ELRC842-21/22 KZN

IN THE ELRC: INQUIRY BY ARBITRATOR BETWEEN:

THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer
and
N D Mzolo The Employee

Inquiry by arbitrator-finding

Case Number: ELRC842-21/22 KZN

Dates of arbitration: 3 August 2022 and 20 September 2022

Date for the submission of closing arguments: 27 September 2022

Date of award: 04 October 2022

J KIRBY
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion

DETAILS OF HEARING AND REPRESENTATION

1. The inquiry by arbitrator was heard over two days; namely 12 August 2022 and 20 September 2022. The hearings were held at the Durban Teachers’ Centre.
2. The Employee, N D Mzolo (Mzolo,) was represented by Mr Mthimkhulu, a SADTU official.
3. The Employer, the Head of the KwaZulu-Nata l Department of Education was represented by its employee, Mr I Makhooe. A bundle of documents, marked exhibit A, was submitted on behalf of the Employer.
4. Although the learner referred to in these proceedings is an adult aged 21 years of age, given the nature of the charges and in order to protect her privacy I shall refer to her throughout this award as “the Learner.” In the course of the evidence reference is also made to a fellow female learner and I shall refer to her as “the friend.” The friend did not testify.
5. The proceedings were interpreted and digitally recorded.

EXPLANATION OF THE EMPLOYEES’ RIGHTS

6. At the commencement of the hearing, I explained the following rights to Mzolo, who confirmed that he was aware of and understood these rights:
6.1. The rights to question witnesses of the Employer and to dispute any documentary evidence. In particular, I stressed the need to ensure that any evidence with which he did not agree was disputed by his representative and the need to ensure that his version was put to each witness; and
6.2. The right to give evidence and to call witnesses.
7. Mzolo confirmed that he had been given written notice of the alleged misconduct and that he had appointed his trade union to represent him. He had had sufficient time to prepare for this Inquiry.
8. It was explained to both parties, who indicated that they understood that:
8.1. A separate hearing in respect of sanction in event of a finding of guilty, would not be held. Evidence in mitigation and aggravation of sentence would be presented prior to a finding on the merits of the case having been given;
8.2. They could make closing arguments after all evidence had been heard; and
8.3. In terms of section 120 of the children’s Act I, as the arbitrator, acting on my own or on application of the Employer may make a finding that Mzolo is unsuitable to work with children. It was further explained that as with the question of sanction, that a separate hearing would not be held.

THE CHARGE, PLEAS AND PLEA EXPLANATIONS

9. The charges are at pages 1-2 of exhibit A and read as follows:
“Charge 1
On or about 13 March 2020, at the residence of Mr T Mpofana, you and the said Mr Mpofana intentionally caused the friend and the Leaner, the latter being a female learner then enrolled in the same school that you and the said Mpofana are employed at, (viz Dumehli Secondary School) to become intoxicated before you sexually assaulted them. This is in contravention of section 17(1)(b) of the Act mentioned above. The Act referred to is the Employment of Educators Act 76 of 1998.)
Alternatively
On or about 13 March 2020you and Mr T Mpofana intentionally caused the Leaner, a female learner then enrolled in the same school that you and the said Mpofana are employed at, (viz Dumehli Secondary School) to engage in a sexual relationship with yourselves, this in contravention of section 17(1)(f) of the Act mentioned above.
10. Mzolo pleaded not guilty to both the main and alternative counts. In explanation of his pleas it was stated on his behalf that:
10.1. Mzolo had never owned a flat;
10.2. He had not had a car;
10.3. He never had a relationship with the learner.

