ELRC456-21/22 GP

Panelist: Kuvonakala Chavalala
Case No.: ELRC456-21/22 GP
Date of Award: 12 December 2022

In the ARBITRATION between:

Oudrew Samuel Bezent
(Union / Employee)

and

Department of Education Gauteng
(Employer)

Union/Employee’s representative: Initially Mr. Chabalala then self

Employer’s representative: Ms. Motalib

DETAILS OF HEARING AND REPRESENTATION

[1] This is an award between Oudrew Samuel Bezent (hereinafter referred to as “the employee”) and Department of Education Gauteng (hereinafter referred to as “the employer”). The matter was set down as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (“the LRA”) and also in terms of clause 32 of the ELRC Constitution (as amended). The hearing sat on several occasions and was finalised on 30 December 2022.
[2] Clause 3 (3.1) Collective Agreement 3 of 2018 of the ELRC provides that 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 Education Labour Relations Council (“ELRC”), shall be mandatory. The employee was charged sexual misconduct against learners.
[3] I informed the parties that the names of the learners will be omitted from the award since they are still minors.
[4] The employee was initially represented by Mr Chabalala, an official from SADTU. The employer was represented by Ms Motalib from the employer. When the victim learner testified, the applicant was represented by Mr Chabalala and he started representing himself after the testimony of the child witness.
[5] The employer submitted a Bundle of documents which we named Bundle R. The employee submitted a bundle which was marked Bundle A. During the course of the hearings, supplementary documents were also received from the employee and were added into his bundle.
[6] Parties had to submit written closing arguments on or before 07 December 2022 and both did so.
[7] The hearing was held in English and it was digitally and manually recorded.
[8] The applicant was absent on the day that the victim child witness gave evidence. The employee applied for the recalling of the witness. I have dealt with this request in an interlocutory application. I issued a ruling and such ruling was served of the parties. The contents of the ruling are repeated as if herein specifically incorporated.

ISSUES TO BE DECIDED

[9] I am required to decide whether the employee committed misconduct as per the allegation levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction.

BACKGROUND TO THE ISSUES TO BE DECIDED

[10] The employee is currently employed as an educator and is stationed at Klipspruit- West Secondary School. The employee was notified of the allegations on 04 October 2021 and he was placed on precautionary transfer since the notification of the allegations.

[11] The allegations levelled against the employee are as follows:
• Allegation 1

It is alleged that on or around 31 May 2021 you sexually assaulted KD, a grade 8B learner at Klipspruit West Secondary School, in that you drove her to your home in Protea Glen and raped her.

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


[12] The employee pleaded not guilty to the charge.

[13] The following issues were found to be common cause: -

a) The employee has been reinstated by the employer since September 2020 as a PL1 educator. This was following a settlement agreement that was reached after he had been dismissed by the employer in March 2019. He was previously dismissed for alleged sexual offences against learner(s). He was stationed at Klipspruit Primary School.
b) The employee has been precautionary transferred to Johannesburg Central (D14) offices. Employee was given a notice to attend disciplinary hearing with clear charges and it informed him of his rights.
c) All offences under section 17 of Employment of Educators, Act 76 of 1998 (as amended) (hereinafter referred to as EE Act) prescribe a mandatory dismissal.

SUMMARY OF THE PARTIES’ EVIDENCE AND ARGUMENT

This section only records the summary of the evidence that was tendered and not the verbatim testimony of the witnesses. The case was digitally recorded, and such recordings can be provided to the parties upon request.

Employer’s case


[14] The employer called two witnesses who testified as follows:

First witness: Learner KD, whose identity is withheld due to the fact that she is a leaner who was at the time of incident and testimony a minor. She understood what taking an oath is. She was 14 years old and testified under oath with the assistance of an intermediary, Ms Shibisi who also took an oath. She testified in camera. The summary of the evidence is as follows:
[15] The employee was her Afrikaans teacher. He called her and asked her where she stays and she told him she stays in Soweto Senawane. He told her that he drives past Senawane on his way home and he would not mind giving her a lift after school. She told her friend Kb, that the employee had offered her a lift.

[16] Afterschool he parked next to Buyrite where they would normally wait. She was with Kb at that stage. She went to the employee’s vehicle and sat at the back seat. On their way, he told her that someone was admitted at Baragwanath Hospital and he wants to buy fruits for that person and asked if he could quickly pass there; she agreed. The employee bought fruits and went into the hospital to drop them. He came back and they drove. When they arrived at Senawane the employee drove past so fast. She asked him why he was driving so fast and passing Senawane. The employee told her that he was going to collect something from his home and he would bring her back to Senawane.

