Commissioner: Gail McEwan
Case No.: ELRC18-22/23WC
Date of Award: 12 December 2022
In the ARBITRATION between:
THE WESTERN CAPE DEPARTMENT OF EDUCATION
Union/Employee’s representative: Advocate Fabian Human
Employer’s representative: Ghaatoon Khan
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
(1) Arbitration was held on 20 June 2022 and 10 August 2022 at the premises of the Department of Education in Cape Town. Arbitration continued on 21 September 2022 and was concluded on 30 November 2022 virtually with the consent of the parties. Present was Frederick Booyse (employee) who was represented by Advocate Fabian Human instructed by EG Krynauw attorneys. The Western Cape Department of Education (DOE) (employer) was represented by Ghaartoom Khan (labour relations officer). These proceedings were digitally recorded, an Afrikaans interpreter was present and the employer handed in a bundle of documents. An Intermediary was present when the learner gave her evidence remotely with the necessary consent. The learner will only be referred to as ‘A’ and her mother as ‘MOM’ to protect their identities.
THE ISSUE IN DISPUTE
(2) I am required to determine on a balance of probabilities whether the dismissal of Booyse was fair on substantive grounds. There were no procedural challenges in this dismissal.
(3) I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
THE BACKGROUND TO THE DISPUTE
(4) Booyse started working for the employer on 1 April 2020; worked as the principal of Aurora High School in Aurora (near Piketberg); earned R34 603.75 per month and was dismissed on 22 September 2021 with the appeal outcome being dated 7 March 2022. Booyse was charged with: “It is alleged that you are guilty of misconduct in terms of section 18 (1) (f) of the Employment of Educators Act No. 76 of 1998, by unfairly harming, on or about 24 July 2021, the administration, discipline or efficiency of Aurora High School, by sexually harassing a Grade 9 learner at the school by sending attached WhatsApp messages to her. There are 7 pages of such messages which are spelt out below. Booyse is seeking retrospective re-instatement on a final written warning.
(5) The WhatsApp messages were translated from Afrikaans into English and I felt it prudent to reproduce them in this award as follows (the time of each message is noted here under):-
Part 1: following times of messages Part 2: following times of messages
Booyse : Deleted message (21:45)
Learner A : Hi Sir, were you looking for me Sir (21:51)
Booyse : Yes (22:08)
Learner A: I cannot come up now I am playing pool with Kenan (22:10)
Booyse: Where is that? (22:10)
Learner A : At Christo (22:11)
Booyse: How far is that from me? (22:11)
Booyse : Speak fast child (22:12)
Learner A: it is far (22:13)
Booyse: Coming to get you. Half way. Get you Marlin’s school (22:14)
Booyse : Will get you at Marlin’s school (22:16)
Learner A: what must I come do up there because it is already late (22:18)
Booyse : You are coming to me (22:18)
Learner A : and then (22:19)
Booyse: And Then………. (22:19)
Learner A: yes (22:19)
Booyse: Where are you? (22:19)
Learner A : I am quickly on my way to Robyn I must get my money there (22:20)
Booyse: Come half way to the old school. I will come get you for approximately an hour (22:21)
Booyse: is that ok? (22:21)
Learner A: sorry I can’t its already too late (22:22)
Booyse: Fuck. Only a short time then (22:22)
Booyse : I am walking already (22:22)
Learner A: I am going to sleep with Robyn (22:23)
Learner A: and she is already asleep (22:23)
Booyse: Ok. Come now to the old school. (22:23)
Booyse : Then we can make a plan for another day (22:24)
Learner A: Me and Robyn are coming now (22:25)
Booyse: To me? (22:25) Booyse : That is great (22:25)
Learner A: Yes (22:25)
Booyse : Ok (22:25)
Learner A: I cannot walk alone (22:26)
Learner A: walk (22:26)
Booyse: You will sleep with me. Is that ok? (22:26)
Learner A: I cannot my mother would not allow that (22:28)
Booyse: Just for a time. Not the whole night (22:28)
Learner A: No (22:31)
Learner A: Deleted Message (22:31) Booyse: Where are you? Must I come get you? (22:34)
Learner A: we are sleeping already, I am at Robin’s house (22:34)
Booyse: fuck. You said you guys are on your way (22:35)
Learner A: we turned around because it is cold (22:35)
Booyse: turn around again. Only you. I will come get you at uncle Piet’s place. I am walking already (22:36)
Learner A: No sir I will not (22:37)
Learner A: I am not mad to walk around so late (22:37)
Booyse : I will not beg (22:37)
Learner A: But I am not coming, we will see each other Monday (22:38)
Learner A: Monday (22:38)
Booyse: Then I will take you to a place. Then I will catch something or us (22:39)
Learner A : what must we catch (22:40)
Booyse: Is that ok? (22:40)
Booyse: Ass (22:40) (Urban slang - to have sex)
Learner A: Responding - Is that ok? When is that (22:40)
Learner A: Responding - Ass (Urban slang - to have sex) (22:40)
Booyse : Deleted message (22:41)
Learner A: Sir are you mad (22:41)
Learner A: You are drunk (22:41)
Learner A: are (22:41)
Booyse : No, cannot be mad (22:41)
Learner A: I am going to send this message to your child Sir (22:42)
Booyse : you cannot (22:42)
Booyse : You cannot (22:42)
Learner A: I am going to now I have her number (22:42)
Learner A: and I am going to send this now to the group (22:43)
Booyse : sorry girl, did not mean it that way, what are you guys doing now (22:46)
