ELRC283-22/23GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT SEBOKENG
CASE NO.: ELRC 283-22/23 GP
In the matter between :-

DEPARTMENT OF EDUCATION- GP EMPLOYER

AND

THOKOA A. EMPLOYEE

ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
Heard: 23 January;14 & 28 February And 17 March 2023
Closing Argument: 24 March 2023
Mitigating / Aggravating Factors: 24 April 2023
Date of Award: 19 May 2023
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A : Enquiry by Arbitrator.

AWARD


DETAILS OF HEARING AND REPRESENTATION

1. The enquiry was held on 23 January,14 & 28 February and 17 March 2023 at the employer’s Sebokeng West District Offices. The employer was represented by Mr N.P Mudau and the employee by Mr M.Samons an attorney. The employee applied for legal representation which I granted. The proceedings were recorded digitally.

ISSUE TO BE DECIDED
2. I am required to determine if the Employee had committed sexual assault offences as proforred by the Employer. If I find in favour of the Employer I will determine the appropriate sanction.

ALLEGATIONS PROFFERED AGAINST THE EMPLOYEE
3 The Employer levelled against the employee, two counts of misconduct in
terms of Section17(1)(b)and one in terms of Section18(1) (q) of the Employment
of Educators Act, Act 76 of 1998 (“Act”):-
Allegation 1

It is alleged that on or around January 2022, you sexually assaulted a Grade
10(G) learner Kefeletswe Mokoena from Esolwazi Secondary School in that you
raped her.;

Allegation 2

It is alleged that on or about January 2022, you sexually assaulted a Grade 10(G)
learner Mbali Moloi from Esolwazi Secondary School, in that you kissed her while
touching her breast and buttocks.and


Allegation 3

It is alleged that during the period January 2022, you conducted yourself in an
improper and disgraceful, or unacceptable manner, in that you said, the best way
to punish a Grade 10(G) learner Rethabile Makhale would be for her to give you
one round"...

EVALUATION AND SUMMARY OF EVIDENCE

4. The following issues are common cause between the parties :

4.1 The Employee has been an educator at Esokwazi Secondary
School since 31 March 2013;
4.2 At the time of the alleged incidents in 2022 the Employee was
a registered class teacher of Grade 10G and taking History and
geography;
4.3 The three learners /complainants are all from Esokwazi
Secondary School and at the time of making the allegations they
were all in the same class , Grade 10(G).
4.3 At the of the alleged incidents Mbali Moloi and “RM” were below 18 years
of age. Kefeletswe Mokoena was over 18 years.
4.4 At the time of the arbitration proceedings two of the learners
(Kefeletswe and Mbali) were above the age of 18 years .”RM” was 16
years.

5 Mr Shabe Jonas Matla testified for the Employer that he is the principal of the
school.The deputy principal approached him with the information that three learners had approached her with allegations of sexual harassment against Mr Thokoa.

6 He escalated the matter to the department,as he lacked authority to investigate such misconduct.He informed Mr Thokoa verbally about the allegations without disclosing the names of the learners.

7 During cross examination he said that he became a principal at the school in November 2021 .He was from Tokela School.The deputy principal provided him with the statements of the learners together her report.

8 He verified with the learners if they had complained to the deputy principal. He did not compile the report with the deputy principal.He submitted the report and the statements to the department. He did not inform the SAPS and the parents. He could not remember the date when the incidents were reported to him.

9. Atticate Libate testified that she is the deputy principal of theschool. Ms Msimeni, the LO educator referred “R M” to her. This followed “RM” confiding in Ms Msimeni.
“RM” indicated that she was not comfortable with Mr Thokoa. She informed her
further, that Mr Thokoa asked for her phone numbers, so she could give him one
round. He reminded her that she had failed. If she gave her one round,he
could do something and promote her to the next class.

10. She took down what “RM” told her and asked her to make statement on what
had transpired. “RM” indicated that there were other two learners experiencing
the similar problems. She asked ‘RM” to call them.

11. “RM” brought Kefeletswe Mokoena and Mbali Moloi to her office.Mbali informed
her that Mr Thokoa had kissed and caressed her and they almost had
sex.Kefeletswe informed her that the employee asked for her number and had
asked her sexual favors.

12. She could not remember the date on which the learners approached her.
They told her, one round means sex.She asked the learners if Mr Thokoa had
slept with any of them.They did not respond. She requested them to make
statements.The principal was not present. She took their statements to the
principal the following day.

13. During cross examination she said “RM” told her that Mr Thokoa had requested her
phone numbers to arrange that she could give him one round.Further that if she
gave him one round he would assist her with the promotion to the next class. She
was scared and unconfortable to attend Mr Thokoa’s history class.This was around
May/June 2022. “RM” indicated that the incident took place about a month earlier.

14. Mbali told her that Mr Thokoa asked her to kiss him.They kissed and nearly had sex.
All three learners informed her that they did not have sex with him. They did not
make allegations of rape. They did not mention date of the incidents.The incidents
took place at the school during free periods at Mr Thokoa ’s centre.