[17] On the way, she saw a road sign that was written Protea Glen extension 11, and they arrived at his house. He parked the car outside and went inside the house, she remained in the car. Moments later, he went to the car and asked her to come into the house because he was still busy with something. She went in and sat in the lounge on the sofa. He locked the door and started touching her. She asked him what he was doing and she told him to stop. He took her to the bedroom and there was a towel already, he took off her panty and tight and he raped her. She bled and the towel had blood on it. He took the towel to the bathroom; the towel was white in colour. When he came back, he told her that he can take her home. She wore her panty and tight pants. All the time during the rape she was pushing his hands and telling him to stop but he did not, he kept saying “don’t worry ak’siyinto” meaning that this is a nothing.

[18] On the way, he asked her if she uses prevention and she said no. He then drove into a complex and went to the pharmacy and came back with a white pill with water and asked her to drink it and she did. He dropped her off next to Senawane and told her not to tell anyone about the incident. The next day, she told her friend Kb that the employee had raped her.

[19] She stays with her dad, grand mom, her aunt’s kids, and her brother at home. On 31 May 2021, she did not tell any of her family members about the rape because she thought they would not believe her. She ended up telling her dad that same week but few days after. She was under pressure because she had started getting calls from some of her friends who were telling her to report before it was too late. She suspects they heard from Kb.


[20] Her dad suggested they open a case and related the incident to her grandmother. He asked if she knew the employee’s house. She told him if they could get to Protea Glen extension 11, she would find it. Her dad took her there and they got lost a bit because she is not familiar with Protea Glen. After having roamed the streets for a while, she saw the house and she pointed it out. The employee was not there but there were other people who confirmed the employee stays there. She and her dad went to open a case, she wrote a statement and went home. After two days, two detectives came and she and her father took them to the employee’s house. The employee’s car was not there. The police left and told her and her father to phone when he arrived back. They waited and saw employee arriving and he went to another house. Her father called the police and they arrived. They all went to the house and the police asked her who was the person that had raped her and she pointed the employee out. They asked her if he knew her and he agreed that he taught her. The police arrested him.

[21] She saw a statement on page 8 of R bundle that was allegedly written by her dad purportedly withdrawing the case against the employee. She denies that she is withdrawing the case or that she was even with her father during the time the statement was made. She has not been home since December 2021, she ran away. Her father had indicated to her on the last sitting of this case at the department that he is tired of the case and he might lose his job because of the postponements. Also, the employee had offered him R20000.00 to withdraw the matter.

[22] She did not write the ‘withdrawal’ statement on page 9 also and that is neither her writing nor signature.

[23] If the employee denies the allegation, he will be lying because she cannot just say he raped her while he did not.

Second Witness: Faried Davids testified under oath and the summary is as follows.

[24] He is the principal at Klipspruit Secondary School. He is the one that authored a report on page 5 of Bundle R and he delivered it to the district office.
[25] The police arrived at school on 14 June 2021 in the company of KD’s father (Bongani) looking for the employee on allegations of rape of KD who was a learner at school. The employee was not at school but the learner was. Bongani signed the learner out and they left.
[26] The following day, the IDSO one Mr Marks, Ms Motalib, and a lady from the Institute for Social Support came to school. Bongani was invited to school also. Bongani related the incident as it was reported to him by his daughter KD. He was visibly very angry, like a dog that was about to pounce. After that meeting, Bongani would at times arrive at school to give update about the case and insist that justice must be served because his daughter was violated.
[27] When the case set on 06 and 07 December 2021, he drove KD and her dad to their home. He heard Bongani telling KD that the employee had offered R20000.00 for the cased to be dropped.
[28] Him and the employee had a good relationship. The employee was cooperative.
[29] On 03 June 2021, the employee reported that some learners had been going through his phone. He does not know why it was a concern for the employee. The learner was not attending school and it was reported she was at place of safety.
Cross examination
[30] When the employee reported the phone issue, it was in passing. The employee had finished giving feedback on how his fiancé is doing at hospital. The employee never mentioned names of the learners.
[31] He stated that he was initially not aware that the allegations that lead to the employee’s dismissal in 2019 related to sexual assault of learners. The employee just told him that he had disagreements with the previous principal as they were contesting for same position at SADTU

