have been heard.
68. OM also contradicted herself on whether she or the alleged rapist took her clothes off or whether she took them off herself.
69. It is also improbable that the employee would have been sent to substitute in the foundation phase as an educator from another phase. The schools policies (admittedly not drafted with legal precision) point to substitution in foundation phase being limited to other foundation teachers themselves. I accept the evidence of long-standing deputy principal Penhall that a cross pollination of substitution in the foundation phase never occurred during her tenure.
70. I have no medical records to provide any independent evidence of an incidence of rape.
71. The Applicant and his witnesses were good witnesses who gave consistent testimony and in no way contradicted themselves. The Applicant’s demeanor and behavior throughout the inquiry was consistent with the behavior of an innocent man.
72. OM admitted to lying to her mother about being bullied at Meredale so that she could be moved. I find that OM (even at the age of 8 years) was capable of misrepresenting the facts and has probably misrepresented them at this hearing.
73. I find that the employer has not proven on a balance of probabilities that OM was raped in 2017 or at all.
74. Likewise, I find that there is insufficient evidence linking the employee to any alleged rape. The initial alleged identification of the employee is fraught with amateur opportunism. The criminal law investigation and specifically the second alleged identification carried out by the police appears to have been done in a slapdash manner with no regard to the relevant provisions of the CPA. In all the intervening years the employee has not been charged criminally nor is he likely to be so charged.
75. I find that there are underlying issues with OM and her family that need to be addressed. I find that OM is a child crying out for attention due to the “absence” or unavailability of her parents and it is probable that this whole alleged incident provided OM and continues to provide her with the one thing that she craves the most-the undivided attention and approval of her mother.
76. The Respondent has also failed to prove on a balance of probabilities that the employee was identified as a rape perpetrator.


AWARD

77. The employee is found not guilty of the charge of rape levelled against him.


MARK HAWYES
PART TIME SENIOR ELRC PANELIST