ELRC938-21/22EC

Case Number: ELRC938-21/22EC
Commissioner: Mbulelo Safa
Date of Award 17 January 2023
In the ARBITRATION between: -


DEPARTMENT OF EDUCATION: EASTERN CAPE
Applicant


And


MPOMPI PHUMZA
Respondents


DETAILS OF THE HEARING AND REPRESENTATION

1. The matter set down as an Inquiry by the Arbitrator on the 20 May 2022, 13 July 2022, 09 September 2022 and concluded on the 14 November 2022 at Butterworth Children’s Court and at the offices of the Applicant in Butterworth on the 09 September 2022 and 14 November 2022.

2. The Applicant was represented by Mr Thando Makina who is their Labour Relations Officer and the Respondent was represented by Mr Oyama Sogaxa from S. Ndinda Attorneys on the 20 May 2022, represented himself on other days and was represented by Mr B. Sihlali of Sihlali Attorneys on the 14 November 2022.

3. The intermediary appointed by the ELRC was Ms Nxala and the interpreter was Ms Violet Gwija.

4. The proceedings were recorded in an audio recorder.

ISSUES TO BE DECIDED

5. Whether or not the Respondent is guilty of the charges proffered against him by the Applicant and to make an appropriate award/sanction in terms of section 18(3) of the Employment of Educators Act.

BACKGROUND TO THE ISSUE

6. The Respondent is employed by the Applicant as an educator at Blythswood High School (the school) in the Amathole East District of the Applicant.

7. The proceedings here are in terms of ELRC Collective Agreement 3 of 2018 which provides that it is mandatory that in misconduct cases where the allegations against the educator relate to alleged sexual misconduct against a learner the matter must be dealt with as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act.

PRELIMINARY ISSUES

8. At the commencement of the arbitration the Respondent submitted an application for legal representation. In the application they argued that the allegations against the Respondent and will have serious outcomes for the Respondent. They also said the matter has public interest. They then said it was important that the Respondent is accorded adequate representation.

9. The Applicant opposed the application arguing that the matter was not complex and that there was no legal jargon used and that there was no public interest.

10. After considering the fact that the allegations against the Respondent are serious and involve minors, possible application of the Criminal Sexual Offences Amendment Act and that there is a public interest in the matter since there are allegations of gender-based violence, I made a ruling that legal representation was allowed.

11. Even though the ruling was made no attorney ever appeared for the Respondent until on the day the matter was concluded.

SURVEY OF EVIDENCE AND ARGUMENT

12. The Applicant submitted one bundle of documents and led oral evidence through three witnesses. The Respondent submitted one bundle of documents and led evidence through one witness.

APPLICANT’S EVIDENCE AND ARGUMENT

13. The first witness of the Applicant was a minor child who testified in camera with the assistance of an intermediary. For the benefit of this award the child will be called the complainant.

14. The complainant testified that she was currently fifteen (15) years old and arrived at the school in 2020 when she was going to study grade 8. Then she was thirteen (13) years old.

15. She said that when she joined the school she was elected to be the class representative for her class which was grade 8B. She knew the Respondent as he was teaching her Creative Arts.

16. She testified that since she was elected the Respondent would call her to visit him and not to be accompanied by other learners.

17. She said the other day the Respondent called her to music room and he asked her why she was calling him by his name. The Respondent further hugged her. She said she escaped and ran away. When asked to explain the hug she said the Respondent hugged her by pulling her to him like he would do when hugging his wife. The witness was further called to demonstrate the hug which she did.

18. When the Respondent put his version that he never called nor hugged the complainant she insisted that he hugged her. She said the Respondent hugged her and pulled her to his chin and asked her what was older between her brain and the body. She regarded this as sexual harassment. The fact that she ran away after the hug means that she did not consent to the hug. She said that is not done to a child unless the person wants something from her.

19. Referred to page 14 she was asked how she said she escaped from the Respondent yet she continued to get lunch boxes from him, she said it was the Respondent who kept on calling her and it would be disrespectful of her not to come when called by an elderly person. She said it was the Respondent who always offered her the lunch box and she would share it with other learners.

20. She denied the version of the Respondent that he gave her his lunch box on only one day when the complainant and a group of learners asked him to give them the lunch box. She said she did not understand how she would ask for food from the Respondent as if she was destitute.

