ELRC 280-22/23GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT SOSHANGUVE TEACHERS DEVELOPMENT CENTRE (SOSHANGUVE)

Case No ELRC 280-22/23GP

In the matter between

GAUTENG DEPT OF EDUCATION EMPLOYER

and

JOHANNES MOKGOKOLO EMPLOYEE


ARBITRATOR: Monde Boyce

HEARD: 28 September 2022 & 24 November 2022

CLOSING ARGUMENTS: 30 November 2022

DATE OF AWARD: 16 January 2023

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] The ELRC scheduled the matter as Inquiry By Arbitrator in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and the inquiry was held on 28 September 2022 at the Soshanguve Teachers Development Centre in Soshanguve and concluded on 24 November 2022 at the employer’s district office in Wonderboom. Mr RA Lethlabi, a trade union representative from the trade union SADTU, appeared for the employee while Mr Justice Ratshilaya, a Senior Education Specialist: Labour Relations, appeared for the employer.

[2] Only the employer submitted a bundle of documents, and which bundle was accepted into evidence. There were no issues with the bundle and both parties accepted the bundle as what it purports to be. An intermediary and an interpreter were also present. Parties requested to make written closing arguments, a request I granted. It was then agreed that parties would submit written closing arguments by no later than 30 November 20122. Both parties duly submitted their written closing arguments by the agreed date.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the employee is guilty of the two charges preferred against him by the department, and to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[4] The employee is employed as an educator at Mabua-a-Tlou Primary School in Soshanguve and taught SeTswana in Grade 7. In the present enquiry, the employee faces the following charges:

(1) “It is alleged that on or around March 2022, you sexually assaulted a Grade 7B learner, (learner A) from Mabua-a-Tlou Primary School, in that you raped her.

In view of your actions, you are thus charged with misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, 76 of 1998 as amended.

[5] The employee pleaded NOT GUILTY to the charge.

SURVEY OF EVIDENCE AND ARGUMENT:

Employer’s Evidence

[6] Leaner A was called as the employer’s first witness. She testified that she attends school at Mabua-a-Tlou Primary School and is currently doing Grade 7. She knows the employee, Mr Mokgokolo. She was standing next to the tree at the school with one of her friends when her cousin, leaner B, came to tell her it was time to go home. They usually walked home, and while walking home, her cousin had told her that the employee had given her R20.00. The other day she went to fetch her cousin, leaner B, from her father’s house, but leaner B’s father refused to let her go. She had gone to Joe’s Meat with the employee, Mr Mokgokolo after the employee had asked her to go inside his car. They thereafter went to a shack, but she cannot remember where exactly it was. The employee asked her to undress, but she refused. By then, the employee was already undressed. She was lying on top of the bed and the employee asked her to lie upwards.

[7] Her body was tense, and the employee climbed on top of her and started having sex with her. After the employee had sex with her, she saw sperms. She told her friend, leaner C about the incident. She also told Miss Mabasa and the principal that the employee had had sex with her.

[8] The employer called learner B as a witness. She is currently doing Grade 5 at Mabua-a-Tlou Primary school and is 10 years old. She knows learner A and leaner A is her cousin. She was at home when learner A arrived at her home with the employee wanting her to come with them. Her father refused to let her go, and she does not know the reasons why her father refused. She knows the employee as an educator teaching them at her school. Learner A told her that the employee gave her R700.00 and she (leaner A) gave her (leaner B) R20.00. She did see leaner A with the employee at Yamampela. The employee and leaner A left for quite a while, but leaner A did not tell her where they went to.

[9] The third witness called by the employer was Miss Refiloe Portia Mphago. She testified that she was employed as a Teacher Assistant at Mabua-a-Tlou Primary School and was teaching Grade 7B. The employee, Mr Mokgokolo is teaching SeTswana at the same school. She is aware of the allegations against the employee. During the week of the schools closing, she heard the learners speaking amongst themselves that learner A slept at the employee’s house. She did not take what the learners said seriously. But later on, she found the learners having moved from their designated desks in the class and sitting next to leaner A’s desk. She had then asked what they were talking about, and the leaners told her that they were talking about leaner A having told them that she slept at the employee’s house. She then called leaner A and asked her what happened. Leaner A told her that she was wearing casual clothes and was wearing a short skirt when the employee drew private parts on his desk while talking to her (leaner A).