Learner A : I am going to tell my MOM now (22:46)
Booyse: Are you with Robin (22:47)
Learner A: No (22:47)
Booyse : Tell her I am happy for her (22:47)
Booyse : That she is such an exemplary child (22:48)
Booyse: And for you. Know you will make a success of your career (22:49)
Booyse : God bless you all (22:50)
(6) We spent some time narrowing the issues in dispute. It was agreed that there are no procedural challenges in this dispute. On the substantive side Booyse acknowledged that he had sent the inappropriate WhatsApp messages to a learner but felt the sanction of dismissal was too harsh. Booyse was advised on 8 March 2022 at 10h41 that the outcome of his appeal was that the sanction had been changed to that of a final written warning. On the same day at 11h32 Booyse was advised that the sanction of dismissal had been upheld on appeal. Booyse found this unsatisfactory and held that he should have been sanctioned with a final written warning as advised at 10h41 on 8 March 2022.
SUMMARY OF EVIDENCE AND ARGUMENT
The employer’s version and testimony was as follows:-
(7) Bernadine Kotze (SGB (School Governing Body) chair testified that on Sunday 25 July 2021 the parents of the learner brought the incident that occurred the previous day to her attention. MOM (mother of the learner) had phoned Kotze at 08h30 on the Sunday as she and her husband wanted to meet with Kotze at her house regarding the incident that had happened on Saturday 24 July 2021. On arrival the parents (MOM and DAD) showed Kotze the WhatsApp messages their daughter had received from the school principal (Booyse). Kotze was unsure about what happened next so had called Fariel Jones (school secretary) for guidance. Kotze was asked to come to Jones to share the details. Jones then advised that Kotze contact the circuit manager Nomnikela Gika. Kotze phoned Gika and was advised to email the WhatsApp messages to her and she would take the matter further by following the correct procedures. Both parents and Kotze were very shocked and upset as they had never expected such things from the principal. MOM sent a WhatsApp message to Booyse asking how he could have done such a bad thing adding that the parents were very shocked. Kotze was angered as she too had children. Booyse responded that he wanted to meet to speak about these messages but MOM was too angry. It was never indicated why Booyse had sent those messages to ‘A’ (the learner). On the evening that the messages were sent Booyse had drunk too much and had been intoxicated when he sent those messages. MOM had sent a voice note to Booyse asking why he sent those messages to her daughter. Kotze explained that this was not the first time that the drinking problem of Booyse had been brought to the attention of the SGB. Kotze had met and spoken to Booyse during which she had brought the code of Conduct to his attention as Booyse could have been walking around with alcohol. Having addressed these issues with Booyse, Kotze felt that he was not okay. Kotze asked Booyse to deal with these issues as adults around a table or the matter would be referred to the circuit manager. Booyse was told that there should be no alcohol consumption in front of the learners. Kotze spoke to Booyse about others things as well. Booyse had requested to address the educators in this regard. On 5 July 2021 parents visited the SGB although Kotze was cross as after she had spoken to Booyse the previous day she had become aware that he had another issue. The SGB had to sort out the adult issues. Kotze felt that adults should know better and not put the SGB in this type of position. Kotze was also shocked and angry and this was not an issue between the community and the school. The principal was in charge and had misbehaved. The trust in the principal was shot due to the behavior of Booyse. Kotze became unsure whether the children should be sent back to school. The name of the school was negatively impacted and was being disrespected. The incident also brought conflict between the educators as they were unsure who should take up the post which had also negatively affected the learners. The community also lost trust in the school so they could not then ask for any donations as there were no more allies in the community for support. Once Booyse was no longer at the school the emotions of everyone started to ease. Measures were put in place for C M Wadley as the new principal which post overflowed onto the SGB with an acting mentor. Teaching continued and Kotze felt that should Booyse come back to the school, she would have to resign as chair of the SGB as about fifty percent of the learners are female. Booyse had sent the messages to a learner at night and such appalling behavior could be repeated. Looking at the bigger picture it may happen that the next victim may not be in a position to speak up. The trust between Kotze and Booyse is broken therefore it cannot be expected for them to have any sort of relationship going forward. The needs of the children and their best interests had to come before anything else. The parents felt the same and therefore they cannot work with Booyse. The learners cannot be exposed to this type of situation. Kotze could not be calm. The parents trust the SGB to make the correct decisions and the community would not allow Booyse back at the school. The SGB respected the wishes of the parents and the community so Booyse cannot be allowed back at the school.