21. She said the Respondent would at times share with her his food. She said the other day he gave her R20 and when she asked what it was for he said it was just a donation.

22. She denied that the Respondent ever asked her about the money she borrowed from him. She also denied the version of the Respondent (that was put to her) that she came to borrow money from the Respondent as she had a shortage. She said there was no way that the Respondent could know that she had a shortage since she was new at the school.

23. She said that after the schools were closed for Covid-19 the Respondent on the 2 November 2020 she was in front of the staff room when the Respondent called her and asked her what was older between her brain and the body and also that he loved her. She said she did not know the answer. She said she regarded the question to suggest that her body was bigger and her brain was that of a child.

24. When it was pointed to her, referring to the school time table, that the 2 November 2020 was on a Monday and it was the day she came to school after the break she insisted that she was at school on the 2 November 2020 and that she saw and spoke to the Respondent on the 3 November 2020.

25. The other day the Respondent called her and asked her when was she going to visit him and also said he loved her. She said she did not know where the Respondent stayed but she knew that he was going to tell her if she said yes to the invitation to visit.

26. The witness stated that the conduct of educators in her previous school was different from that of the Respondent and other educators did not offer her food, money and ask her to visit.

27. She said that when the Respondent wanted her to visit him without her friends it was because he did not want her friends to know what happened.

28. She said that in the statement she wrote she told two learners, Amanda and another after the Respondent told her that he loved her.

29. When she joined the school she was assigned a Miss August and a Miss Qangule at the school to be her guardian parents. Asked why she did not report the incident to them she said she felt they were going to side with the Respondent since she was new at the school.

30. Asked to describe the room the Respondent used to call her in she said the room had few desks and a pile of music papers, the keyboard and the sticker to put the music score. She admitted that someone who is outside can see what is happening inside.

31. Asked if she remembered borrowing money from the Respondent she said she never borrowed money from the Respondent but asked for it. She said her mother was giving her enough money which she would deposit into Miss Qangule’s bank account number. She said the money that was given to her by the Respondent, which was R20, was a donation and not a loan and was given to her in March 2020. She denied that she was ever raided by the Respondent for not refunding the money.

32. When it was put to her that on the 28 September 2020 she was not at school since the learners were alternating to come to school due to covid-19 regulations she said she was at school but could not remember whether it was teaching or examination time as it was long time ago. She however could not recall if during that time her grade was at school or not due to the alternating of classes.

33. She said that after the incident she had to change the school as she felt not safe at the school. She was currently sick physically and psychologically and have since transferred to another school.

34. She admitted that on the 4 November 2020 at about 06h00 she was visited by Mr Dekeda who came to ask if she wanted to transfer to another school. She said that after the meeting at the school which was attended by her parents she went to Mr Dekeda and told him that he wanted to transfer to another school. She said she went to Mr Dekeda without the knowledge of the parents and that of the matron, Miss Qangule. She said she went to Mr Dekeda because Mr Dekeda was known by her brothers who had called him after she gave them his number. She denied that her sister knew Mr Dekeda, her sister only knew the principal. She said she later changed her minds about the transfer and decided to transfer the following year.

35. She said she wrote about two or three statements to the Department of Education as well as the principal, but she wrote the same thing in the statements. When she wrote the statement dated 09 November 2020 she said she was still traumatized. She subsequently developed sickness, mentally drained, developed asthma and her performance at school dropped.

36. Referred to her statement on page14 of the bundle she said she was not assisted to write the statement. She said she told her older sister, Nomvuyiseko, about the incident and she in turn informed her parents. She said she did not know Nokubonga Mtsali.

37. The next witness of the Applicant was Mrs Nosound Zanele Ntloko who is the mother of the complainant testified and also a Reverend at Saint Phillips Apostolic Church.

38. She said she learnt about the problem when she was called by her other daughter who is based in Tshwane saying she was called by the complainant crying. The complainant said to her sister she was crying because her teacher has told her that he loves her. The complainant later called the witness stating exactly what she told her sister.

39. She said the sister of the complainant told the witness that she called the principal of the school who in turn invited them to the meeting at the school the following day.

40. When she heard the allegations the witness said she cried, did not sleep and was worried about how the complainant felt. Together with the brother of the complainant they attended the meeting at the school.

41. At the school they had a meeting with the principal and other members of his management team and they all heard and were shocked about what had happened.

