ELRC 361-21/22FS

Commissioner: Zoliswa Taba
Case No :ELRC 361-21/22FS
Date of Award: 18 November 2022


In the ARBITRATION between:


FREE STATE PROVINCIAL DEPARTMENT OF EDUCATION
(Employer)


And


SADTU OBO L.A TANYANE
(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 03 and 04 November 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 L.A Tanyane. Mr D.M Serape, an official from the trade union, SADTU appeared for the Employee. The Employer was represented by Mr B.J Lekitlane 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 parties signed a pre-arbitration minute in which it was recorded that the employee was currently employed as an educator at Sehunelo Secondary School. There were three allegations levelled against the employee of which he pleaded not guilty on all of them. The allegations related to the employee committing a misconduct in that he sexually assaulted a learner where he was employed when he had sexual intercourse with her at his home, alternatively, he had conducted himself in an improper, disgraceful or unacceptable manner.

5. At the time of the hearing, the learner was 21 years of age but due to the sensitivity of the facts of the case, the name of the learner will not be published in this award and she will be referred to as the “learner”.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. It must be noted that an Intermediary, Ms M.E Twala was allowed to be an observer during the proceedings so there can be intermediary assistance available in an event it was needed. The proceedings of 03 November 2022 were interpreted by Mr S.D Skhasa and Mr T. Tshabala provided interpreting services on 04 November 2022.

6. The matter was first set down for 15 April 2022. The notice of se down was withdrawn by the ELRC and a new date of set down was issued on 14 June 2022 for the case to be heard on 21 July 2022. The parties engaged in a pre-arbitration conference and matter could not be concluded. The matter then sat on 03 and 04 November 2022 and was completed. Parties requested to submit their closing arguments in writing by 11 November 2022 and such request was granted.

7. The Employer submitted a notice to attend the disciplinary hearing which included the allegations against the employee. The employee submitted no documents. The parties relied on testimonies of the witnesses they called. The employer called two witnesses and the employee called three witnesses. 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
8. She knew the employee as he was her Sesotho educator in grade 10. During the third term in 2019, she received a WhatsApp message from the employee in which the employee asked for her pictures. She screenshotted the message and sent it to one of the teachers Ms Sekonyane who advised her not to do so. She told the employee that she did not have pictures. The employee called her and asked that she meet with him and they met at bantu police station. When they met the employee asked that she accompany him to his sister’s place.

9. When they arrived there, there was no one there, but just the two of them. She realised that it was the employee’s house and it was the first time she went to the employee’s house. She informed the employee that it was late and she wanted to go home but the employee offered her a drink and said she must first drink. Afterwards the employee told her to take the glass in the house and wash it. The employee followed her to the house and closed the door, played music high, pushed her against the fridge and kissed her. She asked him what he was doing he told her to keep quiet, took off her trouser and threw her in bed and slept with her. He said even if she screamed no one would hear her. Afterwards, while she stood up to dress up, the employee took photos of her and allowed her to go. She went home and never spoke to anyone,

10. The second time around the employee told him to go to his house threatening to release the pictures. She went there and he slept with her again and spoke about her virginity. In December she felt unwell and did a pregnancy test and found out she was pregnant. She informed the employee who invited her to his house. Upon arriving there, the employee gave her some medicine to drink and shortly after she felt dizzy and something like liver came out of her and the employee wrapped it and gave her R24.00 and told her to go to hospital and pretend that she had done abortion there. She took the money but went straight home. She then spoke to Ms Sekonyela again who spoke to the other educators about the matter. The employee was called to the HOD’s office as the principal was not there and he was asked about the allegation but he denied everything.

11. In January 2020, the employee invited her to his house again and slept with her and gave her a textbook as a cover up so that it appeared as if she went to fetch the book. On all three occasions there was no other person at the house.

12. During cross examination, she maintained that it was not the first time she went to the employee’s house in October 2019, she used to go there prior to October 2019 but could not recall the month but they used to meet first at the police station. She was aware that educators were not supposed to have romantic relations with learners and such conduct had to be immediately reported to the principal. She was aware what sexual assault was and she knew it had to be reported to the police. She did not report as she was threatened.

13. She conceded that one Tlhakanelo, who was the employee’s son had been staying with the employee and had seen him when she went to the house but the employee had chased him away. She could not explain what she meant by the employee slept with her. She conceded that she had a romantic relationship with Ms Sekonyela’s younger brother and that is how Ms Sekonyela started talking to her and asked about such relationship, she lied to her and said there was nothing going on. She conceded that educators had said she was fantasising over educators hence they did not trust her story and sent her to a psychologist.

