ELRC770-22/23 KZN

IN THE ELRC: INQUIRY BY ARBITRATOR BETWEEN:

THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer
and
D Ngema The Employee

Inquiry by arbitrator-finding

Case Number: ELRC770-22/23 KZN

Dates of arbitration: 2 March 2023 & 17 May 2023
Date of submission of written closing arguments: 24 May 2023

Date of award: 28 May 2023

J KIRBY
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452

DETAILS OF HEARING AND REPRESENTATION

1. The inquiry by arbitrator was held on 2 March and 17 May 2023 at the Employer’s Ilembe District Office. Written closing arguments were submitted by both parties on 24 May 2023.
2. The Employee, D Ngema (the Employee,) was represented by Mr Mthimkhulu, a trade union official.
3. The Employer, the Head of the KwaZulu-Nata Department of Education was represented by its employee, Ms Ngonyama. A bundle of documents, marked exhibit A, was submitted on behalf of the Employer.
4. The complainant and three other witnesses, including her mother, gave oral evidence on behalf of the Employer. The complainant is an adult female learner aged 23 years. Although she is an adult, in order to protect her privacy, I shall refer to her throughout this award as “the Learner” and her mother as “the Learner’s mother.”
5. The proceedings were digitally recorded and interpreted.

EXPLANATION OF THE EMPLOYEES’ RIGHTS

6. The Employee was represented by his representative, Mr Mthimkhulu, and he confirmed that he had been given notice of the charges he faced (the notice is at page 1 of exhibit A) and he had been given sufficient time to prepare for the hearing.
7. At the commencement of the hearing, I explained the following rights to The Employee, who confirmed that he was aware of and understood these rights:
7.1. The rights to question witnesses of the Employer and to dispute any documentary evidence. In particular, the need to ensure that any evidence with which he did not agree was disputed by his representative and the need to ensure that his version was put to each witness; and
7.2. The right to give evidence and to call witnesses.
8. It was explained to both parties, who indicated that they understood that:
8.1. A separate hearing in respect of sanction in event of a finding of guilty, would not be held. Evidence in mitigation and aggravation of sanction would be presented prior to a finding on the merits of the case having been given;
8.2. They could make closing arguments after all evidence had been heard; and
8.3. In terms of section 120 of the Children’s Act I, as the arbitrator, acting on my own or on application of the Employer may make a finding that The Employee is unsuitable to work with children. It was further explained in this regard that a separate hearing would not be held and that any relevant evidence must be submitted during this hearing.

THE CHARGE, PLEAS AND PLEA EXPLANATIONS

9. The Employee was charged with the following count:
“In that on or during the period 2019 at or near KwaVusimuzi Secondary School you allegedly had a sexual relationship with a learner in your school the Learner (grade 12). In so doing you contravened section 17(1)(c) of the Employment of Educators Act No 76 of 1998 as amended.
10. The Employee pleaded not guilty. In amplification of his plea, he denied having been in a relationship with the Complainant during 2019.

