ELRC831-2122WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA ZOOM

In the matter between

HOD, DEPARTMENT OF EDUCATION, WESTERN CAPE Applicant

and

EDGAR DEAN FORTUIN Respondent


ARBITRATOR: D P Van Tonder

HEARD: 22 March 2022; 4 May 2022; 14 June 2022
22 July 2022; 7 September 2022;
3 November 2022; 1 December 2022;
23 January 2023; 7 February 2023;

FINALISED: 20 February 2022

DELIVERED: 2 March 2022

SUMMARY: Labour Relations Act No 66 of 1995 – Section 188A – Inquiry by an arbitrator; Alleged misconduct of sexual nature against learner by educator – Learner with severe intellectual disabilities


ARBITRATION AWARD
Inquiry in terms of section 188A of the LRA


I THE PARTIES

Applicant
[1] The applicant is the Head of the Western Cape Education Department, who was represented by an employee Ms Diedericks.

Respondent
[2] Respondent is Mr Edgar Dean Fortuin. He was represented by Mr Williams from SADTU.

II PROCEDURAL HISTORY
[3] During February 2022, in terms of ELRC Collective Agreement 3 of 2018, applicant referred a dispute to the ELRC against respondent, asking for an inquiry in terms of section 188A of the LRA, read with the provisions of the aforesaid collective agreement.

[4] The arbitration in this matter was held before me via Zoom. Evidence was heard on 22 March 2022, 4 May 2022, 14 June 2022, 22 July 2022, 7 September 2022, 3 November 2022, 1 December 2022 and 7 February 2023. The proceedings were digitally recorded. The matter was finalised on 20 February 2023 when I received the written closing arguments.


III THE ISSUES TO BE DETERMINED

[5] I am required to determine whether the respondent is guilty of any of the charges contained in the charge sheet, and if so, the appropriate sanction. It was agreed at the commencement of the proceedings that the inquiry will not be separated into two separate inquires of guilt and sanction, but that the enquiries of guilt and sanction will be combined in one single hearing.

IV BACKGROUND
[6] Mr Fortuin has been employed by the applicant as an educator since April 2014. He has a clean disciplinary record. It alleged that he sexually assaulted a learner at the Robinhill Special School during 2021. The charge sheet reads as follows:
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 2021, you committed an act of sexual assault on Learner A, a learner enrolled at Robinhill Special School, by

(a) Inserting your penis into her vagina; and/ or
(b) Touching her thigh/and or buttocks; and or
(c) Rubbing her vagina and breasts with your hands.

It is alleged that you are guilty of misconduct in terms of section 18(1)(dd} of the Employment of Educators Act 76 of 1998, to be read with section 18(2)(b)(vi) of the Criminal Law Sexual Offenses and Related Matters Amendment Act, in that during 2021, you sexually groomed learner A, a grade 4 learner enrolled at Robinhill Special School, and performed the following acts:

(a) Inserting your penis into her vagina: and/ or
(b) Touching her· thigh/and or buttocks; and or
(c) Rubbing her vagina and breasts with your hands.

[7] It is common cause that Mr Fortuin was the class teacher of learner A (hereinafter also referred to as “the complainant”) in 2021. It is further common cause that the complainant is currently 15 years old and is a learner with severe intellectual disabilities with an IQ of less than 50. She is unable to read and write and does not know her date of birth. Mr Fortuin denies that he had sexually assaulted the complainant as alleged in the charge sheet. He disputes that he ever touched her in any manner.

V THE EVIDENCE

Evidence on behalf of the employer
[8] Learner “A”, the complainant, who was 14 years old when she testified before me, gave her evidence over three days. She testified that she is in grade 4 in Robin Hill Special School. She cannot read or write and she does not know her date of birth. Mr Fortuin was her class teacher during 2021.

