ELRC325-20/21KZN

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

CASE NO: ELRC 325-20/21KZN

In the arbitration between:

DEPARTMENT OF EDUCATION, KZN APPLICANT
(Employer)

and

SUGAN NAIDOO 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 07 February 2023.

3. Mr. I Makhooe, Assistant Director from the Department’s Employee Relations Office, represented the applicant. Adv N Rai, instructed by Roy Singh Attorneys, represented the respondent.

4. The hearing was digitally recorded.

5. The representatives made an application to submit closing arguments in writing. I granted the application. The closing arguments came to hand on 13 March 2023, which date I regard as the final day of the hearing.

6. The parties used a common bundle of documents compiled by the applicant. I marked the bundle Exhibit “A.”


Issue in Dispute

7. I am required to determine whether the respondent had a sexual relationship with a learner enrolled at his school, during the period 2017 to 2019, thereby contravening Section 17(1)(c) 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 Tongaat Secondary School, KwaDukuza, KwaZulu-Natal.

9. The applicant charged the respondent for contravening Section 17(1) (c) of the Act. The applicant alleges that during the period 2017 to 2019, the respondent had sexual relations with a female learner enrolled at the school.

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, for determination as an arbitration.

11. The learner was under the age of 18 at the time of the alleged misconduct. I accordingly refrain from disclosing her name or surname.

12. I hereinafter refer to the learner as S and to her father as H.

Preliminary Issue

13. On 03 March 2022, the applicant’s then-representative, Mr. A. Preethpaul, applied for the admission of certain hearsay evidence.

14. Preethpaul submitted that he was experiencing difficulty in securing the attendance of S at the arbitration. He attempted to contact her on several occasions and when he eventually did, she was uncooperative. S had in the interim become a major. He would make a final attempt to secure her attendance by serving her with a subpoena.

15. The applicant intends in the interim to lead the evidence of the social worker who interviewed S; together with her written report . Preethpaul accepted my directive that such evidence would constitute hearsay evidence and he accordingly applied for the provisional admission thereof.

16. Mr Singh, the respondent’s attorney, opposed the application. He submitted that S was unlikely to testify in the future given her history of non-attendance in the criminal matter and at previous sittings of this arbitration. There was no point in the social worker testifying about events that she had no personal knowledge of and about which she would not be able to answer under cross-examination.

17. I issued a ruling provisionally admitting the hearsay evidence of the social worker. I did so on the basis that S will testify at a future stage and that it was otherwise in the interests of justice to admit that evidence. It was common cause that certain arbitration dates had clashed with S’s school examinations and she was unable to attend on those dates.

18. When the hearing convened on the 28 July 2022 the new representatives described in paragraph 3 above appeared on behalf of the parties.

19. Mr. Makhooe confirmed that Preethpaul had since retired. Moreover, the department had been unable to secure the attendance of S at the hearing. Save to state that she remained uncooperative, he was unable to furnish any cogent reason why S would not testify.

20. The applicant proceeded with its case on the evidence available to it.


Analysis of Evidence and Argument

21. 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 only analyze here the evidence relevant to the charge.

22. The applicant led the evidence of two witnesses, namely: Mr L Pillay (Pillay) the current principal of Tongaat Secondary School, and Mrs. Noorun Mohamed (Mohamed), the social worker who dealt with S’s case. The respondent testified and did not call any other witness.

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

“CHARGE 1:

From 2017 to 2019, at or near Tongaat Secondary School you had sexual relations with (S), a female learner enrolled at the said school. In doing so you contravened Section 17 (1)(c) of the Employment of Educators Act 76 of 1998 as amended”

24. In his closing arguments, the respondent’s representative argued that the(factual) elements of the charge had not been proved. He quoted Section 17(1)(c) of the act in its unamended form. That section relates to an educator who is obstinate, obstructive, and insubordinate in respect of instructions given. The present Section 17(1)(c) of the act reads as follows:

“ An educator must be dismissed if he or she is found guilty of
(a) . . .
(b) . . .
(c) having a sexual relationship with a learner of the school where he or she is employed”

25. The respondent’s representative has quoted the unamended section of the Employment of Educator’s Act in error. His arguments raised in respect of that section are therefore a misdirection and I consequently disregard same.

