ELRC537 - 22/23EC

ARBITRATION
AWARD

Case Number: ELRC537 - 22/23EC
Commissioner: MBULELO SAFA
Date of Award 17 January 2023
In the ARBITRATION between: -

DEPARTMENT OF EDUCATION: EASTERN CAPE
Applicant

And

THEMBANI MNGUNI
Respondents


DETAILS OF THE HEARING AND REPRESENTATION

1. The matter set down for an Inquiry by arbitrator on the 02 December 2022 at the Fort Beaufort Magistrates Court.

2. The Applicant was represented by Mr Mphakamisi Hlekani who is their Labour Relations Official and the Respondent represented himself.

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 Davidson Primary School in the Amathole West District of the Applicant. He is employed in terms of the Employment of Educators Act.

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.

8. At the conclusion of the arbitration the parties agreed to sending written closing arguments to case management not later than 10 December 2022. The Applicants sent their arguments in time. I had to delay issuing the award waiting for the Respondent to send their arguments, which they ultimately failed to submit.

SURVEY OF EVIDENCE AND ARGUMENT

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

PRELIMINARY ISSUE

10. At the commencement of the proceedings the Respondent requested a delay because he was waiting for his representative from the union SADTU.

11. After a delay of about an hour the Respondent informed me that the representatives he was waiting for have gone to other commitments the other in East London and the other in Alice. He then requested that he be given another date to allow him time to get the representative.

12. Having considered that the Respondent was notified about the set down on the 30 October 2022 I took a view that the Respondent as well as his union did not take the proceedings as serious as it deserved. I also considered the fact that the Respondent did not adhere to the postponement rules of the ELRC. I then decided not to grant the postponement.

APPLICANT’S EVIDENCE AND ARGUMENT

13. The first witness of the witness was Mr Mabhuti Morris Xaba who is the Deputy Principal of Davidson Primary School in Alice.

14. He testified that in the week of the 16 June 2022 another educator (Mr Sithole) came to him to report that they were not happy with the way the Respondent was relating to learners. He said the Respondent was kissing and touching learners in an inappropriate way and he was doing that in a room used as storage for sport equipment.

15. He said the last day he(Respondent) attempted to do that was to the complainant on the 13 June 2022. He said the complainant was called by the Respondent and he said she wanted her to assist in packing books. When the complainant was packing the books the Respondent got into the room and forcefully tried to kiss the complainant but she moved away.

16. It was also said that sometime in 2021 the Respondent asked to be the ‘father’ of the complainant and also asked for her cell number. He told the complainant that can improve her marks if she agreed to be his ‘child’.

17. He said that he was told that on the 15 June 2022 the Respondent called the complainant to pack books and she came with other learners. The Respondent then asked the complainant to go and get a register from another classroom. The Respondent is reported to have followed the complainant to the class and forcefully tried to kiss her and touched her. The complainant again managed to escape and ran away.

18. Before reporting to the principal the witness called the Respondent but he denied the allegations. The Respondent further suggested to the witness must not take the matter further and that he was going to stay away from learners.

19. After the witness have reported to the principal the School Management Team was called to a meeting and after hearing the allegations they called the Respondent. The Respondent again denied the allegations. It was decided in the meeting that the matter was going to be reported to the department(Applicant).

20. After the meeting the meeting the Respondent went to the witness’s office and presented the witness with the letter of resignation. On the instruction of the principal the witness submitted the letter to the department. At the registry office of the department the witness was told to bring the letter with the recommendation letter of the principal and termination form. The letter was handed back to the Respondent in order to get the necessary attachments. The Respondent never came back with the letter again instead in July 2022 he came back and wrote a letter saying withdrawing the resignation.

21. The matter was then reported to the Department(Applicant) who then requested statements from all the affected people.

22. During cross-examination he was asked what the relationship was between the Respondent and the principal and he responded by saying the relationship between them was good both personally and professionally except that the principal had complained about the poor attendance to school by the Respondent and that other members of the management also talked to the Respondent about this.

23. When asked he said the classroom of the Respondent was adjacent to the staff room and there is a window connecting to the staff room.

24. The second witness of the Applicant was the complainant who was twelve (12) years old and testified in camera. She testified that she was doing grade six (06) at Davidson Primary School. She said the Respondent used to teach her when she was doing grade five.

25. She said the Respondent used to call her and tell her that she was scarce. She said the other day he called her to the sports room and told her that he wanted to be her ‘daddy’ and also wanted to know if she had a phone. She said she did not respond. When he asked to be her ‘daddy’ she thought of a girl who told her that she had sex with the Respondent.

26. She said the other day when she was going to write Natural Science and Technology the Respondent asked her what was she going to write and he wished her good luck, hugged her and kissed her in the mouth. She said he wanted to push his tongue onto her mouth and touched her buttocks but she stepped back.

27. After writing the examinations she told her friend what had happened and she (the friend) suggested that they go and tell another educator, Mr Sithole. They went to tell Mr Sithole who promised to think what he would do.

28. She said the following day she was not writing and the Respondent sent another learner to call her to the sports room. When she got there she was instructed by the Respondent to sort books. Initially she was alone there but Mr Sithole had advised her to make sure that she is never alone with the Respondent. She then went to get her friends to be with her.