[9] During her evidence in chief she testified that one day while she was in his class with two friends (learners Z and learner S), Mr Fortuin was dissatisfied about the fact that she had drawn a flower on her hand. Mr Fortuin then said to her that she must come with him and that he would be taking her to Ms Bezuidenhoudt about the drawing on her hand.
[10] The two of them then went to the classroom of Ms Bezuidenhoudt. After they left the classroom of Ms Bezuidenhoudt she wanted to go the toilet to urinate. She entered the toilet and Mr Fortuin followed her into the toilet cubicle. There he touched her vagina with his hands. Later that day she started bleeding from her vagina. Asked whether she had been getting periods before that day, she gave conflicting versions. Eventually her answer was that she does not know whether she had been getting periods before that day.

[11] She testified that after the incident she did not return to the classroom immediately but was playing hide and seek. She denied that learner S came to look for her at the toilets. During her evidence in chief she testified that later that day she told her friends learners Z and S that Mr Fortuin had touched her. When she arrived home, her guardian wanted to know why she was bleeding from her vagina. She then told her guardian that Mr Fortuin had touched her. Her guardian then took her back to school to complain to the principal. Her guardian also took her to the doctor. During cross-examination she denied that she had told learner S about the alleged incident.

[12] She testified that before this incident already she did not like Mr Fortuin. The reason for this is that he gives them corporal punishment and he throws books around in class and swears in class.

[13] Later during her examination in chief she was asked to undress the male and female anatomically correct dolls. The female doll has female genitalia whereas the male doll has male genitalia. She demonstrated with the assistance of the dolls how Mr Fortuin placed his hand on her vagina. It is however important to note that at no stage during her examination in chief did she demonstrate with the assistance of the dolls that Mr Fortuin inserted his penis in her vagina and neither did she make such claims during her evidence in chief.

[14] Late during cross-examination on the second day of her evidence before me, and on a leading question by Mr Williams who asked her if Mr Fortuin took out his penis, she replied that he did and that he inserted it into her vagina. That is the first time during her evidence that we heard this version.

[15] On the third day of her evidence, she was again asked during cross-examination to explain what Mr Fortuin had done to her. This time she again made no mention of the allegation that he had inserted his penis into her vagina. It was only later on day three during her re-examination on a very leading question by Ms Diedericks who wanted to know if he had inserted his penis into her vagina, that she again made the allegation that he had inserted his penis into her vagina. Shortly thereafter she was asked during re-examination whether Mr Fortuin had touched her vagina with anything else than his penis. And she said no he did not touch her with anything else.

[16] Roseline Sauls testified that she is the guardian of learner A. One Thursday learner A returned from school. She felt sick and was bleeding heavily from her vagina. There was a lot of blood. When she confronted learner A about this, learner A told her that the teacher had touched her breasts and buttocks. She also said he had put his finger in her vagina. He also took out his penis. According to the guardian, learner S did not have periods previously. She then went to school to report this to the principal.

[17] The Saturday morning immediately after this incident she took learner A to the doctor. According to her they had seen two doctors. The one doctor said that learner X had been sexually assaulted. She gave the letter where the doctor confirmed this, to the principal. Despite the evidence of the doctor who testified that he could not find any signs of sexual assault on learner A and that he only examined her one month after the alleged, incident, Ms Sauls insisted that they did see a doctor shortly after the incident over the week-end who said that he can see that she was sexually assaulted. I pause here to record that Ms Diedericks later placed on record that according to the hospital, only one doctor had examined learner A and that was one month after the alleged incident. The witness further testified that she heard from the friends of learner A, that learner A had told them that Mr Fortuin had touched her breasts and buttocks.

[18] She denied the allegation made by Mr Fortuin in his evidence that learner A has a tendency to make up false accusations. She also denies the allegation that she had once been to school about allegations made by learner A and that she then said that one cannot believe what learner A says. This is not true. It never happened.