15. She was not aware of any disciplinary measures taken against the learners prior to
reporting Mr Thokoa. The only issue that Mr Thokoa had reported to her prior to the
learners complaints was that they were bunking his classes. She did not know the
learners before they approached her. As such she could not comment on their
conduct or behavior at school.

16. “RM” testified that Mr Thokoa made her uncomfortable as he would ask for sexual
favors. He would comment that that she has a nice body,looking at her smiling in a
funny way.When he punished other learners ,he would send her to his office.When
she got there, he would ask her when was she going to give him “one round”. He
told her to go think about it.

17. At the back of his office, it was a storage with broken chairs,tables and cleaning
material.Her understanding of giving him one round, was to have sex with him.In
the class room he would look at her in a funny way . She even suspected that her
friends and classmates were thinking that she was dating him.

18. She did not inform anyone about his advances, but decided to bunk his
History classes because she was not confortable.When she realized a possibility
of failing his subject, she reported the issue to Ms Msimeni who informed the deputy
principal.

19. During cross examination she testified that Kefeletswe is her classmate and not a
friend. The incidents happened early in 2022. She thought he would change his
ways. As he continued to send other learners to call her to his office, she decided
to report him in May 2022. She could not remember the dates of the incidents.

20. The advances made her feel uncomfortable and unsafe around him. She started
to bunk his classes with her fellow leaners.She did not know why her classmates
also bunked the classes.

21. He would send Kamogelo to call her to his office. Even during the class, he would
come ask for her from the educator,stating that he needed her for something. When
she got to the office, he would ask for one round. She informed the deputy principal
that she knew about Mbali and Kefeletswe’s problems with Mr Thokoa. She
informed her parents about the advances.Her mother told her to report her to Ms
Msimeni.She was alone when she reported the incidents and when she wrote the
statement.

22. Mbali Moloi testified that Mr Thokoa made sexual advances towards her. Mr Thokoa
would send other learners to collect her to his office.When she got to the office,he
would make the sexual advances to her.He asked her when she was going to have
sex with her.

23. On one occasion Mr Thokoa called her in his office. He kissed her, touched her
breasts and buttocks. He continued caressing her that she could not refuse. They
fondled to an extend that they almost had sex. She was ready to have sex with him
that day as she could not resist his advances.

24. After school he called her to wait for him in his office to have sex.When he
returned,he was rushing to go somewhere and they postponed it to the following
day. It never happened.

25. She wrote her statement at the same time as “RM”.Her statement was not
complete.She got disturbed when she saw him going up and down at the school
whilst she was writing the statement. He also threatened them.

26. The other time he told her that if she wanted to pass she should meet him
halfway.When she asked what he meant, he told her it was obvious.They agreed
to have sex the following day.Her classmates were convinced that she was dating
him because he frequently summoned her to his office.

27. She resorted to bunk his classes.In his class he talked about sex and relationships
and did not teach them.She bunked his clases with Rethabile and Kamohelo.

28. He called her, Kefeletswe and ‘RM” to his office, threatening them that he was going
to sort them out because they have tarnished his name by reporting him.She
informed her mother about the incidents but her mother did not inform the school.

29. During cross examination she conceded that she did not remember the dates the
incidents took place. However, it started in January 2022. He would call her to his
office. In office he would express his lust and asked when they were going to have
sex. She told her mother but asked her not to tell her father about the incidents as
he did not have sex with Mr Thokoa.

30. Mr Thokoa wanted sex from her in exchange of making her pass grade 10. She
informed her classmates Kefeletswe,”RM” and Mapaseka what Mr Thokoa was
doing to her.”RM” told her that Mr Thokoa was proposing to her, requesting sex
and making sexual advances to her.

31. The near sex encounter (when she could not resist his advances) took place in
February. However, the other incidents of calling her to the office to ask for sex
started in January and continued until May. Hence she decided to bunk Mr
Thokoa’s classes. “RM”,Kefeletswe and Mapaseka also bunked classes for the
same reason. She also observed that he was calling them individually to his office
and they were also talking about it in the bathroom .However,they were not aware
that she was listening.

32. “RM” and Kefeletswe were only her classmates not friends.”RM” is the one who
reported Mr Thokoa.They got involved because “RM” was aware that they were
experiencing the same fate. Ms Libati called them in to make statements. They
wrote the staments at the same time but separatelty in her office.She made a
correction that it was only her and Kefeletswe when they made statements and that
“RM” was not there.

33. Mr Thokoa was coming in and out of the office when she wrote the statement which
made her feel threatened and could not write everything . She does not like Mr
Thokoa because he was picking on them and was disrespectful to them. He was
notorious for abusing girls. She does not have a vendetta against him. She denied
that she made up the story to make him get disciplined.

34. Kefeletswe Mokoena testified that Mr Thokoa started by asking her why she was
coming to school because she was old. She told him that failing was not the end.
He frequently called her to his office telling her that he wanted to solve her case.
He came to point where he advised her to leave school because she was old and
that he would date her outside school.

35. The first time when she started sleeping with him, he gave him a key to his office
to wait for him there. He told her that there was a letter from the principal ordering
her to leave school because she was too old.