SUMMARY OF EVIDENCE AND ARGUMENTS

The Employer’s case

11. In 2020 the Learner was in grade 11 at Dumehlezi Secondary School (the School) and Mzolo had been her class teacher. She has since left the School and is 21 years old.
12. On 13 March 2020 and at approximately 6-7 pm she and the friend had been drinking alcohol at a tavern near her home, when they were approached by Mzolo and Mpofana. Mzolo and Mpofana were in Mpofana’s car at the time and they asked them if they wanted to go and have drinks with them. The Learner and The friend agreed and got into the car. They proceeded to a tavern in Durban where Mzolo and Mpofana bought them alcohol.
13. On leaving the tavern they proceeded to a flat where they found other people already present. The Learner thinks that Mzolo had said that he stays at the flat. They continued drinking alcohol at the flat. After a while The friend went to sleep in a bedroom and Mzolo fell asleep on a couch. The others continued drinking. Sometime later Mpofana told the Learner to wake up Mzolo while he went to wake the friend. When Mzolo had woken he had kissed the learner on her mouth. The four of them had then left the flat for an establishment called Cubana.
14. At Cubana they had remained in the parking lot where Mzolo and Mpofana spoke to their friends. After a while Mpofana suggested that they go to his home. They did so and continued drinking alcohol on their arrival. Nobody else besides the four of them were at the house. Mpofana and the friend at some stage went to the bedroom to sleep. She and Mzolo had then engaged in sexual intercourse in the dining room. It was consensual. The following morning she was woken by Mpofana who was standing in front of her. She was still naked. She called out for Mzolo and the friend who were in another room. When they came she said that she did not know what Mpofana was doing there. Mzolo had then spoken to him.
15. Mpofana had said that he had already bought food. They then proceeded to sit outside where she and the friend ate the burgers that had been bought for them and they all drank the left-over alcohol. It was Saturday morning.
16. Mzolo had said that he had a class to attend to. When he left, the Learner and the friend had accompanied him and he had dropped them off at Elangeni College, from where they had walked home to bath and change. A while later she noticed that Mzolo and Mpofana were parked outside her house. She and the friend got into the car and they left. They first went to the KwaMashu Station where alcohol was purchased before proceeding to the flat where they had been the previous night. They continued to drink alcohol before Mzolo left with another male, who had been present at the flat when they had arrived, to buy more alcohol. At some stage someone, the Learner could not remember who, asked them if they used cocaine. The girls said that they do and Mzolo said that they should relax as someone was going to deliver some. On the cocaine being delivered Mzolo had called the friend into the bedroom where they and four others had smoked cocaine. Mzolo did not participate. The two girls then returned to the dining room where they drank alcohol. They would periodically called back to the bedroom to use cocaine. At some stage Mzolo had called the Learner to the other room where they had again had sex.
17. The Learner and the friend were ultimately driven home by Mpofana. That weekend was the only occasion that she had socialized with Mzolo.
18. Under cross-examination the Learner stated that it had been Mpofana who had initially called out to her and the friend at the tavern.
19. With regards to the flat to which they had gone, the Learner said that Mzolo had told them they owned and stayed at the flat. She did not remember the name of the flat. She recalled that the flat was entered through the kitchen and that there was an open plan dining room and two bedrooms.
20. She had not enjoyed a social relationship with either Mzolo or Mpofana before this particular weekend. She had agreed to go with them as they were known to her and she was bored.
21. She had woken Mzolo at the flat as Mpofana had asked her to do so. She viewed Mpofana as the initiator or ringleader of Mzolo and Mpofana.
22. She was not sure of where the house to which they had gone after leaving Cubana, is situated but she thinks that it could be near Dube Village. It was at night when they had gone there and she was drunk.
23. It was put to her that the house does not have an open plan kitchen and dining room area and that a wall separates the two areas. The Learner maintained that she had correctly described the layout as open plan. There was no wall and she could, for example, seen the microwave in the kitchen from the dining room.
24. She and Mzolo had probably had sex for the first time early on Saturday morning at about 1-2 am. She was unable to recall everything that had happened but she was not making up her evidence. While she had enjoyed having sex at the time she subsequently regretted having done so as they had not been in a relationship.
25. The Learner did not remember exactly when she had reported the incident but thought that it had been about the time of the end of year examinations. She had initially been scared to make a report. She had gone to school on the Monday following the weekend in question.
26. It was put to her that she had fabricated the version and complained only when she had been prevented from writing the year end examinations because she had been absent from school. She agreed that she had only reported the incident after she had been denied the opportunity to write her examination. She had been informed by the deputy principal, Mr Mthembu, that she could not write as she had been absent from school. He had also said it was because she drank alcohol. She had, however, reported the incident on the advice of a certain Sizwe, who lives near to her. She had also told her sisters.
27. It was put to the Learner that Sizwe had had an issue with Mpofana over a woman and that she had been used by him to fight his “battle” with Mpofana. This was unknown to the Learner. Sizwe had advised her to report the incident and she had wanted to do so but didn’t know to whom she should make the report.
28. It was put to the Learner that Mzolo disputed her version in its entirety. It was initially put to her that on the Friday in question he was at his home. The Learner did not agree. It was later put to her that Mzolo had been with friends at Amanzimtoti until late on 13 March 2020.
29. She had conceded that she had been wrong in her evidence in chief when she had said that Mzolo had been her class teacher in grade 11. She had been in grade 10 when he had been her class teacher.
30. Mzolo had not been with her when Mpofana had taken her home at approximately 5 pm on the Saturday. He had left in another car that had been parked at the flat.
31. It was put to her that at 5 pm on 14 March 2020 Mzolo was at his home having attended a ceremony at his neighbour’s.

