ELRC533-21/22 GP

ARBITRATION
AWARD
Case Number: ELRC533-21/22 GP
Panelist : Mathabo Makwela
Date of Award: 10 March 2023

In the Inquiry by Arbitrator proceedings between

Gladwin Lethabo Morodi
(Employee)

And

Department of Education: GAUTENG
(Employer)

DETAILS OF PARTIES AND REPRESENTATION

1. This is the award in the enquiry by arbitrator between Glenwin Lethabo Morodi, the employee, and Department of Education: Gauteng, the employer.

2. The inquiry by arbitrator was under the auspices of the ELRC in terms of Section 188A of the Labour Relations Act 66 of 1995 (as amended) (the LRA).

3. The inquiry by arbitrator took place on multiple days in 2022 including 15 June , 10 August, 9,18 November 2022 and was finalized on 08 February 2023. At the conclusion of the proceedings, the parties requested to submit written closing arguments on 15 February 2023.

4. The employee was in attendance and was initially represented by Chris Nomandindi from SADTU, and later represented himself while the employer was represented by Maropeng Morena, its Labour Relations Practitioner.

5. The employer submitted a bundle of documents which was marked as “Bundle A”, while the employee’s bundle was marked as “Bundle B”. The proceedings were digitally recorded and typed notes were also taken.

BACKGROUND TO THE DISPUTE

6. The parties are Gladwin Lethabo Morodi, the employee and Department of Education: Gauteng, the employer.
7. This is an inquiry by arbitrator in terms of section 188A of the LRA. The employer has proffered two charges of sexual harassment against the employee. The alleged acts of sexual harassment were allegedly perpetrated against a learner which for purposes of this award will be referred to as JM at Umqhele Comprehensive school, Johannesburg East District where the employee is working as an educator and where the leaner was attending school.

8. The charges proffered against the employee were the following:

“Allegation 1
In is alleged that on or around during November 2020, you conducted yourself in an improper, disgraceful and unacceptable manner in that you told JM that you are going to harass her when she is in Grade 11 and that you want to be her boyfriend.

In view of the above action, you are thus charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act, 76 of 1998 as amended.

Allegation 2
It is alleged that during the period in the year 2020 and May 2021, while on duty at Umqhele Comprehensive School, you sexually assaulted JM, a girl in the same school, in that you raped her in the classroom.

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

9. The following issues were agreed to as common cause:
9.1 The employee was an educator at Umqhele Comprehensive School. He was a natural Science educator and in 2020 he taught grade 9 Natural Science. The employee’s immediate supervisor was Mr. V. Nkomo (HOD: Physical Science, Natural Science and Technical Science).


9.2 JM was a learner at the school until 14 May 2021 and has since been moved to Penelope Secondary School. The employee was at school on 27 November 2020. He was sent to Bongani Rainmakers to collect PPEs in the morning and came back to school. The employee was at school on 14 May 2021. The lab is also used as a classroom.

9.3 Parties had a pre-hearing conference on 04 November 2021; exchanged documents; agreed that outstanding documents would be submitted on 09 November 2021 and agreed on documents to be used at the enquiry.

PRELIMINARY ISSUES


10. At the beginning of the enquiry the applicant made an application to submit the following documents: The leaners statement, delivery note dated 27 November 2020, the school time table used during Covid-19 lockdown, Capitec bank statement containing the transaction of the 14th May 2021, Agreement’s statement and statement of the leaners Mother.

11. The employer’s representative opposed the application stating that an agreement was reached during the pre-hearing conference that documents which were not available had to be submitted 3 (three) days before the scheduled arbitration date. The employer will be prejudiced if the employee is granted an opportunity to submit additional documents now, as the employer will not have sufficient time to go through the documents and prepare its witnesses accordingly.

12. A ruling was issued allowing the applicant to submit the documents and the matter was postponed to allow the employer to go through the documents and prepare its case.

13. On 18 November 2022, during the arbitration hearing. The employee applied for postponement stating that he wanted to call two witnesses, Maake and the school treasurer. Postponement was refused after considering that the matter had been postponed many times before and the employee knew that he had to bring all his witnesses on the day of the arbitration hearing. However, the proceedings were adjourned for 2 hours to allow the employee an opportunity to go and collect his other two witnesses, as he had stated that the two witnesses could be available on that day.

14. The proceedings resumed after 2 hours and 30 minutes, while the employee had not returned back. An oral ruling was issued closing the employee’s case.

15. Later on, that day, the Council personnel informed me that the employee returned an hour after the employer party and myself had left the arbitration hearing venue and that the employee had said he was involved in a motor vehicle accident. The employee also wrote an email advising Council, myself and the employer that he was involved in an accident, hence he failed to return to the proceedings after the agreed time.

16. Considering the fact that the employee returned to the arbitration hearing venue, on the same day of the arbitration hearing on allegations that he was involved in a motor vehicle accident and that rescinding the ruling might prejudice the employer in relation to speedily resolution of the dispute and finalizing the dispute. I found that allowing the employee a chance to bring his two witnesses and also to close his case, outweighed the prejudice that the respondent might suffer. I rescinded my ruling and allowed the employee an opportunity to bring his witnesses. I also advised parties that further postponements will not be allowed.

17. On 23 January 2023 the employee made an application for another postponement, stating that he had subpoenaed the school treasurer and the bank statement of the school. The treasurer did not attend the arbitration hearing.

18. The employer representative opposed the application for postponement and argued that submitting documents at this stage when the employer’s witnesses have already testified will prejudice its case. Its witnesses will not be called again to be tested on the documents.

19. Postponement was refused after considering that parties were informed that no further postponement will be granted; that allowing new documents at this stage of the case will prejudice the other party’s case as its witnesses will not have the opportunity to be tested on the documents, unless the case is reopened and that the purpose of speedily resolution of arbitration disputes will be defeated.