[19] Learner Z testified that she is 15 years old. She cannot read. She was in the class with learner A. One day Mr Fortuin left the classroom with learner A. Thereafter she and learner S also left the classroom. When she and learner S later returned to the classroom they found Mr Fortuin in the classroom. Learner S wanted to know where learner A was and Mr Fortuin then said that she is in the toilet. She recalls that Mr Fortuin sent learner S to look for learner A. Learner S returned without learner A. When learner A later returned to the class she was quiet. Asked whether learner A told them what happened while she was out of the classroom, she responded that learner A did not say. She said that this was despite the fact that learner S asked learner A why she was so quiet.

[20] She testified that Mr Fortuin sometimes remove his clothes in class and would only keep his underwear on. He also likes to hit the girls in his classroom on the buttocks with a ruler.

[21] Learner S testified that she is 14 years old and was in the class with learner A. She knows about the day when learner A was in trouble with Mr Fortuin because she drew a flower on her hand. Mr Fortuin then hit her with a ruler on her buttocks and learner A cried.


[22] According to her there were boys in the class that day. After it was put to her that learner A and Mr Fortuin both say that there were only girls in the class that day, she insisted there were boys too. She recalls that Mr Fortuin took learner A to Ms Bezuidenhoudt that day about the flower on her hand. Later Mr Fortuin returned to the classroom but learner A did not return. She then went to look for learner A and found her in the toilet. The two of them returned together to the classroom. Later during cross-examination she changed her version and said that she never went to look for learner A that day and did not find her in the toilet. In the classroom learner A was quiet after she returned and did not say anything. During the break learner A told her that her that Mr Fortuin had touched her and when she asked learner A when this happened, she replied he touched her in the classroom. Mr Fortuin was sometimes rude in class. He sometimes took off his shoes in class. He also gave them corporal punishment. Mr Fortuin never touched their vaginas or breasts.

[23] John Coetzee is the principal of Robin Hill school for the past 23 years. He recalls the day when the guardian of learner A came to his office to complain that Mr Fortuin had sexually assaulted learner A. It was alleged that Mr Fortuin had touched her private parts. He did not investigate the allegations but referred it to labour relations. The guardian did not tell him that learner A had been bleeding from the vagina.
[24] He denies the allegation of Mr Fortuin that learner A has a reputation for making up false allegations. He is not aware of any false accusations that learner A had made up against others.

[25] Hazel Bezuidenhoudt testified that she is an educator at Robin Hill. Learners at this school have an IQ of less than 50. The normal average acceptable IQ for a child is generally more than 100. Learner A had been at this school since she was 8. Learner A finds it difficult to remember things in chronological sequence and remembers visual things better. Mr Fortuin regularly brought learners to her class about discipline problems. Mr Fortuin is not good with discipline. During 2021 Mr Fortuin brought learner A to her classroom about discipline problems. The previous year he also brought her about discipline problems. She believes that Mr Fortuin had brought learner A to him on three occasions about discipline problems. The discipline problems included allegations that she did not listen in class and did not do her work. She denies that Mr Fortuin brought learner A to her about a drawing on her hand. She denies the allegation of Mr Fortuin that learner A has a reputation for making up false allegations. She is not aware of any false accusations that learner A had made up against others. Learner A is an honest child.

[26] Doctor Lodimba Abedi is a medical doctor. He testified that he examined learner A approximately one month after the alleged incident when she was allegedly sexually assaulted. The allegation as reported to him was that an educator had inserted his penis into her vagina. Due to the fact that the examination took place so long after the alleged incident, it was no longer possible to determine from a medical point of view whether or not a penis was inserted into her vagina. He further testified that it is not possible for a child to start menstruating due to the fact that a penis was inserted into the vagina. He also testified that he would not think that there would be heavy bleeding from the vagina merely because a penis was inserted into the vagina, but that he cannot make any definite findings in this regard.