42. When the Respondent was called to the meeting and allowed to respond to the allegations he took time crying and not responding to the allegations. After an intervention from the witness he ultimately responded.

43. He said the complainant was a class representative. He said he called the complainant in order to collect the money he lent to the complainant which the complainant had failed to pay. He said the money he was collecting from the complainant was a R50 he leant to the complainant. However, the complaint had said she was given R20 as a donation. She said she did not understand how the complainant would be short of money as she(witness) was sending money to the complainant every month.

44. When asked at cross examination she said she could recall that the complainant said something about the R20 but she was not sure if it was borrowed or given as a gift. All the same she decided to commit to refund the R20 but has not done so because the Respondent said he no longer wanted the money.

45. She denied the version of the Respondent that was put to her that after the meeting at the school she turned back and gave the principal the number of her husband and asking him to call the husband later. She however confirmed that a few days after the meeting the husband of the witness called the principal.

46. She denied that after the meeting she followed up with Miss Qangule on the relationship between the Respondent and the principal because of the bad things the principal said about the Respondent.

47. When he was asked why he(Respondent) gave the money to the complainant without the knowledge of the parents he said the complainant had come to him because she said she had a shortage of money to go home.

48. At the meeting the principal told them that he was not going to handle the case himself but he wanted to give the Respondent an opportunity to say what he wanted to say. He said the Department of Education was going to handle the case.

49. As they were leaving the meeting the Respondent came to them (parents of the complainant) and told them that he was depending on their mercies. She said she interpreted this to mean that the Respondent wanted them not to pursue the matter further. She believed that the person who deserved the mercies was the complainant since she was the victim.

50. She said they left the complainant at the school even though they were not comfortable with her safety as they are very far in Ngcobo.

51. She said she had experience of dealing with cases of gender-based violence and know how the victims reacted. After the incident the complainant was not comfortable to be around males whether brother or father.

52. She said the complainant would call at night crying and the witness got worried. After the incident the complainant said that some teacher looked at her in a bad way.

53. At the new school the educators referred the witness to a social worker because they observed that she was not copying.

54. She said she was seeing the Respondent for the first time at school and did not have anything against him but the Respondent broke her(witness) heart as the complainant was her last born and she never though that when she took her to the school she would be proposed to by the teacher.

55. She said that few days after the meeting the principal called the husband of the witness and said he together with the Respondent wanted to visit the parents to discuss the problem. The parents indicated to the principal that they were not available.

56. Referred to page 20 and asked who Nokubonga was she said Nokubonga was a family member based in Tshwane with Nomvuyiseko. She said Nokubonga wrote the letter after hearing from Nomvuyiseko what had happened to the complainant.

57. The other witness of the Applicant was Mr Nqaba Dekeda who was the Deputy Principal of the school when the incident occurred. His duties included all the duties assigned to the principal including receiving correspondence directed to the school. His duties also included protecting both the educators and the learners. He was also responsible for the hostel.

58. Referring to page 12 he said the phone numbers at the letter head were his as in the absence of the principal he performed his duties and was aware of the correspondence. He said he was the one who reported the allegations to the principal after he heard rumours about them from the other educators. He said he advised the principal to deal decisively with the allegations as a principal of another school was suspended for not attending to similar allegations.

59. A meeting with the parents of the complainant was held at the school on the 04 November 2020 where other members of the school management team were also invited and the Respondent was also invited.

60. When the Respondent was called to respond to the allegations he started by crying for a long time and thereafter responded saying he would never do what he was accused of. He(Respondent) said he had been asking the complainant to pay back the R50 he(Respondent) had borrowed her. He said he did not want to quarrel with the complainant because he loved her. At the end of the meeting the Respondent said he was depending on the mercies of the parents.

61. He said there was not interaction between him and the parents of the complainant after the meeting.

62. A day after the meeting he called the complainant to him and asked her if she had no intentions of transferring to another school in view of the allegations. The complainant said she was uncomfortable at the school but said she was going to hear from her parents.

63. He said he had always had an ongoing conflict with the Respondent due to his(Respondent) role as the Teacher Liaison Officer(TLO). He also said he heard that the Respondent did not want him(witness) to be the deputy Principal. He(witness) also heard rumours that he was behind and pursuing the allegations against the Respondent. This puzzled him because he did not have any problem with the Respondent. This caused him to be reluctant to talk to the Respondent about the allegations.