(8) In cross-examination Kotze confirmed that she had been chair of the SGB since March 2021. Kotze had first stood in on the SGB until the elections and then her appointment had been confirmed. Booyse had been at the school since April 2020 and at the time of his appointment he had been acting in that position yet the learners at the school had already started asking questions about Booyse. Kotze said that during the period 4 April 2020 to 24 July 2021 there had been no school related problems with Booyse and what he did after hours was his own business. Booyse had said he wanted his personal security. Kotze said that she would intervene if it was brought to her attention that Booyse did anything wrong – such as in this case. Everyone was aware that Booyse preferred stiff drinks after hours and was often drunk. Kotze had tried to sort things out. There was an incident when the learners had a party at the house of Booyse although he had not been at home. Kotze phoned Booyse and told him to sort out the learners. As Kotze got to know Booyse more she was aware he had been drinking since the start. After hours the behavior of Booyse never impacted on his performance but Kotze could not vouch for him. This specific incident had been brought to the attention of Kotze although not part of the day to day running of the school. Booyse had been seen standing with bottles of alcohol by the learners and this was communicated by the parents. Booyse had also visited one of the learners at home. Kotze agreed that Booyse was not the only educator who drinks alcohol after school. Kotze pointed out that this was a small community and there was a need to consider the environment in which they lived. Kotze confirmed that she had spoken to Booyse in this regard as well as when he was attending events. Kotze stated that in the event that Booyse returned to the school she would lock the gates. Kotze conceded that this was her personal view and not that of the SGB, as it should be. ‘A’ was no longer at the school as she had left as soon as she finished grade 9 and chose to finish her schooling at a different school. Kotze had not spoken to ‘A’ since the incident had been reported. Booyse had sent ‘A’ a WhatsApp message although she had never responded to him. The circuit manager had led the investigations and there had been a negative impact on the school as the incident had brought the name of the School into disrepute. Fighting had broken out amongst educators and the trust with Booyse was irreparably damaged. It was difficult for Kotze to say whether this incident had any impact on the pass rate. In the period of the incident things had been bad but had gradually improved. Kotze had meetings with the educators plus the circuit manager and Kotze in the main had to rely on the circuit manager. Booyse had been suspended; a substitute had to be found and everyone wanted to know what was happening. Kotze had responded that the DOE would explain everything. After due process Booyse had been summarily dismissed and this also had an impact on the school. The substitute had to be paid by the SGB which money they did not have. The behavior of Booyse as principal had been shocking to have sent such messages to a learner. Booyse had put the school on the map for all the wrong reasons. Kotze believed that the outcome of this arbitration should be that Booyse not be allowed to work with learners again as she thinks like a parent who needs to feel that her children are safe.
(9) In re-examination Kotze confirmed that it was very wrong plus unacceptable for Booyse to have sent such messages to a learner and he should not even have had the phone numbers of the learners. Booyse had to have sniffed out the numbers for the learners and their details. Kotze felt heartbroken as this should never have happened. Booyse was seen as a wolf out of the door which put the learners in danger. Booyse was the head of the school and should have known better. Booyse had been drunk and had made sexual advances on the learner who was not yet an adult. Booyse had never said he had a drinking problem although he had borrowed money to buy alcohol. Kotze could see he had a drinking problem. There were no questions when I allowed cross-examination on the drinking problem as this had been new evidence. There were no questions in re-examination.