Whether the respondent committed the misconduct alleged.

26. Pillay testified that he was the acting principal of the Tongaat Secondary School (the school). He has no direct knowledge of the misconduct with which the respondent is charged. He is however able to confirm that the South African Education Management System (SAMS), lists the respondent’s last cell number as 0848191856. That number appears in the printed Whatsapp messages in the bundle of documents and purports to be the phone number from which the respondent allegedly sent the messages to S.

27. I must deal here with the status of the printed messages and their evidential weight. The messages in certain instances have attached photographs taken with the camera function on a cell phone. The photographs purport to be photos of the respondent's penis allegedly taken and sent by him from his cell phone with cell number 0848191856 to S’s cell phone with cell phone number 0840124683 . The applicant relies in the first instance on these data messages to establish the existence of an intimate relationship between S and the respondent. That relationship was allegedly initiated and pursued by the respondent and culminated in the respondent having a sexual relationship with S.

28. Section 15 of the Electronic Communications and Transactions Act (ECTA), provides as follows:


15. (1) In any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a data message in evidence on the mere grounds that it is constituted by a data message; or if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form
.
(2) Information in the form of a data message must be given due evidential weight.

(3) In assessing the evidential weight of a data message, regard must be had to-
(a) the reliability of the manner in which the data message was generated;
(b) the reliability of the manner in which the integrity of the data message was stored;
(c) the manner in which its originator was identified; and
(d) any other relevant factor.

(4) A data message made by a person in the ordinary course of business or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self -regulatory organisation or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.

29. The legal validity of electronic messages was confirmed by the SCA in the case of Spring Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Ecowash and Another . The SCA confirmed that the definition of a ‘data message’ as defined in the ECTA could be interpreted to include a WhatsApp message. A WhatsApp message like a data message is sent, received, and stored by electronic means.
30. In Trend Finance (Pty) Ltd and Another v Commissioner for SARS and Another it was held by the Court that a party seeking to rely on Section 15(4) of the ECTA, as quoted above, must show that the document sought to be admitted is a printout of information existing in electronic form.
31. In this matter, the messages were not produced as evidence in its electronic form either on the USB on which it was allegedly stored nor was S’s phone produced to view the messages as it appeared in her WhatsApp application. The WhatsApp messages were instead printed and submitted in documentary form.

32. The representatives did not conclude a pre-arbitration minute dealing with the status of the documents in the bundle nor did they enter into any verbal agreement in that regard. The applicant’s representative anticipated that S would testify to the authenticity of the messages. S failed to testify. Mohamed testified that the WhatsApp messages were stored on a USB which was dropped off at the society’s offices by an anonymous person. This sequence of events requires me to determine the chain of evidence relating to the receipt and conversion of the WhatsApp messages into documentary form.

33. The office manager and a colleague printed the messages. They were not dealt with by Mohamed in her report. In the premises, Mohamed was unable to testify to the authenticity of the messages nor the truthfulness of their contents.

34. As anticipated the respondent placed the documents in dispute. That dispute compelled the applicant to prove both authenticity and veracity by leading evidence to prove that the documents are what they purport to be and that the contents of the documents are true and accurate. It is trite that documents do not speak for themselves and if they are placed in dispute, the party seeking to rely on such documents must lead oral evidence to prove the impugned documents.

35. As stated in legal terms, the applicant carried the evidentiary burden to prove that the WhatsApp messages were authentic and that their content is true and correct.

36. Subsection 3(4) of the Law of Evidence Amendment Act provides that for this section 'hearsay evidence' means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence.

37. The applicant thus had the evidentiary burden to prove the chain of evidence from the time the WhatsApp messages were generated to the time that it was printed as documents. The applicant accordingly was required to prove, amongst others, the following aspects:

37.1 That the respondent created the WhatsApp messages on his phone,
37.2 respondent transmitted these messages to S from his phone,
37.3 S received the messages on her phone,
37.4 the messages were transferred, unaltered or tampered with, from S’s phone to the USB,
37.5 the identity of the person who did the transfer and storage and his /her testimony confirming this;
37.6 the identity of the person who delivered the USB to the Tongaat Child Welfare Society and his /her testimony confirming this,
37.7 that the same messages were printed by the society and produced at this arbitration in document form.