THE EMPLOYEE’S CASE
First witness: Oudrew Samuel Bezent, the employee testified under oath and the summary is as follows:-
[32] He was previously dismissed by the employer on charges of sexual assault. He declared a dispute at the ELRC and same was settled under case PSES446 as a reinstatement as a appears on the settlement agreement on his bundle of documents.
[33] On 31 May 2021 he was at school but he was not well as he was still going through the trauma of his wife who was hospitalised as a result of attempted suicide. He left his phones charging in class and went to his car to just take a break. He left his class with Mr Lens Golden, the teacher assistant. When he returned, he found KD and her friend KM on the teacher’s table looking at his phone and giggling. Their other friend, Kb was just leaving the teacher’s table. He angrily said, “who the hell gave you permission to go through my phone?” KD said “sir, your house is beautiful”, she had obviously seen it in the pictures. He was very furious and passed sliding remarks at them like “if you are used to go through your parents’ phones, I’m not them. Don’t touch my phone. Where do you get a right to put your greasy fingers on my phone”.
[34] He used to ferry a girl by the name of BS to and from school, her mom was paying him. On 31 May 2021, he was with BS in his car afterschool. When they passed the complex, he saw KD hitchhiking and he remarked to BS that he would not give her a lift because she went through his phone. BS suggested that he gives a lift and not be too hard on her. He then thought maybe she wanted to apologise so he gave her a lift. He told her he would pass by Baragwanath Hospital first to give his fiancé fruits and she agreed. After the hospital visit, he dropped her at Chiawelo Clinic. He then went to pharmacy with BS to get morning-after-pills for Thembelihle. Thembelihle is his girlfriend whom he had sexual intercourse with on 31 May 2022 and their condom broke.
[35] Later that day. Tumi, his friend went to his house and watched tv together. Tumi was a tenant staying in the outside rooms at the employee’s house. He told Tumi about the incident of learners going through his phone.
[36] Some functions of his phone were not working properly and learners know how to read the lock pattern imprints on the phone and trace over it.
[37] On the days to follow, he experienced some attitudinal problems and rebellion from KD and Kb which he reported to the principal. On 14 June 2021 KD, her father and two police officials arrived at his neighbour’s house where he was and arrested him for the alleged rape of KD. He was arrested and incarcerated pending formal bail hearing. He was finally released on 26 August 2021. He was then precautionarily transferred to the district office. As part of his bail conditions and precautionary transfer, he was not supposed to talk to KD.
[38] On 26 September 2021 while he was at Shell garage with Tumi Monagadi, KD just popped out of nowhere and just went straight at them and pleaded for a chance to speak to him. He initially did not agree but ended up agreeing. KD said she was in a taxi on the way to his house and she saw him at Shell garage and alighted. She wanted to apologise to him. He then came with an idea of recording the conversation in order to cover himself. Tumi was the one recording the conversation.
[39] The employee summarised the content of the video and basically stated that KD had admitted to fabricating the rape story with her friend Kb and that she wanted to withdraw the case. On 21 January 2022, the criminal case was withdrawn by KD and her father. KD’s father said he would also send withdrawal of the case at the department of education as per affidavit on bundle A. The withdrawal was objected by the employer and the arbitrator proceeded with the case.
[40] There were similar allegations of this nature against him that lead to his dismissal around 2019. The case was ultimately settled because the child learners no longer wanted to testify because they were made to lie against him by Ms Motalib. Ms Motalib has a vendetta against him and wants to get rid of him. They have history of squabbles as outlined in his complaint lodged in 2017 December against Ms Motalib on bundle A but these were just swept under the mat.
[41] On one of the video clips, the conversation goes as follows:
Employee: this thing on your father requesting R50 000.00 how did it start because you told me your father doesn’t care about you. Then what did you say to him when he said he wants R50000.00
KD: ‘coz I was talking to my grand mom whom I stay with. I was asking her that we do a cleansing ceremony. The only thing he is looking for is money, and doesn’t care about anything that happened, the focus is money
Employee: tell me, why is Karabo getting involved on things she does not know and she has told a lot of lies
KD: I don’t know because I was not there
Employee: Why does she lie. You know I never reaped you. You see how ugly this thing is, in the township they laugh at me and I am afraid you are approaching me to talk. I said I don’t want to talk to you because I went to jail for three months. I came back this way, you see how thin I am. I just wanted to kill myself, even now I was asking myself, Bezent what is it that you have to do because I don’t see that my life will ever be the same
KD: I think we will have to drop this case and they will take you back at school
Employee: it will depend, if you can tell them, I don’t want to force you, I don’t want to tell you what to do.
KD: not that you are forcing me but I want you to be free because I blame myself for why I told Karabo.
Employee: I’m not saying I will blame whoever, you are telling me that Karabo created these stories of rape and Karabo was not there. Maybe she was jealous of seeing us together at school and you know that I was talking to everyone.
KD: at school they were asking why I was close to you
Employee: you know I talk to everyone, not that I was giving you attention, even Palesa is always talking and dancing for me. So eish, I don’t know. That’s why I say the only thing is if a family member or Gogo wants peace in this to speak to invest…
KD: I prefer grandmother not dad
Employee: Not your dad because your dad is looking for R50000.00 and I don’t have it, they think I have money, I don’t. Let your grandmother speak to the police officer so we can drop the charges. Sharp, let’s take it from there but as of now I’m afraid that I could go to Suncity anytime from now. We are talking you and me and it does not sit well with me. I am scared. I got scared when I saw you coming. I’m telling this person, is that KD, what is she looking for and he said I must be free to talk to you. You also saw me, I believe it was for the first time seeing me like that, I was crying when I think of what the hell I went through. I lost a lot of things
KD: I apologise
Employee: like you are saying, these things do happen. I forgive you. Like you are saying, the person who caused these things is Karabo but its ok I will live with the shame because even if I can get back to work, you know how the coloured community is; how they will look at me, I must just be strong
KD: even if you can go back to work, don’t go back to Klipspruit school
Employee: yes, if that will make you comfortable then sharp