SUMMARY OF EVIDENCE AND ARGUMENTS

The Employer’s case

11. At the commencement of the investigation by the Employer, the Learner had written a statement, a copy of which is at pages 9 and 10 of exhibit A. The statement was read into the record by the Learner.
12. The Learner is 23 years old and has been a learner at Lambothi High School since 2022.
13. During the period 2017-2019 she was a learner at KwaVusimuzi Secondary School (the School.) She completed grade 12 in 2019 and left school. She had not had a sexual relationship with the Employee whilst she was a learner at the School.
14. She had started a sexual relationship with the Employee during 2020. Her mother had been aware of the relationship. Her mother and the Employee were on good terms and would speak on the phone and she would request the Employee to take her and the Learner’s brother to the clinic whenever necessary as they were both sickly.
15. During 2021 the Employee had impregnated the Learner. She had, however suffered a miscarriage.
16. The Employee had suggested to her that she ought to return to school to improve her senior certificate results. She had agreed and the Employee had told her mother that he would take care of the related costs. The Employee had contacted the principal of the Lambothi High School and secured her acceptance into the school. He had apparently told the principal that she was his niece.
17. After her acceptance, she and the Employee had decided to end their relationship as they were aware that an educator and learner could not be in a relationship. The Employee continued (and continues) to take care of the needs of the Learner. Since ending their sexual relationship, the Learner has regarded the Employee as her guardian.
18. The Learner’s mother had chased her away from her family home and the Employee pays the rent for the room that she rents near the School. In her aforesaid written statement, she had stated that she had decided to report to the Employer as her mother had chased her away from her home.
19. Under cross-examination the Learner confirmed that she had not been in a sexual relationship with the Employee in 2019 whilst she was a learner at the School. Since having ended their relationship she regards the Employee as her guardian and has started a relationship with another learner at Lambothi High School.
20. The Learner’s mother confirmed that in 2019 the Learner was at the School. She knew the Employee as an educator at the School. She further confirmed that the Employee had taken her to the clinic in his vehicle.
21. The Learner’s mother stated that she was aware that the Leaner and Employee had started a sexual relationship in 2014 when the learner was in grade 8 and that it had continued through until 2019. She had reported this to the School in 2014 and 2017 but nothing had come of it.
22. Under cross-examination the Learner’s mother stated that she had last spoken to the Learner in December 2022.
23. When she had asked the Employee for assistance in 2019 she had not expected him and the Learner to still be in a relationship. She maintained, however, that in 2019 she had once again gone to the School to complain about the conduct of the Employee. She disputed the Learner’s evidence that their relationship had only started in 2020.
24. C M Madela (Madela) is employed by the Employer as an education specialist for learners with special needs. He had been instructed to investigate the allegation that the Learner had had a sexual relationship with a former educator of her. He had interviewed the Learner on 20 April 2022. She had answered all his questions freely and voluntarily and had elaborated on her answers. The statement (at pages 9-10 of exhibit A) was written by the Learner in his presence. The Learner had told him that she and the Employee had started their relationship after she had finished school in 2019 and that they had ended their relationship when it had been decided that she would return to school. He had not questioned the Learner in respect of her having been in a relationship with the Employee in 2019. They had only spoken about the period from 2020 onwards.
25. Under cross-examination Madela submitted that the findings of his investigation are all contained in the statement of the Learner.
26. Raymond Sibusiso Nkwanyana (Nkwanyana) is the principal of the School. He has known the Employee since about 1997/8.
27. During 2017 the Learner’s mother had met with him and stated that she suspected that the Employee and her daughter, the Learner, were in a relationship. He had told her that this was a serious allegation that could not be dealt with at school level and she should write a letter setting out what she knew and he would forward it to the Department. The mother did not return as arranged and her son subsequently reported to him that the Learner’s mother would not be proceeding with her complaint.
28. During 2019 the Learner had been involved in a fight with another female learner. This incident, however, did not involve the Employee.
29. In 2022 the Employee had approached him and complained about threats having been made towards him in social media and an article in the Ilanga newspaper alleging that he had had an affair with the Learner. He had then requested members of the SGB to make enquiries in the community in order to establish whether there was any evidence of the alleged affair. The result of this was a letter from the Learner’s mother stating that she suspected that the Learner and the Employee had had an affair.
30. Under cross-examination Nkwanyana stated that in 2017 the Learner’s mother had asked him to put an investigation on hold while she attempted to gather information on the relationship between the Employee and the Learner. He did not hear from her again until 2022 when she had written the letter indicating that she suspected that the Employee and the Learner had been involved in a relationship. He had not seen any evidence in support of such an allegation.

The Employee’s case
31. The Employee denied having been in a relationship with the Learner whilst she was a learner at the School. He had taught the Learner during 2017.
32. He and the Learner had entered into a relationship in June/July 2020. At that stage the Learner had left school and was working at a local business. After they had started their relationship, the Learner had told him of the difficult circumstances at her home. He had then begun to assist the Learner’s mother.
33. During their relationship he and the Learner had discussed ways for the Learner to better herself and he had advised her to return to school with the aim of achieving better results. The Learner had agreed with this suggestion and both had also agreed that if she returned to school, they would end their relationship. This is what had transpired. As she had decided to return to school on his advice, he took it upon himself to pay her rent and also her groceries from time to time.
34. The Employee has a wife and fiancé who were not pleased when in 2022 they learnt of his affair with the Learner.
35. Under cross-examination he agreed with the evidence of the Learner when she testified that her mother had chased her from the family home due to their relationship.
36. He had only got to know the Learner’s mother during 2021 and as such she had not asked prior to then to end his relationship with the Learner. He agreed that he had caused the Learner to fall pregnant but at this time the Learner was not at school.