The Employee’s case

32. Mzolo testified that on 13 March 2020 he had as usual caught two taxis to the School from his residence in Illovo and then when school had closed for the day, Mpofana had given him a lift in his car to the taxi rank in Durban from where he had caught a taxi home. That afternoon he had met up with friends and started to drink alcohol before they had proceeded to his neighbour’s house to assist with the slaughtering of a cow in preparation for a ceremony to be held the following day. He had gone home at approximately 9:30-10:00 pm that evening. The following morning, 14 March 2020; at approximately 7:30-8:00 am he had again met up with friends. They had started to drink alcohol before they proceeded to his neighbour’s residence for the ceremony. He remained there until approximately 10:30-11:00 pm after which he had returned to his home.
33. He had not socialized with the Learner (or the friend) over that weekend of 13 March 2020 or any other time.
34. He did not have to attend a class on 14 March 2020 as testified by the Learner.
35. He did not know why the Learner would falsely accuse him but the person to whom she had allegedly reported his conduct, Sizwe, had had a dispute with Mpofana. Further the Learner had only complained after she had been prevented from writing her year-end examinations due absenteeism. He had, however, not been involved with that decision.
36. Under cross-examination Mzolo conceded that it did not make sense for the Learner to have falsely implicated him when on his own version it was another educator who had prevented her from writing the year-end examinations and Sizwe, who had allegedly advised her to lodge a complaint with the Department, had had a dispute with Mpofana and not him. She had only complained in about September 2020 but she had been compelled to backdate the alleged assault to March 2020 as COVID restrictions had then come into operation and it would not have been believable to have alleged that the incident had happened sometime closer to September 2020.
37. Mzolo had previously been to Mpofana’s house and it is not open plan as described by the Learner.
38. He had taught at the School since 2017 and no other allegations have been made about him.
39. Mkululeko Mjwara (Mjwara) is a policeman and friend of Mzolo. On 13 March 2020 he had met up with Mzolo at approximately 5 pm. They had drunk alcohol together with other friends before proceeding to Mzolo’s neighbour who was preparing for a ceremony that would be held the following day. A cow had been slaughtered and they had continued drinking before they had parted. On 14 March 2020 he had met up with Mzolo and others at approximately 8-9 am at the same premises at which they had met the previous night. They had then proceeded to the neighbour of Mzolo for the ceremony. They had remained there until approximately 6-7 pm.
40. Under questioning by me he stated that he had been approached to testify a couple of days prior to his testimony. He was not sure what ceremony had been held on 14 March 2020. He did not independently recall the date of the ceremony. He had been given the date. If he had had to recall the date he would not have been sure of the date of the ceremony attended by Mzolo and him.