[9] She informed Miss Mabasa about what happened, and Miss Mabasa asked her to call learner A. When leaner A came, she told them that Mr Mokgokolo had told her not to tell anyone about what happened. She then told leaner A to relax and tell them what happened. Leaner A had told them that Mr Mokgokolo had slowed his car down when she was walking from school and asked her contact number. She further told them that the employee had later called her and asked to meet him at Joe’s Meat. She told them further that Mr Mokgokolo had asked her to come to his house and had asked her to undress. She had refused, but Mr Mokgokolo had asked her to lie on his bed and he had sex with her. She further told them that Mr Mokgokolo had given her R100.00 and told her to go home.

[10] Miss Rebecca Sekhu was called as the fourth witness. She testified that she is currently employed as the principal at Mabou-a-Tlou Primary School. Leaner A is a Grade 7 leaner at her school. She is aware of sexual assault allegations preferred against the employee. It was on 17 March 2022 when Miss Mabasa came to her office to report the alleged sexual abuse to her as the principal. Miss Mabasa had told her that she had a very disturbing incident to report about a leaner, leaner A, and proceeded to inform her that leaner A had reported to her that she was sexually assaulted by the employee. After hearing about the allegation, she decided to call the learner A and asked her to explain what had happened. Leaner A told her that the employee slapped her on her buttocks, and it was a civies day (a fun day where leaners are allowed to wear civil clothes). She was wearing a short pant. She further told her that the employee had asked her to accompany him to his house. She asked the leaner if she had agreed to go with the employee, and leaner A responded that she agreed to accompany the employee because he was her teacher.

[11] Leaner A told her that on their way to the employee’s house, he had pointed out three houses and informed her that the houses were his. They entered one of the houses and, once inside, the employee had asked her to undress. Leaner A had initially refused to undress, but the employee proceeded to undress her and asked her to lie on top of him. The employee had then asked the learner to hold the bed with her two hands. Leaner A obliged, and the employee started having sex with her. While the employee was having sex with her, she was experiencing a lot of pain and told the employee, but the employee told her to hold on so that he could finish. She then saw a white substance after the employee had had sex with her. The employee had asked her to wipe herself off with a cloth and asked her to dress up. The employee also got dressed and drove her home.

[12] After she interviewed the leaner, she had contacted the district office and she was asked to write a report and email it to the relevant unit in the department. Page 5 of the employer’s bundle contains a report she wrote after the incident was reported. Leaner A is just a young leaner at her school, and she, as the principal, is a mother to the leaners and has a responsibility of protecting them. That is the reason she reported the incident to the district office. She did not say anything to the employee after receiving the allegations. She has a professional relationship with the employee as he is part of management. The employee does like to pass compliments when a person is wearing nice clothes. The employee had complimented her on the way she dressed and would, on some occasions ask her to turn around.

[13] Miss Patience Mabasa was called as the employer’s fifth witness. She is currently employed as an educator at Mabou-a-Tlou Primary School and had started working at the school in 2019. She knows about an incident involving leaner A. An assistant educator, Miss Portia Mphago, had approached her in her class and told her that there was a problem at Grade B and that there was an issue with a leaner who claimed in the class that the employee, Mr Mokgokolo, had slept with her. She had told Portia that this was a serious issue, and she decided to call leaner A and proceeded to ask her about the allegation, and leaner A told her that the employee forced himself on her and slept with her. She had asked leaner A when the sexual assault incident occurred, and the leaner told her that the incident occurred in March and had also told her that during the civies day when she was wearing a short pant, the employee had slapped her on her buttocks.

[14] Leaner A told her that the employee had asked her to wait for him after school, but she did not but left. The employee had found her with her sister next to Joe’s Meat and had given her sister R20.00 and asked her (leaner A) to leave with him. The employee had then asked her to go with him, but because it was late, she refused to go. The following day, the employee had called her (leaner A) and asked her to go with him. On their way they went past her sister, leaner B’s home and asked her to come with. But leaner B’s father refused because he did not know the reason the employee wanted to go with her. She further told her that they went to the employee’s home where the employee had sex with her. She had asked how the leaner felt at the time, and the learner told her that she had felt pain and had told the employee that it was painful, and the employee had told her to wait for him to finish. After having had sex with her, there was white substance that the employee asked her to wipe off with a cloth and asked her to dress up. Leaner A has not been well ever since the incident, and she has become nervous and jumpy and continues asking when the employee will come back and if he will come back to the school. Her relationship with the employee is good and she had always referred to him as “Daddy” and looked up to him as a parent. They even share the same class.