SUMMARY OF ARGUMENTS
37. The Employer submitted that:
37.1. It was common cause that the Employee had taught the Learner during 2019;
37.2. The Learner had lied in her testimony when she denied having had a sexual relationship with the Employee during 2019 and that such a relationship had only commenced after she had left the School, having matriculated;
37.3. The Learner had lied as the Employee supports her;
37.4. The Employee had stated that he had supported the learner in 2019 and he had abused this support to enter into a sexual relationship with the Learner.
38. It was submitted on behalf of the Employee that:
38.1. It was common cause that the Employee had taught the Learner in her grade 11 and 12 years and that she had matriculated from the School in 2019;
38.2. In 2017 the mother of the Learner had reported to the principal that the Learner was allegedly in a relationship with the Employee;
38.3. The School principal had testified on behalf of the Employer that the fight between the Learner and another female learner at the School during 2017 had nothing to do with the Employee;
38.4. The School principal had launched an investigation by the School’s SGB after the mother had alleged that the Employee was in a relationship with the Learner but it did not unearth any evidence in support of the allegation;
38.5. Madela had testified on behalf of the Employer that he had interviewed the Learner and she had given the statement (at page 9 of exhibit A) freely and voluntarily;
38.6. The Educator had provided support, financial and otherwise, to both the Learner and her mother.

ANALYSIS OF EVIDENCE AND ARGUMENT
39. The Employee is charged with having contravened section 17(1)(c) of the Act that provides that an educator must be dismissed if he or she is found guilty of having a sexual relationship with a learner of the school where he or she is employed.
40. The essential elements of the alleged misconduct that the Employer is required to prove on a balance of probabilities are thus that the Employee and the Learner had a sexual relationship whilst they were respectively an educator and learner at the same school.
41. It is common cause that:
41.1. The Employee was an educator at the School and that the Learner had attended the School until she matriculated at the end of 2019;
41.2. The Learner had not been a learner at any school during 2020 and 2021;
41.3. The Learner had recommenced her schooling at Lambothi High School in 2022, at which school the Employee is not an educator; and
41.4. The Employee and the Learner had a sexual relationship. The Employer alleges that it was whilst the Learner was at the School whilst the Employee alleges that it was during 2020 and 2021.
42. The essential element that is in dispute is whether the sexual relationship occurred whilst the Employee was an educator and the Learner was a learner at the School.
43. The evidence of the learner did not support the allegation that she had had a sexual relationship with the Employee whilst she was at the School. The written statement made by her during the course of the Employer’s investigation also does not support the allegation of her and the Employee having been engaged in a sexual relationship whilst she was at the School. This, however, is not the end of the enquiry as there may very well be reasons why she would not want to implicate the Employer. In this regard it was argued by the Employer that she would not want to do so as the Employee continued to support her. I thus need to enquire whether there is any other evidence from which I may infer that they were involved in a sexual relationship whilst they were at the School as educator and learner respectively.
44. The Learner’s mother testified that in 2014 and 2017 she had complained to the School principal that she suspected that the Learner and Educator were involved in a relationship. The School principal, Nkwanyana, corroborated her evidence that she had complained in 2017. He had asked her to provide him with a letter with regards to her complaint but she had not done so and had indicated that she would revert to him once she had investigated. She did not do so until after the newspaper article dealing with the alleged relationship had appeared in 2022. We do not know what prompted this article, but none of this evidence allows for an inference to be drawn that in 2019 (or any other time whilst the Learner was at the School) that the Employee and Learner had been involved in a sexual relationship.
45. Evidence was led on behalf the Employer that a fight between the Learner and another in 2019 took place and from this it should be inferred that the cause of the fight was a “love triangle” involving the Learner, the Employee and the other learner involved in the fight. The only evidence led with regards to this fight is that of Nkwanyana. He acknowledged that such a fight had taken place but testified that it had nothing to do with the Employee.
46. Having regard to the above evidence I am unable to draw the inference that the Learner and Employee engaged in a sexual relationship whilst the Learner was at the School, at which the Employee taught.
47. The Learner when she testified for the Employer and the Employee in his defence acknowledged that they had been in a sexual relationship. They both maintain, however, that the relationship only commenced after she had matriculated at the School and ended before she once again became a learner at Lambothi High School in 2021. Whilst the alleged timing of the relationship might give rise to a certain degree of scepticism, the admission of a sexual relationship having commenced months later whilst she was working in the area after the Learner had matriculated, does not give rise to an inference, in the absence of other supporting evidence, that the relationship had probably commenced whilst the Learner and the Employee were at the School.
48. I light of all of the above, I find that the Employer has not established on a balance of probabilities that the Employee is guilty of misconduct.

FINDING

49. The Employee, D Ngema, is found not guilty of having contravened section 17(1)(c) of the Employment of Educators Act 76 of 1998 by having a sexual relationship with the Learner during or about 2019 whilst she was a learner at KwaVusimuzi School, at which he taught.




J Kirby
Arbitrator 28 May 2023
ELRC770-22 KZN