ELRC790-20/21KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT DURBAN, KWAZULU- NATAL

CASE NO: ELRC 790-20/21KZN

In the arbitration between:

DEPARTMENT OF EDUCATION, KZN APPLICANT
(Employer)

and

S.B. RADEBE RESPONDENT
( Employee)

AWARD

Details of Hearing and Representation

1. This Inquiry by Arbitrator (IBA) was held in terms of Clause 32 of the ELRC Constitution read with Section 188A of the Labour Relations Act 66 of 1995 (the LRA).

2. The hearing was finalized on 15 February 2023.

3. Ms. M. Mtetwa, from the Department’s Employee Relations Office, represented the applicant. Ms. L. Zibani, a union official from NATU, initially represented the respondent. Mr. N. Motolo, also a union official from NATU, replaced Zibani midway through the arbitration, as the respondent’s representative.

4. The hearing was digitally recorded.

5. The representatives made an application to submit closing arguments in writing. I granted the application. The respondent’s closing arguments were forwarded to me on 14 March 2023, which date I regard as the final day of the hearing.

6. The applicant submitted a bundle of documents numbering 11 pages. The documents, save for the Notice of Disciplinary Hearing and a statement made by the learner, were written in IsiZulu. I marked the bundle, Exhibit “A”. Problems arose during the arbitration with the legibility of the documents and the translation of their contents. Mtetwa elected to discard the bundle.

Issue in Dispute

7. I am required to determine whether the respondent committed an act of sexual assault on the complainant on 14 November 2020 whilst she was enrolled as a learner at his school; thereby contravening Section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.

Background to the Dispute

8. The respondent was employed by the applicant as an educator based at the Sinamuva High School, Ugu District, KwaZulu-Natal.

9. The applicant charged the respondent for contravening Section 17(1) (b) of the Act. The applicant alleges that on 14 November 2020, the respondent committed an act of sexual assault on the complainant.

10. The applicant filed a request for an Inquiry by an Arbitrator with the Council in terms of Clause 32 of the ELRC Constitution. An IBA was set down before me in terms of Collective Agreement 3 of 2018. That agreement provides for compulsory IBAs to take place in sexual misconduct matters involving educators; in the form of an arbitration.

11. The learner is under the age of 18. I accordingly refrain from disclosing her name or surname. I hereinafter refer to the learner as the complainant.

12. Mtetwa informed me that the complainant, despite being under the age of 18, did not require the services of an intermediary. I questioned the complainant to ascertain whether that was the case and whether she understood the implications of that decision. I was satisfied that she did.

13. The applicant’s case commenced on 6 October 2021 with the leading of the complainant’s evidence. The applicant’s case was completed on the same day and adjourned for finalization of the respondent’s case.

14. The hearing was thereafter protracted due to various logistical problems including systemic delays occasioned by the aftermath of the Covid Pandemic.

15. Moreover, before the matter could reconvene on 6 June 2022 the respondent’s representative, Zibani, resigned from the union. As indicated above NATU assigned Mr. Mtolo to take over the respondent’s defence.

16. Mtolo made an application to be provided with the audio recordings of the previous hearings. He submitted, correctly so, that he needed to listen to the applicant’s evidence to enable him to prepare the respondent’s defence. I granted the application and furnished the audio recordings to NATU. That process, whilst necessary, caused a further delay in the finalization of the arbitration.

17. At that stage, the matter was being heard on a virtual platform. This presented difficulties for the respondent concerning internet facilities and connectivity. The respondent lives in a rural area. The arbitration, therefore, proceeded in a fragmented fashion beset as it was with these and other logistical difficulties.

18. The parties and I eventually agreed, to prevent further delays and disruptions, to finalize the matter in an in-person hearing. The matter convened in person on 15 February 2023, when it was finalized.

Analysis of Evidence and Argument

19. I have considered all of the evidence before me. I am required by Section 138(7) of the LRA to provide brief reasons for my award. I accordingly analyze here only those aspects of the evidence relevant to the charge.

