ELRC265-22/23WC

Panelist : A C E Reynolds

Case Number : ELRC265-22/23WC

Date of Award : 27 June 2023

In the INQUIRY BY ARBITRATOR between:

MARIUS JANSEN
(Employee)

and

WESTERN CAPE EDUCATION DEPARTMENT
(Employer)

DETAILS OF HEARING AND REPRESENTATION

1. The matter was referred for an Inquiry by Arbitrator to the Education Labour Relations Council (ELRC) for a dispute relating to alleged misconduct (sexual assault of learners) in terms of section 188A of the Labour Relations Act No 66 of 1995 as amended (the LRA) and ELRC Collective Agreement No 3 of 2018 Inquiries by Arbitrators in Cases of Disciplinary Action against Educators charged with Sexual Misconduct in respect of Learners, dated 25 September 2018 (the Collective Agreement), read with clause 32 of the ELRC Dispute Resolution Procedures, for a disciplinary hearing in the form of an arbitration, which was heard both in person at the premises of the Employer in Mossel Bay and George, as well as virtually via Zoom video conferencing over eight sittings on 13 October 2022, 14 October 2022, 5 December 2022, 3 March 2023, 3 May 2023, 4 May 2023, 5 May 2023, and 7 June 2023.

2. The Western Cape Education Department (the WCED as the Employer) was represented by Ms Verna Phillips, a Senior Labour Relations Officer. Mr Marius Jansen, the Accused Employee, was represented by Mr Simphiwe Mbalo, a Full-Time SADTU Shop Steward. Present at the sittings where this was required were also Ms Wynona Titus, an Intermediary to assist the Learner witnesses, and Ms Jennifer Biko, an Interpreter to assist with Afrikaans and English interpretation.

3. It is noted that at the first sitting of the Inquiry on 13 October 2022 the Employee was represented by Ms Liesel Muller, an Attorney with Liesel Scholtz Attorneys, who was also representing him in the criminal proceedings relating to the same matter. An application for legal representation at the Inquiry was made by the Employee at this first sitting, which was opposed by the Employer. The parties prepared and made verbal submissions under oath on legal representation at that sitting to expedite the process, which detailed submissions are not repeated here. A verbal ruling was issued after considering the submissions in which legal representation was denied, with the reasons provided verbally by the Arbitrator to the parties on 13 October 2022 and to be confirmed in writing in this award, as is now being done:

• The questions in law relating to the charges brought against the accused Employee are clearly and explicitly dealt with in the relevant legislation governing the employment of educators and employees in general.
• The dispute is not of a complex nature, which it appears will predominantly rely on the evidence of child witnesses, with guidelines available as developed by the Courts on how to approach the evidence of child witnesses.
• As to the public interest, the Panelist will be required to make findings which will inter alia consider the best interests of the child.
• With respect to the comparative ability of the parties, it is agreed that the Employee will require representation in these proceedings, but it is recommended that the SADTU Representative who was going to represent the Employee in the first place be re-appointed for this purpose. Union Officials within this sector are very conversant with the processes and relevant legislation applicable to education and have in the Panelist’s experience been found to be more than capable to represent employees in proceedings, even in the most complex cases.

4. Mr Simphiwe Mbalo, the SADTU Official who was originally going to represent the Employee in the Inquiry and whose representation was withdrawn at short notice by the Employee in order to obtain legal representation, was subsequently re-appointed by the Employee to represent him in the Inquiry.

5. The first sitting on 13 October 2022 therefore dealt with the Employee’s application for legal representation at the Inquiry, which was denied, as confirmed above. The Inquiry could not proceed due to the Employee having to arrange alternative representation. The second sitting on 14 October 2022 was devoted to a concluding a Pre-Inquiry Minute, attending to documents and other preliminary matters in the presence of the Applicant’s re-appointed SADTU Representative. The third sitting on 5 December 2022 dealt with postponement applications from the Employee on medical grounds and the Employer’s Representative for a family bereavement, for which postponement was granted and a postponement ruling was issued. At the fourth sitting on 3 March 2023, the implications of the Employee’s bail conditions on the Inquiry process were dealt with and during which the Panelist obtained guidance from the Mossel Bay Magistrate’s Court, with the Inquiry only continuing thereafter with the commencement of the evidence of witnesses, which was cut short due to virtual internet connectivity problems.