[42] Two more videos were played in support of his version that the learner approached him and apologised for making a false accusation against him. The videos are congruent with the case withdrawal affidavits by KD. KD’s evidence was all a lie. She was coached by Ms Motalib who will stop at nothing to destroy him
Cross examination
[43] It is correct that on 31 May 2021, he gave KD a lift.
[44] While his wife was critical in hospital, he was having sex with Lihle. He stated that him and his wife were on a verge of break-up. They had actually broken up but living together. He slept with Lihle on 30 and 31 May 2021.
[45] He confirmed it to be correct that he stopped at the pharmacy to get morning after pill on 31 May 2021 as testified by KD. His version is that he was getting the pills for Lihle. He confirms on the 01 June 2021, he and Lihle discussed the Morning after pill and he did not say to her he has it already.
[46] He slept with Lihle on 30 May 2021 night and also during early hours of 31 May 2021. He can get an erection after few hours depending on the situation.
[47] He thinks that when KD was waiting for a lift on 31 May 2022, they had already hatched a plan to falsely accuse him because he had scolded them for using his phone. His phone did not require a password that is why the learners managed to use it. He conceded that Ms Motalib could not have told KD to lie because KD and Kb decided that on 31 May 2021. He stated that her vendetta comes in to play when she fails to be impartial when she received case withdrawal affidavits and the video footage. He conceded that even the first allegations of sexual harassment were not created by Ms Motalib.
[48] He stated that he never paused the recording, he recorded one video. The video recordings are in clips because the size was big. He sent it to himself via WhatsApp. He spoke to KD for around 45 seconds before he started recording.
[49] When asked when KD told him about Kb creating stories, he stated that she did so for the first time in the video. It was put to him that in the video she says nothing about Kb creating these stories. He changed to say she mentioned that after the recording. It was put to him that it is still not possible that she told him after the video was recorded because he is seen talking about it in the video.
[50] He did not tell her that he was recording because he was scared. He did not call the investigating officer or Ms Motalib to inform her that KD has approached him, he chose to give her an ear although it meant breaking his bail conditions and precautionary transfer conditions.
[51] He confirmed that the learner only apologised after he stated everything he had lost. He insisted she was actually apologising for lying.
[52] He stated that he does not have the original one-piece video because the phone he used for recording was stolen. He had sent it to his other phone before the recording phone was stolen, that is why it is cut in pieces. The size could not be sent as one clip.
[53] After recording the video, he took her home in his car. It was put to him that if he really was scared, he would not have done that because the last time she was in his car she accused him of rape.
[54] He stated that he was aware that KD’s father wanted R50000.00, he had heard it from a certain lady. He conceded that the father of the learner was initially a witness for the employer. He does not know what has changed the father’s position to now want to testify for the employee. He conceded that the learner was taken to place of safety after the criminal case was allegedly dropped.
[55] He believes Kb is the one that really hates him and that hatched the idea of falsely accusing him. He conceded that when he scolded the girls for using his phone, he was actually scolding KD and another learner, not Kb.
[56] He conceded that the time stamps on the video show the video was recorded for longer than the actual played video, he cannot explain how it happened, maybe he paused the recording while recording.