Employee’s Evidence

[15] The employee, Mr Johannes Mokgokolo, testified that on 05 April 2022 when the schools re-opened, he came early in the morning and met Mr Motlhamme, one of the educators at the school who was at the gate. Mr Motlhamme asked her where he had been because they had been trying to call him and proceeded to ask about the allegation of his having slept with a leaner. On enquiring who the leaner was, Mr Motlhamme said it was one of the leaners in his class (Grade 7B) who was not ok mentally. He thought Mr Motlhamme was joking, but it turned out that Mr Motlhamme was serious. He had told Mr Motlhamme that before the schools closed, he was not at the school but was at home preparing for a wedding. He also had from Mr Motlhamme that it had been said that there was no sexual penetration. He went to the principal’s office to enquire about what he heard from Mr Motlhamme. The principal confirmed the allegations but did not say anything further because she (principal) was busy at the time.

[16] He went on with his duties until he received a letter from the district office requiring a response from him on the allegations. He had filed his response to the district and proceeded with his normal duties. Nobody said anything, and he continued teaching and even in the class that leaner A was in. He did not know who the leaner was until he was called to the district office for precautionary transfer. He became aware of the details of the allegations when he received the charges. He was surprised to see the charges with no investigation having been conducted. He does not have three houses as stated in the principal’s report but has only one house and a stand which has the shark that he is staying in with his unemployed wife while his son from his first wife stays in the house. As an elderly person, he would not have taken the leaner to show her his houses because the leaner would have no interest in houses. He could not have taken the leaner to these houses when there are people currently living in them.

[17] He also testified that he could not have made an appointment with leaner A and meet her at a place where alcohol is sold and at a venue with a lot of people. What also does not make sense is why leaner A’s uncle would allow him to take her without knowing where he was taking her to. None of the parents came to the school to report that he had taken the child away. There had not been any report from the SGB and parents about the incident. He does not even know leaner A’s parents. The witnesses contradicted themselves because some of the witnesses stated that the incident took place at a double story while others said he took the child to a shark. Some of the witnesses also stated that he had given the leaner R700.00 while others stated that he had given her R20.00. He suspects that the allegations are a fabrication and it appeared as if there was collusion among the witnesses. Leaner A also appeared to have been guided on what to say. There was a friction that arose at the school when an advertisement for a promotional Post Level 3 was issued, and some of his colleagues had asked why he did not go on pension as opposed to applying for the position.

[18] The principal did not take engage him on the allegations and he had been excluded during the investigation process. Nobody interviewed him about the incident. He does not have a class of his own and moves between classes. The assistant teacher sits alone at her table and when he had free periods, he would use the carboard to do his marking as he did not want to disturb the other teachers and Miss Mphago could not have seen him drawing the private parts as alleged by leaner A. He never met or was interviewed by the police.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS

[19] In the present enquiry, it is the employer that needed to prove the allegations against the employee. Because of the seriousness of the charge, the employer needed to present as such evidence as would, on a balance of probabilities, show that the employee is guilty as alleged. I need mention from the onset that the employee is a lay person, and the representative is a trade union official who did not claim to be a legal practitioner much as the employer representative is a Labour Relations Practitioner. As such, while the employer representative cited case law, I have no intention of writing this award in a language that the employee may battle to understand, and any reference to case law would only be for purposes of amplifying applicable principles that may assist in both parties better understanding how my finding is arrived at. There is, in any event, a trite requirement that awards be written in simply language and without too much legal jargon.

[20] Trite to mention is that incidents of sexual assault rarely happen in the presence of witnesses; it is usually the perpetrator and the victim that are involved. In this case the leaner alleged that she was raped by the employee. Having heard evidence and arguments, it is my finding, on a balance of probabilities, that the employee did rape the leaner for reasons I will be advancing below.

[21] While the employee disputed the charge, evidence by witnesses called by the employer points to the employee’s guilt. While the employee argued that the version of the witnesses called by the employer was a fabrication and while he (employee) suggested that the witnesses version was manufactured, it is my conclusion, on consideration of evidence before me, that the version by the witnesses was not a fabrication and that the witnesses had no reason to falsely implicated him. Starting with the first witness called by the employer, which was leaner A, I had no reason to doubt this witness’s version. I perhaps must mention that leaner A initially appeared to be unsettled and extremely uncomfortably even though she was at an adjacent venue where she could not see the employee. It took a lot of persuasion and encouragement from the intermediary to get leaner A to open up and testify, and she was initially barely audible and was too shy to talk. This could be occasioned by her having to relive the experience all over again.