(10) The mother of ‘A’ (MOM) testified that the messages had been sent to her daughter by Booyse in the evening of 24 July 2021 and the daughter had shown them to her. ‘A’ had been crying at the time and said she would never be returning to the school. MOM was shocked as she could not think why Booyse would send her child such messages. MOM had sent a voice note back to Booyse asking the same question and was unsettled by these messages. MOM told ‘A’ that both her parents were going to see Booyse on the Sunday. MOM included in the voice note that she was very disappointed regarding the messages sent. The messages were forwarded by ‘A’ to MOM and it turned out that they never met with Booyse on the Sunday. Booyse had said afterwards that he felt bad but that had not been an excuse for what he had done. On Tuesday 27 July 2021 Booyse said he was sorry as in one night he had messed up his career and future. Booyse expressed that he had not wanted any sympathy; had recognized that this was not the fault of others and after getting a good nights’ sleep had approached Kotze instead. The reason was that the parents of ‘A’ wanted to know what to do next. The parents went to see Kotze who had contacted Gika. MOM confirmed that the WhatsApp messages are in the ER bundle pages 14 to 19. MOM explained that after reading the messages she felt shocked; angry; heart sore and disbelief that a school principal was inviting ‘A’ to lay with him and her child was not that type. MOM could not believe that Booyse had sent that message to a child at his school. It was disturbing that Booyse had messaged ‘A’ that she should lie with him for a while; they would have sex and that this would not take the whole night. ‘A’ had been crying; trembling and said that she refused to return to that school. MOM placated ‘A’ and said she would sort this out. MOM stated that ‘A’ is obedient, well behaved, quiet, and respectful and like others her age can cause a commotion. The incident had an adverse impact on ‘A’ as her school work deteriorated and she became even more withdrawn and quiet. ‘A’ was not a top student but had been progressed up to grade 10. MOM felt that Booyse should never return to schools, especially not this school as MOM still had another daughter at the school where Booyse may do the same thing again. MOM had lost all trust with Booyse and ‘A’ had to be placed at a different school. Both MOM and ‘A’ are still scared as they live in the same village as Booyse. MOM had told ‘A’ to always stay in a group as Booyse drives in the area and MOM still lives in fear. MOM never spoke again to Booyse after she had sent the voice note.
(11) In cross-examination MOM confirmed that prior to 24 July 2021 she did not have any issues with Booyse. MOM trusted Booyse as he was the principal of the school. As soon as MOM saw the messages sent to her daughter all the trust in Booyse had gone. MOM could not fathom how as a leader Booyse could send such ugly messages to her daughter. Even if another child had been involved Booyse had no right to send these messages. MOM agreed that she was terribly upset as ‘A’ was her daughter.
(12) In re-examination MOM explained that as the principal Booyse was expected to do his job, uplift the learners and improve the school. Booyse had been nothing like he should have been when he had sent those messages. MOM felt extremely unhappy as Booyse was not supposed to have acted in this way.
(13) At this point arbitration was adjourned until 10 August 2022 due to time constraints.
(14) Lorika Elliot (head of the ministry at the DOE WC / head of provincial ministry office) testified that her department had sent out the results of the appeal to Booyse. The then minister of education Debbie Schaffer signed off the letters regarding the appeal outcomes which is then sent to the employees and others involved. The personal assistant Thandazwa Ntshonga mixed up the last page of the letters being sent to two employees who had lodged appeals against their dismissals. The second page of the appeal outcome letter accidently sent to Booyse belonged to a totally different case. These letters are on bundle pages 21 and 22. Both letters on the first page refer to the appeal outcome of Booyse. The letter received by Booyse at 10h41 stated on the second page that the sanction would be changed to a final written warning. The letter sent to Booyse at 11h32 on 8 March 2022 corrected this error and on the second page it is stated that the sanction of dismissal was upheld on appeal. In reality the first pages of both letters are exactly the same. Elliot held that this had been a genuine error that had been corrected within an hour. Elliot explained that the second page sent to Booyse had been retracted. The first page was correct and in the body of the first page mention is made of the seriousness of the offence for which dismissal was warranted.
(15) In cross-examination Elliot confirmed that the then minister had dealt with appeals and was the person who took the decision. When appeals against sanctions are received they are sent for a legal opinion. On the return of the legal opinion Elliot worked through this privileged and confidential opinion – which is also done by Mark Mofokeng who was seconded to the ministry of education as their chief education specialist. Thereafter the letters are drafted and with the full record are sent to the minister for her signature. If she is in agreement then she signs the draft which is based on the legal opinion received. The person who makes the final decision is the minister – in this matter Debbie Schaffer. Elliot pointed out sections in the first page that make specific mention of dismissal. The seemingly sudden change from a final written warning to upholding the sanction of dismissal was an error in that the incorrect page 2 had been sent to Booyse. Elliot started in 2019 and had dealt with many appeals from educators. Schaffer had left office in about June 2022 which is when Elliot had also made a change. The appeals seen also included some with sexual assault / sexual harassment. Elliot stressed that an honest error had been made by sending out the incorrect second page to Booyse. In re-examination Elliot confirmed that the outcome of the appeal lodged by Booyse had been that the sanction of dismissal had been upheld. Within an hour the error had been picked up and had immediately been corrected.