20. The applicant led the evidence of two witnesses, namely; the complainant and Ms. Sindiswa Promise Dlulisa (Dlulisa), the complainant’s paternal aunt. The respondent testified and called one other witness, namely; Lindokhule Mkhize( Mkhize), his friend.

21. The charge is set out in the Notice of Disciplinary Hearing and reads as follows:

“CHARGE 1:
On or around 14 November 2020 you allegedly committed an act of sexual assault on (the complainant) a grade 9 learner at the school. You thus committed an offence in terms of section 17 (1) (b).

22. Section 17(1)of the Act reads as follows:

“ An educator must be dismissed if he or she is found guilty of
(a) . . .
(b) committing an act of sexual assault on a learner, student, or other employee,
(c) having a sexual relationship with a learner of the school where he or she is employed”

Whether the respondent committed, the misconduct alleged?

23. In terms of the charge, I must determine whether the respondent sexually assaulted the complainant on 14 November 2020. The applicant however led extensive evidence relating to an alleged relationship between the respondent and the complainant that endure for the period from August 2020 to November 2020. The significance of this evidence appears from the overall finding that I make. I turn to deal with specific aspects of the evidence.

Whether the respondent had an intimate relationship with the complainant?

24. The complainant testified that she was 14 years old and a Grade 9 Learner at Sinamuva High School when the relationship started. The respondent was known to her because he was her teacher. She is presently 15 years old and a Grade Ten Learner at another school.

25. The respondent initiated an intimate relationship with her in August 2020 whilst he was her teacher. He did that by looking and smiling at her and signaling a kiss to her. He eventually told her that he loved her. In the complainant’s words, “They were dating at school”. Although it was put to the complainant in cross-examination that the respondent would deny these specific allegations, the respondent did not.

26. The complainant’s aunt, Dlulisa, provided corroboration of the relationship. It was common cause that the respondent gave the complainant a phone. Dlulisa testified that she went through the phone and on it, she saw pictures of the respondent and romantic messages that were exchanged between them.

27. The respondent contended that such evidence had not been produced at the arbitration. The complainant told Dlulisa that the respondent subsequently asked her to bring the phone to school. He then deleted the messages and pictures. The phone was subsequently lost by the complainant’s father. I find, in the circumstance ,that it was not possible to produce that evidence.

28. The respondent attempted to discredit Dlulisa’s evidence by alleging that he knew her well. They had been lovers years ago when they were still at school. He implied that she had some sort of vendetta against him. This was never put to Dlulisa during her testimony. She testified that she did not know the respondent.

29. I accept the aunt’s version that she had seen the pictures and romantic messages. This was the best evidence available in the circumstance. I find on a balance of probabilities that the respondent initiated and pursued a romantic relationship with the complainant during the period August 2020 to November 2020.

Whether the respondent had sexual intercourse with the complainant?

30. The complainant alleged that the respondent had sexual intercourse with her twice. The first instance took place in August 2020. She cannot remember the month in which the second instance took place. On both occasions, the respondent invited her to his house and the sexual intercourse took place in his house, at night. She was living with her grandmother at the time and was easily able to sneak away and walk to the respondent’s house.

The November Instance

31. The complainant could not remember the month and self-evidently the date on which the second instance of sexual intercourse took place. The complainant was not clear about the sequence of events. That is understandable given her age at the time and the lapse of more than a year before she testified.

32. The respondent, on the other hand, was specific in his defence about dates, times, and events. He rendered a detailed version of what transpired from late in the evening on Friday, 13 November 2020, to Saturday, 14 November 2020. On his version, he places the complainant at his house for that entire period. The applicant alleges that the sexual assault took place on or around 14 November 2020. I accordingly find that the events in issue took place on those dates.

33. The complainant testified that earlier that day, at school the respondent promised to give her a cell phone if she came to his house. She went to his house that evening and met the respondent there. They entered the house together and were seen by the respondent’s neighbors; the Maphumalo Family. The respondent told them that the complainant was there to cook for him.