Second Witness: Learner BS, whose identity is withheld due to the fact that she is a leaner who was at the time of incident and testimony a minor. He understood what taking an oath is. She was 17 years old and testified under oath with the assistance of an intermediary, Ms Edna Shibisi who also took an oath. She testified in camera. The summary of the evidence is as follows:

[57] The employee used to ferry her to and from school on a daily basis as it was arranged with her mother. She asked the employee first if he can travel with her and he agreed, she suggested it to her mom since they do not have money. Her mother called the employee and the two agreed that they could travel together. On 31 May 2021, she travelled with the employee. When they passed at the complex, they saw KD who was hitch-hiking. Employee said he cannot give KD a lift because she had disrespected him. BS suggested that KD may want to apologise and he agreed to give her a lift. BS was seated at the front and KD at the back.
[58] They drove to Baragwanath hospital for the employee to give his wife food provision. After that stop, they dropped KD at Tshiawelo clinic. They then drove to pharmacy at extension 11 where the employee bought medication. He then dropped her at home.
[59] She heard of the rape allegations a week after it allegedly happened, ma’am even spoke about it at school to the learners. She did not tell her mom, her mom only heard of it when the employee got arrested.
[60] She only started knowing the employee in 2021and she considered him as a father. He would give her mom money as they were struggling when her mom got suspended at work. She is the one who told him that they were struggling. Her father is not part of her life, she last saw him in 2016
[61] She does not know exactly what the employee was taking to his wife on 31 May 2021 because the item was in the plastic and he took it out of the boot. She does not know what type of medication he bought at the pharmacy and does not know who the medication was for. She does not recall on which date school closed for second term. She does not recall what day of the week the 31 May 2021 was she does not recall around what time the employee dropped her at home on 31 May 2021. She recalls the date of 31 May 2021 because when ma’am spoke of the rape at school, the date was mentioned and she could recall she was with the employee. She does not remember what day it was when ma’am spoke of the rape.

ANALYSIS OF THE PARTIES’ EVIDENCE AND ARGUMENT

[62] The employee was charged under sections 17 (1) (b) and 18 (1) (q) of the Employment of Educators Act which provide as follows:
17(1) An educator must be dismissed if he or she is found guilty of -
b) committing an act of sexual assault on a learner, student, or other employee;