38. S and the role players identified in the sequence of events above did not testify. The applicant was therefore unable to discharge the evidentiary burden on it. The applicant’s representative made a valiant attempt to convince me to attach weight to this evidence. The rules of evidence are, however, prescriptive. In the matter of Edcon Limited v Pillemer NO, the LAC confirmed that an arbitrator may not simply deviate from accepted principles of law. Thus, any deviation from the rules of evidence must be justified in the light of the circumstances of the arbitration and cogent reasons for doing so must be given.

39. For the reasons set out above the applicant failed to prove the authenticity and veracity of the WhatsApp messages. I am accordingly unable to attach any weight to this evidence.

40. I turn to the primary question of whether the applicant has proved that the respondent had a sexual relationship with S during the period 2017 to 2019. I reiterate that S failed to testify nor was any cogent reason provided for her failure to do so.

41. Mohamed testified that she was employed by the Tongaat Child and Family Welfare Society (the society) as a Social Work Supervisor since June 2014. The complainant’s case was referred to their offices on 13 September 2019. The complainant was a minor at the time.

42. The matter was reported to the office manager anonymously via telephone by a member of the community. That person reported that a learner at the school was engaged in sexual activities with an educator. The manager telephoned the school and requested that the school arrange for S to be counselled. S’s father, Mr H brought the learner to their offices. The office manager, T Moodley, D Naidoo, and Mohamed initially interviewed S.

43. S was traumatized on the day. She was quiet and refused to communicate. She was shown the documents contained in the bundle of documents . These documents contain the WhatsApp messages in issue.

44. S was surprised that the messages were in the society’s possession. She thereafter admitted to having an intimate relationship with the respondent. Despite this admission, she remained quiet and uncommunicative.

45. S was calmer at the next interview and explained how the relationship started. What followed was a chronology of events as conveyed by S to Mahomed, from the time that S met the respondent to the final day on which they had sexual relations. A significant portion of that evidence relates to what is referred to as grooming, which it is not necessary for me to deal with here given the overall finding that I make.

46. When the then-principal of the school, Singh, became aware of the alleged relationship he contacted S’s father Mr H. The principal, Mr H, S, and the respondent met at Gateway to discuss the matter. S and the respondent denied any relationship and Mr H cautioned them to stay away from one another during school.

47. S and the respondent thereafter met secretly when she would tell Mr. H that she was going to the Tongaat library to study. She would instead meet the respondent there.

48. During 2018 the respondent did not teach S. They, however, made plans to meet during the weekends. On those occasions, the respondent would take S to the airport parking bay. During June or July of 2018, the respondent sent S pictures of his penis via WhatsApp.

49. In August 2018, S had sexual intercourse with the respondent for the first time. This took place at the respondent’s residence at No.6 Key West, La Lucia Ridge, which address was known to S.

50. S described the respondent’s residence in detail. The residence was a triple-story building and comprised a double garage in which a Mercedes Benz belonging to the respondent’s mother was parked. Next to the garage was a staircase that led to the second floor. She remembers a balcony with a four-seater table and chairs and a fireplace. The front door to the house was situated on the second floor through which you enter the home. A staircase near the front door leads to the third floor.

51. The respondent gave her a tour of the home including the ensuite in his mother’s room. She further described the lounge and kitchen as being an open-plan kitchen with beige sofas and a huge window. The nook area had a granite top and six bar stools.

52. On the first occasion in August 2018, the respondent escorted her to his bedroom. He requested that they both undress at the same time down to their underwear. The respondent’s bedroom comprises a double bed with a yellow and blue headboard with block prints, and a lavender desk. On the drawer was a picture of the respondent as a baby with his mother and brother. There was a cylinder-type, multicolored boombox, and the room had downlighters but no mirrors. The respondent removed cherry flavored durex lube and condoms from the right-hand side drawer of the headboard. On the left side was a window with blinds and the built-in cupboards in the room were white.

53. They had intercourse in the respondent’s bedroom whereafter he went to the bathroom and removed the condom. At that stage, S cried because she felt empty and expected it to feel more special. He offered her a chocolate and asked her if she was okay. He thereafter dropped her off at the Tongaat library from where she walked home.