36. When he arrived at the office he started caressing her,touching her breasts.When
she asked him what she was doing.He told her that if she wanted him to clear her
case she must sleep with him. He put on a condom from his pocket and
penetrated her with his penis.He continued having sex with her. When
he finished he ordered her to go back to the classroom and that he would call
her when he needed her. The storeroom had broken chairs, tables, brooms,
mobs and cleaning stuff.

37. She did not give him consent to have sex with her.She was crying and he put her
left hand on her mouth to stop her from screaming.After the sex ordeal she went to
the toilet and told her friend.It was afterschool.

38. The second time,it was during a memorial service of one educator, Mr Nkhehle at
the school.He called him before the service.He had sex with her whilst standing,
without a condom.She bled and believed he injured her during sex.After having
sex he drove home to change his white pants.Educators were wearing black and
white for the service.

39. He told her that he had solved her cases and should pay by sex. That was when
she informed her friend that she needed to report him. Mr Thokoa was not a
disciplinarian. He could not discipline them by having sex with her.She did not
report the incidents to her parents and SAPS.After school she informed one of her
friends , Mapaseka about what happened to her.

40. Rethabile, Mbali and herself are not friends.Hence they could not plot against him.
Bundle E 2 page 13 is a conversation between Simphiwe and her.Sinphiwe is Mr
Thokoa’s girlfriend.She wanted to know if she claimed that Mr Thokoa raped
her.She was angry as she accused her and her friends that they were crashing on
Mr Thokoa.She told her that she was wasting time with the accusations.

41. During cross examination she said that she was 19 years of age.She could not
remember the date she made the statement.Mr Thokoa was abusive and nasty to
her and classmates.He would insult them in class and would make them stand in
front of the class and ask the learners if their bums were attractive and how to make
them sexually attractive.

42. She bunked his classes because of his sexual advances.The other ladies told
her they were bunking his classes because they were tired of what he was doing
to them.The first sex ordeal took place before lunch. He caressed her and took her
to the storeroom side in his office,where he had sex with her. He put on the condom
and make her face the window and inserted his penis.He covered her mouth with
his hand as she was crying silently. She tried to resist.

43. She went to the toilets and continued crying there. She told her friend Mapaseka
what transpired.She did not report him because he threatened her and ‘RM” that
he would come for them if they reported.She did not tell her parents.

44. The second sex ordeal was during the memorial service of Mr Nkhehle.He gave her
the keys to wait in his office.When he arrived he told her that he had solved her
case.He held her and took her to the storeroom.He had sex with her without a
condom and she bled.The sex lasted for about two minutes.

45. She could not run away because he had locked the office. He drove out and
returned having changed the blotted white pants that he had on during sex. She
reported him at the school after two days of this incident.

46. She found “RM” in the office,it was 12 May.The date on the statement was a
mistake.She did not tell the deputy principal that he raped her but that he abused
her.She admitted that she was suspended for a week for fighting with
another boy.However,she denied that Mr Thokoa was a disciplinarian. He could
not discipline them by having sex with them.

47. Mapaseka Setime testified that Kefeletswe informed her that Mr Thokoa raped her
in the storeroom of his office.She could not recall the date.During cross
examination she testified that Kefeletswe informed her of the rape whilst they were
in the toilet. She was crying and indicated that she was afraid to report him.
Kefeletswe told her that Mr Thokoa threatened to make her fail if she did not have
sex with him.

48. Kekeletso Les Thokoa testified that he has been a teacher at Esolwazi High School
for approximately 10 years .The three learners making the allegations are problem
learners. There were constant complaints about them.

49. He did not know them prior to 2022. In 2022 they were allocated to his register
class. However, he had to go and fetch them from a grade 11 class as they
progressed themselves to grade 11,despite failing grade 10.

50. Kefeletswe is a bully and threatened to beat him and swore at him to
other learners. She smokes dagga with boys at school.She assaulted Mbali.
Every time she passed his class, she would say “there goes my enemy”. Mbali is
also a repeat learner with a bad attitude. “RM” is also part of this troublemaker
group.

51. He is a ``no nonsense teacher`` as discipline is very important to him. He is also
part of the school disciplinary committee .Early in 2022, he identified certain
problems with the learners at the school . The three complainants were part of this
group.

52. Regarding allegations 1 of Kefeletswe , he denied committing the offence.He could
not testify to events that did not happened.He was strict with her because she is a
problem learner.It would be impossible to rape someone in the storeroom which is
small and not locking. He did not have an office but a lab.

53. The memorial service was in March. At the time there were renovation taking place
at the school with so much commotion by the renovating guys. It was not possible
to rape someone without people noticing.People were passing frequently going to
the toilets.Everytime time Mbali went to his lab to scold him,he would kick her
out.He was never alone with her. She is making up the allegations.

54. During cross examination he testified that his lab was large with windows on two
sides. It is adjacent to the girls’ toilet.The doors do not lock.Grade 9 class has a
view to his lab.The storeroom was full to capacity.At the time of the allegations
there were renovations going on at the school.All these make it impossible to have
raped Kefeletswe.