[27] Elizabeth De Vries testified that she is a psychologist employed by the WCED. This school where learner A is, is for severely intellectually disabled learners. Learners like the complainant cannot really recall events in a chronological manner. Learner A does not easily understand instructions. Learners like learner A do not always understand questions. Learner A cannot think logically. It would therefore be difficult for her to make up stories about others. She lacks the ability to plan and think logically. She concedes however that any person can tell a lie and that she cannot say that learner A is not capable of telling lies.
Evidence on behalf of respondent
[28] Edgar Dean Fortuin, the respondent testified that he did not sexually assault learner A in the manner that she described or in any other manner. He testified that she has a reputation for making up false allegations against others, and that her guardian, Mr Bezuidenhoudt, and the school principal Mr Coetzee are all aware of these tendencies. He mentioned various examples of incidents where she was caught out making up false allegations against others.

[29] He testified that on the day of the alleged incident learner S complained that learner A had drawn a flower on her hand. This flower looked to him like it could be part of the insignia of one of the gangs. He then asked learner A to accompany him to Ms Bezuidenhoudt. Ms Bezuidenhoudt then instructed learner A to go and wash her hands. On their way back from Ms Bezuidenhoudt to the classroom they walked past the toilets and he said to learner A she must go and wash her hands to remove the flower. Learner A entered the bathroom alone and he returned to his classroom. He did not enter the bathroom. When after a while learner A was still not back in the classroom he asked learner S to go look for her. Learner S did not want to go look for her. He asked Ms Wahlburg to see if learner A is not in the toilets.
[30] When Ms Wahlburg could not find learner A he went to ask Mr Vyver if he did not see learner A but Mr Vyver also did not see her. Mr Fortuin testified further that he then believed that learner A was playing hide and seek again. When learner A eventually returned he wanted to know why she was so late and she responded there was no water and she had to go and look for water. She also mentioned that she went to Mr Japhtha who had called her. The first time when he heard about the accusations against him by learner A, was when the SAPS arrested him on 9 November 2021. He spend 48 hours in custody. On 1 November 2022 the criminal charges against him were withdrawn in the regional court.

VI ARGUMENTS
[31] Both representatives filed written closing arguments. Since the arguments are recorded in writing there is no purpose in summarising it here in detail.

[32] On behalf of the employer it was submitted that Mr Fortuin is guilty of the misconduct as contained in the charge sheet and that he should be dismissed. On behalf of Mr Fortuin it was submitted that the he is not guilty of any misconduct and should be acquitted.



VII DISCUSSION

[33] In terms of section 188A of the LRA, my task is to determine, based on the evidence presented to me, and on a balance of probabilities, whether the accused employee has committed an offence for which he has been charged and, if so, to determine an appropriate sanction. In the event that I convict applicant on any misconduct in terms of section 17 of the Employment of Educators Act, the sanction is mandatory dismissal.

[34] The onus is on the employer to prove the guilt of an employee who is charged with misconduct. There is no need for an employer to prove the guilt of an employee with absolute certainty or beyond reasonable doubt. Proof on a balance of probabilities is sufficient. In determining probabilities, evidence is assessed against human experience, logic and common sense.

[35] To the extent that I am required to make credibility findings in respect of mutually destructive versions, I adopt the approach in Stellenbosch Farmers’ Winery Group Ltd v Martell in order to resolve these factual disputes. In Stellenbosch Farmers’ Winery Group Ltd v Martell it was held that a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. The credibility of the witnesses and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the versions.

The cautionary rule against single witnesses
[36] The complainant is a single witness. There are no other people who were present when the alleged incidents took place in the toilet. While the Courts have recognised that sexual molestation of children generally takes place behind closed doors and is committed by a person in a position of authority over the child and that it is difficult to obtain eye-witness corroboration, the Courts have further held that despite this, evidentiary safeguards must nevertheless be applied. In S v Stevens [2005] 1 All SA 1 (SCA) at para 1, the Court said:

Courts in civil or criminal cases faced with the legitimate complaints of persons who are victims of sexually inappropriate behaviour are obliged in terms of the Constitution to respond in a manner that affords the appropriate redress and protection. Vulnerable sections of the community, who often fall prey to such behaviour, are entitled to expect no less from the judiciary. However, in considering whether or not claims are justified, care should be taken to ensure that evidentiary rules and procedural safeguards are properly applied and adhered to.