(16) Learner A (at the time had been fifteen years’ old) testified that she had been a grade 9 learner at Aurora High School at the time of the incident involving Booyse. Booyse had been the principal of the school and the incident started with ‘A’ receiving a number of WhatsApp messages from Booyse. At the time of receiving these messages ‘A’ had been at home. The first message received had told ‘A’ to come to the house of Booyse. ‘A’ read through the messages on bundle page 14 and confirmed that these were the messages she had received from Booyse on Saturday 24 July 2021. Booyse had also phoned ‘A’ that evening. ‘A’ explained that Booyse was aware to whom he was sending the messages as in one message he had even mentioned her name. Booyse had wanted ‘A’ to come to his home and had said he would fetch her from half of the way to his home. ‘A’ told Booyse he was drunk as he was using swear words in his messages. ‘A’ explained that in the messages on bundle page 15 she had lied about her whereabouts to put Booyse off by saying she was not at home and was somewhere else so that she did not have to go to his home. Bundle page 16 is where Booyse asked ‘A’ to sleep with him and in response she had stated that her mother would not allow that. Booyse said that she need not stay the whole night but just to lie with him. ‘A’ had said emphatically ‘no’. Booyse had said he would fetch ‘A’ and continued to insist she goes to his home. On bundle page 16 Booyse asked ‘A’ to sleep with him and she said that she felt shocked that the principal would say something like this to her. ‘A’ was very unhappy about the messages from Booyse and had shown her mother. At that time she had felt disappointed and had cried a lot. ‘A’ explained that she thought Booyse had got her phone number from one of the school group chats. ‘A’ reiterated at the time of receiving all the messages she had been at home. ‘A’ had told her mother after the last message received which is on bundle page 19. On bundle page 18 is a deleted message from Booyse which had said that he and she will meet to have sex. After that ‘A’ told Booyse that he is mad! MOM was very cross about the messages and had sent a voice note to Booyse. The incident left ‘A’ feeling heartbroken and refusing to return to the school as she was by then afraid of Booyse. When asked how she now felt ‘A’ broke down in tears. Thereafter ‘A’ explained that she was shocked as was her MOM but ‘A’ had never returned to the school. ‘A’ explained she remained scared of Booyse and she had seen him now and then driving in the village as ‘A’ now goes to a school in Piketberg.
(17) In cross-examination ‘A’ confirmed that she was scared of Booyse even when he just drives past her. ‘A’ said she was very uncomfortable in explaining exactly why she was scared of Booyse. ‘A’ explained that that she did not feel safe when Booyse was around. The messages received that night from Booyse had negatively impacted on her school work as she had never wanted to return to that school. ‘A’ said she did not pass the grade in the conventional way but rather she got progressed to the next higher grade. Prior to the incident ‘A’ had minimal contact with Booyse and such contact was limited to him giving out instructions for the class. The evening of 24 July 2021 was the only time that ‘A’ had received messages from Booyse. Booyse had also reported to MOM the next day about the messages he had sent to ‘A’. At the time Booyse had been principal at the school and ‘A’ did not recall how long he had held that position. Before the incident Booyse could be respected as he always made jokes to the class. Following the incident ‘A’ explained that she would not be comfortable with Booyse as a teacher. There are also a lot of female learners at the school and ‘A’ could not think what he may do to them. ‘A’ bluntly refused to accept an apology offered to her by Booyse. It was explained to ‘A’ that Booyse was sorry, had said he was sorry to MOM and had stated that he could not blame the alcohol for what he had done.
(18) In re-examination ‘A’ confirmed that Booyse in the messages had once mentioned her by name. ‘A’ had become very emotional at this time to the extent that the intermediary felt duty bound to take her back from Piketberg to Aurora to the safety of her mother who was at home. Arbitration could not continue as an Afrikaans interpreter was required and the parties then agreed that arbitration should be adjourned.
The employee’s version and testimony was as follows:
(19) Frederick Booyse testified that he held the requisite qualifications; had taught mathematics up to grade 10; had twenty nine years’ of experience and shortly before his dismissal had also taught technology. Booyse had been a school principal since April 2020; had previously held management posts as HOD (Head of Department) for five years at the Steinhof School; had work for the DOE in both the Western Cape and Gauteng; had acted as a deputy principal for two years and had a clean disciplinary record. At this time we needed to adjourn arbitration from 10h00 to 12h30 as our interpreter was in a zone that had load shedding.