ISSUE TO BE DECIDED


20. The issue to be decided is whether the employee perpetrated the alleged acts of sexual harassment proffered against him, and if so, what the appropriate penalty should be. The employer sought the dismissal of the employee.

SURVEY OF PARTIES EVIDENCE AND ARGUMENTS

The Employer’s Case
JM testified that:

21. She is 17 years old and was attending school at Umqhele Comprehensive School (Umqhele) as a grade 10 learner in 2021. The employee was her teacher in Grade 9 in 2020, and in 2021 he taught her Natural Science. She was not in a relationship with the employee. The employee had, at some stage, told her that he wanted to be her boyfriend. She knew the employee to be having two motor vehicles, a Corolla and the other that might have been a Ford.

22. Her statement is on bundle B19, she was requested by the principal to write it because of an incident of rape perpetrated against her by the employee in 2020.

23. On 27 November 2020 the employee asked her to assist him in recording marks. When she had done so and everyone had left and while walking towards the door, the employee came from behind her and started touching her and said that he will start harassing her when she is in grade 11.

24. On 14 May 2021 after attending extra lessons while passing the employee’s office, the employee called her into his office, asked her if she was preventing and told her that he did not want to see her pregnant. The employee locked the door with her inside and raped her. In that encounter, the employee had pushed her next to the dustbin making her to hold the dustbin, undressed her skirt and panty and used a condom to rape her. She had after the incident despite the employee telling her that she should not leave as he was going to conduct writing for the matriculants. She left the employee’s office and went to Agreement to tell him about the incident. Agreement went to tell the principal and she was taken to the hospital.

25. She went to the police station on the following day accompanied by her mother where they opened a criminal case against the employee. Upon their return at home, her aunt told them that there were people who came to see them but she did not know who they were. After some time, one of the school teachers, Lekgoathi, had come and said that she was with the employee and asked if the employee could join them.

26. Her mother told Lekgoathi that the employee was not welcomed in her house. Her mother called the investigating officer who asked Lekgoathi if she was sent by the school. When Lekgoathi responded that she was not sent by the school but had come as a friend of the employee, the investigating officer told Lekgoathi to leave our home. After Lekgoathi had departed from them, her mother had seen the employee’s car, a blue ford parked at a distance from her home. Her mother took pictures of the employee’s car and handed them to the investigating officer. B9 was not the car that the employee was driving on 14 May 2021, as the employee was driving a dark brown Corolla. B9 is the blue ford car.

Under cross-examination, JM testified that:

27. She knew the employee as he was her teacher. She was doing grade 9 in 2020 and did not know how many teachers taught at that school. She could not remember who taught Life Orientation at grade 9 but the employee taught her Natural Science at grade 9H. She insisted that the employee taught her in grade 9H. The principal drove an Audi car. The employee had told her things referred to in charge 1 in November 2020 and at that time she was alone in the lab when the employee told her same. The lab keys are always with the employee.

28. She did not tell anyone that the employee had told her that she will start harassing her when she gets to grade 11 and that he wanted to be her boyfriend. In 2020 when the employee raped her, the employee asked her to record marks for him and after she had done so, the employee pulled her, closed the door, undressed and raped her. She insisted that the employee raped her and that the employee knew so.

29. The second rape happened on 14 May 2021. The first and second rape incidents happened in 2021 and the other one in 2020. In 2021 while she was passing the employee’s office en route to the lab, the employee had called her to his office, closed the burglar door, pulled her from behind the door, bent her towards the dustbin and raped her.

30. On that day, Mrs. Mohapi was in the library in her office and was about to leave when she, JM, entered. The rape happened at approximately 15h00. It was when she was proceeding to the second stairs at the library that the employee pulled her to the class and closed the door. Mangadani was a teacher at the school and Agreement was her extra class tutor. After opening the criminal case on the following Saturday, there was a teacher who came with the employee and she had heard the teacher asking about the bag of the RCL member. She could not have been lying in her testimony as there would have been no reason for them to ask her about the bag.


31. B7 is the time table for 2021 and in that year, she was in grade 10. They were not attending in 2021 but according to B7, they were attending every day. Grade 10 pupils and matriculants were attending on Wednesdays and Thursdays. In February 2021 they were attending according to the time table. There were other time tables that were used other than the one at B7. The version of the employee that B7 was the only time table used for that whole year will not be true.

32. She stopped attending at Umqhele around the second term and never went back again. The time tables were changed before she left the school. The employee was at school on 27 November 2020 as she had seen him. Even if he may have left the school on that day at some stage in the day, he was at the school as she saw him when she was going to the library.

33. She was a class captain in grade 10 and Morobejane was her class teacher. The employee had asked her about her class list because their class was dirty and the learners were not willing to clean it. The employee was the administrator in the WhatsApp group. As such, he had her cellphone number and he started sending her messages privately, which she was not happy with and thereupon she blocked him.

34. She was not sure who had written the statement on B18 as there were many people who came to ask her to make a statement and they would write it down. She was wearing pants in 2020 when the employee undressed and raped her. When the employee undressed her, his one hand was on her mouth, while using the other hand to undress her. He was at her back and had bent her down with his full weight on her back making it difficult for her to move. She had cried when this incident happened.

35. When asked whether the employee on 27 November 2020 closed or locked the door, she testified that when she passed the door, the employee grabbed her, closed the door and locked it. She was in shock and could not remember what she was doing. She was sitting at the table and had asked the employee what she was doing and why she was locking the door. She would want’s to forget about what happened in the past. Though she may be confused about dates, the incidents of rape happened. The rape incident happened on different dates after the employee had told her that he will harass her in grade 11.