55. He denied that he ever touched , raped or made advances towards Kefeletswe
This was Kefeletswe’s imagination. He denied allegations about Mbali.He called
Mbali`s parents to school as he had disciplinary issues with her. Mbali`s father
confronted him saying that he slept with her.

56. He denied the allegations to her father who told him that he believed him. He gets
agitated easily when disturbed. He was working on a project , he would chase
Mbali out of his lab because she disturbed him. His time was his time and did not
want to share it.

57. He denied the allegations about “RM”.The allegations first came to light when Mr
Mudau approached him.He was disappointed by the fact that it was never
investigated by the school or district . If this really happened the SAPS could have
been involved.

58. Simphiwe was not his girlfriend,he only assisted her when shecontracted covid.
She is a former learner at the school.He did not challenge Kefeletswe when she
said Simphiwe was his girlfriend because he trusted his attorney to do so.He was
on the disciplinary committee with Mr Mphuthi.These learners picked on him not
Mphuti because he was strict and private with his life.

59. Simphiwe Moriti testified for Mr Thokoa that,Kefeletswe ,Mbali and“RM
approached her, asking her to form a group that would make false accusation of
rape against Mr Thokoa.They said they did not like him and wanted him expelled
from the school. She refused the proposal.Kefeletswe informed her that she had
a vendetta against Mr Thokoa and that she would make sure that he lost his
employment .


60. During cross examination she learned about the allegations against Mr Thokoa
from Ms Libate when she went to school to collect her matric statement.She
overheard Ms Libate talking with the principal in the admin block. She denied having
a romantic relationship with Mr Thokoa.He assisted her when she contracted covid
19.

61. She defended Mr Thokoa because Kefeletswe came to her house after they laid
charges, wanting her to be part of the group of five girls that ploted to have him
dismissed by fabricating lies about him. Kefeletswe and her friends were
malicious.She refused to join them. She told Kefeletswe that she was not suitable
for Mr Thokoa because she is hyper and all over the township. She did not know
what Mr Thokoa wanted in a woman.

62. They came to her house in May 2022. The WhatsApp chat took place around June
/July.He denied that Mr Thokoa raped Kefeletswe because they told her that they
were going to fabricate the story of rape to get him dismissed.Based on how she
knows Mr Thokoa, Mbali’s version is a lie because he is very strict.She denied that
she was protecting him because he is her lover.

CLOSING ARGUMENTS

63. The Employer argued that the three learner victims explained in detail without
any contradiction. In the People of Philippine vs Bernabe Pareja Y Cruz, the
Legal Information Institute(LII) the court emphasized that inaccuracies and
inconsistencies in a rape victim's testimony are generally expected,rape is a
painful experience which is often not remembered in detail. For
such an offense is not analogous to a person's achievement or accomplishment
as to be worth recalling or reliving; rather, it is something which causes deep
psychological wounds and casts a stigma upon the victim, scarring her psyche for
life and which her conscious and subconscious mind would opt to forget. Thus, a
rape victim cannot be expected to mechanically keep and then give an accurate
account of the traumatic and horrifying experience she had undergone”.

64. The defence wanted the victim to give details about a specific date of the
event which the learners victim could not provide accurately. One was asked for
one round, the other was kissed to the extent that she said that she almost had
sex with the educator and then the other one, the teacher penetrated her
twice. Their evidence cannot be faltered. They were credible witnesses.

65. Makhale broke down into tears. Mbali had to ask for some time to compose
herself and her eyes were full of tears throughout the enquiry while Kefeletswe
could not be strong enough to be in the same room with Mr Thokoa.

66. Mr Thokoa provided information which was never tested or put to the witnesses
of the employer most of which was character evidence.Such evidence should
be ignored.

67. In NCR v Rufus Alfonso Financial Consultant CC,case no
NCT/7963/2012/57(1)NCA paragraph 47 reads “ The Respondent either failed
to address the allegations made by the Applicant, alternatively answer with a bare
denial. The Educator’s allegations are supported by compelling evidence. It is
trite law in that a bare denial does not constitute a defence. A mere general
denial will not be sufficient to destroy or refute a particular allegation in the
declaration which could be specially denied”.

68. Mr Thokoa was merely denying the allegation without offering any explanation.
He contended that he does not have an office but that he used a science lab. He
also mentioned that the storeroom could not be used as it was full of chairs. He
also said that on the day of the memorial he went home and never came
back.These were not put the employer witnesses for test.


69. He also did not deny the specifics of certain allegation like that he
pulled Kefelwetswe to the storeroom to put a condom, put his manhood into her
private part but one hand to her mouth so she could not make noise. That he
penetrated her twice on two different occasions. Mbali explained about the kiss and
“RM” about the one round. These are specific details which he should have denied
but he did not.

70. Mr Thokoa was not a reliable and credible witness as his version kept on
changing.Simphiwe Moreti did not deny it during the face book talk that she was
a girl friend of Mr Thokoa. She only did so during the arbitration. She said that she
felt she needed to defend Mr Thokoa and could not offer any reason except that
he was a good teacher.