(20) Booyse confirmed he was fully aware of the charges against him; aware of what he had done in terms of the text messages sent and had heard it being said that the trust with a number of people had been broken. Booyse explained that this was due to the messages he had sent to an underage girl. Booyse said he felt bad; had given his profuse apologies; feels sad and ashamed. Booyse had apologized to his wife; his children; his colleagues; the parents and indeed everyone. Booyse explained that he is now fifty three years’ old and can still contribute in general and specifically in administration. Booyse was even willing to clean the school to remain part of the DOE. Further Booyse had regard for what the chair of the SGB had said as well as what had been said by MOM and ‘A’ so he needed to be deployed to any part of the DOE. Booyse explained that he believed that the good things outweighed the wrong and felt he deserved to be given a further chance. Booyse was reminded that the witnesses at arbitration no longer trusted him with their children. Booyse explained that it had been a once off thing that happened and generally he was not known of him to have made such a big mess. Booyse explained that if he was given another chance he would pledge that nothing like this will ever be repeated and Booyse trusted himself sufficiently never to do likewise again. Booyse believed that he will look after the second chance, if given. Booyse explained that he suffered from blackouts and did not recall everything as he plus two friends had drunk a bottle of Brandy on the day of the incident. Booyse had a blackout but could not blame the alcohol. Booyse last had an alcoholic drink in the evening of 25 July 2021 and thereafter had stopped drinking as he was shocked about what he had done. Booyse had heard that learners and parents were scared of him yet there was nothing to be scared about. Booyse had not seen ‘A’ ever again which meant he had last seen her in July 2021. Booyse stated that he had last been at Aurora on 6 August 2021 when he had been suspended. Booyse is seeking any type of work. The family currently only receives R350.00 per month in a grant received from SASSA with which to support the entire family of 5 excluding a young man who lives with them. His son is studying at the Potchefstroom University through a bursary he received but Booyse still needs to pay for his transport and food. Booyse had two daughters one of whom is an educator and the other is setting up a school to teach grade R. Booyse explained that he was terribly sorry about what happened and gave the assurance that such behavior would never be repeated.
(21) In cross-examination Booyse confirmed that he was a teacher who knew the prescripts that govern that post. Booyse knew about PAM especially as it relates to the behavior of the teacher. It was put to Booyse that he says he would have no contact physically or verbally with the learners which is unacceptable as he had pleaded guilty to the charges against him and he had transgressed those very prescripts with his behavior towards ‘A’. Booyse agreed that he had been wrong and accepted that his behavior was unacceptable. Booyse was reminded that Kotze had spoken to him regarding his misuse of alcohol and the same day had also addressed the code of conduct with him. Booyse agreed that Kotze had made mention of alcohol at the meeting but those comments had not been directed at him. It was put to Booyse that Kotze had said otherwise. Booyse explained that there is no evidence that he was a drinker and this evidence was hearsay if it had been heard from the learners. It was put to Booyse that he had drunk the day of the incident to the extent that he had blacked out. Further it was put to Booyse that the message he had deleted stated that he and ‘A’ would have sex. Booyse agreed that this was terrible, unacceptable but he could not recall. Booyse said he believed ‘A’ as he could not recall. Booyse agreed that he was suspended by the DOE which shows the seriousness of the matter. Booyse agreed that the charge he faced was very serious. Booyse also agreed that with his twenty nine years’ of experience he should have known better. Booyse explained that he could not understand how it happened as it was out of character for him and agreed that he would not like the same thing to happen to his daughters. Booyse confirmed he understood the seriousness of the charges and what he had done. Booyse said that Gika spoke about a circular two years’ ago which in summary had said that these issues can be resolved internally. Booyse was reminded that the chair of his disciplinary hearing had sanctioned with him with summary dismissal. Booyse said he would have preferred the final written warning as no sex was involved although still serious. Booyse explained that he had read up on the issue and that there are other educators who were found not guilty and still work for the DOE. In addition one educator had touched the knee of a learner and retained his job. Booyse added that even alcohol was not to blame for what happened plus he had stopped drinking all together. He had stopped in order to become involved in community work and for the church. Booyse elaborated that he gave lessons to some from the church congregation and had been doing that as well in the past. Booyse said that he had not needed any help to leave alcohol alone. It was put to Booyse that three years prior to the incident he had stopped drinking. It was put to Booyse that each case was treated on its merits which in this matter brought out his intentions towards ‘A’. Booyse said that was simply speculation. It was put to Booyse that each case was treated on its merits and in this case the DOE had viewed dismissal as the only appropriate sanction to have applied. Booyse explained that he accepts the DOE outcome although he should be given some credit for having pleaded guilty which should lessen the sanction. Booyse was reminded that to date ‘A’ is still scared of him. Booyse did not understand why ‘A’ would be scared as he had only made a mistake. Booyse was reminded that he had brought the name of the school into disrepute. Booyse said he had been shocked to hear what Kotze had thought of him. Booyse was told that the case he is now putting forward does not make sense and this version had not been put to any of the witnesses. The bottom line was that the DOE could no longer trust Booyse with the learners and therefore the sanction of dismissal was appropriate. Booyse said that he did not believe that this was the only sanction available to the DOE.
(22) Maggie Booyse (wife of Booyse) testified that they had been married for twenty seven years; had three children and she was not working at present. Maggie had previously worked at the municipality in Piketberg until January 2021. Maggie is aware of the charges against her husband and had been shocked at the messages he had sent. This was the first time in twenty seven years that something like this had happened. Booyse is a father figure to many of the learners and he has a passion for teaching kids. At home there was an open-door policy and kids appreciated Booyse. Maggie had two daughters and would look at the remorse Booyse had shown. Maggie believed that Booyse should be taken back as this was a first offence. Booyse is human and therefore deserves a second chance.