36. It was possible that the incident happened between 27 November and early December 2021. The incident happened at around 14h00 and she was not in the examination room as she had finished writing English paper which was not difficult as it was multiple questions. She did not tell her friend Dimakatso about the incident as she did not want to tell anyone.

37. It was not true that the employee did not know her in 2020 as he taught her and her friends. When she did grade 9 during Covid time, they were not using the same time table. There were no new teachers but teachers were rotating. Terms 1 and 2 had different teachers. Teachers in Natural Science were different in terms 1 and 2 but in term 3 the employee came to teach them.

38. She cleaned the classroom alone on 14 May 2021 for five minutes using a broom only. Apart from knowing the principal’s car, she knew Mohapi’s Mercedes Benz. The employee had a Corolla and she had seen it herself.

39. Lekgoathi had come to her home and said she was with the employee. She did not see the employee but Lekgoathi had said that she was with the employee. The employee’s car was parked three to four houses from her home. She was not hired by anyone to testify as she was on the incidents with the employee against her. He would not have testified in the manner that she was testifying if the employee had done nothing to her.

Khomotso Malahlela (“Khomotso”)’ testified that:

40. She is JM’s mother and that on 14 May 2021 she had received a call from Agreement asking her to come to the hospital as JM was there. She drove with her husband to the hospital where they found the school principal who told them that the employee had raped JM. Dr. Ngobeni spoke to them after examining JM. The police arrived and asked them to interrogate JM prior to them opening a case. On that day she tried to interrogate JM but she was not responsive.

41. JM was scared when they got home from the hospital. She was rattled and looked traumatized. She could not say anything in front of her father. JM was wearing a skirt, white shirt, school socks and shoes when she went to school on 14 May 2021. JM was crying when she interrogated her on that day and said it was not the first incident but the second with the employee. JM was left to sleep and, in the morning, she had interrogated her again and JM explained what had happened. She then took her to the police station to open a rape case.

42. Upon returning home, her younger sister told her that there were people looking for her and had asked that they be called. While on the phone with JM’s father, Lekgoathi came and introduced herself as the employee’s friend. She said she was in the company of the employee and the latter was requesting to be allowed to enter their house. She told Lekgoathi that the employee was not allowed to come into their home.

43. Lekgoathi started interrogating JM, firstly, asking why JM had opened a case while she, Lekgoathi, had an agreement with JM. She told Lekgoathi to wait and she called the investigating officer who asked her to put the call on loudspeaker. The investigating officer asked Lekgoathi if she was representing the school and Lekgoathi had said that she was sent by the employee as a friend. The investigating officer told Lekgoathi that what she was doing was wrong and that she should leave. Lekgoathi indeed left.

44. She once sent JM to Shoprite to buy butternut and while she was peeling it outside, she had heard her screaming “that person, that person”. When she went out to see what was happening, JM said it was the employee. The person JM was referring to was running away and she and her husband had given chase. They caught that person who was the employee and her husband started fighting with him. A police van passed by and she asked them to intervene in that fight. The police asked the person that was fighting with his husband his name and that of his husband that person had said that he was the employee. That was how she got to know the employee.

45. While she was at the hospital, she overheard the principal speaking on the phone to some other person saying the employee had repeated the same thing again, the last time that they reprimanded him he had said that he would not do it again. The principal spoke about a girl that was raped by the employee and she realised that JM was not the first victim of the employee.

Under cross-examination, Khomotso testified that:

46. She was called on 14 May by Agreement at around 19h30-20h00 who was with the principal to come to the hospital as JM was said to have been raped. B14 was her statement. Initially, she had said that Agreement called her at 17h35 but she had ignored the call as she knew Agreement had said that he realised that JM had a problem and if they were agreeing that he booked them a session at the hospital to which she had agreed. When she asked JM if she had a problem, JM had responded in the negative and said that if she had a problem, the principal will let her know. Agreement was a school psychologist and worked at the hospital as well.

47. She was not at the school but believed what her daughter had told her. The J88 revealed that JM had sexual intercourse on that day. JM told her on 15 May that she had a class list taking it to the employee who closed the burglar door, pushed her towards door, where she ended up kneeling and the employee started raping her with a condom. It is what she knew that Lekgoathi interrogated JM when she came to their house.

48. It was not on that day that Lekgoathi came to her house that she asked JM about the employee’s car. She knew that it was the employee’s car because Lekgoathi said that she came with the employee. She knew about the employee’s car when the latter had a fight with her husband. She had taken a picture of the employee’s car but lost her phone. Even on the day that her husband fought with the employee, she called MEC Lesufi. She reported the incident to him as well as the incident of Lekgoathi coming to her house. MEC advised her to report the matter to the police, which she did.

49. She had reported to the Rabasotho police station that she and her daughter did not feel safe as the employee kept on coming to the vicinity of her house. Thereafter, the employee was never seen outside her yard again. The MEC had given her his cell number when he came to her house after the incident of 14 May. Lekgoathi was with the employee when she asked if the employee could be allowed into the house. The employee was in the car and if she had agreed, the employee would have came in. Lekgoathi would not have said that she was with the employee if the employee was not there.

50. JM was examined at the hospital and found to have had sexual intercourse and would not have pointed at the employee if the employee was not the perpetrator. It was the employee who ran away when JM was peeling the butternut as he had told the police that he was Morodi when the police asked for his name. After reporting the employee’s continual visit in the vicinity of his yard to the police station, the visits stopped and she felt safe. She was surprised at how the employee knew where she stays but that he never came to her house. She did not receive any money from the principal and was hearing the issue of money for the first time. She would not sell her daughter for anything.

Vuyisile Nkomo (“Nkomo”) testified that:

51. He is the departmental head in Natural Sciences at Umqhele and the employee is a teacher in that department teaching Physical Science, Natural Science and Technical Science. The employee taught Technical Science in grade 12 and Natural Science in grade 9 in 2020 as they shared classes. They had ten classes for Natural Science and the employee taught some and not all the classes. As per A23-26, the employee said he was teaching Natural Science in grade 9.