29. The Respondent came when they were sorting the books and sent the complainant to get another book from the class. The Respondent followed her to the class and whilst she was still looking for the book he came behind her and put his hand behind her neck. He asked her why she brought friends because he wanted her to be alone. The Respondent then went on to touch her on the breasts and her buttocks and when he wanted to touch her at her private part she stepped back. She then went to her friends in the sport room and they finished what they were doing and went to class.

30. After the incident she again told her friend and they were going to tell Mr Sithole again but they could not see him. She said she trusted Mr Sithole as her class teacher and a teacher she was close to. She also said she did not do well in the examination that day.

31. She said when she told Mr Sithole she wanted him to tell the principal so that she(principal) can tell parents so they can make sure that she does not interact with the Respondent again. After the incident she did not see the Respondent again as schools were closed for holidays.

32. She only saw him about two or three weeks after schools were opened and she did not talk to him as she was advised by her parents not to talk to him again. When she saw him in the premises of the school she became emotional and cried until two educators including a psychologist comforted her. She and her friend were also taken to Fort Beaufort where they were counselled.

33. She said even though the Respondent was staying with another educator at the sports room that educator sometimes goes to the grounds, to the auxiliary room and to class leaving the Respondent alone in the sports room. That educator was not always in the sports room.

RESPONDENT’S EVIDENCE AND ARGUMENT


34. The Respondent testified that the only thing he could recall about the complainant was when he asked her to go and pack books at the sports room. The complainant came with other learners to pack the books. He denied that he ever sent her to get a register as they have people who do their registers. He said he only works on registers when they are to be captured on the system(SASAMS) on Fridays. When it was put to him that he did not put her version to the complainant when she testified he admitted that he did not dispute it to her. But he said the sports room and his classroom were in the passage in full view of people.

35. He also said there was a rule that learners were not allowed in the classrooms during break.

36. Asked as to what can be the reason why a 12-year old complainant can lie about him out of the five male educators at the school, he said he did not know.

37. He said he wanted Mr Xaba only to be involved in the matter because he did not want the matter to be taken further. Otherwise he did not believe the principal had a hand in the allegations.

ANALYSIS OF EVIDENCE AND ARGUMENT


38. The Respondent was charged in terms of (1) section 17(1)(b) of the Employment of Educators Act for sexually assaulting a learner in his school and (2) in terms of section 18 (1) (q) of the Employment of Educators Act in that he conducted himself in an improper, disgraceful or unacceptable manner in that he sexually assaulted a learner in his school.

39. The Applicants indicated that they were abandoning the allegations against another complainant who is mentioned in the charges.

40. The Respondent did not provide any evidence in dispute of the allegations save for a bare denial that he did not do as alleged. The denial itself only came after being probed by me to respond to the allegations, otherwise in his evidence-in-chief he did not respond to the allegations.

41. In cross-examination to the complainant and to the deputy principal the respondent seemed to suggest that because the sports room is adjacent to the staff room and was in the passage and also that he was using the sport room with another educator there was no way that he could have done the things he is alleged to have done. The complainant responded that the Respondent was not always with another educator at the sports room as the other educator would sometime go to class and be in the auxiliary room. It needs also be stated that just because the sports room was adjacent to the staff room did not mean the Respondent could not do what he was accused of doing. To kiss a person can be done over a minute when the people in the adjacent staff room are in class or are not paying attention to the sports room.

42. When the complainant was testifying she was consistent and could also not be shaken even during the cross-examination. Even the Respondent could not state how the complainant could single him out of five male educators at the school with the allegations. From her demeanor there is nothing that suggested that the evidence she gave was coached. Due to her age it was also not probable that she would just create such a story or allegations about the Respondent in such a consistent manner.

43. In the circumstances I am making a finding that the allegations that the Respondent hugged, kissed and touched the complainant in the breasts and the buttocks have been proved successfully by the Applicant

44. Section 5(1) of the Criminal Sexual Offences Amendment Act describes the sexual assault as when a person sexually violates a complainant.

45. Section 1 of the Criminal Sexual Offences Amendment Act defines sexual violation as an act which:
“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;

46. The act for which the Respondent has been found guilty involved the touching of the buttocks and the breasts of the complainant as well as kissing in the mouth of the complainant. What the Respondent did therefore meets the requirements of the definition of the sexual violation and consequently sexual offence on the learner(complainant).

47. In terms of section 17(1) of the Employment of Educators Act an educator must be dismissed if found guilty of committing an act of sexual assault on a learner. As I have found the Respondent guilty of sexual assault I am enjoined to impose a sanction of dismissal.

48. The parties did not address me in terms of section 50 of the Criminal Sexual Offences Amendment Act. The section provides that the name of any person who has been convicted of sexual assault on the child in terms of Criminal Sexual Offences Amendment Act or any act must be entered in the National Register for Sex Offenders.

49. As the Respondent has been found guilty of assaulting the complainant who is a child I hereby directed that his name must be entered in the register.
In the circumstances I make the following award;

AWARD

50. The Respondent, Thembani Mnguni, is found guilty of the charge of sexual assault on a learner of Davidson Primary School.

51. The appropriate sanction being imposed is DISMISSAL which must be effected within seven (07) days from the date of receipt of this award.

52. It is directed that the name of the Respondent must be entered in the National Register of Sexual Offenders in terms of section 50 of the Sexual Offences and Related Matters Amendment Act .

Mbulelo Safa: ELRC Panelist