71. She was seriously confused, and her body language was not of a confident
person.She is not a credible and reliable witness. She recorded Kefeletswe in order
for her to protect her boyfriend.It is their prayer that on the balance of probabilities I
should find Mr Thokoa guilty as charged.

72. The Employee argued that none of the allegations were witnessed by anyone.The
employer`s witnesses were unclear as to when the alleged incidents happened.
Kefeletswe, Mbali and “RM” indicated that they disliked Mr Thokoa, and that he
abused abused them.

73. Kefeletswe was a hostile witness, felt embarrassed that Mr Thokoa was strict
and hated that he disciplined them.All five of the witnesses contradicted each
other on how the matter was reported.It seemed that the three learners were
coached to provide more or less the same version as to how they were abused.

74. The incidents were not reported SAPS.Therefore, a negative deduction should be
made from such failutre to report,as these are serious allegations.The employee’s
witness was independent.The employer failed to prove its case on the balance of
probabilities.In Old Mutual Life assurance v Makanda & others (2020) 4 iii 44
LC, the court dealt with sexual harassment matters.

75. The evidence of the learners is so far removed from the charhes to safely say
that their version is not credible,reliable and probable.The employer failed to
discharge its onus in proving that Mr Thokoa committed the offences.


ANALYSIS OF EVIDENCE AND ARGUMENTS

76. In arriving at the coclusion as to whether Mr Thokoa is guilty of the offences
proferred against him must determine the following
• if the his conduct was of a sexual nature;
• if his actions resulted in the victims’ sexual integrity being impaired or inspiring the belief that it will be impaired.
• If actions were intentional
• If there are no justifiable grounds for the actions.
77. The Principal and deputy principal`s testimony relating to how the incidents were
reported is consistent without contradictions.There is no evidence before me
suggesting the reason why they would lie. The principal was fairly new at the
school at the time. Their failure to state the date of when the the incidents were
reported is not material to dent their credibility. I find them to be credible and
reliable witnesses.

78. If they were ploting against him,Ms Libate could have used the opportunity and lie
that Kefeletswe informed her that Mr Thokoa raped her. This could have
strengthened the alleged malice.However, she was honest to state that all the
three learners indicated to her that they did not have sex with Mr Thokoa. Ms
Libate’s testimony that she did not know the leaners prior to them approaching
her, was not challenged.Therefore, Mr Thokoa failed to prove his contention that
they coached the leaners to fabricate the complaints.

79. Ms Libate`s testimony about what the three learners reported to her is consistent
with the learners’ testimony.Kefeletswe corroborated her version that she did
not inform her that Mr Thokoa raped her, further that they did not have sex.
Therefore,I do not find contradiction in Ms Libate’s testimony relating to
Kefeletswe. I will deal with Kefeletswe `s omission separately.

80. Her testimony is that “RM” informed her that Mr Thokoa persistently
requested her to give him one round in exchange of promoting her to the next
class. Mbali informed her that Mr Thokoa asked to have sex with her.They
kissed,fondled her breasts and buttocks and almost had sex in his office.


81. Her evidence that she was not aware of any disciplinary /measures taken
against the learners prior to their reporting was not challenged. Her unchallenged
testimony is that the only report she received from Mr Thokoa about the learners
prior to the complaints was that they were bunking his history classes.

82. Ms Libate’s unchallenged evidence mentioned above, negates Mr Thokoa’s
contention that the learners belonged to a rebellious group.According to him the
conduct of this group was awful and serious.He was able to report them to Ms
Libate that they were bunking his classes. If indeed they were such a bad group
as he described them, he could have also reported their serious conduct. Ms
Libate could have known these “notorious bunch of leaners” prior to the
complaints. I find it probable that Mr Thokoa’s version about the learners’ is
fabricated to benefit his defence.

83. “RM”`s testimony that Mr Thokoa persistently asked ‘one round’ from her was
not challenged. Mr Thokoa`s defence was a bare denial. His contention was that
there was no witness to coroborarate ‘RM`s testimony. Her testimony is
that these incidents of demonstrating lust and requesting sex took place in his
office whilst it only two of them.

84. It is common cause that “RM” was bunking Mr Thokoa`s history classes. Her
explanation for bunking the classes is that his actions made her uncomfortable
around him.This explanation, which I find plausible was not challenged.
The causal link between bunking of the classes and Mr Thokoa’s action is
overwhelming. He failed to provide a probable explanation why they picked him
out of all the educators at the school.

85. The persistent class bunking is inconsistent with Mr Thokoa `s contention that he
is a disciplinarian and ‘no nonsense’ educator. I find it improbable that if
in deed he was that a ‘no nonsense’ educator these learners could not have
persistently bunked his classes. Furthermore,this version was not put to the
witnesses for test and I must reject it.


86. The deduction I make from his failure to provide explanation why these learners
persistently bunked his is that he could not discipline them because he knew that
the reason was linked to him. I find it probable that he was making sexual
advances to “RM’ and Mbali.

87. In addition, Mr Thokoa failed to explain why the learners picked on him and not
Mr Mphuthi, whom he alleges it was the two of them on the disciplinary
committee. His reasons that it was because he was keeping his life privately is a
fallacy and incoherent.