54. On the next day at school she heard rumors that the respondent was engaged in relationships with other girls. S felt that the respondent got whatever he wanted from her and was no longer interested in her. They, however, eventually made up and the relationship continued.

55. The respondent thereafter had sexual intercourse with her on four other occasions in November 2018, February 2019, March, or April 2019, and finally on 05 June 2019 making it a total of five occasions. The sexual intercourse took place on each occasion at the respondent’s residence in his bedroom. The respondent became more aggressive on each occasion and on the third occasion he asked her how she would feel if he burnt her with a cigarette. S confirmed that the sexual intercourse was consensual, but S was a minor at the time.

56. Mohamed cannot explain why S failed to testify at this hearing and is unaware of her present circumstances. She has no reason to compile a false report. She does not know the respondent personally. She did not question S about the truth of the allegations. Her job was to report the information received by her, but she did probe for minor details. She never doubted the truth of the information that S gave to her.

57. Under cross-examination Mohamed conceded that it may not have been appropriate for her colleagues to broach the subject by confronting S with the Whatsapp messages and that it could have been intimidating to S. She conceded that the approach could have been more sensitive. S only started to disclose the information that she gathered in her report after she saw the messages.

58. She did not know who delivered the USB to their offices. She was appointed to interview S because she deals with the more difficult cases. She cannot confirm that the respondent sent the messages to S.

59. She did not tell S her private thoughts and opinion but simply treated the information with caution and captured it in her report. It is possible that the description of the respondent’s residence is incorrect as well as the other information that S gave to her.

60. S informed her that she was in love with the respondent and that when she heard the rumors about his other relationships, she had become jealous. She cannot discount jealousy as a reason for any false allegations made against the respondent by S. She was unable to comment on the allegation that the National Director of Public Prosecutions declined to prosecute the respondent. She was further not aware that the NPA allegedly agreed to accept compensation on behalf of S. She was also not aware of the civil action for R1.6 million that Mr. H had instituted against the applicant.

61. She was further not aware of any allegations that Mr. H had coerced S into making these allegations against the respondent, purely for the sake of money.

62. As a social worker, she accepts what a child says. The child is always right and society is always on the side of children. It was not her duty to question the truth of what S alleged. She is aware that S is now 18 years old.

63. It is common cause that the evidence of the applicant’s witness, Mohamed, constitutes hearsay evidence. As per the definition of hearsay evidence quoted above, the probative value of Mohamed’s evidence depends on the credibility of S.

64. Mohamed maintained under cross-examination that she was convinced about the truthfulness of the information given to her by S. Mohammed testified in a coherent, and frank manner. She withstood cross-examination making frank concessions where she needed to. She was an honest and satisfactory witness.

65. Her evidence, however, only established that she accurately recorded the information conveyed to her by S and that she conveyed that information to the arbitration fully, truthfully, and accurately. She, however, was unable to confirm the truthfulness and accuracy of the information she conveyed.

66. The question that I am required to determine is what weight, if any, I can give to such hearsay evidence. I must bear in mind the seriousness of the charge against the respondent and the dire consequences that a guilty finding against him would have. Section 17(1) (c) of Act 76 of 1998, as amended, provides that in the event of my finding the respondent guilty of the misconduct alleged then I must dismiss him.

67. The respondent challenged Mohamed’s evidence on the basis that the evidence could not be evaluated through the tried and tested method of cross-examination because S, the originator of that evidence, failed to testify.

68. If Mohamed’s evidence were to be accepted, in the absence of the objection against hearsay, such evidence establishes a prima facie case against the respondent. The respondent was called upon to present a case in rebuttal. The respondent testified. In his evidence, he denied that he ever had sexual relations with S. His defence was built around the premise that S had initially been coerced into making these allegations against him by her father, Mr. H. H was unemployed, and his motive was to derive some financial benefit from the respondent.



69. The fact that S failed to persist with the criminal charges by testifying at the criminal trial and again here at the arbitration proves that she was coerced into making these allegations against him. S had acquired her knowledge of his residence from pictures taken at family functions which he had posted on Facebook. He deleted that Facebook profile after this matter received the media and community attention that it did. He does not know how S obtained his residential address because she has never been to his home. He never had sexual relations with S.