SUMMARY OF ARGUMENTS
41. It was submitted on behalf of the Employer that:
41.1. It was conceded by the Employer that no evidence in support of the main count was submitted;
41.2. The Learner had been candid throughout her evidence; she had admitted to drinking alcohol and taking cocaine; she had consented to having sex with Mzolo; she conceded that Mzolo did not take cocaine;
41.3. The Employee cannot advance any reason for the Learner having falsely implicated him. The Employee had even conceded that the reason advanced by him did not make sense; namely that she had falsely implicated him as another educator had denied her the opportunity of writing her end of year examinations;
41.4. The fact that the Learner had only reported the incident 5 months after the alleged incident, does not detract from her credibility;
41.5. The evidence of the alibi witness that he had only been contacted a couple of days before having testified did not make sense given that the alleged incident had occurred in March 2020; and
41.6. The probabilities overwhelmingly favour the version presented by the Learner on behalf of the Employer.
42. It was submitted on behalf of the Employee that:
42.1. The Employer was required to prove beyond reasonable doubt that the Employee was guilty;
42.2. The evidence of the Learner ought to be rejected in totality as it was a fabrication by means of which the Learner had hoped to extort money from the Employee;
42.3. The fact that the friend of the Learner was not called by the Employer as a witness indicates that such a witness does not exist and supports the allegation that the Learner’s version is a fabrication;
42.4. The Learner had testified that she had enjoyed herself yet she had months later lodged a complaint. This indicates that she was simply trying to benefit from the false allegations against the Employee;
42.5. The Learner was a heavy drinker with questionable morals;
42.6. The Learner had testified that she had been to the flat of the Employee in Durban and that he had picked her up in his car whereas he resides in Illovo and does not own a car;