34. In cross-examination, she added that the respondent gave her alcohol to drink that evening. She does not know what happened after she drank the alcohol and only remembers waking up the next morning. She knows that the respondent had sexual intercourse with her because she asked him that specific question the following morning. He just smiled at her and that was confirmation to her.

35. She left the respondent’s house on Saturday evening. In the process, she met her father on the road outside the respondent’s residence. He was en route home from work. He demanded to know what she was doing there and immediately took her home. Her aunt, Sindiswa Dlulisa, was there and he asked her to explain to her aunt what she was doing at the respondent’s house. Her aunt asked her if she had sexual intercourse with the respondent. She admitted to doing so.

36. Her aunt told her to go to the clinic to have a pregnancy test. She underwent the pregnancy test at the local clinic a few days later. The test was positive. Her aunt informed her mother telephonically (who it was later ascertained was in Durban at the time) and both spoke to the respondent telephonically. He refused their request that they meet him at the school.

37. Her aunt and mother confronted the respondent outside the school premises a few days later. He admitted to having sexual intercourse with the complainant. He refused them entry into the school premises indicating that he feared that he might lose his job. He requested that they instead come to his house to discuss the matter on Sunday, 29 November 2020 (this meeting date was provided by the respondent in his version). Certain members of his family were present. The respondent now denied that he had sexual intercourse with the complainant.

38. Her father reported the matter to the principal who in turn reported the matter to the circuit inspector. She did not give birth to the child because she subsequently suffered a miscarriage. She ended the relationship because she was upset. Her behavior changed for the worse and she started smoking (cigarettes) and drinking alcohol. She further alleged that her parents do not care for her anymore. She feared that this could happen to other girls. The respondent told her that she was not the first girl.

39. She opened a case with the police. The police told her that the case was closed because the respondent was not aware of her age. The respondent told her that when the child is born, he would get confirmation of whether it is his child as he would send her and the child for a scan. She did not know how this was possible because she did not sleep with (have sexual intercourse) anyone else.

40. The respondent’s defence was presented on three different days; 6 June 2022, 28 June 2022, and finally 15 February 2023. The respondent’s version was not consistent over those three days as is evident below.

41. He testified that on Friday, 13 November 2020, he arrived at his house at about 10 pm in the company of his brother Siyanda and his friend Lindo. The complainant was waiting there. She told him she needed help. They entered the house and sat around watching movies. Siyanda went to his room to sleep.

42. At some stage, the complainant told him that she needed a phone to use as an alarm to help her to get up every morning to study. He initially refused to give her the phone but eventually did subject to certain conditions of use.

43. He asked the complainant to leave his house on several occasions but she did not. He and Lindo slept on the bed whilst the complainant sat on the sofa. He went to the neighbor’s house to report that the complainant was at his house and refused to leave. The neighbor, Thembikile, was related to the complainant’s mother.

44. The complainant left with Lindo later that Saturday. The respondent alleged that he never had sexual intercourse with the complainant.

45. The respondent did not seriously dispute the complainant’s version that he gave her alcohol to drink that night. He simply denied doing so. The fact that the respondent gave the complainant a phone proves her version that he promised her one. Secondly, the probabilities are that he lured the complainant to his house that evening with that promise. I therefore accept the complainant’s overall version that he gave her alcohol to drink that night and at some stage thereafter had sexual intercourse with her.

46. The complainant asked the respondent whether he did the next morning and the respondent simply smiled. He did not dispute doing so. The respondent testified that the complainant was a good child. It is indeed highly improbable that such a 14-year-old learner would refuse to follow her educator’s repeated instruction to leave his house especially since that instruction was allegedly given in the presence of his witness, another adult.

47. The respondent’s version that the complainant was never pregnant was disproved. The complainant’s uncle, Bhekisiswa, informed him that the complainant had attended 3 facilities to establish whether she was pregnant or not; twice at the local clinic and once at the police station. On the second occasion at the clinic, the nurse informed her that she was not pregnant.