52. After Covid, the time table changed. He had the keys to the lab and the other key was used by members of the department. The reason for the spare is that other members should have access to the lab in his absence. The key rotated among members. The lab is built like a classroom with tables and long chairs for experiments. The employee has access to the lab.
Under cross-examination, Nkomo testified that:

53. It was not possible that someone would come into the laboratory without him seeing that person. The time table on A23 was before Covid. He recalled the employee teaching grade 12 but could not recall what had happened when grade 11 and 10 arrived, as to whether the employee went back to teach grades 10 and 11. As per A23, the employee taught only grades 10D and E up to matric in 2020. He remembered the employee going back to teach grades 10 and 11 but could not remember if the employee had taken back exactly the same classes for grades 10 and 11.

54. He did not see grade 9H on the time table but there was a possibility that the employee was teaching grade 9H during Covid. However, according to their strategy on A23, there is no grade 9H.

55. He does not allow learners to do administrative work for educators but at times he is not there to see to it that learners do not do administrative work for educators. He did not see JM at the lab on 27 November 2020. He could have seen her because he did not know her until she was identified to them. He did not know the relationship between the principal and the employee and whether it was bad or otherwise.

56. The employee was driving a blue Ford when he last saw him. Many people had Corollas as Dube, Ratlou, Mangadani and Ndlozi did. Dongo in Technical also drives a Corolla. The employee’s first car was a white Chevrolet.

57. Maropeng submitted in closing that in Bothma v Els & Others 2010 (1) SACR 184 the SCA aptly stated that the Supreme Court of Appeal accepted that rape had the inherent effect of rendering child victims unable to report the crime. Sometimes for several decades, and that the policy was not to penalise them for the consequences of their abuse by blaming them for the delay. The employee’s defence that on 27 November 2020 he had taken Makgatho to a surprise house-warming party and thus could not have been at the school to rape JM was never put to the witness to respond to it.

58. Morodi is not the only male teacher at the school and JM could not have just pointed at him if he did not rape her. The employee has also failed to have Makgatho to corroborate his evidence. There is no way that a learner could give such a recount of events of 14 May 2021 if she was not raped and also proceeded to the hospital for examination.

59. The version by JM that Lekgoathi came to their house on 15 May 2021 was corroborated by her mother. These two witnesses would not have lied about this if Lekgoathi did not come to their house. The version that Lekgoathi came to JM’s house was not rebutted during JM’s cross-examination.

60. The employee contradicted himself when he cross-examined Khomotso that he knew where they stay but to JM he had said that he did not know where JM stayed. The version that was put to JM was different from the one put to Nkomo about access to the lab. The employee had said that the lab was forever closed and thus there was no way he could have raped JM in the lab. The employee’s version changed when Nkomo testified and said that he has never said that the lab was forever closed. Had Nkomo not testified, these proceedings would only know that the lab is forever locked and that he did not have access to it.

61. The versions of Pretty and the employee are different but happened on the same day. Their stories were made up and if they were together on that day, their versions would be the same. They attached a bank statement belonging to Pretty which did not show times for transactions. They could have been done at any time while the employee was not there. They could not even produce receipts to show at what time they bought at Pick n Pay and at Ackermans. When asked why she referred to Builders which evidence was never testified to by the employee, she said that the employee had called her to tell her so.

62. It is unbelievable that the employee could leave his workplace to go and buy fruits and vegetables in Centurion from Ivory Park. Makgatho had changed her evidence to a point of being unbelievable in order to protect the employee. Her testimony and that of Pretty were rehearsed and should not be accepted. In Compass Group Southern Africa (Pty) Ltd v CCMA & Others JR 633/16 the court pointed out that where the employer has at least shown a prima facie case against the employee, the evidentiary burden shifts to the employee to prove his own defence. Failure by the employee to put up a defence means that the prima facie evidence is probable. The employer, accordingly, prayed that the version of the respondent is more probable than that of the employee and that the employee should be found guilty as charged.

The Employee’s case

Gladwin Lethabo Morodi, the employee testified that:

63. The employee testified that he did not know JM in 2020. On 27 November 2020 he was requested to collect PPEs from Bongani Rainmakers and had left at 11h00 to Edenvale. On his way back, he passed by at Nobel Primary School where his friend worked. She asked him to wait for her daughter who was writing exams to give her a lift to Rabbie Ridge. The friend transferred money into his account for them to buy food at Greenstone. He proceeded to Stone Ridge and no more Greenstone with the friend’s daughter at just after 13h00 to buy food at Spar. They had the food in the car, thereafter they proceeded to Rabbie Ridge where he dropped off the friend’s daughter and drove to Umqhele where he delivered the PPEs to the main staff room.

64. The employee further testified that he went to the Science lab so that the HOD could sign for the PPEs. One of the administrators asked if Nkomo was going to the house-warming party as he needed a lift. He had to drive with a host and accordingly left with her to the party.

65. Regarding allegation 2, he did not see JM and did not know who she was. JM was done with her exams and had no business to be at the school. On 14 May 2021 he went to the school as normal and being a Friday, he had an early class, an extra class for grade 12 starting at 07h00. During that morning he received a WhatsApp message from Pretty Shivambu (Pretty), a younger sister to his friend, Derrick. Pretty works at Pick n Pay Centurion Lifestyle and had told him that there were specials at the store.