(23) In cross-examination Maggie confirmed that she had not seen the messages. Booyse had not been aware of the seriousness of what he had done and that through this he may lose his job. If a teacher sent such messages to a person he could still be trusted. Booyse had been under the influence of alcohol at the time and had a black out which resulted in him only seeing the messages on his phone the following morning. It was put to Maggie that Booyse knew what he was doing. ‘A’ had even asked Booyse if he was drunk when she and Booyse were actually speaking to each other. Maggie said that alcohol had played a part in what happened. (In answer to a question in clarification from me Maggie confirmed that she had taken early retirement).
(24) At this point we had run out time and arbitration had to be adjourned before hearing the testimony of the last witness – Jacky Essien (an educator from the school.)
(25) Jackie Essien (educator) testified that she used to teach grades 3 and 4 and is now back teaching grade R. The school numbers had dropped and the school now goes to grade 9. The name of the school remains Aurora High School despite catering for grade R learners. Essien had worked with Booyse since 2020 and found him to be approachable with an open-door policy. Booyse was always available for the educators if they needed anything, be it work related or of a personal nature. With his humour he brought a sense of calm to the school which was now missing. The school had gone through three principals since Booyse had left the school. The educators and Booyse worked well as a team. Essien had been in leadership positions as she is on the SGB as treasurer; is on the school management team and regarded Booyse as a good manger. Essien is aware of the charges against Booyse and believes he should be given a second chance. Booyse always said every child had something in them which was a strength which should be built up as he saw excellence in every child. When Booyse took over as principal he brought in new projects with new leadership and they had new policies. The opinion of Essien was that Booyse was a good principal who went out of his way to resolve issues as they arose. In the absence of the discipline which Booyse brought to the school problems had arisen to the extent that the police became involved due to drug and gun problems in the community. A curator would be put in the place of Booyse in 2023.
(26) In cross-examination Essien confirmed she was aware of the charges against Booyse. Essien explained that she would feel uncomfortable if someone said ‘you and I will have sex’ whether she knew the person or not. If anyone sent such a message to her daughter she would approach that person to find out what was going on and they would speak in person. Essien said that she would trust Booyse with her daughter. Essien had seen the screen shots of the message sent by Booyse. The SGB had placed pressure on the DOE to suspend Booyse. Essien had not previously seen that side of Booyse but still believed he should return to the school as principal. There were no questions in re-examination.
(27) Both parties agreed to send their closing arguments to me by no later than 17h00 on 6 December 2022. Closing arguments were received from both parties, he contents of which have been noted.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
(28) There are no procedural challenges in this dismissal and the procedure followed by the employer aligns with the provisions of Schedule 8 - Code of Good Practice: Dismissals of the LRA and the hence the dismissal of Booyse is found to be fair on procedural Grounds.
(29) On Saturday 24 July 2021 Booyse sent a series of WhatsApp messages to ‘A’ starting at 21h45 to 22h50 covering a period of one hour and five minutes. Booyse at the time could have not been so drunk that be blacked out as the messages are coherently typed out. It was late for a fifteen year old to be receiving any messages let alone such abhorrent messages. Additionally Booyse was asking ‘A’ to meet him half way between his house and hers which meant that at a time in winter when the sun had already set a long time ago he had expected ‘A’ to walk alone in the streets which is preposterous. It was not disputed that Booyse should not have been in possession of her phone number let alone know exactly where she lived.
(30) It was not disputed that in the first message (which Booyse then deleted) he had told ‘A’ an underage child that he would have sex with her. ‘A’ was evidently very shocked and scared by all the messages. First ‘A’ made the excuse that she was playing pool with another at Christo’s place; then she hastily said she had to get her money from Robyn; ‘A’ protested that it was too late to go out to meet Booyse; ‘A’ then said she was going to sleep with Robyn and that she was already asleep; ‘A’ and Robyn were then on their way; ‘A’ and Robyn were already asleep at Robyn’s house; they had been on their way but turned around as it was cold; ‘A’ stated that she was could not walk alone as it was so late; ‘A’ said she would see Booyse on Monday; ‘A’ asked if Booyse was mad when suggesting they would have sex and further asked if he was drunk and then the threats from ‘A’ started that these messages would be sent to all and sundry – which struck home with Booyse and the messages stopped. These were over and above the emphatic ‘no’ ‘A’ had told Booyse more than once. Booyse was the principal of the school; held a position of authority; the other educators at the school reported to the principal and yet that night here was the fifty three year old person in a leadership position making lurid suggestions / comments to a fifteen year old girl. ‘A’ made every excuse she could think of at short notice to deter Booyse from continuing in this vein but Booyse was too focussed on getting to have sex with a fifteen year old child to have noticed that ‘A’ was saying “this” was not going to happen. It clearly had been a traumatic incident for ‘A’ which led her straight to the security and comfort of her mother to show her what had happened. At a time in this country when domestic violence and violence against women and children are in the spotlight it is inconceivable that an educated man could have perpetrated such dishonourable acts against an innocent young girl. ‘A’ had the courage and gumption to make up enough excuses and threats that defeated Booyse in the end. MOM should be proud, as we all are, over how ‘A’ handled this ghastly intrusion on her dignity and private space by a person whom she was expected to have shown “respect”. The actions of Booyse are and will always be despised and are totally reprehensible. ’A’ had done nothing to attract such dishonourable attention.