[63] The allegation against the employee is that on 31 May 2021 he gave KD a lift afterschool, took her to his house and raped her. The employee denied that he committed such an offence. The employer relied on the evidence of the learner who gave version of events regarding this incident. The employee relied on his testimony and that of BS.
[64] The similarities between the testimonies of the learner and the employee are that on 31 May 2021, the employee did in fact give the learner a lift. They both testified that the employee took fruits to the hospital when he went to see his wife. And that he drove to a shopping centre and stopped by the pharmacy and bought a morning after pill or a white pill. The employee’s version is that KD was not there when he drove to the pharmacy and bought the morning after pill. Already, these very specific similarities call for an explanation as to how the learner would have gotten this information. There is no single shred of explanation provided by the employee as to how KD would have known that he drove by the pharmacy and bought morning after pill. He claimed to have bought the morning-after pill for his girlfriend Lihle whom he had slept with on 31 May 2021. His WhatsApp discussions with Lihle about the pill are on 1 June 2021 but nowhere does he tell Lihle that he has the pill with him already.
[65] BS testified that she was in the car as well but did not know what food provision the employee took for his wife and also what he bought at the pharmacy. BS’s evidence was basically that she was in the car with the employee and KD and KD was dropped off after hospital visit before their drive to the pharmacy. BS could not recall most of the detail when asked questions, she could not recall what day of the week the 31 May 2021 was. The quality of her recollect on material issues were poor and this affects the reliability of her evidence. Even BS could not explain how KD would have known that the employee had driven to a pharmacy and bought pills. Clearly, BS was coached to support the version of the employee. The probabilities favour the version that BS was not in the car on 31 May 2021. It must be noted that KD’s evidence was not challenged at all and no versions were put to her for her to answer to. It is my finding that BS was not in the employee’s car on 31 May 2021.
[66] The employee testified that he never went to his house with KD. If KD had alighted first and never went to the employee’s house, how was she able to point out the employee’s house? The employee attempted to explain this by saying that she had seen the picture of his house on his phone in class on 31 May 2021 and commented that it was beautiful. Even if it was accepted that she saw the house on the pictures, how would she know which extension and the exact location of the house? Protea Glen is a big township which I can take judicial notice of the fact that it covers an area of 13.12km2 (roughly 36 km) which had a population of about 75000 according to 2011 census, it may be more now. It is highly improbable if not impossible that KD would find his house by virtue of having seen a picture on the employee’s phone. I find that KD was indeed at the employee’s house on 31 May 2021 and the employee did not drop her before going to the pharmacy. Even when she went to show her dad the house, she got confused a bit and did not find it outright although she had been there once as I have found.
[67] The learner related the ordeal of her rape with clarity and sufficient detail. There were no internal contradictions in her testimony. Her evidence was also not challenged.
[68] The manner in which the matter was reported is consideration worthy; the learner testified that she felt the pressure to report after calls from Kb and her other friends. She was initially sceptical to report because she thought that she would not be believed. This behaviour or scepticism often presents itself in most sexual assault victims. Again, a myth that a sexual assault victim must behave in a certain specific way must be debunked.
[69] The employee presented a version that this was all made up and the one who made it up was Kb. He presented three video clips to support that the learner had apologised for having lied. Now the video clips were played and it is appalling to say the least that the employee would go to the extents he did to hide his horrendous acts. His attempt was to prove that the learner stated that he did not rape her, she lied and she is sorry. The only time the learner is heard saying she is sorry is after the employee guilt-tripped her and blackmailed her by using his personal circumstances and tears. Heard in context, the learner is clearly apologising for all the misfortunes the employee had to endure. NO WHERE does the learner apologises for ‘lying’. Nowhere does the learner say that the employee did not rape her or concede to that assertion. It is in fact the employee who tells her that he did not rape her. All the time he tells her he did not rape her he cunningly and immediately says something else to avert a possibility of the learner responding. Again, only the employee is the one that makes the assertion that Kb started this whole thing. The learner said absolutely nothing about that assertion. The only thing that the learner says about Kb is that she blames herself for telling Kb; this statement is in line with her testimony that she told Kb and Kb and friends put pressure on her to report.
[70] The employee stated that he started recording the learner 30-45 seconds after she arrived. This is not congruent with the very first statement he makes on the recording. The three video clips have date and time stamps; the date stamp is 26 September 2021 and the times are 14:38, 14:40 and 14:47. The very first video recorded from 14:38 is the one transcribed in detail on this award. One would expect that the employee would firstly ask how she found him or even tell her to go away. But he first asks her about the bribe KD’s father asked for to drop the charges. This statement is congruent with the version of the learner and the principal that the employee and KD’s father had discussed bribe in order to drop the charges. The statement supports the version that KD’s father started intimidating her so drop the charges and that is why she was subsequently taken to a place of safety. This became more clearer when the father who was initially like ‘a dog about to pounce’ as Mr Davids described him, turned and wanted to testify on behalf of the employee. The apparent intimidation of the learner was subject to my scrutiny when I made an interlocutory ruling on her recalling.

