ELRC593-22/23WC

Panelist : A C E Reynolds

Case Number : ELRC593-22/23WC

Date of Award : 17 January 2023


In the INQUIRY BY ARBITRATOR between:


ZAMANI EDWIN NYANISO DINISO
(Employee)

and

WESTERN CAPE EDUCATION DEPARTMENT
(Employer)

DETAILS OF HEARING AND REPRESENTATION

1. The matter was referred for an Inquiry by Arbitrator to the Education Labour Relations Council (ELRC) for a dispute relating to alleged misconduct (sexual assault of learners) in terms of section 188A of the Labour Relations Act No 66 of 1995 as amended (the LRA) and ELRC Collective Agreement No 3 of 2018 Inquiries by Arbitrators in Cases of Disciplinary Action against Educators charged with Sexual Misconduct in respect of Learners, dated 25 September 2018 (the Collective Agreement), read with clause 32 of the ELRC Dispute Resolution Procedures, for a disciplinary hearing in the form of an arbitration, to be heard in person on 8 and 9 December 2022 at the premises of Kwanokuthula Primary School, Kwanokuthula, Plettenberg Bay.

2. The Western Cape Education Department (the WCED as the Employer) was represented by Mr Lazola Mbotoloshi, a Labour Relations Officer. Present were also Ms Doris Xego, an Intermediary to assist the Learner witnesses, and Mr Daniel Kova, an Interpreter to assist with IsiXhosa and English interpretation as required.

3. Mr Zamani Edwin Nyaniso Diniso, the accused Employee, was not present at the scheduled starting time of 09h00 on 8 December 2022. The Employer reported that no communication had been received from the Employee that he would be unable to attend the hearing. It was noted from the case documents that the Employee was served with the Notice of Inquiry by Arbitrator Meeting on 7 November 2022 to his e-mail address of dinisonyaniso@gmail.com, which the Employer confirmed was his e-mail address on record.

4. Attempts were made by the Employer’s Representative, the ELRC Case Management Officer and the Intermediary from shortly after 09h00 to around 10h00 to reach the Employee on his cellular telephone number of 0671560027, but the telephone was either on voice mail or the call was taken but put down. When these attemps to reach the Employee were unsuccessful, the Secretary of Kwanokuthula Primary School was requested to send a WhatsApp message to the Employee to remind him of the hearing and to inform her if he was going to attend, which was sent at 10h12 on 8 December 2022. The Employer’s Representative also requested a Head Office Official to send an e-mail to the Employee, which was done at 10h33, in which he was asked to inform whether he will be attending the hearing and that if he should fail to attend or provide valid reasons by 11h00 as to why he is unable to attend, that the matter will proceed in his absence.

5. No response was received from the Employee by 11h00. The Employer stated that it and its witnesses were all present and prepared to proceed and requested that the hearing proceed in the Employee’s absence. The Employer also submitted as follows surrounding the Employee’s non-appearance at the Inquiry in support of its request that the Inquiry proceed in the absence of the accused Employee:

The Employee had been on paid suspension since 24 Otober 2022 pending the outcome of the Inquiry by Arbitrator. The Pincipal of Phakamisani Primary School, where the Employee is employed at, did not know the whereabouts of the Employee. A case of sexual harassment/assault had been opened with the South African Police Service (SAPS) by parents of some of the affected learners. The Employee was arrested and released on bail pending further investigation into the allegations brought against him. The Employer was not aware if any bail conditions were set which restricted the Employee from having any contact with the State witnesses (the affected learners) or access to the School premises. The Employer’s Representative was also informed the previous day (7 December 2022) when he arrived to prepare for the Inquiry, by Ms N Palaza, the Educator who had reported the matter to the Employer, that the Employee had hired somebody and paid R5000.00 to murder her and another Educator, Ms V N Mangquwenqwe. She was informed of this by way of a telephone call from the person contracted by the Employee, Mr Vusumzi Mthembu, on 4 November 2022. She reported this to the SAPS who questioned Mr Mthembu and who admitted to the SAPS that he had been hired by the Employee to murder Ms Palaza and Ms Mangquwenqwe. When the SAPS went to question the Employee at his last place of residence they were informed that he had left for Cape Town. The Employee was now a wanted person by the SAPS for both cases, hence it is unlikely that he would want to present himself in Plettenberg Bay. From the Employee’s PERSAL record he is not a member of Union and if he is, there is no Union, lawyer or colleague present to explain his absence.

6. Since I was satisfied that the Employee had been properly notified of the date, time and venue of the Inquiry by Arbitrator and in the absence of any communication or response from the Employee or a Representative regarding his non-attendance, I decided to proceed with the Inquiry in the absence of the Employee around 11h25 on 8 December 2022, which was concluded over two sittings on 8 and 9 December 2022.

7. The proceedings were conducted in IsiXhosa and English, with digital and electronic recordings made. The Employer’s Representative also made a recording of the proceedings, on the understanding that the official digital record will be that of the Panelist.

8. The inquiry was conducted in the form of an arbitration with reference to the provisions of Collective Agreement No 3 of 2018 (the Collective Agreement), the ELRC Dispute Resolution Procedures and the relevant sections of the LRA, with the necessary changes required by the context.