(31) Booyse did not have an option but to have admitted to having sent those vile messages to ‘A’ as the evidence is very clear in this regard as they came from the phone number of Booyse which phone was in his possession at that time. In the messages sent there is also the use of foul language. Booyse showed regret for his actions and had apologised to all those in his life affected by his disgraceful conduct. The only reason in criminal matters that the sentence may be reduced is if the accused pleads guilty so that it meant that the sometimes lengthy trial was avoided and reduced to only the sentencing part. This is not applicable to disputes held in terms of the LRA.
(32) I found ‘A’ to be consistent in her evidence and without any hesitation she was very firm in her answers both whilst leading her evidence and again when being cross-examined. ‘A’, from her demeanour whilst giving her evidence, showed her distaste of what had happened to her. However we reached a point in cross-examination where ‘A’ was inconsolable to the extent that the intermediary advised ‘A’ could not continue and that he would take her back to her mother in Aurora. This would have been at least the third or fourth time she had to relate what had happened to people in her life or with authority within the DOE. ‘A’ had one session with the social worker and decided that she would never again return to that School and that decision was respected by her parents. ‘A’ was progressed to the next grade in a different school. For ‘A’ the trauma remains.
(33) Booyse glibly said he would have preferred the final written warning as no sex was involved although still serious. The error made when Booyse was sent the wrong second page on the outcome of his appeal was explained as a human error which had been corrected within an hour. Five minutes less than it had taken Booyse to stop sending those lurid WhatsApp messages to ‘A’. The entire purpose of those WhatsApp messages was to rendezvous with ‘A’ to have sex which it was intended would not take what was left of that night. This may have been the first time that Booyse had exhibited such dishonorable intrusions towards a learner which highlighted what he was capable of doing. The character witnesses testified to how much Booyse loved teaching; that it was out of character for him to have visited this unwanted attention on ‘A’ but no-one mentioned how it had to have felt for ‘A’ and the negative impact it had on her life. The remorse shown by Booyse was all about him, his future and the fact that he was unemployed. This is regarded by me as being insincere as he never once mentioned the impact of his behavior on ‘A’; other learners; the reputation of the school; the damming evidence led by the employer and so on. It was a selfish attempt by Booyse to gain sympathy for something which is irreversible. The damage is done to all involved.
(34) There is no doubt that Booyse in his actions brought the school, the teaching profession and the DOE into disrepute. The evidence from the witnesses of the employer were in unison that they had daughters still at the school and would not trust Booyse; Kotze said she would lock the gates should Booyse come back and the SGB needed funding but no-one in the community was supporting the school due to the actions of Booyse. The School was without a principal and the educators who reported to the principal were unsettled. Fighting broke out between the educators as to who would fill the role of the principal. All of this negatively impacted on the administration, discipline and efficiency of Aurora High School. According to the South African Council of Educators Act, 31 of 2000, all educators are governed by codes of professional ethics. The conduct of educators towards the learners should be that of one that refrains from any improper physical contact with learners, avoiding the humiliation of any learner, refrains from any form of sexual harassment (physical or otherwise) of learners. All educators who are registered with SACE must act in a proper and becoming way such that their behaviour does not bring the teaching profession into disrepute. Booyse breeched his obligations in this regard and such behavior cannot be condoned.
(35) Taking everything into account I find on a balance of probabilities that the dismissal of Booyse is substantively fair and that dismissal was the appropriate sanction to have imposed.
(36) The Constitutional Court held that section 28(2) of the Constitution imposes a duty on all of those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Courts and arbitrators are bound to give consideration to the effect their decisions will have on the lives of children, not only in the life of the child who is a victim of sexual misconduct but also the lives of learners in general who have the right to be protected against sexual abuse from educators. With this is mind the only appropriate sanction is summary dismissal.
(37) In terms of my findings Booyse is found to be unsuitable to ever work again with children in terms of the Children’s Act.
(38) The dismissal of Frederick Booyse is found to be both procedurally and substantively fair. Further Booyse is found to be unsuitable to ever work again with children in terms of the Children’s Act. Consequently this case is dismissed.