[71] The employee clearly knew that his freedom was staggering when he talked to the learner since his bail conditions debarred him from talking to her. He even drove her in his car and took the risk because he knew he wanted to manipulate this girl to say something that would give him some rope to get out of all this and to nudge her to drop the case. Unfortunately for the employee, things did not go according to his plan as the recordings leave much more to be desired. On the recording, the learner tells the employee that even if he gets his job back, the employee should not return to Klipspruit and he agrees. Why would anyone agree to demands that are being made by a child that is just telling lies and had him incarcerated for three months. It is also highly improbable that the learner would just take a taxi to go visit her alleged rapist and happens to stumble on him at some petrol stations. The employee called her and told her to come meet her and told her the location. This was not challenged when the learner testified.
[72] Looking at the video time stamps, the fact that the employee cannot say when the learner told him about Kb, it is highly probable that the videos were edited and recorded in bits and pieces, possibly to remove the parts that the employee found detrimental to his case.
[73] The employee testified that Kb would have done all this because he had shouted at KD and her other friend and passed sliding remarks at them in the presence of Kb. On the videos, the employee suggests that Kb was jealous of him and the learner when she saw them laughing together in school. This does not tally at all. If Kb was jealous of KD, she would be happy that the employee was now angry at KD. Even if she was not jealous and heard the sliding comments of the employee against her friend KD, it is improbable that she would take it so personally so to plan execute such an elaborate idea to bring him down, more so in such a short space of time. This version falls flat on its face as it has no substance. The detail and the circumstance of the incidents as testified by KD and the events that followed, even the employee’s arrest cannot be just a plan hatched by a learner in a matter of minutes when she was not in class; only because a teacher reprimanded a learner. This is highly improbable.
[74] The alleged vendetta of Ms Motalib also does not arise. The employee conceded that the learner accused him and had the matter reported to the police before the learner met Ms Motalib. He conceded that Ms Motalib did not tell the learner to lie. He stated that her vendetta showed when she had received withdrawal affidavits but insisted the matter must proceed. Ms Motalib acted in line with her duties and must be applauded for not just withdrawing the case only on the face of affidavits whose authenticity and veracity was questionable. The learner was at the arbitration and confirmed that she did not author the affidavit alleged to have been authored by her. Moving with the testimony of the learner is not a sign of vendetta by Ms Motalib, she was just executing her duties. The allegation vendetta by Ms Motalib is also rejected.
[75] Weighing the totality of the evidence and probabilities in both parties’ versions, it is my finding that the probabilities favour the version of the employer. It is my finding that the employee is guilty of allegation 1 as charged.
[76] I now turn to the question of sanction. Offences in section 17 of the EE Act are dismissible offences and no further discretion is required from the commissioner once a finding of guilt is made in that section. There can also be no gain-saying that the nature of the offence of sexual assault on a minor child automatically breaks the trust relationship between the educator and the employer.
[77] This case is aggravated by the fact that the employee raped the minor child and lied by denying that he did so. His lies subjected the leaner to a tormenting process wherein she had to relive the horrendous ordeal that had happened to her by explaining it to total strangers. He also has no regard for the law and this became clearer when he violated his precautionary transfer conditions and bail conditions in order to manipulate the learner and nudge her to drop the case. His meddling with the witnesses of the employer (the learner’s father) in order to defeat the ends of justice is telling.
[78] In these circumstances based on the evidence and my conclusions above, the employee must be dismissed with immediate effect.
[79] Section 120 (1) (c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 121 provides that where such a finding is made, the person against whom such a finding was made, may have the finding reviewed by a court of law. Section 120 (2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.
[80] The employer asked me to find that the employee is automatically unfit to work with learners. The employee made representations that such a finding should not be made.
[81] I have considered both parties submissions. Form the evidence, it is clear that the employee assessed the social and economic circumstance of the learner and took advantage of her poor background and lack of strong family support system. Again, it is not the first-time allegations of this nature are levelled against this employee. Both parties submitted that the applicant was dismissed for similar circumstances and he was reinstated because when the matter sat at the ELRC, the learners no longer wanted to testify. It was the version of the employer that they had been intimidated to not testify and one can only wonder. In the case now before me, the employee has demonstrated that he will stop at nothing in order to avert consequences of his actions. This included but is not limited to his several postponement requests, just staying away from the process, and meddling with the witness of the employer.
[82] In view of my finding of the serious nature of the employee’s conduct and the priority to protect the rights of children, I find that the employee is unsuitable to work with children. The employer would not be able to guarantee a safe education environment in the care of Mr Bezent. The fact that there are previous incidents of this nature against Mr Bezent tilts the scales even higher. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children and in particular, vulnerable young girls.

AWARD

[1] I impose the sanction of mandatory dismissal with immediate effect.
[2] Mr Oudrew Samuel Bezent is found unsuitable to work with children in terms of section 120 (4) of the Children’s Act 38 of 2005 (“the Act”).
[3] The General Secretary of the ELRC must, in terms of section 122 (1) of the Act, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120 (4) of the Children’s Act 38 of 2005, that Mr Oudrew Samuel Bezent is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
[4] I make no order as to costs

Dated on the 12 day of December 2022

Kuvonakala Chavalala
ELRC Panellist