ISSUE TO BE DECIDED

9. The purpose of this Inquiry convened in terms of section 188A Inquiry by Arbitrator of the LRA, which provides for an inquiry by an arbitrator in the form of an internal disciplinary hearing, Collective Agreement No 3 of 2018 (the Collective Agreement) and clause 32 of the ELRC Dispute Resolution Procedures, is to determine whether the Employee, Mr Zamani Edwin Nyaniso Diniso, is quilty, on the balance or probabilities, of the following charges relating to alleged sexual misconduct in respect of learners leveled against him by the Employer, the Western Cape Education Department, as well as the sanction if guilt is established on some or all of the following charges:

CHARGE 1

It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, no 76 of 1998 (hereinafter referred to as the Act), in that during the 1nd (corrected to 1st ) term and/or 2nd term of 2022 you sexually assaulted learner A#, a learner associated with Phakamisani Primary School by:

a) Touching her on her buttocks; and/or
b) Kissing her on her mouth.

CHARGE 2

It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Act in that during the 1st term and/or 2nd term of 2022 you sexually assaulted learner B#, a learner associated with Phakamisani Primary School by:

a) Touching and/or brushing her on her thighs; and/or
b) Forcefully opening her thighs with your hand; and/or
c) Putting your hands between her thighs.

CHARGE 3

It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Act in that during the 1st term and/or 2nd term of 2022 you sexually assaulted learner C#, a learner associated with Phakamisani Primary School by touching her buttocks and/or her waist.

CHARGE 4

It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Act in that during the 1st term and/or 2nd term of 2022 you sexually assaulted learner D#, a learner associated with Phakamisani Primary School by:

a) Touching her on her buttocks; and/or
b) Kissing her on her mouth.

CHARGE 5

It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Act in that during the 1st term and/or 2nd term of 2022 you sexually assaulted learner E#, a learner associated with Phakamisani Primary School by:

c) Touching her on her buttocks; and/or
d) Kissing her on her mouth.

CHARGE 6

It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Act in that during the 1st term and/or 2nd term of 2022 you sexually assaulted learner F#, a learner associated with Phakamisani Primary School by:

e) Touching her on her buttocks; and/or
f) Kissing her on her mouth.

CHARGE 7

It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Act in that during the 1st term and/or 2nd term of 2022 you sexually assaulted learner G#, a learner associated with Phakamisani Primary School by touching her buttocks and/or her waist.

CHARGE 8

It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Act in that during the 1st term and/or 2nd term of 2022 you sexually assaulted learner H#, a learner associated with Phakamisani Primary School by:

a) Touching her buttocks and/or
b) Touching her waist; and/or
c) Touching/Rubbing her on her breasts; and/or
d) Kissing her on her mouth.

10. The Employee was not present to plead either guilty or not guilty to the foregoing charges. Despite the Employee not being present to present his case and his evidence surrounding these allegations, I neverthess proceeded, in the sake of justice and fairness, to hear the full evidence of witnesses and the version as submitted by the Employer relating to the charges brought against the Employee, before making a finding in the absence of the accused Employee.

BACKGROUND

11. Only the Employer was present to submit its opening statement, which is summarised as follows:

The Employee is charged in terms of section 17(1)(b) of the Employment of Educators Act, No 76 of 1998 (the EEA) on eight charges of allegations of committing serious offences of sexually assaulting a group of female learners between the ages of 8 to 9 years old (established later during their evidence as being between the ages of 10 to 11 years old) by allegedly touching their private parts and kissing some of them. They would lead evidence from the witnesses who were allegedly sexually assaulted and also produce evidence that the Employee committed sexual offences in terms of Chapter 2 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No 32 of 2007 (the CLAA). The Employee is therefore charged for with sexual assault in terms of the CLAA as well as misconduct in terms of section 17(1)(b) of the EEA. The mandatory sanction for being found guilty of serious misconduct in terms of the EEA is dismissal, with no prerogative by a presiding officier to change this sanction.

12. The following additional background was also provided by the Employer: The accused Employee is employed as an Educator Post Level 1 teaching mathematics for Grades 4 and 5 at Phakamisani Primary School in Kwanokuthula, Plettenberg Bay. His PERSAL number is 53785673. The Employee is mobility impaired and in a wheelchair, which is the reason why the Inquiry is being conducted at Kwanokuthula Primary School, which has wheelchair access. The Phakamisani Primary School Acting Principal would testify to when the Employee joined the Employer. The Employee is employed on contract with the Employer, not the School Governing Body (SGB). The contract was renewed from October 2022 to December 2022 and will be renewed again in 2023 for another three months, pending the outcome of the Inquiry, since the Employee qualifies for permanency due to having occupied a vacant substantive position at Phakamisani Primary School. The bundle of documents handed in by the Employer were referred to, which included an intention to suspend the Employee pending the outcome of an Inquiry by Arbitrator relating to alleged sexual misconduct issued to him via his e-mail address on record on 11 October 2022, with reasons as to why he should not be suspended to be given by 13 October 2022. On 13 October 2022 the Employee acknowledged receipt of the letter of 11 October 2022 but did not supply reasons why he should not be suspended. This was followed by another letter from the Employer on 24 October 2022 informing him of his suspension on full pay as from that date, with a further letter of 27 October 2022 informing the Employee of his contract renewal from October 2022 to December 2022, to which letters no responses were received from the Employee. The Employee was still on paid suspension since 24 October 2022.
THE EMPLOYER’S EVIDENCE

13. The Employer handed in a bundle of documents numbered from pages 1 to 27 and called the following witnesses to testify in support of its case over the two days:

14. Mr Sibini Nkebe, the Acting Principal of Phakamisani Primary School, Ms Nolitha Palaza, an Educator at Phakamisani Primary School, Ms Noma-India Hans, the Head of Department for mathematics at Phakamisani Primary School and nine female learners aged between 10 and 11 years old who attended Grade 4 at Phakamisani Primary School during 2022.