[37] There is a cautionary ruled about single witnesses that has been developed by our Courts in terms of which the evidence of a single witness should be approached with caution, his or her merits as a witness being weighed against factors which militate against his or her credibility.


[38] According to this rule, the evidence of a single witness must be clear and satisfactory in every material aspect, or alternatively there must be corroboration. In this regard however, there is a different school of thought in terms of which it is said that all that is required in civil proceedings and arbitration proceedings with regard to a single witness, is that an arbitrator must be satisfied that the evidence of a single witness is reliable and trustworthy before relying on it

The cautionary rule against the evidence of children
[39] The complainant is a child. She was 14 years old when she testified before me. It is an established principle that the evidence of children should be treated with caution and that a tribunal must fully appreciate the dangers inherent in the acceptance of such evidence. The rule does however not mean that the evidence accepted must be above any criticism.

[40] It requires only that the evidence accepted should be substantially satisfactory in relation to material issues or that it should be corroborated by other evidence. There is no rigid rule that corroboration must always be present before a child’s evidence is accepted. What is required of a presiding officer, is a detailed evaluation, not confined to demeanour, of the extent to which the evidence of a child could be regarded as reliable and acceptable. A guide as to how this issue should be approached, is provided in Woji v Santam Insurance Co Limited:

“Trustworthiness, as is pointed out by Wigmore…depends on factors such as the child’s power of observation, his power of recollection, and his power of narration on the specific matter to be testified. In each instance the capacity of the particular child is to be investigated. His capacity of observation will depend on whether he appears “intelligent enough to observe”. Whether he had the capacity of recollection will depend again on whether he has sufficient years of discretion “to remember what occurs” while the capacity of narration or communication raises the question whether the child has “the capacity to understand the questions put, and to frame and express intelligent answers”…. There are other factors as well which the Court will take into account in assessing the child’s trustworthiness in the witness-box. Does he appear to be honest – is there a consciousness of the duty to speak the truth? Then also “the nature of the evidence given by the child may be of a simple kind and may relate to a subject-matter clearly within the field of its understanding and interest and the circumstances may be such as practically to exclude the risks arising from suggestibility” (per Schreiner JA in R v Manda)”.

[41] In Raleting v S the Court made the following remarks regarding the single child witness:

The adjudication of a child witness demands the proverbial Wisdom of Solomon and the judgement must be given with circumspection and anxious care. A court must articulate the warning of care and the need for caution and with reference to the circumstances of the case. A court must examine the evidence in order to satisfy itself that the evidence given by the witness is clear and substantially satisfactory in all material aspects. Although corroboration is not a prerequisite for a conviction, a court will in appropriate circumstances, seek corroboration which implicates the accused before it will convict beyond reasonable doubt. In the absence of corroboration, a court will look for some feature in the evidence which gives the single child witness enough veracity to reduce the risk of mistaken reliance.

Further rules of practice to take into account with child witnesses
[42] In assessing the evidence of learner A and the other learners who testified I am further mindful of the following:
• Learner A and the other learners who testified are children with severe intellectual disabilities;
• The evidence of children, and especially the evidence of children with intellectual disabilities, cannot be evaluated in the same strict manner as one would evaluate the evidence of adults;
• Often one would accept the evidence of a child witness in circumstances where if the witness was an adult, one would never have accepted that evidence;

• Children with intellectual disabilities such as learner A find it difficult to think logically and are less likely to fabricate false versions;
• Children and especially children with intellectual disabilities find it difficult to tell events chronologically, would forget important details, and would tell their version a little bit differently leaving out details or adding in details every time that they are asked to repeat their version;
• Children, and especially children with severe intellectual disabilities do not do well with leading questions and would often answer in the affirmative when a leading question is asked simply because they believe that this is the answer that is required.