64. He said he was not directly involved in the case and was involved only as the Deputy Principal of the school. The principal also reported to him that he reported the case to the Circuit Manager. He did not know what happened thereafter. His involvement at arbitration was because he was invited to be the witness since the principal was not well and unable to come.

65. He said he remembered receiving an email from South African Council for Educators(SACE) which was directed at the principal and the Respondent. He said he gave the letters to the principal and the Respondent.

66. The principal wanted to approach the parents of the learner but he(witness) advised him against that.

RESPONDENT’S EVIDENCE AND ARGUMENT


67. The Respondent, Mr Phumza Mpompi, testified that the allegations were brought to his attention on the 04 November 2020.

68. He said he knew the complainant as a child he used to send as she was the class representative together with another learner.

69. He testified that on the 03 November 2020 at about 11h00 he called the complainant and had a chat with her in front of the staff room. There were teachers and learners passing by.

70. She said the complainant admitted that he gave her the money on the day she was going to go home. He said the only untruth about the statement of the complainant was that he gave her the money as a donation. He said he loaned the money to the complainant. He said he saved the complainant as she said she was short of money to go home. He could not have known that the complainant had a shortage unless she came to him.

71. He also disputed that he proposed love to the complainant on the 28 September 2020. He said on the day the complainant was not at school. He showed a timetable which showed that the class of the complainant was not at school as classes were rotating. He said that on the day learners were writing examinations in his subject, Music and he just came and gave question papers to the principal before leaving school to attend a personal matter in Tsomo. He said in the afternoon he came back to school to prepare for another paper for the same subject where an invigilator and operator were needed.

72. He said he left the school for the last time at about 16h00 and on that day and that he never saw the complainant. He denied that he hugged the complainant and forced himself on her, saying he had no reason to do that.

73. He also said on the 02 November 2020 he never saw nor spoke to the complainant.

74. He said whenever the complainant was asked (at arbitration) about the events from 28 September 2020 she never recalled any of them saying the events occurred longtime ago. Witness felt that if someone experiences something bad that incident is not easy to forget.

75. He stated that the complainant had many statements and some of the statements had dates tempered with by other people. Two of the statements were similar but with different dates. He also said the statements contradicted each other and when he asked the complainant she said she wrote what she was told by another learner called Amanda.

76. He said that in her first statement the complainant says she ran away from him, yet she came back several times to collect lunch boxes from the witness (according to her). He said the complainant lied to say he ever gave her his lunch box. He said he only gave the lunch box to the complainant who was together with other learners in front of the computer room.

77. He said when he was called to a meeting by the principal about the allegations he was shocked and could hardly breathe until he was given water. He said he cried because he was very hurt and knew the consequences.

78. He said he opened up to the parents of the complainant about the allegations and they proposed to go and discuss with their daughter and when they came back they were not so angry about the allegations. He said he told them what he knew was true and went on to say beyond what he said he dependent on their mercies. He did not wish the matter to proceed to other levels as he did not have any other truth. He said that even at the arbitration he was speaking only the truth and denied all the allegations.

79. He said he learnt that the complainant had asthma but was surprised that he was the cause of the asthma.

80. He also said he was disappointed with the evidence of the parent of the complainant. He said on the day of the meeting at the school she(parent) is the one who came back to the Respondent and gave him the cell number of her husband and advised that they must discuss the matter and she was also going to call her daughter and give her feedback.

81. He said he was disappointed that the person called Nombuyekezo or Nomvuyiseko was not called as a witness whereas she is the one who raised the alarm.

82. He testified that he asked the complainant who her mother was and she said it was Nosound. When the complainant was asked about another mother called Nokubonga Mtsali she denied knowing her. He said he first heard about Nokubonga Mtsali in the letter from SACE. When he enquired from SACE about Nokubonga Mtsali he was informed that Nokubonga was somebody known by Mr Dekeda. The SACE official went on to show the witness that Mr Dekeda and Miss Mtsali were communicating with each other.

83. The witness said he has knowledge that it was Mr Dekeda who advised Nomvuyiseko on the steps they should take against witness and the principal, as it was alleged that the principal did not care. He said Nomvuyiseko decided to step back from the case because she was tired of being told by Mr Dekeda what to do. When asked if Nomvuyiseko was going to testify he said he never asked her to come.