15. Since all the learner witnesses were below the biological and mental age of 18 years, their evidence was presented through the appointed Intermediary Ms Doris Xego, and also in the presence of myself and the other participants since the accused Employee was not present and they confirmed that they were comfortable to do so. The learner witnesses were not required to take the oath but affirmed that they would tell the truth. The adult witnesses presented their evidence under oath and Ms Xego as the Intermediary conveyed the evidence of the learners under oath on their behalf.

16. The names and surnames of the learner witnesses are not disclosed in the award, and are identified as Learner A relating to Charge 1, Learner B relating to Charge 2, Learner C relating to Charge 3, Learner D relating to Charge 4, Learner E relating to Charge 5, Learner F relating to Charge 6, Learner G relating to Charge 7, Learner I relating to Charge 8 and Learner H who is not linked to a particular charge.

17. Mr Sibini Nkebe testified as follows under oath: He was currently the Acting Principal at Phakamisani Primary School. He had occupied this position for eight months and was previously the Deputy Principal at the same school for six years. The Employee was appointed on contract at the school in September 2021 as an Educator and taught mathematics and history for Grade 4. He joined the school to fill a post that became vacant due to the retirement of another Educator. He became aware of the charges against the Employee on 27 July 2022 when the Educator Ms Palaza came to his office in a visibly shocked state and asked him to come to her class to hear what the children had to say about the Employee. When he got to the class the children demonstrated what happened and also told him that the Employee would hug them, touch them, kiss them and touch their private parts. He could not say that he believed or did not believe the learners since he was not present when the Employee was doing this to them, but he accepted their word.

18. After that he called the School Management Team (SMT) and the Employee and enquired from the Employee whether these allegations were true. The Employee never denied that he hugged and kissed the learners but denied that he touched them on their private partes. When he and the SMT asked the Employee why he was kissing and hugging the learners, he said he was showing love to them. After that meeting he called the Circuit Manager and informed him of everything that had happened. The Circuit Manager then escalated it to the Employer’s Labour Relations Department. The Employee was currently suspended from duty and he stopped work after the suspension letter arrived. A substitute Educator has been appointed in his post. As the current Acting Principal he would not want to work with an Educator who kisses and hugs learners in the way the Employee had done it. He confirmed that the Employee came to school in a wheelchair, and did not know what was the cause, but it was not something that had happened recently. There were no problems experienced with the Employee prior to this incident. He had no knowledge as to whether the Employee had tried to make contact with anybody at the school during his suspension.

19. Ms Nolitha Palaza testified as follows under oath: She had been an Educator at Phakamisani Primary School since 2015 and taught natural sciences, physical science and social sciences (being history and geography) for Grade 4. She knew the Employee since he joined the school in 2021, but was not sure which month he started. He taught mathematics and natural sciences for Grades 4A and 4B. No misconduct against the Employee was reported during 2021. She was aware of the allegations of sexual misconduct brought against the Employee during 2022. She was in her class Grade 4D on 27 July 2022 taking the childrens’ temperatures and getting ready to teach them when they stopped her and informed her that they wanted to speak to her about something. They told her there was something they wanted to tell her for a long time about the Employee hugging and kissing them when they went to his class.

20. She was shocked about what they told her and asked them to wait, when she went to the Principal and without informing him what she was calling him for, asked him to come and hear for himself. The learners then told the Principal the exact story as they had told her and the Principal said to them it was a good thing that they had spoken about what had happened. The Principal pulled her outside and asked her whether she had informed the Head of Department (HOD). She apologised that she was shocked and did not have time to follow protocol on what to do. She then went to the HOD Ms Hans and also did not inform her what had happened and just told her to hurry and come to the classroom. When the HOD came to the classroom the learners told her to sit down and showed her how it happened in the class and how they were hugged and touched by the Employee, almost breaking the HOD’s glasses. The HOD was going to bring together the girls from Grade 4D but they then hurried off and the Principal called the SMT together.

21. The Principal informed the SMT about what had transpired and also called the Employee in to question him. The Employee had showed no signs of being schocked and agreed he did hug and kiss the learners since even at home he hugged and kissed. The Principal at that time then told the Employee he may not be able to come to school for a while until the matter with the children is sorted out.

22. She explained what the learners, who were between 10 and 11 years old, had told her what the Employee did to them. They said he hugged and kissed them and touched them on their buttocks. One had said the Employee had told her he is going to take her to a bed and breakfast in Cape Town. Another had said the Employee told her that it is not going to be painful where he is going to touch her, but she was not sure where he touched her. She gave the names of the learners who said that the Employee had kissed and touched them inappropriately.

23. She provided a possible reason why the Employee was not at the Inquiry. While she realised this was hearsay, when the Employee was told to leave he apparently said on the same day that he left the gate he was “going to show Ms Palaza”. On 4 November 2022 she received a phone call at the school administration office. She asked that the call be returned to her personal number in order to hear better outside the office and after she had identified herself the person told her that the Employee had given him a certain amount of money to kill herself and Ms Mangqwengqwe, another Educator, which he was was supposed to have done the previous week but did not have the heart to do it. He gave his name as Mr Msumuzi Mthembu and that he was in prison in Knysna. She was in a state of shock and informed the Principal, who advised her to report it to the SAPS. She and Ms Mangqwengqwe reported it to the SAPS on the Friday, who accompanied them to the house which the Employee was renting. They found the Employee at his residence, who denied these allegations when he was questioned and showed that the number for that Mr Mthembu was not on his telephone. When they returned to the police station the Monday the SAPS informed that they checked the number that the call came from, that it was from Knysna prison and that they had contacted the caller who confirmed that he had made the call.