66. He left Umqhele before 11h00 to take a friend to Midrand Carlswald and while there he decided to proceed to Pick n Pay Centurion and used a route with an e-toll. The receipt thereof is at A21. He got to Pick n Pay Centurion before 12h00 and Pretty had lunch in his car (JHT 421MP- a Blue Ford Fiesta) at 12h00. Pretty asked him to go and pay for her laybuy at Ackermans and proof thereof is at B8. He went with Pretty to Pick n Pay where he bought fruits and vegetables paying with his own card as per B8. As it was already after 14h00, Pretty asked him to wait for her since she was knocking off at 15h00. He gave a lift to Pretty and her colleagues and dropped them off at Ivory Park whereafter he proceeded to Kempton Park where he stays.

67. In March 2021 Monyakeng called him to the library and JM was there. Monyakeng asked him to change schools. The discussion was about the conditions of their break-up. Monyakeng said that because he was a permanent teacher and her contract of employment was temporary, he could change to any school. Monyakeng asked him to change schools by the end of March before he was to marry in April as it will be an embarrassment to her if he were to get married while she was still at the school. After 14 May and in the following week, MEC Lesufi heard about the alleged incident and announced that he, the employee, had submitted a resignation. He handed himself to the police.

68. Upon his return from prison, he went to the District Labour Office where he was advised to resign as the MEC had announced that he had resigned. He agreed to sign the precautionary suspension letter and undertook to face his hearing head-on at the ELRC.

69. He had information about finances that went to JM’s family. He tried reporting it but was referred to the director who said she would look into it. On 05 April the principal was suspended and in June when they went for a hearing at GDE, district officials gave the principal advice in front of him to retire on his birthday in June rather than to face the charges. On the day that he handed himself to the police, the principal called his wife to come and resign for him.


Under cross-examination the employee testified that:


70. Linda was the administrator who wanted a lift to the house-warming party and the host for the party was Makgatho. He did not attach the etoll statement when he went to Bongani Rainmakers because he travelled on a route without e-toll. He believes that JM was sent to accuse him out of all the male teachers at the school as in 2020 he dated Monyakeng who had just started at the school. JM had mentioned that she was always at the library and Mohapi was always there. JM got used to Monyakeng. He met JM in 2021 when he and Monyakeng were discussing conditions of their break-up and JM seemed interested in such discussions. JM was sent by Monyakeng to get rid of him from the school because he refused to leave.

71. The allegation that he had said he was going to harass JM in grade 11 was not true. He put a version to JM when she testified that on 27 November he left the school before 11h00 to collect PPEs at Bongani Rainmakers. He had thought that his representative put a version to JM that he went to Nobel Primary School, Spar, Rabbie Ridge and home. He did not know that he had to put his entire version to JM including the house-warming part of his evidence. He had put a version that he did not know JM in 2020. There are things that he did not want to put to JM because he has a court case with her, as JM and her mother may change their versions.

72. They left for the house-warming party at around 14h00-15h00. He did not know what time he had left because this has happened two years ago. When something bad happens to you, you remember everything.

73. The time table at A23 showed that in 2020 he taught grade 9E, G and I and JM was in 9H. He never taught JM in grade 9. She was hired to say what she said. There was Covid in 2020 and they used different time tables teaching the same grade. The changing of the time tables did not mean that he did not teach the same grade. He did not teach JM in 2020. He knows all the learners he taught in grade 9. He did not remember Nkomo had said that there was a possibility that he was given new classes.

74. He had put a version to JM that he left school on the day before 11h00, regarding allegation 2 and never returned on that day. He did not want JM to know everything because he is facing her at court and the latter is his priority.

75. The issues with Pretty as he testified to, happened after Pretty’s lunch and he had gone to Ackermans after 12h00. He did not bring documents with time and Pick n Pay receipt as he would have loved to bring a video footage from Ackermans and Pick n Pay but was told it is only kept for four weeks, and would be kept longer if there are theft cases. He was in prison from 20 May to 11 June 2021 and when he went to Ackermans it was after 4 weeks of the alleged incident. He was surprised why JM would come to the hearing to give two versions of the alleged rape.

76. It was true as testified to by Nkomo that there is a spare key used to open the lab when Nkomo is absent. A lab is a special classroom. Khomotso testified that he has been to her house because she is hoping that he be found guilty. He had said he knew where the mother and JM stayed where there is a big wall and solid gates. He told them that he was not aware of Lekgoathi’s visit, if there was a visit.

77. He did not have any proof that what he is accused of was planned by Monyakeng, Maake and Agreement. He has paperwork to show that Khomotso was paid by the principal. He thought that the principal was coming to the hearing and he did not have money to subpoena him. The principal was removed from the school because of the money he paid to the JM family. He was declining to state the amount that the principal gave to the JM family because he will share the information with the Labour Court.

78. In response to the procedure of leaving early at the school, he testified that he would inform the HOD or Deputy Principal and give a reason. In practice, if one has a task especially for grade 12, one asks another teacher to fill in. On 14 May the plan was to come back but he never did and because of lack of supervision, he thought nobody will notice. On that day the HOD and principal knew that he was at the school.

Dolly Mohapi “(Mohapi”) testified that:


79. Mohapi testified that she is an educator at Umqhele since 2019 and knows JM. She was at the school on 14 May 2021 and had seen JM on that day. While JM liked wearing pants, she wore a skirt on that day and she had complemented her. She had no memory of JM fetching a bag belonging to an RCL member. She did not remember walking out of the library with JM and did not see her after school.

80. There was commotion in the following week after Phadu had resigned. This was characterised by blocking of school entrance by COSAS, EFF and community members protesting that a learner had been raped by a teacher. COSAS was saying it was the employee who raped the learner. She drives a Mercedes Benz she bought it at the end of February 2022.

Under cross-examination, Mohapi testified that:

81. She knew nothing about the allegations proffered against the employee. She saw JM at the admin office after 12h00 as they were wrapping up for the day. The rule is that learners can come during lunch/break or after school to the library but the rule is not effected. It depends on who is at the library at the time. It seemed as though Monyakeng planned with JM for JM to entice the employee to sleep with her. Those were the rumuors and the other rumuor was that Agreement and Maake had planned with JM to coerce the employee into sleeping with JM. Knowing Monyakeng, the rumuors are untrue as she is an open person and not a calculating one. She does not know Agreement and Maakwe and would not know what motivation they would have to do that.