[43] All of this can however not mean that one must simply always accept the allegations and evidence of a child with intellectual disabilities merely because she is a child with intellectual disabilities. The merits and demerits of the evidence of the various witnesses must still be assessed against the probabilities, common sense and logic.

Evaluation of the evidence
[44] I am mindful that the evidence of most witnesses and especially child witness, and more particularly children with severe intellectual disabilities, would contain inconsistencies relating to peripheral issues when they give evidence. That in itself generally does not have an affect on their credibility and reliability. But when the inconsistencies relate to the core details of the allegations, that becomes more problematic, especially in the light of the cautionary rules I have referred to.

[45] Of all the allegations against Mr Fortuin, the allegation that he inserted his penis into the vagina of the complainant (which is in essence rape) is certainly the most serious allegation and one would think the most traumatising aspect for the complainant. But yet one finds that during her evidence in chief, the complainant never made the allegation that Mr Fortuin had inserted his penis into her vagina. She only testified about Mr Fortuin touching her vagina.

[46] Later during her examination in chief she was asked to undress the male and female anatomically correct dolls. The female doll has female genitalia whereas the male doll has male genitalia. She demonstrated with the assistance of the dolls how Mr Fortuin placed his hand on her vagina.
[47] It is however important to note that at no stage during her examination in chief did she demonstrate with the assistance of the dolls that Mr Fortuin inserted his penis in her vagina and neither did she make such claims during her evidence in chief.

[48] It was only late during cross-examination on the second day of her evidence before me, and on a leading question by Mr Williams who asked her if Mr Fortuin took out his penis, that she replied that he did and that he inserted it into her vagina. That is the first time during her evidence that we heard this version.

[49] On the third day of her evidence, she was again asked during cross-examination to explain what Mr Fortuin had done to her. This time she again made no mention of the allegation that he had inserted his penis into her vagina. It was only later on day three of her re-examination on a very leading question by Ms Diedericks who wanted to know if he had inserted his penis into her vagina, that she again made the allegation that he had inserted his penis into her vagina. Shortly thereafter she was asked during re-examination whether Mr Fortuin had touched her vagina with anything else than his penis. And she said no he did not touch her with anything else. This contradicted her earlier version that he had touched her vagina with his hands.
[50] The evidence of the complainant in this regard is highly problematic and unreliable in that it relates to the core allegations which one would expect to remain consistent. Her evidence cannot be said to be clear and satisfactory in every material aspect.

[51] When the evidence of single witness is so problematic in respect of the core allegations of the witness that her evidence is not clear and satisfactory in all material aspects, the cautionary rule provides that if there is sufficient independent corroboration for her version, then her evidence may nevertheless be accepted as reliable.

[52] In a case of alleged rape, medical evidence confirming the rape, would generally be seen as sufficient corroboration to safely rely on the evidence of a complainant whose evidence is not clear and satisfactory in every material aspect, where rape is in dispute, as is the case in this matter. But the medical doctor who came to testify, testified that due to the fact that the complainant came to him only one month after the alleged rape, it was no longer possible to say whether or not a penis was inserted into her vagina. The medical evidence on this aspect was therefore inconclusive, neutral and could not serve as corroboration.

[53] The evidence of the medical doctor was further that the version of the complainant’s guardian that the complainant was bleeding heavily from her vagina and that this was indicative of sexual assault, was not plausible. According to the doctor rape would neither cause heavy bleeding from the vagina, nor cause a girl who did not previously menstruate, to start menstruating. The evidence of the guardian on these aspects of the bleeding from complainant’s vagina can therefore also not be seen as corroboration for an allegation that the complainant must have been raped or sexually assaulted in another manner.