24. A case number was opened with the SAPS under CAS27/11/2022 . The SAPS had reported that the Employee had since left that address and that they could not locate him. She was very scared about this threat on her life and would like the Employer to find a post for her at another school such as in Queenstown Eastern Cape before it was too late. As to how the Employee could have done all those things that the learners reported to her if he was in a wheelchair, she did not know how it happened but she assumed he used his hands. She used to have a very good relationship with the Employee and they used to call each other “cousins” because his clan name was the same as that of her mother’s. They also lent money to one another if they were short before getting paid. She was not sure about the Employee’s marital status and whether he had children.

25. Ms Noma-India Hans testified as follows under oath: She had been an Educator at Phakamisani Primary School for 15 years. She knew the Employee because she is Head of Department (HOD) of mathematics for Grade 4 and was working with the Employee, who was also teaching mathematics. She knew something about the allegations against the Employee. The morning of 27 July 2022 she was in her classroom teaching mathematics for Grade 6. Ms Palaza came to her classroom and asked her to please come as there was something urgent in her (Ms Palaza’s) class, which she had to attend to as the HOD. When she entered the classroom the learners stood up and greeted her and asked her to please sit down because they wanted to show her something. Two of the learners stood next to her and talked whilst the others sat in front of her. The one learner said that they wanted to tell her something about the Employee because they were uncomfortable to be around him and had been scared to say these things before, but decided to now talk because it was continuing.

26. She explained what she was told by the learners that the Employee did in the classroom and the computer laboratory, of which the details are not repeated here, save to mention that in the mornings when they greeted him he would say “take five”, interlock their hands with his fingers, would tickle the inside of their hands and then hug and kiss them. When they were working on the computer he would come with his wheelchair next to them and put his hands in between their legs and brushed their legs and buttocks, calling them “Babes” and saying that they did not love him anymore. When he was busy doing that they would say “Nee Meneer” (No Sir) and he would ask what is wrong as he is their teacher and also a parent. They did not like the term “Babes” and that according to them the incidents started during the lessons in the computer laboratory.

27. When she asked the learners why they were only deciding to say this now because it seemed to have been happening over a long time, they responded that they were scared and it was not only the two of them. She, Ms Hans, had asked who are the others and about 11 of them raised their hands. The class is 4D with about 42 learners consisting of girls and boys. There are mostly girls in the class and only 11 of the girls raised their hands. When she questioned the boys they said that they did know about this because the girls talked about it. The boys told her that with them the Employee greeted them with a “Hola” and the fist, with no hugging or kissing, and it was only the girls who got hugged and kissed. After that she called the other Grade 4 Educators to her office, of which there are four, being Ms Palaza, Ms Lobishe, Mr Skosana and the Employee. She did not call the Employee. She told Ms Lobishe and Mr Skosana what happened and they said that none of the girls reported anything like this to them. Thereafter she went to Mr Nkebe’s office and reported the matter. He told her that the learners had talked to him the same day but that he had asked Ms Palaza to talk to her first as HOD according to protocol.

28. Mr Nkebe had then called a meeting with the SMT members and all the Grade 4 Educators, with the Employee present. Ms Palaza, the Principal and she (Ms Hans) told the SMT what the learners told them. The SMT members asked the Employee if he knew anything about this and he said he did and that he greeted them in the morning with a “take five” and as a parent he kissed and hugged them like any child because he was a parent. The SMT said to the Employee that he is a male teacher and that a female teacher does not hug and kiss learners on a daily basis and that even they as female teachers ony did that maybe on a birthday or celebration, but not on a daily basis. The Employee had responded that there was nothing wrong with that because some of the learners did not get love from their homes and they got love from him. Even though he was a male teacher he said there was nothing wrong because the learners were comfortable with him.

29. There were three male Educators present and they said they never did anything like that and asked why him, with his answer that he loved children and they loved him because he was sitting in the wheelchair and they are the same size as him and felt sorry for him. The Principal asked him about putting his hand between their legs and on the buttocks, which he denied and explained that maybe because he was in a wheelchair and they are close to him he by mistake may have touched them, but did not remember putting his hand between their legs. The learners were around him and some of them were fighting about him because he has a lot of love for children and they wrote letters to him that they loved him. One of the male Educators responded that they did not receive letters that the learners loved them and that they are the best Educators, but that all the learners loved them and they do not kiss and hug them. He kept on saying there was nothing wrong with kissing and hugging the learners, with some of them only kissed on the cheeks or on the lips, and did not think it necessary to apologise for that in response to a male Educator stating that he must not embarrass them since it was the first time that something like this had happened at the school. When asked why he only kissed and hugged the girls he replied that it may be because the girls loved him more than the boys.