Makgatho Pitja (“Makgatho”) testified that:

82. Makgatho testified that she is the HOD at Boitumelong Secondary School and in 2021 she taught at Umqhele. The employee drove a blue Ford Fiesta in 2021. She used to travel with the employee to and from school. On that day she had left for home with her husband and not the employee. She was not sure if the employee was at the school as she last saw him in the morning. The employee mostly drove the Ford Fiesta and she has never been with the employee in a brown Toyota Corolla.

Under cross-examination, Makgatho testified that:

83. She had been traveling with the employee since January 2020 and 2021 mostly in the morning. The last time she traveled with the employee was on 14 May 2021. She thought she remembered the employee saying that he was not going to go back with them on 14 May but would not know whether the employee had reported to the HOD or Principal. Learners were not writing exams on 14 May and the break time was 12h00. She would not know how the employee could be at an e-toll at 11h29 when the break is at 12h00. When referred to A23-26 indicating break time to be 11h00, she testified that the break time was 11h00.

Pretty Shivambu (Pretty)’s evidence under oath

84. Pretty testified that she is the employee’s friend’s younger sister and works at Pick n Pay Lifestyle Centurion in the fruits and vegetables department. On 14 May she asked the employee to take some of her stuff she bought from work and her lay buy at Ackermans. The employee came at around 11h00 and 12h00 and Ackermans refused to give him the stuff as he did not have his ID. As it was almost her lunch time, she requested the employee not to leave so that she could have lunch with him. The employee spent lunch with her and she went to fetch her lay buy stuff.

85. The employee did not leave after lunch but proceeded to Builders at the same shopping centre. At 14h00 the employee indicated to her that he was leaving and she had asked him to stay a little longer so that they could leave together as she was knocking off at 15h00. The employee waited because they normally travel with him and her colleagues. On that day the employee was driving a blue Ford Focus. B8 was her bank statement and they had used her bank card when the employee came to her.

Under cross-examination, Pretty testified that:

86. She worked for Pick n Pay since 2014 and knew that returns are done through slips. She did not keep receipts of the two transaction she spoke about, but had given the employee her bank statement as she had lost the receipt. The transactions in question happened during the day. She was not sure when the employee was there, it could have been around 11h00-12h00 or past 11h00-12h00 but it was not her lunch time as yet.

87. She expected the employee to come to her on 14 May after school but he arrived earlier. Between 13h00 and 14h00 the employee had informed her that he was at Builders Warehouse. She did not see that the employee was at Builders.

88. In closing the employee submitted that the allegation about the incident in November 2020 was vague as there is no specific date. The same goes for the incident referred to be of May 2021. The employer had refused to give him JM statement, until he got it from SACE. The commissioner rejected emails which were supposed to prove that JM’s family received funds and continued to reject bank statements and invoices from the school to prove that the family received funds to put pressure on the case whatever it takes. The commissioner accepted Pretty’s bank statement on condition that the owner comes to testify on it.

89. The J88 on A49-52 should be removed due to the authenticity of the document. The commissioner refused to accept the employee’s defence and accepted all documents brought by the employer and thus prejudiced his defence.

90. JM was not a credible witness. A23 showed that she was not in the employee’s Natural Science class in 2020 at grade 9. The employee never taught JM in grade 9H in that year. The employee maintains that he did not know JM in 2020. JM lied when she said she was in the lab in November 2020 as Nkomo did not see her. On 27 November 2020 the employee went to collect PPEs from Bongani Rainmakers and upon his return he prepared for Makgatho’s surprise house-warming party.

91. There was no evidence of a new time table and Nkomo had confirmed that according to the time table, JM was not supposed to be at the school. The employee was not aware of Lekgoathi’s visit to JM’s house on 15 May. He admits to knowing JM in 2021 but denies seeing her on the day in question. On that day, he left the school at 11h00 and never went back to the school. The e-toll statement showed that a blue Ford Fiesta passed the e-toll point N1:17: Ihobe at 11h59:55 am on 14 May 2021.

92. He has never driven a brown Toyota Corolla but he was driving a blue Ford Fiesta. Makgatho confirmed that she travels with him on a daily basis and they have been doing that for years and on 14 May 2021 the employee was driving a blue Ford Fiesta.

93. Khomotso led evidence contradicting that of JM about the alleged incident by Lekgoathi. Khomotso’s street fight evidence between the employee and her husband required, as a fight of that nature, to have had a police case number as the police were involved.

94. The employee, accordingly, prayed that the case against him should be dismissed.

ANALYSIS OF PARTIES EVIDENCE AND ARGUMENTS

95. The issue I am to decide is whether the employee had committed the acts of sexual harassment he is accused of, and if so, to determine an appropriate penalty. In any dismissal proceedings the employer bears the onus to prove that the employee has committed the offence(s) proffered against him. On the other hand, the employee must put a plausible explanation in response to the allegations against him/her. It is not worth reiterating that sexual harassment is a serious offence warranting a dismissal and whether there should be a rule in the workplace regulating conduct in that regard. Simply put, sexual harassment is a horrible act that takes away the dignity of its victim. It can and should not be tolerated in society.

96. Sexual harassment is behavior characterised by making of unwelcome and inappropriate sexual remarks or physical advances in a workplace or other professional or social institution. It is an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances.

97. The Constitutional Court in McGregor v Public Health and Social Development and Others [2021] (10) BLLR (CC) 1131 remarked that sexual harassment has a negative impact on the victim in a variety of ways. Not only is it demeaning to the victim, but it also undermines their dignity, integrity and self-worth, striking at the root of the that person’s being. It strips away at the core of a person’s dignity and promotes a culture of gender-based violence that dictate the lived experiences of women and men within the public and private spaces and across personal and professional latitudes.