[54] The complainant’s guardian testified that in addition to the doctor who testified in these proceedings, there was another doctor who examined complainant, and that this was the Saturday after the incident and that the other doctor did say that he found evidence of sexual assault. But this evidence cannot be the truth because Ms Diedericks placed on record that after she made enquiries about the allegation made by the guardian, she established that the complainant was never examined by another doctor and that the only doctor who examined the complainant was indeed the doctor who testified before us.

[55] It is not plausible that a guardian would wait a month before taking her child to the doctor if it was reported to her immediately that the child was sexually molested, especially if there was heavy bleeding from the vagina on the same day of the alleged incident and the guardian formed the opinion that same day that this was due to an alleged sexual molestation. Hence the fact that the guardian only took the complainant to the doctor one month after the alleged incident, further underscores the improbability of the version of the complainant and her guardian.

[56] In relation to the allegation that Mr Fortuin had allegedly touched the complainant’s breasts and buttocks, the evidence presented by the employer is also problematic. Although the complainant’s guardian testified the complainant told her that Mr Fortuin had touched her buttocks and breasts, complainant never once mentioned during the arbitration proceedings that Mr Fortuin had touched her buttocks or breasts. The evidence of complainant’s guardian that the complainant said to her that Mr Fortuin had inserted his finger into her vagina, was also not consistent with the evidence of the complainant and this allegation is also not contained in the charge sheet. Not once did the complainant allege in these proceedings that Mr Fortuin had inserted his finger into her vagina. She only testified that he had touched her vagina and inserted his penis into her vagina. This aspect is therefore also problematic.
[57] A further problematic aspect relates to the inconsistencies in what learner A reported to her friends. Complainant claims that she told learner S and learner Z what Mr Fortuin had done to her. According to learner S, complainant told her that Mr Fortuin had touched her, but she did not say where he touched her, and she said that he touched her in the classroom. This is not consistent with the version of the complainant. According to complainant the incident happened in the bathrooms. Learner Z gave a completely different version from learner S and the complainant. According to learner Z the complainant did not say what happened to her while she was outside the classroom, this despite the fact that learner S asked the complainant why she was so quiet.

[58] Regarding the allegation that Mr Fortuin took the complainant to Ms Bezuidenhout about a flower drawn on her hand, Ms Bezuidenhout was adamant that it was never mentioned that this was the reason for the visit. But Mr Fortuin’s version that he took the complainant to Ms Bezuidenhout about a flower that was drawn on her hand was confirmed by the complainant and learner S. I am not suggesting that Ms Bezuidenhoudt had deliberately lied in this regard, but the corroboration of Mr Fortuin’s version in this regard by both the complainant and learner S suggests that the purpose of the visit to Ms Bezuidenhoudt must have related to the flower on complainant’s hand.
[59] Mr Fortuin denied throughout these proceedings that he had sexually assaulted the complainant in any manner as alleged in the charge sheet or otherwise. When weighing up the merits and demerits of Mr Fortuin’s version, there are two aspects regarding the demerits that stand out, which I will now discuss.

[60] The first aspect that counts against Mr Fortuin is the fact that he lied to me by falsely alleging that complainant has a tendency of fabricating false stories against others. He gave examples of such alleged fabrications and he testified that the complainant’s guardian, Ms Bezuidenhoudt, and the principal Mr Coetzee are all aware of these fabrications and her reputation to fabricate stories. To refute this allegation that was initially never put to these witnesses, I allowed the employer to recall all three these witnesses. They all denied Mr Fortuin’s evidence in this regard and were adamant that they had never became aware of any false stories made up by the complainant in the past. I have no doubt that they told me the truth in this regard. There would be no reason for them to lie on this aspect. If this was the truth, Mr Fortuin would in the first place have ensured that this was put to these witnesses the first time when they gave evidence, if this was such an integral part of his defence. My finding is therefore that Mr Fortuin had lied in this regard.