30. Learner A testified as follows: She was 11 years old and in Grade 4D at Phakamisani Primary School. She knew the Employee and explained what he had done to her. They were in the class doing “green shoot” mathematics. She was sitting at the front desk in the class. There were also other desks at the back of the class. The Employee asked if she needed any assistance and she said yes. He assisted and when they completed the one they went to the next quiz. The Employee then asked her if she was afraid of him and she responded that she was not afraid of him. He then continued to say she must not be afraid of him and she asked him why she must not be afraid of him and he said that she must not be afraid of him. He then held her on the left thigh. Another learner arrived and also requested some assistance from the Employee, which surprised him and his hand was shaking before he assisted that learner. After he had assisted the other learner and she left he continued and kissed her, Learner A, on the mouth, whereafter she left. The Employee also lied in the class and said to the class that there is a learner that is afraid in the class and they must stop being afraid when they do mathematics. When he kissed her he kissed her with a closed mouth and never used his tongue. She did a demonstration on how the Employee touched/brushed her on her left thigh and kissed her from where he was seated in his wheelchair while she was seated on a chair next to him on his right hand side. He did not touch her inappropriately on any other part of the body and he only kissed her once. It did not feel right when he kissed her. It was not the same kiss that her father or mother would give her. His hand was also shaking at the time when he lied in the classroom about her and another learner also said to him his hand was shaking.

31. Learner B testified as follows: She was 10 years old and in Grade 4 at Phakamisani Primary School. She knew the Employee and he had done something inappropriate to her in the classroom. What she did not like is that the Employee held her on the thigh. He also held her around the waist and kissed her on the cheek. He did not touch her on any other place on her body. She demonstrated how this all happened while she was seated next to the Employee. He put his wheelchair on standstill. The Employee stroked her on the thigh, brushed her on her thigh and put his arm around her waist. He slid his hand in between her thighs and his hand turned at her private parts. She demonstrated how he put his hand on her private parts. She was crying when he did that but did not say anything while he did that and went out and told her friends. She also became emotional while she was testifying to what had happened.

32. Learner C testified as follows: She was 10 years old and in Grade 4 at Phakamisani Primary School. She knew the Employee from school where he was teaching her mathematics. He did something that made her uncomfortable, which was that he held her around her waist and also held her on her buttocks. She demonstrated how she stood next to the Employee who was in his wheelchair and he held her by the waist and rubbed her buttocks. He did not touch her on any other part of the body but had brushed her on the thigh. This had only happened twice. When the Employee touched her on her buttocks and waist she did not feel good about it. She did not tell him to stop what he was doing when he was touching her. She told her mother and Ms Palaza what the Employee did. They told Ms Palaza because they did not like what the Employee was doing. They chose to tell Ms Palaza because she was their class Educator. She did not know if the Employee did the same kind of things to other learners as well in the classroom.
33. Learner D testified as follows: She was 10 years old and in Grade 4 at Phakamisani Primary School. She knew the Employee as the mathematics teacher for Grade 4. She did not like the Employee for what he did to the other learners. He had also done things to her which she did not like such as that he gave her a high five and then pulled and hugged her and held her around the waist. He did not do anything else to her. She demonstrated how this happened while she was standing and the Employee was seated in the wheelchair. The Employee would interlock fingers when he high fived her, and then pulled her towards him with his arm around her waist. The things that he did to other learners which she did not like is that she saw him kiss them and brush them on their sides. She mentioned the names of two learners that she saw being touched by the Employee.

34. Learner E testified as follows: She was 10 years old and in Grade 4 at Phakamisani Primary School. She knew the Employee as their mathematics teacher. He was a good mathematics teacher. She did not like the Employee at all. He did things that made her uncomfortable. He would call her to come and assist other learners at the computer and would then hug and kiss her and hold her at the waist. One time when he asked her to log another learner out of the computer he held her by her buttocks. When he kissed her he kissed her on the mouth with an open mouth but did not use his tongue. She was standing when he touched her on her buttocks from his wheelchair. She demonstrated how he took her by her left hand with his right hand and pulled her towards him, rubbed her back and buttocks with his left hand and kissed her while he was doing that. She reported this to Ms Palaza because Ms Palaza was her (class) Educator. She told her parents what happened and her father went to the school after he heard that. The Employee did not touch her on any other part of her body. The Employee had touched and kissed her a lot of times before that time, including her friends.

35. Learner F testified as follows: She was 10 years old and in Grade 4D at Phakamisani Primary School. She knew the Employee as having taught mathematics at the school. She shook her head in response to the question whether she liked the Employee, indicating she did not. She did not like what he did since he held them on their thighs and also on their buttocks. For her he held her on the waist when they were in the computer room, and also held her on her buttocks and kissed her in his class. He kissed her on her mouth but did not use his tongue. When he touched her on her buttocks and kissed her she did not feel good. She did tell him to stop. He used to call her “Homie” and when she asked him to stop he said what is wrong now with Homie? The kiss that he gave her was not the same as that of her mother and father. Her mother would kiss her on the cheek. She demonstrated how it happened. She was seated on the right hand side of the Employee next to his wheelchair. He did a high five with interlocking fingers, pulled her towards him and put his hand around her waist. When he did this she said “no teacher don’t hold me on the waist” and shook him off. The kiss happened on another day when she was assisting another learner on the computer. The Employee came to her and slapped and rubbed her on her buttocks saying Homie you are doing well with the other learner. She never asked him to do these things to her. She did not miss the Employee now that he was not at the school. They decided to tell Ms Palaza what the Employee was doing to them because they did not like what he was doing to them. She could not remember how many times this happened before, but it happened multiple times since he had been doing it for a long time.