14. She never reported the allegations to her mother as she did not have a close relationship with her mother. She disputed that she pretended to be the employee in her phone and sent messages to her boyfriend, Ms Sekonyela’s brother telling him to stay away from her. She conceded that she lied to her mother about her phone and said she had put it away for a week so she can focus on her books. She maintained that the employee had her phone for that week and had told her that they needed to play Ms Sekonyela. The employee communicated to Ms Sekonyela pretending to be her but she does not know what the employee said as he deleted all the conversations he sent. She conceded that the talks with Ms Sekonyelo were as a result of the message Ms Sekonyela’s brother received.

15. She conceded that in January 2020 she went to the employee’s house but disputed that she went there to fetch a book but that a book was given to her as a cover up. She disputed that there was someone else at the yard when she was given the book. Every time she went to the employee, the employee had texted her to come but she had no proof as she printed all the conversations and gave them to one man from Limpopo who said he was dealing with the case. She maintained that the employee gave her medicine which caused abortion to occur. She conceded that she had lied to one Kopano when she pretended not to know where the employee’s house was when she asked directions to the employee’s house. She was aware that there were other learners and other people staying in the same yard as the employee as the employee also rented a room there.

16. She conceded that she did not report the incident to her mother, that she did not open a sexual assault case with the police and that she had no proof of the texts between him and the employee. There was further no proof that she went for medical examination after the alleged incidents and no proof that she did the abortion as she testified.

2nd witness: Matshediso Motlatsi
17. She was the learner’s parent and only became aware of the sexual assault around October 2019 after Ms Sekonyela and Ms Sekeyi visited her and relayed the incident to her. They informed her that there were allegations that her daughter was sexually assaulted by an educator. She attended a meeting at the school where the issue was discussed but the employee denied sexually assaulting the learner. The HOD then said the matter would be referred to the employer for further handling. On the same day of the meeting, she went with the learner to the employee’s house as she wanted to see where the incidents happened as the employee denied everything. She found the employee’s son who confirmed that he had seen the learner at the house.

18. She had seen the book the learner brought in January 2020 which had the employee’s name written on it. She asked the learner why she had a grade 11 book while she was in grade 10 but learned that the learner had been promoted to grade 11. She had seen a number of call logs from the employee in the learner’s phone but such proof was taken by a man from Gauteng who said he was dealing with the matter.

19. During cross examination, she conceded that the learner never reported the sexual assault to her. She conceded that she did not do any follow up after being made aware of the incident in terms of reporting to the police. She was aware that sexual assault was a criminal offence but thought the employer would involve the police.

20. All she picked up was that the learner would be a little frightened when she entered the room. She once saw bruises on the learner’s thighs in December but the learner would always say she was ok. She denied that the learner did an abortion and as a mother, she would have picked it up even if it was an illegal abortion based on the bleeding and how the learner would have acted. She never saw the learner going through any brutal stage which could suggest that she had been sexually assaulted. She was not aware of any abortion the learner was involved in.

21. She maintained that she was surprised when the learner came back with a grade 11 textbook as when she left the house, she said she went to fetch her book which was supposed to be a grade 10 book. Although she was aware of the sexual assault allegations when the learner brought the book, she did not follow up when she saw the learner carrying a book with the employee’s name on it.

22. She disputed that the learner ever lied to her or to anyone else but later conceded that she learned later that she had lied about the cell phone issue when the learner opened up to her after she had met a phycologist. They had an open relationship after the psychologist visit and the learner said the bruises she had were from a belt used by the employee. She conceded that she did not have proof of the call logs she referred to and maintained that she had handed them over. She conceded that she had no proof of the learner going to a psychologist, to the clinic or even making a police affidavit.

The employee’s case
1st witness: P.J Selepe
23. He was the employee’s friend who was with the employee in January 2020 when the learner came to the employee’s house. On the day in question, he was with the employee on their way to buy some drinks. As they left the employee’s house, they met the learner at the employee’s gate. The learner requested to speak to the employee. The employee informed the learner to wait for him at his house where the son was and that he would attend to her upon returning. Upon returning, the employee went into the house for about 2 minutes and came out with the learner and the learner was holding a textbook and she left.