48. The respondent indicated that he would call Bhekiswa as a witness but did not do so. The respondent’s evidence on this aspect constitutes hearsay evidence but no application for the admission of such evidence was made. I accordingly reject same as being inadmissible. It is further improbable that any pregnancy test would have been carried out at the police station to establish her pregnancy. Finally, the second test, which established that the complainant was not pregnant, is consistent with her version that she suffered a miscarriage which was confirmed at the clinic.

49. The complainant’s version was once again corroborated by her aunt, Dlulisa. The aunt testified that the complainant initially reported to her that the pregnancy test was positive but also that the test had confirmed that she “was not HIV positive”. This last aspect was volunteered by the aunt unprompted and an important fact for the clinic and the complainant to establish about her health. The threat relating to the respondent wanting to carry out a scan was a threat to carry out a paternity test. It is improbable that the complainant would on her own, incorrectly refer to a paternity test as a scan. She acquired that misinformation from someone else. The probabilities are that it was the respondent.

50. The complainant in my assessment was too young and inexperienced at the time to fabricate this evidence. The complainant’s version that the nurse showed her the results which indicated 2 bars instead of 1 has a ring of truth about it. I accordingly find that the complainant was pregnant at the time that she alleges she was.

51. She denied that her parents and aunt had forced her to make false allegations against the respondent. Whilst the respondent alleged that the complainant had told him that her parents hit her to convince her to do so; this was not put to the complainant. No other motive was established for the complainant, her parents, or her aunt to falsely implicate him.

52. My finding that the complainant was pregnant results in the main finding that the complainant had sexual intercourse with the respondent. No other possible sexual partners were suggested in the respondent’s defence. The complainant testified that she only had sexual intercourse with the respondent.

53. I reject the respondent’s witness’s version that he was present with the respondent throughout on the night of 14 November 2020 and that the respondent never had sexual intercourse with the complainant. His version of events deviated from the respondent’s version in certain aspects. I mention but one here to prove the point. The respondent testified that the complainant begged him to give her the phone and he eventually relented. His witness Lindokhule testified that he convinced the respondent to give the complainant the phone.

54. I accordingly find on a balance of probability that the respondent had sexual intercourse with the complainant at some time between the evening of 13 November 2020 and the morning of 14 November 2020.


The August Instance

55. The complainant did not provide details of the August 2020 instance. The respondent likewise did not deal with this allegation specifically in his defense. He made the broad allegation, as I understood his defense, that he never had sexual intercourse with the complainant. I find on a conspectus of all the facts and circumstances and on a balance of probabilities that the respondent had sexual intercourse with the complaint in August 2020.



Whether the applicant proved the charge alleged?

56. There is a difference in the factual allegations made in Section 17(1)(b) as opposed to Section 17 (1) (c) of the Act. The former alleges an act of sexual assault having been committed whilst the latter alleges the existence of a sexual relationship between an educator and a learner.

57. I have found that the evidence before me establishes the existence of a sexual relationship between the complainant and the respondent, as alleged in Section 17 (1) (c) of the Act. The question that arises is whether I can find the respondent guilty of contravening Section 17(1)(b) on that evidence.

58. The learned author, Snyman, holds that the elements of an assault are the application of force (or the inspiring of a belief that force is to be applied); unlawfulness; and intention. The complainant alleged that the alcohol that the respondent gave her to drink induced her into a drunken stupor, causing her to fall asleep. She therefore could not confirm the elements of an assault as stipulated by Snyman. The legal question that I must determine is whether the evidence before me nevertheless proves that the respondent committed serious misconduct.

59. In the matter of EOH Abantu v CCMA, the Labour Appeal Court had to determine a similar question. In that matter, the employee’s misconduct had been classified as one involving dishonesty, whereas he committed and was found guilty of gross negligence.

60. It was held in the Labour Court that because the employee was charged with dishonesty, the employer was required to prove that the employee had been dishonest. The Labour Court found that the employer had failed to prove the misconduct of dishonesty.

61. The Labour Appeal Court held that the finding that the employee’s dismissal was substantively unfair was unreasonable. Courts as well as arbitrators must not adopt an approach that is too formalistic or technical . What is important is that the information given to the employee must enable him or her to ascertain the misconduct that he or she is alleged to have committed. The categorization of the alleged misconduct is of less importance.