36. Learner G testified as follows: She was 11 years old and in Grade 4 at Phakamisani Primary School. She knew the Employee from teaching them mathematics. He was a good mathematics Educator. She did not miss the Employee. The reason why she did not miss him was because she was in his class when they were doing work. She took her book to the Employee so that he could show her what to do. When she got to him he held her by the waist and on her buttocks. She moved back from him when he held her like this and took her book and went to sit down. She told her friends what the Employee did. She never asked the Employee to touch her buttocks and waist. It was not the first time he had touched her in that manner. He had held her on her waist and buttocks previously in the computer laboratory. He had held and also brushed against her buttocks. They reported this to Ms Palaza because she did not like the way the Employee was doing things. When the Employee touched her on her buttocks she told him to stop what he was doing and moved away from him. After that the Employee never did any marking or revisions for her in her book. She also demonstrated how the Employee had touched and held her.

37. Learner H testified as follows: She was 11 years old and in Grade 4D at Phakamisani Primary School. She knew the Employee from school teaching them mathematics. He taught them well as a mathematics Educator. She did not miss nor like the Employee. He did not like him because he would touch them on their waist, thighs and buttocks. The employee had touched her on her thigh and waist but never touched her on her buttocks. He also told her that he was going to take her to Cape Town to stay at a bed and breakfast, at a hotel. She did not know what they were going to do in Cape Town. They were sitting in class working on a tablet and doing a quiz when the Employee said he would take her on a honeymoon, but she did not know what a honeymoon was. When he held her on her thigh she said to him “No Teacher” and he responded by saying to her that she had rejected him. They told Ms Palaza about what happened since they did not like it. She demonstrated how the Employee managed to touch her thighs and waist while he was sitting in a wheelchair and she was seated at a desk in the classroom on the side of the passage. He also liked to high five them and pull them close and then kiss them on the mouth and cheeks. He kissed her on the mouth too. When they left the classroom for the bus the Employee would also like to hug them.

38. Learner I testified as follows: She was 11 years old and in Grade 4 at Phakamisani Primary School. She knew the Employee and did not like him. He was not their normal Educator, who was Ms Palaza. The Employee taught them mathematics. Why she did not like the Employee was because he would touch her. He touched her by holding her around her waist, would also brush against her breasts and kissed her on her cheek. He touched her twice on her waist and breasts. When he touched her on her waist and breasts and kissed her she tried to stop what he was doing. After she told him to stop he left her alone. These things happened in the classroom with other learners around and they could see what he was doing to her. She was standing next to the Employee in his wheelchair when this happened. He kissed her while she was standing by raising himself up/lunging towards her and would kiss her when she was not looking. While he was touching her on her breast and kissing her he said to her they must not think about this because he is our grandfather. She told Ms Palaza after these things happened because Ms Palaza would follow up on it and stop what the Employee was doing. She told her mother what the employee was doing to her. Her mother told her sister. Her mother did not tell the Principal but the Principal was told by them. Since the Employee was sitting in his wheelchair and she was a tall girl, she demonstrated how it had happened. The first time she was standing on his right hand side and handed a book to him when he raised himself up, kissed her on the cheek and also put his right arm around her waist. When he did that she took her left hand and pulled his arm away and said to him “no teacher what is it that you are doing”? The second time she was seated to his right. She had stick of Pritt in her left pocket and he asked her what it was and put his right arm and hand around her shoulders and his hand brushed over and felt her right breast. When he did that she jumped away from him and also asked him what is it that he was doing. The Employee said to her he was teaching her and she responded that she had better finish the homework at home on her father’s telephone.

CLOSING SUBMISSIONS

39. Only the Employer was present to submit its closing submission, which is summarised as follows:

40. All the Employer’s witnesses were very clear about the very serious allegations that they levelled against the Employee, being that of the sexual assault of eight learners. Reference was made to the learner witnesses’ evidence relating to the eight charges, the detail of which is not repeated here. The learners also demonstrated how the sexual assault took place for the benefit of those who were not present at the time. The testimony of these learners was all credible and nobody told them to say these things about the Employee. They had nothing to gain by making these allegations against the Employee. They had suppressed their feelings when the Employee had started touching them in the first and second terms of this year and they were hoping to stop what he was doing, hence they kept quiet and did not disclose this information to either the Principal or any other Educator. It was only when the Employee continued to sexually assault them which led them to tell Ms Palaza on 27 July 2022 what the Employee has been doing to them because they trusted her as their class Educator.

41. Ms Palaza had nothing to gain by lying about what the Employee has been doing to these learners and she in fact testified that she had a good working relationship with the Employee. Mr Nkebe the Acting Principal had also heard the allegations himself and called the SMT and the Employee to discuss the allegations made by the learners against the Employee. According to the testimony of Mr Nkebe, Ms Palaza and Ms Hans when the Employee was questioned he admitted that he has been kissing and hugging these learners and that he might have touched them on their bottoms unintentionally, that he saw nothing wrong with this and showed no remorse nor was prepared to apologise for his conduct.

42. The Department of Education Western Cape as the Employer and the Constitution of this country state that our schools should be a safe and protected environment for both Educators and learners and that any Educator should always act in the best interest of the learners, which the Employee failed to do when he sexually assaulted them. It was the Employee’s duty to protect these learners and teach them the dangers of sexual assault and harassment and instead he used his position to sexually assault these learners. Parents entrusted their children to the school not for the purpose of them to be ill treated and sexually assaulted by an Educator. The Employer did not have a place in its schools for an Educator such as the Employee. A severe punishment fitting to the allegations of the misconduct of sexually assaulting a group of 10 to 11 year old female learners is only dismissal in terms of section 17(1)(b) of the EEA, with no discretion as to any other sanction if guilt is found. The Employee should also not be allowed to work anywhere where there are children because he is a danger to these learners.