84. He said that to show that there was something fishy about the case it was never reported at the District Office. The District Office only heard about the case from Head Office (Provincial Office). He said the officials from the District Office came to the school and the Circuit Manager told him(witness) what the purpose of the visit was and it had nothing to do with the case. He was never called to the meeting to make a statement.

85. When the investigators ultimately came he was given two options, either to respond to oral questions or to write a statement, and he chose to write the statement.

86. He felt Mr Dekeda and the principal treated him with no mercy when it came to the case.

87. He said when there was a case of a learner who was assaulted that was openly discussed and they went to report the case at the Police.

88. He said he believed Mr Dekeda wanted him to be dismissed because he(witness) was vying for the post of Deputy Principal. He believed the complainant was used against him

89. Referred to paragraph 3 of page 13 he was asked if the sentence starting with, “uzakuza nini…can mean that he collecting his debt from the complainant he said that phrase was explained in the statement where he said, “Oku ibiyindlela yokukhumbuza….”

90. Asked why he gave the complainant money(R50) he said the schools were closed at short notice due to covid-19 and the complainant came to him to say the money she had was not enough to cover the trip home. He said the complainant in her statement acknowledged that she was given money by the Respondent but she did not immediately tell her parents. He disputed the version of the complainant that he gave her R20 as donation, and not a loan. He said he saw no need of referring the matter of the non-payment to the parents of the complainant as he was still negotiating with the complainant.

91. Referred to paragraph 4 of page 14 he said what the complainant wrote there was what she was told by others. He said on the day the complainant said he assaulted her the Respondent the complainant was not at school.

92. He disputed that he was sexually grooming her by giving her R50 and lunch boxes. He said he never offered her the lunch box but together with other learners they asked for his lunch box.

93. Referring to paragraph 2 of page 15 and asked what his response to the allegation was he denied that he ever asked that to the complainant because he was staying with his parents and child.

94. He also denied that he ever said anything about love to the complainant except in the context of what was in his statement.

95. Asked why would the complainant lie about him he said the complainant was used to discredit him in order for him not to get the post of the Deputy Principal. He denied that he did anything to the complainant

ANALYSIS OF EVIDENCE AND ARGUMENT


96. The Respondent was charged in terms of the Employment of Educators Act (the Act) for (1) contravening section 17(1) (b) of the Act in that (i) he forced himself on the complainant by hugging her, asking her when was she going to visit him and proposing love to her, (2) contravention of section 18(1)(q) of the Act for engaging in the above activities.
97. Section 17(1) of the Employment of Educators Act provides as follows;

(1) An educator must be dismissed if he or she is found guilty of –
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner, student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e).

98. A lot of evidence was led in this hearing but I may not refer to all of it. For the sake of brevity, I will zoom into the evidence that has a bearing on the charges.

99. There are two incidents of the Respondent asking the complainant when is she going to visit and telling her that he loved her. The Respondent disputed that the complainant was at school on the 28 September 2020. He even produced a time table showing that the class of the complainant was to be back at school only on the 05 October 2020. The complainant did not deny this but claimed she could not recall as it was long time ago. The Applicant could have done a lot to rebut the evidence of the Respondent but they elected not to. This therefore means the Applicant could not prove that the Respondent was at school on the 28 September 2020 and consequently the allegations of what he did to the complainant on the day stand to be dismissed.

100. There were contradictions in the evidence of the Applicant. It is not my intention to traverse all of them but to highlight only a few.

101. In her statement dated 9 November 2020 the complainant states that on the 05 November 2020 the Respondent called her aside and told her that he loved her. She states that she did not initially respond and when she responded she says she told the Respondent she has long been observing him. She then says she went to the hostel where she cried, did not want anything to eat and also wanted to commit suicide.

102. The statement is inaccurate when it comes to the date because the meeting between the complainant’s parents and School Management was on the 4 November 2020 where all the complaints against the Respondent were discussed. So for her to say the Respondent proposed love to her on the 5 November 2020 is not true. It is also improbable that the complainant would cry and even consider committing suicide just because the Respondent has proposed to her, whilst they were in a public place in front of the classrooms with other teachers and learners not far. This improbability could have been addressed by the Applicant if they called any other learners who were staying with the complainant to corroborate her version more especially about her state of mind when she went to the hostel or called her sister to whom she said she reported.