24. He confirmed during cross examination that he knew the employee for almost 20 years but was not aware that he had been dismissed previously for allegations of sexual misconduct against learners. He conceded that at the time he saw the leaner, he did not know the learner or her name and did not ask the employee what the young lady wanted from him. He only knew who the learner was after the employee informed him of the case that was brought against him.

2nd witness: M. Tumisane
25. He was the employee’s stepson who stayed with the employee in January and February 2020. The learner had arrived at his father’s place and informed him that she was told by the employee to wait in the house to be attended later. Upon his arrival, the employee looked for a textbook and gave it to the learner and the learner left afterwards.

26. During cross examination, he disputed being in Bloemfontein in 2019 and disputed meeting the learner’s mother. He maintained that he was at the house on the day the learner fetched the textbook and that he saw the learner on that day.

3rd witness: L.A Tanyane
27. He was the employee in the matter and denied guilt on all allegations levelled against him. He denied ever calling the learner on her cell phone or sending messages to the learner requesting her to meet him. He denied kissing, touching or sexually assaulting the learner or helping the learner to do abortion. He further denied that he had taken naked pictures of the learner and threatened her. He denied that he had administered abortion to the learner and denied using a belt on the learner.

28. In terms of charge 1 and charge 2, he denied meeting with the learner and denied that the learner went to his house as alleged. He further denied sexually assaulting the learner. As to charge 3, he conceded that the learner had been to his house in January 2020. It was his testimony that he stayed at a place in which there were several people renting in the same yard. There were always people in the yard and it was not true that when the learner went to his place, there was no one. In January 2020, he was on his way to go to buy alcohol accompanied by his friend, Mr Selepe when he met the learner at his gate.

29. The learner told him that she came to borrow a Sesotho textbook. She asked the learner why she did not tell him she was coming as he would have made the book available. He told the learner to wait for him inside the house where his son was, so he could attend to her upon returning as it was not far and he was not going to be long. Upon coming back, he left his friend outside and entered the house to attend to the learner. In the house it was the learner, himself and his son. He went to fetch the textbook and gave it to the learner in the presence of his son, and the learner left.

30. The Learner had pretended to be him and sent a message using her phone to Ms Sekonyela’s brother telling him to leave the learner alone. Ms Sekonyela contacted him to find out about the message and he told her that he did not know anything about the message. It was his testimony that the learner had a tendency of lying as he lied to her mother, to Kopano and when she lied to Ms Sekonyela.

31. During cross examination he denied all allegations levelled against him. He was not sure why the learner made up the allegations against him. He maintained that he asked the learner to wait and could not immediately attend to her as his friend did not know his way around the area. He maintained that in 2019 he was staying with his wife and children. He conceded that he had previously been charged for a similar misconduct but he appealed the decision successfully hence the reinstatement.

Parties’ arguments
32. It was the employer’s argument that the employee failed to rebut the testimony of the learner as a result he was guilty of sexual misconduct. The employee had committed a similar misconduct previously and showed no remorse. It was the employer’s prayer for the employee to be found guilty, dismissed and be deemed not fit to work with children as his conduct was a serious breach of his employment contract.

33. On the other hand, it was the employee’s argument that the employer failed to prove the allegations against him. The messages and calls testified on were not produced as evidence, no criminal case was opened to prove that the incident took place, there was also no medical report submitted indicating that indeed the learner was sexually assaulted. It was the employee’s case that the learner had a habit of telling lies and had also created a lie against him. The prayer was for the allegations to be dismissed.

Analysis of evidence and argument
34. There are three allegations brought against the employee of which all are similar with the exception of the dates. It is alleged that the employee had sexually assaulted the learner at his house during the third term, in October 2019 and in January 2020. It is common cause that the learner was at the employee’s house in January 2020 but the employee denies that the learner was at his house during the third term and in October 2019. Furthermore, the employee disputes sexually assaulting the learner.

35. It is therefore important to deal with each allegation separately in terms of the periods stipulated and to make a finding on each allegation. In this matter, the onus is on the employer to prove that the employee indeed committed the acts alleged he committed.

Charge 1: “sexually assaulting the learner during third term in 2019 at the employee’s home / alternatively- conduct, which is improper, disgraceful or unacceptable by having sex with the learner at the employee’s home”

36. The learner testified that the employee had sent her messages requesting her to meet him and they met at a police station and ended up at the employee’s house where the employee slept with her. The employee denied ever calling or sending messages to the learner. The learner testified that all the messages and proof of call logs were screenshot and given to an unnamed person who said he was dealing with the matter. The learner’s mother also supported the testimony that evidence was given to an unnamed person.