43. The Employee had of his own choosing decided to not attend the Inquiry since he knew what he had done. He was provided with a set down notice as early as 7 November 2022, which gave him ample time to source representation or to attend the hearing to represent himself or get an attorney or representative to request a postponement if he knew he will not be able to attend the Inquiry on 8 and 9 December 2022, which he did not do. As further proof that the Employee shows no remorse and disregarded the current charges against him was that the only response that he gave to the Employer’s letter of 11 October 2022 about the intention to suspend him on full pay pending the outcome of this Inquiry was that he only acknowledged that he received the letter, which a reasonable person would have been shocked about and provided reasons why he should not be suspended, which suspension was subsequently confirmed on 24 October 2022. The allegations that he might have hired a person to kill Ms Palaza, one of the Employer’s witnesses, is a further aggravating circumstance. The Employer therefore submitted that the Panelist rule in favour of the Employer and find the Employee guilty of all the eight charges levelled against him, with the sanction being immediate dismissal in terms of section 17(1)(b) of the EEA, with no need for aggravating and mitigating circumstances to be submitted.

ANALYSIS OF EVIDENCE AND ARGUMENT

44. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the accused Employee, Mr Zamani Edwin Nyaniso Diniso, is quilty of the eight charges of alleged sexual misconduct leveled against him by the Employer, the Western Cape Education Department, as well as the sanction if guilt is established on some or all of the charges.

45. I am mindful that the onus is on the Employer to prove that misconduct of a sexual nature has been committed by the Employee and that I am required to consider the prescripts and provisions as contained in section188A Inquiry by Arbitrator of the LRA, Collective Agreement No 3 of 2018 (the Collective Agreement), clause 32 of the ELRC Dispute Resolution Procedures and section 17(1)(b) of the EEA in terms of which the charges against the Employee were formulated. Of particular relevance in arriving at my findings and sanction in this matter is clause 5 The Outcome/Judgement/Arbitration Award of the Collective Agreement, which states as follows at 5.1:
5.1 An arbitrator arbitrating a dispute in terms of this collective agreement must, in the light of the evidence presented, and with reference to the following, direct what action, if any shall be taken against the educator:
5.1.1 the concept of fairness as provided for in the Labour Relations Act, as interpreted by the Courts;
5.1.2 the SACE Code of Professional Ethics for educators;
5.1.3 the United Nations Convention on the Rights of the Child (CRC) in 995;
5.1.4 the African Charter on the Rights and Welfare of the Child;
5.1.5 the best interests of the child as enshrined in section 28 of the Constitution of the Republic of South Africa;
5.1.6 the sanctions provided for in the Employment of Educators Act, including the mandatory sanctions of dismissal prescribed for certain forms of misconduct by the Employment of Educators Act;
5.1.7 any other relevant factor.

46. Since the Employee was not present to refute or challenge the evidence of the Employer’s witnesses, or to state his case in the Inquiry, no factual dispute emerged during the proceedings. I am however still required to apply my mind to the evidence presented, as well as the reliability, credibility and probability of the Employer’s witnesses’ testimony and not to merely assume that the Employee is guilty of the charges because he is not present to offer a defence.

47. From the outset I am also aware that this matter poses the particular challenge of the testimony of child witnesses as defined in the Childrens Act No 38 of 2005 (the CA) and the application of the principle of the best interests of the child as contained in section 28(2) of the Constitution of the Republic of South Africa, as well as the precautions relating to the assessment of the evidence presented by children in these type of proceedings.

48. Without repeating their evidence, I find the evidence of the Employer’s witnesses credible and consistent, with few deviations, and that the adult witnesses, as well as the Learner witnesses, made a favourable impression on me during their testimony. Their evidence also corroborated that of one another. The learner witnesses were open and not reticent to talk about sensitive issues, and also introduced evidence which was not contained in the original charges, such as Learner H who testified that the Employee had offered to take her to stay at a bed and breakfast/hotel in Cape Town and had also said to her he was going to take her on “honeymoon”. The Acting Principal Mr Knebe, the Educator Ms Palaza to whom the learners had reported the matter to on 27 July 2022 and the HOD Ms Hans, who were present in the SMT meeting when the concerns raised by the learners were addressed with the Employee, confirmed that the Employee had admitted that he hugged and kissed the female learners, with which he saw nothing wrong since it was in the form of an expression of fatherly affection, and that he may accidentally and unintentionally have brushed against the bodies of the learners from his seated position in his wheelchair, but had in the presence of the SMT denied the other more intimate contact made with certain learners. The Employer’s witnesses had furthermore testified that even female Educators only hugged learners when there was a celebration or special event, but not on a daily basis as had occurred with the Employee, hence this was not normal nor acceptable conduct by a male Educator towards female learners.

49. The learners were requested to demonstrate with the Intermediary how the Employee had touched, held and kissed them. They readily complied and very convincingly showed how the Employee had, as applicable, taken them around the waist, kissed and hugged them and had touched, brushed against or held other parts of their bodies such as their thighs and buttocks, and in particular how the private parts and breasts were touched of Learners B and I respectively, with some also demonstrating how they had resisted these advances and had asked the Employee to cease what he was doing. Those learners who were questioned regarding this testified that the Employee was a good mathematics Educator, but that they did not like or miss him because of what he had done to them and other learners. Their collective evidence was furthermore that they had decided to report these incidents to their class Educator, Ms Palaza, when the Employee continued with this conduct which made them increasingly uncomfortable. This was corroborated by the evidence of Mr Knebe, Ms Palaza and Ms Hans about what was reported to them by the affected learners in the classroom on 27 July 2022.