88. The learners denied that he was a disciplinarian and that he was on the
disciplinary committee.Despite this denial he failed to call Mr Mphuthi or any
other educator to corroborate his contention. The court in the Bargaining
Council fo Furniture Manufacturing Industry, Kwazulu- Natal v UKD
Marketing CC and Others (2013) 34 ILJ 96 (LAC) that an adverse inference
should be drawn from a party’s failure to call a witness that the evidence that
party faces must have been of such a nature that, at the time the other party
closing its case, there was sufficient evidence to enable the court to say, having
regard to the absence of any explanation, the other party’s version was more
probable than not.

89. Mr Thokoa denied Mbali’s testimony persistently requested sexual favours and
that one day they cuddled , kissed and almost had sex in his office. The denial
was bare. His version that his lab had big windows with full view by grade 11
class and adjacent to girls toilets and it did not lock, for any of sexual
conduct to take place was not put the employer`s witness for challenge.

90. His version that Mbali had a bad attitude and that he used to chase her out of his
lab when she came to scold him and that he was never alone in his office with
her was not put to Mbali for test. Therefore, I reject this version.

91. It is immaterial that his `office` was called a ‘lab’ ,’centre’. What matters is that it
was his space which he was not sharing with other educators. In fact he did not
challenge the learners’ testimony in relation to the description of his office i.e. it
was partly a storage with old broken desks and chairs at the back.His description
of the lab or office was not put to the learners for test.

92. I find Mr Thokoa not to be a reliable and credible witness. He was evasive and
argumentative. Instead of testifying about the incidents, he focused on evidence
of his good character which could not assist me to establish whether or not he
had committed the offences. He strategically elected not to put his version on the
witnesses for testing. Most part of his testimoy during examination in chief was
new.

93. I agree with the Mr Thokoa that the learners were not able to provide the dates of
on which the incidents took place.However, they were consistent that they
incidents started in January 2022 and were persistent until May 2022 .Failure to
be specific on the dates of the incidents cannot render them to be unreliable and
incredible witnesses. I further do not find the inconsistencies about whether
discussed amongst each other in the toilets why they were bunking the
classes.This do not carry much weight to dent their credibility of their entire
evidence.

94. The employer succeeded to prove on the balance of probabilities that Mr Thokoa
committed the offence proferred against him in relation to “RM” and Mbali Moloi.
Therefore, I find him guilty of contravening Section 17. (1) (b) Employment of
Educators Act of 1998 “Act”, committing an act of sexual assault on a learner in
relation to Mbali Moloi .I further find him quilty of contravening Section 18(1) (q)
of the Act 76 of 1998 as in relation to “RM”.

95. Mr Thokoa denied Kefeletswe’s testimony that he had sex with her on two
occasions.The denial was bare. His contention was that he could not challenge
something that did not happened. He did not put any version that refuted her
claim.

96. It was only during his examination in chief that he stated that on the day of the
memorial service (second alleged sex encounter) he went home and did not
return.He did not account for the entire period prior to the memorial service taking
place. Kefeletswe’s unchallenged version is that she began to bleed during
sex.The blood spilled over Mr Thokoa`s white pants. Immediately following sex
which lasted for about two minutes, he drove home to change the spoiled pants.
He returned for the memorial service.

97. His untested version during examination in chief is further he did not have an office
but a lab with two windows. The lab was adjacent to girls’ toilets. In addition, at
the time of the memorial service there was too much commotion at the school on
account of renovations taking place.There were painter,electricians and carpenters
all over.As such there was no private or hiding space to have sex without being
seen.

98. He contended further that the lab does not lock and that grade 9 has full view
of his lab. He did not challenge Kefeletswe ‘s testimony during cross examination
that she could not escape because he had locked the door. The hearing was
adjourned several times for evidence.Mr Thokoa and/ through his attorney had
ample time to have requested inspection in loco, if the view to his lab and its
proximity to the girls’ toilet were his defence.

99. Kelefetswe`s version is that sex took place at the store room part of the office.
His contention is that the store room was full to capacity with no space for sex.
This version was not put to Keletswe for test. Kefeletswe’s testimony is that the
first time round, they had sex against the desk and second time they were
standing. Therefore, I am not persuaded that space could have prevented sex to
take place.

100. Kefeletswe’s testimony is that she confided to her friend Mapaseka that Mr
Thokoa had forced her to have sex with him at the storeroom in his office shortly
after the ordeal. When she informed her,she crying.Mapaseka corroborated

Kefeletswe’s testimony that she had informed her. Mapaseka’s version was no
challenged.

101. Kefeletswe’s testimony that Simphiwe told her that she was Mr Thokoa’s
girlfriend was not challenged. She denied that she told Simphiwe that she wanted
to ruin Mr Thokoa’s life.Simphiwe’s version that Kefeletswe and other girls
recruited her to be part of the group that would persue false rape claims against
Mr Thokoa to get him disciplined was not put to Kefeletswe for test.

102. Simphiwe’s version that she became aware of the rape allegations when she
heard Ms Libate speaking to the principal at the school when she went to
collect her matric statement around May/June, was not put to the the principal
and Ms Libate for test.