62. The Court further held that the employer must be able to show that a workplace standard was contravened, that the employee knew about the standard, and that the employee suffered no significant prejudice due to the incorrect categorization of the misconduct, if these elements are present, a competent verdict and sanction can be imposed even if the charge is not properly classified . The Court in making this determination made the point that employer representatives are not skilled legal practitioners, and it can be commonly expected of them to define the misconduct incorrectly or too narrowly .

63. In this matter, the applicant alleged that the respondent had committed a sexual assault as opposed to him having had a sexual relationship with the complainant as provided for in Section 17 (1) (c) of the Act.

64. The complainant given her version, that she had fallen asleep as a result of the alcohol that the respondent gave to her to drink, was unable to testify about the details of the sexual intercourse. She was unable to say whether the respondent applied force against her or whether she had a belief that he would do so. Importantly she was unable to testify about his intention to have sexual intercourse with her. I however draw the inference from the surrounding facts dealt with above that he did.

65. I find that the respondent had sexual intercourse with the complainant whether such intercourse took place in the course of his having a sexual relationship with her or under circumstances of him committing a sexual assault against her. Sexual intercourse is inherently the major factual component of both Section 17(1)(b) and Section 17(1)(c).

66. The respondent was aware that this was the primary act of misconduct that the applicant alleged against him. It is unlikely that he would have conducted his defence differently had he been charged in terms of Section 17(1)(c) as opposed to Section 17(1) (b).

67. In the final analysis, whether the respondent had committed a sexual assault on the complainant or whether he had a sexual relationship with her is reduced to the bare allegation that he had sexual intercourse with her. Such conduct is strictly prohibited by the Employment of Educators Act , and the SACE Code of Conduct.


68. In the premises, I make the following findings:

68.1 The respondent had a romantic relationship with the complainant during the period August 2020 to November 2020.

68.2 The respondent committed serious misconduct by having sexual intercourse with the complainant in August 2020.

68.3 The respondent once again committed serious misconduct by having sexual intercourse with the complainant on or around 14 November 2020.

68.4 The complainant fell pregnant as a result.

68.5 The complainant later suffered a miscarriage.

68.6 As a result, she suffered psychological trauma, experienced adverse behavioral challenges, had to change schools, and suffered the alienation of her parent’s affection.

68.7 For the reasons aforesaid I find that the respondent is guilty of contravening Section 17 (1) (c) of the Employment of Educators Act.

Sanction

69. Section 17 (1) of the Employment of Education Act provides that if an educator is found guilty of misconduct as provided for in Subsections 17 (1) (b) or (c) that educator must be dismissed. In the premises, I impose on the respondent the prescribed sanction of dismissal.

70. The applicant’s representative made an application, correctly so in my view, in terms of Section 120(1)(c) of the Children's Act that I make a finding that the respondent be declared unfit to work with children. That section provides that such a finding may be made by any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person; relating to a child.

71. Section 120(2)(a) provides that a finding in terms of subsection 120(1)(c) may be made by a court or a forum contemplated in Subsection 120(1)(c) above, of its own volition or on application by an organ of state involved in the implementation of this act

72. Finally, Section 28(2) of the Constitution provides that a child's best interests are of paramount importance in every matter concerning the child. What is of serious concern in this matter is the complainant’s version that the respondent told her, “That she was not the first girl”. I understand the complainant’s evidence to mean that the respondent had sexual relationships with other learners. The complaint’s version was not seriously disputed.

73. In the premises, I am under a constitutional imperative to make the finding provided for in Section 120 (1) (c ) of the Children's Act.

AWARD

I accordingly make the following award:

(a) The respondent is found guilty of contravening Section 17 (1) (c) of the Employment of Educators Act 76 of 1998, as amended.

(b) The respondent is dismissed in terms of Section 17(1) of the Act.

(c) The respondent is declared, in terms of Section 120(1)(c) of the Childrens Act, to be unfit to work with children.


02 May 2023

ELRC DATE
Senior Panelist
Adv. Anashrin Pillay