98. Item 3(2) of the Code of Good Practice on Handling Sexual Harassment Cases provides that sexual attention becomes sexual harassment if (a) the behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or; (b) the recipient has made it clear that the behaviour is considered offensive; and/or; (c) the perpetrator should have known that the behaviour is offensive regarded as unacceptable.

99. Item 4 of the Code provides, inter alia, examples of forms of sexual harassment as:

(a) Physical conduct of a sexual nature includes all unwanted, physical contact, ranging from touching to sexual assault and rape, and includes a strip search by or in the presence of the opposite sex.
(b) Verbal forms of sexual harassment include unwelcome innuendos, suggestions and hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, or unwelcome graphic comments about a person’s body made in their presence or directed toward them, unwelcome and inappropriate enquiries about a person’s sex life, and an unwelcome whistling directed at a person or group of persons.

100. Section 17of the Employment of Educator’s Act, No 76 of 1998 (herein after “EEA) regulates the misconduct of sexual assault towards learner by educators. The misconduct in section 17 (1) (b) is committed when an educator sexually assaults any child who is a leaner at any school, it is not confined to leaner of the school where the educator is employed. The elements of sexual assault are (a) conduct of a sexual nature (b) which resulted in a victim’s sexual integrity being impaired or inspiring the belief that it will be impaired (c) unlawfulness – meaning that there must not be a justification ground for the action, such as for example consent by the victim (d) intention to commit the misconduct – in other words accidental unintentional bodily conduct is excluded from the definition. Misconduct of sexual nature that does not constitute misconduct in terms of section 17, would generally constitute misconduct in terms of section 18.

101. The employee has been charged with two counts of sexual harassment relating to incidents on or around November 2020 and 14 May 2021. In the former, he is alleged to have conducted himself in an improper, disgraceful and unacceptable manner in that he had told a female learner that he was going to harass her when she would be in grade 11 and that he wanted to be her boyfriend. In 2020 he is also alleged to have sexually assaulted the learner and raped her in a classroom.

102. JM testified that on 14 May 2021 the employee called her while she was passing his office going to fetch an RCL member’s bag. The employee had closed the door, pushed her next to the dustbin making her hold it, undressed her skirt and panty and continued to rape her using a condom that she later saw him throwing into a dustbin. This evidence was in, all material terms, corroborated by Khomotso who testified that JM had told her what happened.

103. On the other hand, the employee testified that at the time of the alleged rape, he was with Pretty at Pick n Pay Centurion after leaving the school at 11h00 to take a friend to Midrand Carlswald. He further testified that he never returned to Umqhele on that day as he waited for Pretty to knock off at 15h00, whereafter they proceeded to Ivory Park and he went to Kempton Park where he stays.

104. The employee’s testimony on him going to Centurion on that day would, when properly tested, constitutes an alibi that removes him from the scene of the alleged incident in which he is alleged to have been a perpetrator of an offence. However, contradictions in his evidence and that of Pretty and the documents he sought to rely upon to support the alibi, render the alibi a non-starter in these circumstances.

105. The employee testified that Pretty sent her to pay for her laybuy at Ackermans while on the other hand, Pretty stated that the employee was refused to collect her clothes on lay buy because he did not have his ID. According to Pretty, the employee was going to fetch the items that were on a laybuy while according to the employee, he was going to pay for her lay buy. The payment was to be effected using Pretty’s bank card and this could have been done by Pretty at that time and did not involve the employee. The payment receipt, with or without a date does not create any alibi for the employee that he was there at the time for the transaction in question. There is no proof, other than the receipt, that the employee was there at that time and that it was him who paid through Pretty’s bank card.

106. The employee went further to testify that he went to buy fruits and vegetables at Pick n Pay after Pretty’s lunch which would have been after 13h00 since Pretty testified that her lunch is from 12h00-13h00. However, Pretty testified that she had given the employee her Ackermans card when the employee arrived at the Centre which would have been between 11h00 and 12h00 and that she fetched the items after 13h00.It could not be that people who were together on the same day would give contradictory accounts of what happened on that day. This contradiction has all the hallmarks of a fabrication of an alibi.

107. Furthermore, the employee did not testify that he went to Builders after lunch with Pretty as the latter testified but that because it was after 14h00, Pretty had requested him to stay on and leave with her as she was knocking off at 15h00. The employee’s testimony that it was already after 14h00 does not make any sense because it was just after Pretty’s lunch that ended at 13h00 and thus it was still far from the hour of 14h00. This testimony around time was just a way of budgeting time in an attempt to show that the employee had left at 15h00 and never returned to the school. The receipts bank statement supplied to corroborate this version is not supported by receipts which would have shown times on which the transactions were made. I find this to have been a deliberate attempt on the part of the employee to conceal the fact that he was not at the school at that time but at the shopping centre. It appears that these receipts have been organised by Pretty in attempt to strengthen the non-existent alibi of the employee.

108. The employee has not disputed that there is a procedure to be followed when an educator leaves the school before knock-off time and/or never returning to school. The employee never followed that procedure and his testimony was that he thought that nobody would notice his absence. However, there was also testimony that he was traveling on a daily basis with Makgatho mostly in the morning. On the other hand, there is a lift club whose members were never called when the employee could not return. A reasonable person in that arrangement would have spoken about traveling home seeing that the employee would not be returning on that day.
109. It cannot be true that the employee had spoken about not traveling with Makgatho that afternoon. This is so because the employee, according to his evidence, he did not know that he was not going to return to the school. It was, as untruthful as it was, Pretty who had occasioned his non-return to the school by asking him to stay on. The evidence of Makgatho travelling with her husband home after school was not important because she was only traveling with the employee mostly in the morning. These are the results of conjuring evidence to suit one’s case rather than being truthful. It is another clear indication of a fabricated alibi gone wrong.