[22] Leaner A’s version could not have been manufactured. Her version was that the employee took her to his shack where he raped her. Her version on events leading up to the incident taking place were corroborated by leaner B. While both leaners could not give exact details, given their age and the fact that the incident happened earlier in the year, they both referred to the employee having given them money with leaner A stating that she was given an amount of R20.00 while leaner B stated an amount of R700.00 that leaner A said was given to her by the employee, R20.00 of which she (leaner A) gave to leaner B. But there was money that the employee possibly gave to the leaners. Leaner A had testified that she gone to leaner B’s home to fetch leaner B, and that leaner B’s father had refused to let leaner B go. This version was confirmed by leaner B who testified that leaner A had arrived at her home with the employee having parked his car at the gate and that her father refused to let her go. Again, their version is corroborated insofar as the employee having been at leaner B’s home with leaner A.

[23] Leaner A testified that on the date she was raped, she had met the employee at Joe’s Meat where the employee had asked her to get into his car. Leaner B confirmed having seen the employee with leaner A at Joe’s Meat. Important to mention, to show that the leaners’ version could not have been manufactured or a fabrication, is that leaner B referred to having seen the employee with leaner A at Yamampela on the date of the incident while leaner A had stated that she met the employee at Joe’s Meat. It was only when I sought clarity from leaner B about what Yamampela was that it transpired that Yamampela was actually Joe’s Meat and that this was another name Joe’s Meat was referred to, the very place that leaner A stated she met the employee at before the rape incident. The two leaners are both children and they, in particular leaner B who is only ten years old, appeared to be narrating what happened the best way they knew how. I also could not establish any history of friction between the employee and the leaners that would have caused them to single him out as having been the one who had been at leaner B’s home with leaner A and who had been with and had taken leaner A with him at Joe’s Meat on the date leaner A was raped. The employee was not the only male educator at the school. Also, leaner A initially did not set out to report the incident, and it appeared that events that unfolded after she shared with fellow leaners that she had slept at the employee’s house led to the rape coming to light and being reported to the principal. I found both leaners to be credible witnesses and had no reason not to believe their version.

[24] Turning to the other witness, Miss Mphago, who reported the sexual assault to Miss Mabasa, it is my finding again that her version could not have been a fabrication or manufactured as claimed by the employee. Miss Mphago also accidentally got wind of the incident during her class when the behaviour of leaners in her class made her to follow up on what was going on. She initially did not think much about the incident when she overheard the leaners talking about leaner A having slept at the employee’s house. It was only when she found the leaners gathered at leaner A’s desk that she got to know what had happened. From then on, the version leaner A gave to Miss Mphago, Miss Mabasa and to the principal is not materially different. From what she (leaner A) told Miss Mphago, Miss Mabasa and the principal, she was possibly raped by the employee.

[25] After the incident was reported to her, the other employer’s witness, Miss Mabasa, reported the incident to the principal and did so after she also called the leaner and questioned her about the allegation in the presence of Miss Mphago. It is important to mention that leaner A repeated the same story when called into the principal’s office and did so in the presence of the principal and Miss Mabasa. In other words, the version by Miss Mphago, Miss Mabasa and the principal was that as told by leaner A to all of them. Contrary to assertions by the employee, the three educators had not vendetta and no history of animosity with the employee. All of them in fact confirmed having a good relationship with the employee with Miss Mabasa stating that she had a good relationship with the employee and referred to him as “daddy” and that the employee had assisted her with her subjects.

[26] The principal also had a good relationship with the employee and referred to the employee as someone who would complement her attire and would often tell her how good she looked and would at times ask her to turn around. She appeared not to have an issue with this and if she did, any complaint of sexual misconduct would have emanated from her or, being a principal and senior to the employee, would have reprimanded him. That she never did and that she appeared to be stating this casually during the inquiry suggests that she did not view the comments negatively and points to the good relationship she had with the employee. She, accordingly, in my considered view, would have no reason to falsely state that a rape case against the employee was reported to her if this was not the case. I accordingly have no reason not to believe these witnesses. That being the case, it is my finding that the allegation against the employee has been proven. It was then up to the employee to present as such convincing explanation as would negate or point to untruthfulness of the allegation, something that the employee dismally failed to do.

[27] In dealing with the principle of onus, the Court in Compass Group Southern Africa (Pty) Ltd v CCMA and others held as follows:

“Once the Employer provides prima facie proof of the misconduct as alleged, the evidentiary burden shifts to the Employee to prove his own defense. If the Employee then fails to put up a defense or fails to prove his defense, the Employer’s prima facie proof of misconduct becomes conclusive proof, and the Employer has then discharged the overall onus that always rested with it.”