50. No substantive motives could be found as to why the Employer’s witnesses would fabricate their evidence and versions. No previous transgressions committed by the Employee were testified to, hence it is accepted that he had a clean prior disciplinary record. Ms Palaza had in fact testified that she and the Employee had a good working relationship and they had referred to one another as “cousins”. Ms Palaza was also visibily distressed about the confirmation received from the SAPS that the Employee had hired a Knysna prison inmate to kill both her and another Educator and had requested in her testimony that for her own safety the Employer transfer her to another school. The fact that the Employee did not attend the Inquiry and could not be located, contributes to the negative inference and the probability that he is guilty of the charges preferred against him and that he had therefore tried to avoid these proceedings.

51. The Employee was charged in terms of section 17(1)(b) of the EEA relating to serious misconduct, which reads as follows:
(b) committing an act of sexual assault on a learner, student or other employee;

52. The Employer had also made reference to section 5 of Chapter 2 Sexual Offences of the Criminal Law (Sexual Offences and Related Matters) Amendment Act No 32 of 2007 (the CLAA) which describes Sexual Assault as follows at sections 5(1) and (2):
(1) A person (“A”) who unlawfully and intentionally sexually violates a complainant (“B”), without the consent of B, is guilty of the offence of sexual assault.
(2) A person (“A”) who unlawfully and intentionally inspires the belief in a complainant (“B”) that B will be sexually violated, is guilty of the offence of sexual assault.

53. As to what constitutes “sexual assault”, guidance is firstly sought from The Concise Oxford Dictionary, Eighth Edition which inter alia defines “assault” as follows: a violent physical or verbal attack; in law an act that threatens physical harm to a person (whether or not actual harm is done). This implies that an element of actual or threatened physical harm should be present in the action perpetrated. This Dictionary also defines “sexual” as pertaining to relations between the sexes, with specific reference to mutual attraction and to gratification of resulting desires. The term “sexual assault” could therefore be regarded as a violent act or the threat of such an act to gratify sexual desires. To these elements could also be added the accompanying emotional harm and distress inflicted on the victim.

54. I find it necessary, in the context of prevailing labour legislation, to also refer to the prescripts relating to and definitions of sexual harassment as contained in the 2005 Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (the Code) issued under the Employment Equity Act No 55 of 1995 (the EQA), and the new Code of Practice on the Prevention and Elimination of Harassment in the Workplace.

55. In terms of this legislation and the related Code sexual harassment is regarded as a form of unfair discrimination in the workplace and is described as unwelcome conduct of a sexual nature which inter alia violates the rights of an employee. The unwelcome conduct must also be of a sexual nature and includes physical, verbal or non-verbal conduct, with examples provided. Notably the physical conduct includes all unwelcome physical conduct, ranging from touching to sexual assault and rape. The Code specifically refers to sexual harassment as a form of misconduct, which includes sexual assault.

56. Although these prescripts relate to the workplace and the rights of an employee, the same principles could also be applied to the rights applicable in other situations and to other persons, such as children, in that “sexual assault” would also refer to sexual contact or behaviour that occurs without the explicit consent of the victim, whether or not it is accompanied by violence or threats, and would include intentional and unwanted fondling or unwanted sexual touching of a victim’s private parts, as had occurred in the case of the learners in this matter.

57. Based on the foregoing descriptions of “sexual assault” I am therefore satisfied, on the balance of probabilities, that the Employee had intentionally sexually assaulted the affected learners in the manner that was testified to and that he was charged for in terms of section 17(1)(b) of the EEA.

58. Due to the nature of this matter, the best interests of the child require to be highlighted again, since the child must be considered before a decision affecting his or her life is made, as provided for in section 28(2) of the Constitution of the RSA and section 8 of the Childrens Act No 38 of 2005 (the CA). This principle is reinforced by the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) in which it was held that section 28(2) of the Constitution of the Republic of South Africa imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. This consequently also binds arbitrators or panelists in a forum such as this to give consideration to the effect their decisions will have on childrens’ lives, and learners collectively, when they determine matters of this nature.

59. On the evidence I am accordingly satisfied that the Employer had succeeded in discharging its duty to prove the Employee’s guilt on the multiple charges of sexual assault/misconduct on a balance of probabilities, for the reasons already described above. It follows that the Employee is guilty of all eight the charges as preferred against him in the charge sheet.

SUBMISSIONS ON SANCTION AND ANALYSIS THEREOF

60. Section 17(1) of the EEA states that an Educator must be dismissed if he or she is found guilty of serious misconduct, which includes sexual assault/misconduct. No other lesser sanctions are provided for in these circumstances, since dismissal is peremptory by law. Aggravating and mitigating circumstances therefore do not require to be considered before the appropriate sanction is determined by the presiding officer or arbitrator as no discretion can be applied, with the only outcome and sanction being that of dismissal. In the light of the best interests of the child being paramount, no other sanction than dismissal would in any event have been appropriate, since the Employee can as a result of his conduct no longer be entrusted with the emotional and physical safety and welfare of in particular female learners placed in his custody.

AWARD

61. The Employee, Mr Zamani Edwin Nyaniso Diniso, is found guilty of all the eight charges brought against him by the Employer, the Western Cape Education Department, of sexual assault/misconduct in terms of section 17(1)(b) of the Employment of Educators Act No 76 of 1998 (the EEA

62. The Employee is to be dismissed with immediate effect as prescribed in section 17(1) of the EEA.


Panelist: Alta Reynolds