103. Her WhatsApp conversation with Kefeletswe about the rape happened in
September, three months later.It is strange that she waited this long to confront
Kefeletswe about the “rape”. I find her involvement in the matter suspect.
She did not deny on the WhatsApp that she was not Mr Thokoa’s girlfriend when
Kefeletswe told her that “you are having a romantic relationship with him, she is
not forcing you … so he is forcing us”. It is probable that she was Mr Thokoa’s
girlfriend and he informed her.

104. On the WhasApp ,Kefeletswe asked Simphiwe how is she getting involved in the
rape issue because she was no longer part of the school. Simphiwe’s response
was that her name also popped up and that how could Mr Thokoa force a cheap
thing like Kefeletswe and what could he have seen in her. Simphiwe’s response
negates her narrative that Kefeletswe had recruited her to join a group of girls
that would fabricate a rape case againt Mr Thokoa.If this was true, at this stage
she would have refuted the rape allegations and referred to the plot that she had
rejected.

105. In her own version she got involved because her name popped up. It was not
because she had Ms Libate and Mr Matla, the principal discussing.It was not
even related to the alleged recruitment to plot against Mr Thokoa by Kefeletswe
and the other girls. Furthermore, not about protecting the goodname of Mr
Thokoa as she contends.

106. I am persuaded that Simphiwe’s mission was to defend her boyfriend by all
means to the extend of involving Mr Mudau (the employer’s representative) in her
WhatsApp conversations.Mr Thokoa had divulged so much information to her
that she took the battle to the street on his behalf. It did not end there,
she brought a fabricated testimony to this hearing.

107. It is common cause that Kefeletswe did not inform Ms Libate that she had slept
with Mr Thokoa. In fact Ms Libate testified that she asked the learners if anyone
of them had slept with Mr Thokoa but they denied. However, shortly after the
denial she stated in her statement that Mr Thokoa had sex with her twice without
consent.

108. It is not in dispute and I appreciate that when Ms Libate asked them, if they
did not sleep with Mr Thokoa, it was Kefeletswe and Mbali. Kefeletswe’s version
during cross examination is that her response was that Mr Thokoa was abusing
her. She did not explain why she did not inform Ms Libate about the sex
encounter with Mr Thokoa.

109. It is probable she was not specific due to lack of privacy as Mbali was present.
Issues of sexual encounters are private and sensitive to other people to share.
Therefore, her inconsistency of what shewrote in her statement and verbal
denial to Mr Libate is justifiable. This is in consideration that that she wrote the
statement within a short space of time not another time.

110. She did not change the statement to the department.The evidence that
Kefeletswe was a bully and smoking dagga with boys and that she would often
say`` there is my enemy `` each time she sees him and all that depict her as an
awful person was not tested. She admitted that she was suspended for a week
for fighting with another boy. There is no link between her suspension and Mr
Thokoa’s case.

111. Kefeletswe is a credible and reliable witness because her evidence was
consistent with no contractions. She was not evasive,yet Mr Thokoa and
Simphiwe were the opposite. The Employer had discharged its onus in proving
that Mr Thokoa had sex with Kefeletswe in his office/lab. The sex was under the
pretence that he would solve her plight of possible expulsion from school due to
her being over school going age.

112. What is glaring is that Mr Thokoa preyed on the learners who were academically
challenged ( they were all repeating grade 9). This was an opportune for him to
demand sexual favors with the promise of promotion to the next grade.

113. Kefeletswe’s contention is that the sex was without her consent.She conceded
that on the second occasion she was crying from inside and presumed that Mr
Thokoa knew that she did not want to have sex with him. She did not resist or tell
him that she did not want to have sex with him. I find it probable that her conduct
constituted consent to sex.

114. The specifics of how the sex went on the first occasion also do not point to
a forced sex. Amongst others. he made her turn and face the window, he had
time to fondle her and put on the condom without her screaming. It took place in
a school environment during school hours. Probably if she had screamed or
resist as he was caressing and putting on the condom she could have been
rescued because there were people at school.

115. Crying silently and him covering her mouth could have been for other purpose. I
am not persuaded that she resisted.This is corroborated by her failure to
persue a criminal case and to seek professional counselling .The employer
failed to prove on the balance of probabilities that the sex was without consent
thereby failing to prove the elements of rape.


116. I am satisfied that Mr thokoa ‘s actions as illustrated by the victims are of
a sexual nature.Their sexual integrity was inpaired as a result of these actions.Mr


Thokoa had the intention to have sex with Kefeletswe, touch and fondle the private
parts of Mbali. The body contact between him and the victms were not accidental.He committed these acts privately,making sure that it was only him and the victim. There is no justifiable ground for his actions.

117. All elements of sexual assault are present.I am persuaded that the employer had
proved on the balance of probabilities that Mr Thokoa’s actions amount
to sexual assault on Kefeletswe and Mbali. In the premise,I am satisfied that the Employer has discharged its onus in proving on the balance of probabilities that Mr Thokoa had committed offences 1 and 2. Therefore, I find him guilty of contravening Section 17. (1) (b) of the Act.