37. This testimony is not probable as it is not reasonable for a person to give away all evidence to the person unknown to them, a person both the learner and the mother failed to describe, more so when one considers the seriousness of the act which is alleged to have taken place. Even if it were to be accepted that such evidence existed and was given away, clearly, the cell phone which was used to screenshot the messages and calls was left with the learner and her mother and as such, it would have been brough forth. It was not the testimony of the mother and the learner that the cell phone was also given to this unknown person. Therefore, the testimony on calls and WhatsApp is rejected.

38. As to the learner meeting the employee at the police station and going to his house, such is disputed by the employee. It was further the testimony of the learner that prior to the employee asking her to come over, he had requested that she send him her pictures but she said she did not have them after she obtained advise from her other educator. The fact that she contacted her other educator to inform her about the request is an indication that the learner viewed the alleged request as improper. Although she did not accede to the alleged request, she alleges that she agreed to meet the employee somewhere, which was outside the school environment. The pertinent question to ask is why would the learner agree to meet someone who had showed improper interest in her outside the school environment and without asking why they had to meet?

39. Furthermore, it is her testimony that she agreed to accompany the employee to his sister’s house, again she did not ask him why she had to accompany him, this is the same person alleged to have requested improper pictures from her. The testimony of the learner around the calls, WhatsApp and meeting the employee is not probably taking into consideration that the learner at that time was a young adult who knew what is right from what is wrong yet raised no concerns to the employee about his actions. Furthermore, if indeed the employee had requested to meet the learner as alleged, it is probable that the learner would have again contacted the same educator she alleges she contacted with the picture issue to inform her that the employee was not stopping and now requesting to meet her. This, she did not do.

40. As to the issue of the employee sleeping with the learner, the learner could not explain exactly what “slept with her” meant. All she said was that the employee slept with her. Only after a clarity question was asked, she mentioned that she was pushed against the fridge and thrown on the bed and her pants were taken off. No explanation was given as to whether the fridge was in the same room as the bed or whether they moved from one room to another. During her testimony, the learner appeared unsure about what exactly transpired even when she was asked direct questions, she would not explain the events properly as they allegedly occurred.

41. The learner testified that she was a virgin when the first alleged sexual encounter happened between her and the employee. This would then mean that whatever the learner experienced was somewhat foreign to her as it would have been her first sexual encounter. Since the alleged incident was forced on her, it is reasonable to expect that it would have left her with emotional scars and probably with physical scars as well. Surely one would at the very least expect the learner to testify clearly on what transpired not to just summarise and say the employee slept with her as she was a young adult at the time who had no proven psychological or mental challenges.

42. Sexual assault is a traumatic incident and it happens that some victims keep quiet and do not talk about what transpired until later when they feel empowered or safe to tell it all. What cannot be hidden is the effect which is left behind on a victim after such an encounter. With this in mind, no testimony was given by the learner that after such encounter she sought medical assistance. On the other hand, it was her mother’s testimony that she did not see her child going through any emotional or physical trauma which could suggest that she could have been sexually assaulted.

43. Based on all this, there is not enough evidence before me to conclude that indeed there was sexual assault which was committed by the employee during the third term or that the employee had conducted himself in an improper, disgraceful or unacceptable way by having sex with the learner. As a result, the employer failed to lead convincing evidence that the employee indeed sexually assaulted the learner or had sex with her during the third term.

2nd charge: “sexually assaulting the learner in October 2019 at the employee’s home / alternatively - improper, disgraceful or unacceptable conduct by having sex with the learner at the employee’s home ”.

44. In terms of what is alleged to be the second incident, the learner could not explain what happened in October 2019. All she said was that the employee contacted her and threatened to publish the pictures he took after the alleged first incident if she failed to come to his house. When asked what exactly transpired on this day, the learner’s response was that she could not explain. If the very same person who alleges that a brutal act was committed towards her fails to give even little details of the incident, how then can one make a finding that there was sexual assault?

45. The learner left the issue of October 2019 without explaining and focused on the incident alleged to have happened in December 2021 of which the employee was not charged for. Even on the same incident, she only explained that the employee performed abortion on her by giving her some medicine to drink. On the other hand, it was her mother’s testimony that she would have been able to notice something in her daughter if she had performed an illegal abortion, she disputed that her daughter could have been involved in any abortion. It must be noted that after the alleged traumatic incident, again, no medical assistance was sought.