103. The other contradiction comes with regard to the involvement of Mr Dekeda. The complainant testified that after the meeting between her parents and school management, which was on the 04 November 2020, she went to Mr Dekeda to tell him that she wanted to transfer to another school as she felt she was not safe at Blythswood SSS. She said Mr Dekeda again visited her at the hostel at about 06h00 the following day to make a follow up on the transfer.

104. On the other hand, Mr Dekeda testified that he only met the complainant a day after the meeting at the school. In his evidence he said he called the complainant to him to find out if the she had no intentions of transferring to another school as he feared that the complainant may not be comfortable at the school after the allegations. He said the complainant said she was going to hear from her parents. Mr Dekeda did not mention the encounter with the complainant on the day of the meeting and also did not say he went to the hostel to meet the complainant.

105. There is also a letter which was submitted by the Applicant from a certain Nokubonga Mtsali who claimed to be the parent of the complainant. In her evidence the complainant said she did not know Nokubonga. This was contradicted by her mother who stated that Nokubonga was the family member(aunt) who was based in Pretoria. It is still a mystery as to why Nokubonga identified herself as the mother of the complainant in this letter. This creates confusion and doubt on the credibility of the case of the Applicant.

106. It was common cause that the Respondent and Mr Dekeda have a history of being in conflict with each other to the extent that Mr Dekeda was suspected of being behind the allegations against the Respondent. This history of a bad relationship between Mr Dekeda and the Respondent makes Mr Dekeda a witness who was not neutral. His evidence then needed to be treated with caution.

107. As stated in paragraph 96 above the Applicant was charged for contravening section 17(1)(b) of the Employment of Educators Act. The operating word is ‘sexual assault’ on the learner(complainant). I am zooming to this charge because when giving evidence the Applicant also zoomed into this charge and treated it as a main charge. Both in leading evidence and in arguments the Applicant did not refer to the other charge.

108. Criminal Law(Sexual Offences and related matters)Amendment Act describes sexual assault as follows ;
5. (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.

109. The same act defines sexual violation as follows;

"sexual violation" includes any act which causes—
(a) direct or indirect contact between the—
(i) genital organs or anus of one person or, in the case of a female, her
breasts, and any part of the body of another person or an animal, or any
object, including any object resembling or representing the genital organs or anus of a person or an animal;
(ii) mouth of one person and—
(aa) the genital organs or anus of another person or, in the case of a
female, her breasts;
(bb) the mouth of another person;
(cc) any other part of the body of another person, other than the genital
organs or anus of that person or, in the case of a female, her breasts,
which could—
(aaa) be used in an act of sexual penetration;
(bbb) cause sexual arousal or stimulation; or
(ccc) be sexually aroused or stimulated thereby; or
(dd) any object resembling the genital organs or anus of a person, and in
the case of a female, her breasts, or an animal; or
(iii) mouth of the complainant and the genital organs or anus of an animal;
(b) the masturbation of one person by another person; or
(c) the insertion of any object resembling or representing the genital organs of a person or animal, into or beyond the mouth of another person, but does not include an act of sexual penetration, and "sexually violates" has a corresponding meaning;”

110. The short explanation of sexual assault is that it occurs if a person commits any of the acts on paragraph 109 above on another person without the consent of that person.

111. With regards to the hugging the complainant explained how the Respondent hugged her and when that explanation was not clear she was asked to demonstrate it with another lady who was part of the team from the Applicant.

112. In terms of the demonstration the Respondent put his arm above the shoulder of the complainant and the complainant head sort of leaned on his shoulder with the complainant holding the hand of the arm that was on top of her shoulder.

113. The hug, as described and demonstrated by the complained did not fit as an act of sexual violation. In the hug that was demonstrated there was no touching of any of the genital organs and/or breasts either by hand, mouth or any object. That hug therefore does not fit into the definition or description of sexual assault.

114. Thus the Applicants failed to prove that the Respondent sexually assaulted the complainant.

In the circumstances I make the following award;

AWARD


115. The Applicant(employer) did not succeed to prove that the Respondent(employee) is guilty of the charges proffered against him.

116. The ELRC must close the file of this case.

Mbulelo Safa: ELRC Panelist