MITIGATING FACTORS

118. Mr Thokoa submitted that he has been working as an educator for more than 10
years with a clean record. He finds joy in helping students to learn and
grow, which is driving force behind his love and passion for teaching. He has
received a number of certificates and trophies for his excellent performance as a
teacher. He has no other source of income.

119. Dismissal will have significant impact on his career and livelihood. It would be
unjust and could cause unnecessary harm to his personal and professional life. It
is important to carefully consider all factors before making a decision of whether
or not to dismiss the employee.

AGGRAVATING FACTORS


120. The employer submitted that in terms of Section 17. (1) of the Act ,an educator
must be dismissed if he or she is found guilty of –
(b) committing an act of sexual assault on a learner, student or other employee.
121. Mr Thokoa is found guilty of such offence, therefore he must be dismissed.In addition he should be registered with the Social Development as a person who is not fit and proper to work with children.

122. A teacher is loco parentis and as such he has the responsibility to ensure
that learners are safe around him. Someone rape, kissed, touched breast
and learners’ bums or ask for a one round should not be allowed near learners.
He cannot be trusted to be left taking care of learners.

123. In Le Roux v S (A & R 25/2018) [2021] ZAECGHC 57 (13 May 2021)at
paragraph 33, it is stated that “The interests of the community cannot be ignored
in determining an appropriate sentence.[29] Some of the components of the
offences occurred on the premises of a primary school. It is also necessary to
continue to impress upon people in positions of responsibility that they
cannot leverage their power, and the esteem with which they may be regarded, in
order to satisfy their sexual lust.

124. Mr Thokoa claimed to be a disciplinarian of par excellent, which is contrary to
his actions.The school community and the community around the school including
thegeneral public would be happy to have Mr Thokoa removed from
Esokwazi Secondary School and from any school in general for the benefit of
learners. He had breached the trust relationship. He cannot be entrusted with the
learnerswithout violating them .The damage is irreparable.

125. In Toyota SA Motors (Pty) Ltd v Radebe & Others (200) 21 ILJ 340
(LAC) Zondo AJP said “although a long period of service of any employee will
usually be a mitigating factor where such employee is guilty of misconduct, the
point must be made that there are certain acts of misconduct which are of such a
serious nature that no length of service can save an employee who is guilty of
them dismissal.

126. A precedent should be set to Mr Thokoa and his colleagues that sexual assault of
learner is not welcomed in the department. Mr Thokoa’sd conduct,violates
human dignity of the victims.He must be dismissed in accordance with Section
17 (1)(b).

SANCTION
127. Section 17 (1) (b) of the Act carries a mandatory sanction of dismissal for a sexual
assault of a learner.I have found Mr Thokoa guilty of the two counts of sexual
assault of Mbali Moloi and Kefeletswe Mokoena.

128. In the light of the seriousness of the offences and the mandatory sanctiion it
carries, I have no discretion to impose any other sanction, regardless of
his mitigating factors.

129. I have found Mr Thokoa guilty of one count in terms of I find him quilty of
contravening Section18(1)(q) in relation to “RM”.He committed the offence against a young adolescent girl. It is not only the employer,”RM” and her parents who looked upon Mr Thokoa as the educator with trust vested on him to care and protect learners but the community at large. However,he destroyed that trust relationship.He had injured the victim emotionally and psychologically.

130. His actions of asking her for sex were persistent which constituted a serious, harmful and destructive that his long service and clean record are unable to
save his employment.Mr Thokoa is not remorseful and fails to appreciate
the seriousness of the offence. He downplays the damage it has on the learner.

131. He abused his position as an educator and loco parentis.I agree with
the employer that I must send a strong message that must deter
potential transgressors from committing this act. I find that dismissal is an
appropriate sanction.
132. Mr Thokoa committed the offences on separate occasions to different learners.He had no intention of refraining from same,until the victims
reported him. His actions were becoming habitual. I find, Mr Thokoa unsuitable
to work with children. I invoke Section 120(4) of the Children’s Act No 38 of 2005
to declare him on my own accord, unsuitable to work with children.

133. The General Secretary of the ELRC must ,in terms of Section 122(1) of the
Children’s Act No 38 of 2005 ,notify the Director General:Department of
Social Development in writing of the findings of this forum made in terms of
Section 120 (4) of the Children’s Act No 38 of 2005 , that Mr Thokoa is unsuitable
to work with children, for the director General to enter his name in Part B of
the National Child Protection Register.

134. The attention of SACE is drawn to the fact that Mr thokoa has sexually harassed
the learners.
FINDING
135. The Employee, Mr Kekeletso Les Thokoa is found guilty of two counts
of Sexual assault of a learners in terms of Section 17 (1) (b) of
the Act with the sanction of dismissal.

136. In addition he is found guilty of one count of contravening Section 18(1)
(q) of the Act with a sanction of dismissal.

137. The ELRC is directed to forward a copy of this award to SACE.
Signed and dated at Pretoria on this 19 day of May 2023.

MG Rabyanyana
ELRC Panellist