110. I find the employee, Pretty and Makgatho not to be credible witnesses. Their evidence was fraught with improbabilities and did not corroborate one another. The contradictions in their evidence are indications of witnesses that sought to be untruthful to create an alibi that they know did not exist. On the other hand, JM’s evidence was consistent even under cross-examination. She gave an account of what she remembered had happened on that day. The events on the day in question also support JM’s testimony. The incident happened at the school and was reported to Agreement and the principal, she was taken to the hospital for examination and the latter showed that there was sexual intercourse with JM on the day. It could not have been lies, and as the employee wants these proceedings to believe that there was a plan to get rid of him, that circumstances would point to the incident having happened.

111. It was also not disputed that Lekgoathi, a friend of the employee as she introduced herself to the family on 15 May 2021, had visited the family a day after the incident of rape. When this evidence was led in the employer’s case, the employee made no attempt to call Lekgoathi to testify about her visit to the JM family and the fact that it was testified that Lekgoathi had said that she was with the employee and asked if he could be allowed to come into the house. The critical question is what was the purpose of this visit so soon at the hills of the incident of 14 May 2021.
112. It can only be inferred that the employee was aware that bringing Lekgoathi to testify in these proceedings would have revealed his intention of wanting to talk to the JM family about the incident and to seek some resolution to it. If he was as innocent as he thought he was or wanted to appear to be, there would have been no need to have Lekgoathi visiting the JM family. He would have left the matter to run its course and to show that he was not the perpetrator. It can only be inferred that his conscience was then talking to him and he sought to bury the matter but was however unsuccessful as Lekgoathi was chased away and he never got an opportunity to set his foot in JM’s home on that day.

113. The totality of the evidence in this regard point to the employee having sexually assaulted JM on 14 May 2021. This was a brutal sexual attack on a learner by an educator who is supposed to be the protector of the learner in the school environment. It is an abhorrent act to be dismissed with the utmost of contempt. This on its own is sufficient to warrant the dismissal of the employee.

114. It was also alleged that the employee made remarks that he was going to harass the learner when she would be in grade 11 and that he had raped her on or around November 2020. JM testified that the employee had locked the door, pulled her behind the door and raped her. This was when the employee had requested her to record learner marks for him. He had started by telling her that he will harass her when she was in grade 11.

115. On the other hand, the employee testified that he did not know JM in 2020. On the day of the alleged incident, he was asked to collect PPE from Bongani Rainmakers and had proceeded there at 11h00. Upon his return, he had collected a friend’s daughter from Nobel Primary School and dropped her off at home after 13h00 when she had finished writing her exams. He delivered the PPE and went to Science lab for the HOD to sign for him. He had then waited to take the surprise house-warming party host home.

116. In this desperate attempt to create an alibi again, the employee also testified that he had left the school at around 14h00 to 15h00 for the house-warming party. JM testified that the incident happened around 15h00 on the day in question in November 2020. She, however, indicated to the employee after she had entered the marks that it was late and she needed to go home. This is an indication that it was way after school hours at around 15h00 or so. Moreover, the evidence of the employee himself is that he was at the school at least up until 15h00 on that day. This evidence then placed him at the school on that day of the alleged incident. It does not matter whether JM had any business or not to be at the school at that time. Even if she did not have any business to be at the school, the employee had no right to violate her.

117. The evidence of JM was consistent when she testified in chief and under cross-examination. She maintained the same evidence and I find no reason to doubt that she was truthful. The employee was correct to state that one does not forget when something bad had happened to one. JM’s recollection of events is sufficient for someone who has been subjected to such a brutal attack and violation. Her strength to give account of these incidents is to be commended given her age and the manner in which she was violated by someone who is entrusted with her protection during school hours. It could not have been that out of all male teachers at school that JM would point to the employee as the perpetrator of these wicked acts.

118. I find it probable that the employee had ensured that JM remained at the school when everyone had left by asking her to record marks for leaners for him. It is not unusual for educators to let learners do things that they are not supposed to do or to do things to learners that they are not supposed to do. The recording of marks cannot be an exception. Given the employee’s acts of violation of a physical nature, it is not far-fetched that one could believe that he had not uttered the words of harassment as testified to by JM.

119. In Liberty Group Limited v M [2017] 38 ILJ (LAC) the accused had touched the complainant, rubbed his manhood against her body and forced a kiss, and this was held to be an act of sexual harassment warranting dismissal. In this inquiry, the employee had not only touched the learner but penetrated her.


120. Based on the foregoing, I find that the applicant has committed severe acts of sexual harassment against JM. These acts of sexual harassment are so serious in nature and irretrievably break down the employment relationship between the parties. The employee cannot be trusted to be in the vicinity of female learners at school given his conduct.

121. Dismissal with immediate effect is an appropriate sanction in the circumstances. The employer has proven that the employee has committed the offence of sexual harassment against a learner, LC.

AWARD

122. The employer has proven that the employee, Mr. Gladwin Lethabo Morodi has committed the following offences:

122.1 Act of sexual assault in terms of section 18(1)(q) of the Employment of Educator’s Act, No 76 of 1998 against a child learner, JM.
122.2 Acts of sexual assault in terms of section 17(1)(b) of the Employment of Educator’s Act, No 76 of 1998 against a child learner, JM.

123. Mr. Gladwin Lethabo Morodi, the employee is to be dismissed by the employer, the Department of Education: Gauteng with immediate effect.
124. I also find that Mr Morodi is unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the Council must, in terms of section 120(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the finding of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005 that Mr Morodi is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
125. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.

Mathabo Makwela
ELRC Panelist