46. I am therefore not persuaded that the employer led evidence which on the balance of probabilities proves that an act of sexual assault was committed on the learner in October 2019 or that the employee had sex with the learner and conducted himself in an improper, disgraceful or in an unacceptable way. Therefore, there is not enough evidence before me to make a finding of guilt.

3rd charge: “sexually assaulting the learner in January 2020 at the employee’s home / alternatively- improper, disgraceful or unacceptable conduct by having sex with the learner at the employee’s home ”.

47. As to this allegation, it is common cause that the learner made her way to the employee’s house in January 2020 but her testimony was that there was no one at the employee’s home when she was there. This testimony was disputed by the employee and his two witnesses who testified that they had seen the learner in January 2020 at the employee’s house. The learner had first testified that in all three occasions, there had been no one at the employee’s house but later conceded during cross examination that there was one day when she found the employee’s son at the employee’s home. This testimony supports the employee’s testimony and his two witnesses who said the son was there when the learner arrived there.

48. Furthermore, it was the learner’s testimony that she went to the employee’s home after the employee called requesting her to come over and that the textbook issue was a cover up created by the employee when the learner had to leave the employee’s home. On the other hand, the learner’s mother testified that when the learner left her house in January 2020, she said she was going to fetch her textbook. If indeed the learner told her mother that the purpose of leaving the house was to fetch a book, why would she testify that the book issue was brought up by the employee after he allegedly sexually assaulted her as a cover up?

49. The testimony of the mother and the learner contradictory. What is clear is that the mother’s testimony supported the employee’s testimony as the employee said the learner upon arriving asked for a textbook. Both the employee’s witnesses testified that the learner went into the house where the son was and left shortly after being given the book.

50. The learner did not explain the sexual encounter of January 2020 as to what exactly transpired. All she said is that the employee slept with her and again said she could not explain what exactly happened. The two witnesses of the employee were consistent on what they testified on. What they did not know, they were straight forward to say they did not know and maintained their testimony throughout without any contradictions.

51. Furthermore, it was the mother’s testimony that she became aware of the alleged sexual assault after the second incident. It was the mother’s testimony that the learner brought a textbook with the employee’s name on it. It is surprising that the mother, who was aware of the alleged sexual assault was not disturbed when she saw the learner coming home with a book indicating the name of the person who is alleged to have assaulted her daughter. She did not ask where she got hold of such book and did not even take it upon herself to contact the employee to address this issue or warn him to stay away from her daughter. The question then to ask is whether indeed the mother believed that such act had occurred? If indeed she did, as a concerned parent, she would have done something and not let such issue slide.

52. Without any reasonable evidence proving that the employee committed misconduct as alleged, I cannot find him guilty on this charge.

53. In this matter, the allegation is that all communication between the learner and the employee in relation to the visits was through calls and messages which were screenshot but such proof was not submitted. Furthermore, the allegation is that the learner was a virgin who was assaulted in that sex was forced on her, abortion done on her, assaulted with a belt. This then means the learner suffered a brutal act under the hands of the employee but no medical assistance was sought and no medical report was submitted to support this.

54. In addition, the educator alleged to have been informed by the learner about the employee was not called to testify. Since these allegations are of a serious nature, they are criminal in nature but none of the parties involved in this matter made any attempt to open a criminal case against the employee. There is no proof before me indicating that the learner, who was already a major at the time of the commission of the alleged assault was psychologically or mentally affected hence she did not know that what was allegedly done to her was a criminal offence or was against the school rules.

55. In fact, she testified that she was aware that it was prohibited for learners and educators to have sexual relationships and she was aware that sexual assault was a criminal offence. She conceded during cross examination that she knew the line of reporting if such incidents happened. The mother also, after finding out about the allegations, made no attempts to make sure that the employee who allegedly took away her daughter’s innocence forcefully was arrested.

56. Having considered all the evidence before me as a whole, it is my finding that the employer failed to prove on balance of probabilities that the employee committed misconduct as charged. Therefore, the employee is found not guilty on all three charges and the allegations against him are dismissed.

Award
57. The employee, L.A Tanyane is found not guilty on all three (3) charges levelled against him.

58. The charges against the employee are dismissed.


ELRC PANELIST: ZOLISWA TABA