[28] Also, in Emfuleni Local Municipality v SALGBC and others , the Court held as follows:

“An Employee is not entitled to the benefit of the doubt as to the convincing nature of his or her explanation. On raising a particular defense, an evidentiary burden falls on the Employee to establish that his or her version is likely. It is not necessary for the Employer to adduce evidence to disprove positively a defense, especially if the defense is within the unique knowledge of the Employee.”

[29] In this case, I cannot find that the applicant put up a convincing defense. He denied having raped leaner A but provided little evidence to support his denial. All he stated was that he could not have met up with and taken leaner A at a place like Joe’s Meat which was full of people and that the shack he is staying at always has his unemployed wife occupying it and that she is always at home most times. But this defense does not hold water. He provided no plausible explanation on why the two children would link him to the allegation of rape and why, out of all the other male educators at the school, the two leaners specifically singled him out. As part of his defense, the applicant stated that the version by the witnesses, especially his colleagues, was a fabrication and manufactured. He however failed to put a version to the witnesses that their version was manufactured. While he made reference to a friction that was caused by his having applied for a Post Level 3 post at the school and while he stated that his colleagues took issue with his applying for the position and their having stated that he should have gone on pension as opposed to applying for the position, he again failed to put this version to the witnesses. Because he raised the issue as part of his defense, he ought to have adduced as such evidence as would support his claim, something he dismally failed to do.

[30] By his own version and that of one of the witnesses, Miss Mphago, leaner A was a slow leaner and the employee himself referred to her (leaner A) as being mentally challenged, a possibility exists that he took advantage of her (leaner A) vulnerability and possibly thought that nothing would come out of the incident and that, given the alleged mental challenge, leaner A was unlikely to report the incident. I however, on the basis of evidence before and my listening to leaner A testifying, and despite her clear discomfort and unease, cannot find that she was mentally challenged as alleged by the employee. While Miss Mphago referred to leaner A as being a slow leaner, none of the employer’s witnesses, including Miss Mphago herself and the principal of the school, stated that leaner had mental challenges. If it was the case that the leaner had mental challenges, same would have been mentioned by the witnesses who also taught her. None of the witnesses made any such reference and never mentioned that this could possibly have been the case even when they interviewed her. Accordingly, the employee’s claim in this regard is unfounded and unsubstantiated.

[31] Gender based violence and sexual crimes against women and children in South African is a pandemic, a day hardly passes without incidents of sexual assault on women and children being reported. It is thus not possibly that a person in the position the employee as an educator would not have been aware of the seriousness of the kind of conduct as that he engaged in. The employee teaches at a primary school and mostly deals with very young leaners. Given his age and the fact that he is no ordinary employee but an educator, the employee is expected to conduct himself in a manner that befits the position he holds in society. Parents and society at large expect of educators to impact as such values as would make leaners better and exemplary citizens and the employee ought to be aware of the negative impact and harm his conduct occasion on children and their future.

[32] As I often state and as it is often the case in rape or sexual misconduct cases, the scars remain right into victims’ adult lives, and victims almost rarely or never recover from such encounters. Accordingly, a very strong message must be sent to educators found guilty of sexual offences against leaners. Having breached provisions of Section 17(1)(c) of the Employment of Educators Act, 76 of 1998 as amended (the EEA) and which section provides for dismissal of educators found guilty of having sexual relationships with leaners, it is my finding that dismissal must be imposed in the present case.

[33] In terms of the South African Council of Educators (SACE) Code of Professional Ethics educators must: “respect the dignity, beliefs and constitutional rights of learners and in particular children” and educators must: “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school.” This Code is founded on the Constitution of the republic which provides for protection of children from being abused or taken advantage of. Evidence before me is that leaner A has never been the same since the sexual assault and is said to be constantly asking if the employee will be coming back to the school. Given her state on the date of her giving evidence, leaner A seems to be severely traumatized by the sexual assault. Against this background, the conduct of the employee should not be left at his being found guilty and dismissed of the offence he committed but should also be referred to the professional body so that the conduct is also dealt with at that level. In the circumstances, I deem it reasonable to make the following award:

AWARD

[34] The sanction of dismissal is imposed effective from 13 December 2022.

[35] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE for its consideration of appropriate action to be taken.

[36] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and to do so within the prescribed timeframe.

Monde Boyce
Panelist: ELRC