[61] But the fact that Mr Fortuin was caught out lying on this one aspect, does not mean that therefore his entire version is false and that automatically the allegations made by the complainant are more probable than his version or the truth. A lie in itself is never proof that the version of the other side is the truth. All that can be said is that where a witness has been shown to be deliberately lying on one point, the trier of fact may (and not must) conclude that his evidence on another point cannot safely be relied upon. Experience has taught us that when accused persons do not know why a complainant would falsely accuse them of misconduct that they deny, they would often fabricate false motives that according to them the complainant would have, because they may think that without being able to provide a motive why the complainant would falsely incriminate them, their version would not sound plausible. Our Courts have recognised that one of the reasons why an accused person would sometimes tell a lie on a particular aspect is precisely because they think that a lie on that aspect would sound more credible than the truth. This one lie about the alleged tendency of the complainant to fabricate false accusations against others, does therefore not on its own make the version of the Mr Fortuin less probable or less credible than the version of the employer.
[62] The next aspect that counts against Mr Fortuin, is that, apart from the evidence of the complainant that she did not like Mr Fortuin even before the alleged incident, because he gave them corporal punishment and threw books around and swears in class, there seems to be no plausible motive on the part of the complainant to fabricate false evidence against Mr Fortuin. But this too, cannot on its own automatically mean that the complainant’s version must be accepted and Mr Fortuin’s version must be rejected.

[63] It is so that the absence of a motive to lie on the part of a complainant is always one of the relevant factors to consider in assessing the probabilities and making credibility findings. People do not just go around and accuse others of sexual assault for no reason at all, just for the fun of it. However, it is also trite law that a court or tribunal may never base a credibility or factual finding solely on the reasoning that the witness making allegations has no motive to commit perjury and that therefore her evidence must necessarily be the truth and accepted.

[64] The onus to prove the allegations made against Mr Fortuin is on the employer. In order for me to accept the version of the complainant over that of Mr Fortuin, I must either find that her version is more probable than his, or that her version is the truth and the version of Mr Fortuin is false. In this regard our Courts have stated that where the probabilities are evenly balanced an arbitrator may only find for the party upon whom the onus rests, if he is satisfied on a balance of probabilities that the story of that party is true and the other is false. One cannot simply reason that because children with severe intellectual disabilities generally do not fabricate false stories against others, therefore whenever they make allegations against others, their version must necessarily always be the truth. To reason like that would be irrational because all people ultimately have the ability to tell lies or make mistakes when they make accusations.

[65] I am mindful that in order to accept the version of the complainant, I only need to find that her version was true in its essential features (and not necessarily true in everything she said), or that her version is more probable than that of Mr Fortuin.
[66] Given the problematic aspects in the complainant’s version that I have discussed, I am unable to find that her version was necessarily the truth in its essential features and nor can I find that Mr Fortuin’s version was necessarily not the truth in its essential features. For the same reasons I am also not able to find that the complainant’s version is more probable than that of Mr Fortuin. I am also of the view that I am unable to find that the evidence of the complainant was reliable and trustworthy. It was simply too problematic and unsafe to rely on. I am making all these findings mindful of all the aspects (especially as summarized in paragraph 42 hereof) that I must take into account in favour of the complainant when evaluating her evidence given the fact that she is a child with severe intellectual disabilities.

[67] Mr Fortuin was accused of having performed the following acts on the complainant namely:
(a) Inserting his penis into her vagina; and/ or
(b) Touching her· thigh/and or buttocks; and or
(c) Rubbing her vagina and breasts with his hands.


[68] For the reasons contained in this award, my finding is that the employer has not succeeded to prove the guilt of Mr Fortuin on any of these allegations as contained in the charge sheet on a balance of probabilities. Mr Fortuin is therefore acquitted on all charges.
AWARD
In the premises I make and publish the following order and award:

1. The employer (the applicant, Head Of Department, Department of Education, Western Cape) has failed to prove the charges against Mr Fortuin (the respondent) on a balance of probabilities.

2. The respondent, Mr Fortuin, is acquitted on all the charges.

3. There is no order as to costs.

D P Van Tonder
ELRC Senior Panellist