70. S through Mohamed provided a detailed description of the respondent’s residence. S’s description of the furniture and décor as well as the layout of the residence was vivid, graphic, and convincing. That evidence establishes that S had a good idea of what the respondent’s residence looked like right down to the décor and contents of his bedroom. Her description of how, where and when the sexual intercourse took place was also detailed and convincing.

71. I have a suspicion that the respondent has not been honest in his evidence. S, however, did not testify. There is no other evidence or corroboration proving that the respondent had a sexual relationship with S. The only other evidence that the applicant relied upon were the WhatsApp messages. These documents were, however, not proven and I have found that they have no evidential value. In the final analysis, the only evidence before me is the second-hand hearsay evidence of Mohamed.


72. Section 35 (3)(1) of the Bill of Rights contained in the Constitution gives every accused person the right to challenge the evidence adduced against him or her. That right must of necessity include the right to cross-examine a complainant. The respondent’s right to cross-examination could not be enforced because S did not testify. The above are factors that weigh heavily against my giving Mohamed’s evidence any weight.

73. The danger for an arbitrator faced with evidence such as that tendered by Mohamed, is to be swayed by his or her own moral opprobrium and to return a finding of guilt. Clear guidance however comes from the Labour Court in the matter of the Minister of Police v RM M, Safety and Security Sectoral Bargaining Council . The facts of that matter are similar to the matter at hand. The complainant there also did not testify at the arbitration.

74. The Honourable Whitcher J; provides instructive guidance as to when and under what circumstances a single piece of hearsay evidence, like the written social worker’s report in this matter, could be relied on. The learned judge states in paragraph 45 of her judgment, the following :

“Since this may be a departure from the norm in how hearsay evidence is weighed, I take this opportunity to set out a few guidelines on when, in arbitration proceedings conducted in terms of the LRA, a single piece of hearsay, such as a transcript, might constitute prima facie proof of an allegation. The hearsay should:

(1) Be contained in a record which is reliably accurate and complete;
(2) Be tendered on the same factual dispute;
(3) Be bilateral in nature. In other words, the hearsay should constitute a record of all evidence directly tendered by all contending parties;
(4) In respect of the allegations, demonstrate internal consistency and some corroboration at the time the hearsay record was created. … S;
(5) Show that the various allegations were adequately tested in cross-examination …;
(6) Have been generated in procedurally proper, and fair circumstances. … .”

75. I do not doubt that Mohammed conveyed the information that she obtained from S to the arbitration truthfully and accurately. The question remains however as to how reliable and truthful that information is. Her report was tendered on the same factual dispute. It is, however, not bilateral in nature. Mohamed did not obtain a response from the respondent on the allegations raised against him nor was it her role to do so. She testified, correctly so, that it was the role of the police to investigate the matter further.

76. There is no other evidence before me against which I can evaluate the internal consistency of Mohamed’s evidence. Moreover, I have ruled that the Whatsapp messages in its documentary form have no evidential value. There is consequently no other corroboratory evidence before me which points to the guilt of the respondent.

77. I turn to the fifth and I believe the most important criterion. The court in the Minister of Police case above confirms the accused’s right to test the complainant’s evidence in cross-examination. S could not be cross-examined in this matter because S did not testify. I have dealt with the respondent’s constitutional right to face his accuser and to test the truthfulness of the allegations raised against him above. The information furnished by S to Mohamed remains untested.

78. The following insurmountable hurdles, therefore, prevent my giving any weight to the hearsay evidence of Mohamed. Firstly, her evidence does not contain information that is bilateral in nature, that is obtained from both the complainant and the accused. Secondly. I am unable to evaluate the internal consistency of that evidence and there is no other corroboratory evidence before me. Thirdly, S never testified at the arbitration and subjected herself to cross-examination so that the allegations she made against the respondent could be tested. Finally, the applicant failed to prove that the evidence was obtained from S in a manner that was procedurally proper and in fair circumstances. In this regard, Mohamed conceded that the initial approach by officials from the welfare society was not proper and S could have been intimidated.

79. In the premises, I find that the applicant has failed to discharge the onus on it to prove that the respondent contravened Section 17(1) (c) of the Employment of Educators Act.
76 of 1998, as amended.

AWARD

I accordingly make the following award:


(a) The application is dismissed.


26 April 2023

ELRC DATE
Senior Panelist
Adv. Anashrin Pillay