ANALYSIS OF EVIDENCE AND ARGUMENT

43. The Employee has been charged with having committed an act of sexual assault on a learner as provided for in section 17(1)(b) of the Employment of Educators Act 76 of 1998 (the Act;) or alternatively, of having contravened section 17(1)(f) of the Act in that he caused a learner to commit one of the acts described in section 17(1)(a)-(f) of the Act. In particular, section 17(1)(c) states that an educator must be dismissed if he is found guilty of having had a sexual relationship with a learner of the school where he taught.
44. The representative of the Employer has correctly conceded that the evidence of the Learner did not establish that a sexual assault had taken place. The Employee is accordingly found not guilty of the main count. It is common cause that the Employee was an educator and the Learner was a learner at Dumehlezi Secondary School (the School.) In essence, I thus need to determine whether the Employer has established on a balance of probabilities that the Employee engaged in a sexual relationship with the Learner in contravention of section 17(1)(c) of the Act.
45. The Employer relied upon the evidence of a single witness; namely, the Learner whereas Mzolo himself and Mjwara testified for the Employee. No matter the number of witnesses, I need to consider whether their evidence was reliable and credible and in so doing determine whether the Employer has established on a balance of probabilities that Mzolo engaged in a sexual relationship with the Learner.
46. The defence of Mzolo was a bare denial and in support of such denial he raised an alibi; namely, that he could not have committed the alleged misconduct as he was somewhere else. Mjwara was called as a witness in support of this alibi. Mjwara testified that on 13 March 2020 he, Mzolo and others had assisted the neighbour of Mzolo prepare for a ceremony to be held the following day and that they had then attended that ceremony. Mjwara, however, could not recall the nature of the ceremony and importantly conceded that he had no independent recollection of the date of the ceremony. In this regard, he stated that he had been approached to testify a couple of days before testifying and that the dates had been given to him. He further stated that if he had had to recall the dates on his own, he would not have been able to have done so. In light hereof, Mjwara’s evidence as to where Mzolo was on 13 and 14 March 2020 is clearly unreliable.
47. The Learner is 21 years old. She would have been 19 years old at the date of the alleged incident. She testified in a clear and consistent manner. She in no way appeared to embellish her case.
48. On the contrary, she in no way attempted to depict Mzolo as someone who had used his position to influence her to engage in activities in which she would not normally participate. In her evidence in chief she readily testified that:
48.1. She and her friend had been drinking in a tavern after school;
48.2. They had agreed to go with Mzolo and Mpofana as both were known to them from the School and they were bored;
48.3. She had continued to drink alcohol and had also consumed drugs;
48.4. She had willingly engaged in sexual intercourse with Mzolo on two separate occasions; and
48.5. She had returned to her home on 14 March 2020 to bath and change and then later rejoined Mzolo and others to continue the partying.
49. Similarly, under cross-examination she readily conceded that:
49.1. It was Mpofana (and not Mzolo) who had initially approached her and her friend at the tavern;
49.2. From his conduct during the night of 13 March 2020 it appeared to her as if Mpofana was the initiator or “ringleader;” and
49.3. She had enjoyed herself.
50. The Learner was unshaken during cross-examination and it appeared as if she was simply relaying the course of events that had occurred sometime previously. She answered questions in cross-examination in the same manner in which she had dealt with questions in her evidence in chief. It was submitted on behalf of Mzolo that the delay of approximately 6 months from the dates of the alleged misconduct to the Learner having made a report to the Employer, detracted from the credibility of her as a witness. She testified that she had been scared to report it and had only done so after having been advised by a male friend as to what she should do. It must also be remembered that during this period, movement had been restricted by the COVID pandemic regulations put in place to limit its spread. In any event, It may also be that she did not report the incident immediately as she had always known that she was a willing participant. I, however, do not need to speculate in this regard and I find that the delay in her reporting the incident in no way detracts from the cogency of her evidence.
51. As already indicated the defence of Mzolo is a bare denial. In this regard, there is no onus on him to prove a motive for the Learner to have falsely implicated him. He did attempt to put forward reasons for the Learner to have accused him of misconduct but even he conceded that they did not make sense; namely, that the male friend who had advised the Learner how to lodge her complaint had had a dispute with Mpofana (and not him) and the Learner had been prevented from writing end of year examinations by the deputy principal (and not him.) It is further clear from his own evidence that she had no motive to have done so.
52. The Learner was an impressive witness. I find her evidence to be reliable and credible. As indicated above, the evidence of Mjwara does not assist Mzolo in establishing his alibi. I thus need to weigh the evidence of the Learner against the bare denial of Mzolo. In so doing and for the reasons detailed above, I find that the version of the Learner is overwhelmingly more probable than that of Mzolo. In short, she was an impressive witness; she did not embellish her version to paint Mzolo in a bad light; there is no reason for her to have falsely accused Mzolo and the reasons put forward on behalf of Mzolo for her to have falsely implicated him are not feasible.
53. I accordingly find that over the weekend of 13-14 March 2020 Mzolo had a sexual relationship with the Learner in contravention of section 17(1)(f) read with section 17(1)(c)of the Act. In terms of section 17(1) of the Act the sanction for an educator found to have contravened the said section is dismissal. Mzolo is accordingly dismissed.

FINDING

36. The Employee, ND Mzolo, is guilty of having contravened section 17(1)(f) read section 17(1)(c)of the Act and is accordingly dismissed by operation of section 17(1) of the Act.

INQUIRY IN TERMS OF SECTION 120 OF THE Children’s Act 38 Of 2005, AS AMENDED
37. Section 120(1)(c) of 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 recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” This inquiry by arbitrator is such a forum established in terms of section 188A of the Labour Relations Act 66 of 1995.
38. As indicated above, however, the Learner was not a child at the date of the alleged misconduct and, as such, no order is made in terms of this section.


J Kirby
Arbitrator 04 October 2022