6. It is noted that the Employee’s bail conditions as referred to relating to the pending criminal matter under case number B193/22, as issued on 22 June 2022 by the Presiding Officer of the Magistrate’s Court in Mossel Bay, also required to be complied with in these proceedings until the matter is finalised, for which appropriate arrangements were made by the ELRC when scheduling the sittings, which bail conditions included the following:
• Accused to make no direct/indirect contact with State Witnesses.
• Accused not to enter the School in question.
• Accused only to enter Mossel Bay for Court purposes.

7. The proceedings were conducted in Afrikaans and English, with digital and electronic recordings made. The parties’ Representatives also made recordings of the proceedings, on the understanding that the official digital record will be that of the Panelist.

8. The inquiry was conducted in the form of an arbitration with reference to the provisions of Collective Agreement No 3 of 2018 (the Collective Agreement), the ELRC Dispute Resolution Procedures and the relevant sections of the LRA, with the necessary changes required by the context.

9. The Inquiry proceedings were explained to the Employee, which he confirmed he understood. He also confirmed that he had received the charge sheet, has been made aware of his rights and was ready to proceed when the Inquiry continued on 3 March 2023 after preliminary issues had been dealt with in previous sittings.

ISSUE TO BE DECIDED

10. The purpose of this Inquiry convened in terms of section 188A Inquiry by Arbitrator of the LRA, which provides for an inquiry by an arbitrator in the form of an internal disciplinary hearing, Collective Agreement No 3 of 2018 (the Collective Agreement) and clause 32 of the ELRC Dispute Resolution Procedures, is to determine whether the Employee, Mr Marius Jansen, is quilty, on the balance or probabilities, of the following charges relating to Learners associated with Erika Primary School as levelled against him by the Employer, the Western Cape Education Department, as well as the sanction if guilt is established on some or all of the following charges (translated from the original Afrikaans):

CHARGE 1

It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Employment of Educators Act, no 76 of 1998 (hereinafter referred to as the Act) in that during the first and/or second term of 2022 you made yourself guilty of improper, unacceptable and unprofessional conduct by mentioning to Learner A, a learner associated with Erika Primary School, that she will be pregnant one of these days.

CHARGE 2

It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act in that during the first and/or second term of 2022 you made yourself guilty of improper, unacceptable and unprofessional towards Learner B, a learner associated with Erika Primary School, by:

(a) lifting up her dress; and/or
(b) stating that you do what you want and touch where you want.

CHARGE 3

It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act in that during the first and/or second term of 2022 you made yourself guilty of improper, unacceptable and unprofessional conduct by refusing to allow Learner C, a learner associated with Erika Primary School, to leave the room to undress herself and to insist that she does it in the classroom.

CHARGE 4

It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Act in that during the first and/or second term of 2022 you made yourself guilty of sexual assault by kissing Learner D, a learner associated with Erika Primary School.

ALTERNATIVE TO CHARGE 4

It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act in that during the first and/or second term of 2022 you made yourself guilty of improper, unacceptable and unprofessional conduct by kissing Learner D, a learner associated with Erika Primary School.

CHARGE 5

It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Act in that during the first and/or second term of 2022 you made yourself guilty of sexual assault by kissing Learner E, a learner associated with Erika Primary School.

ALTERNATIVE TO CHARGE 5

It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act in that during the first and/or second term of 2022 you made yourself guilty of improper, unacceptable and unprofessional conduct by kissing Learner E, a learner associated with Erika Primary School.

CHARGE 6

It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Act in that on or around 7 June 2022 you made yourself guilty of sexual assault by touching Learner F, a learner associated with Erika Primary School, on the vagina.

ALTERNATIVE TO CHARGE 6

It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act in that on or around 7 June 2022 you made yourself guilty of improper, unacceptable and unprofessional conduct by touching Learner F, a learner associated with Erika Primary School, on the vagina.

CHARGE 7

It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Act in that during May 2022 and/or June 2022 you made yourself guity of sexual assault by touching Learner F, a learner associated with Erika Primary School, on the buttocks.

ALTERNATIVE TO CHARGE 7

It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act in that on or around 7 June 2022 you made yourself guilty of improper, unacceptable and unprofessional conduct by touching Learner F, a learner associated with Erika Primary School, on the buttocks.

11. The Employee pleaded not guilty to all the charges.

BACKGROUND

12. A Pre-Inquiry Minute was prepared and signed by the parties on 14 October 2022. The following facts were confirmed as common cause in this Minute, with minor amendments included:

The Employee commenced with the Employer in 1999 and joined Erika Primary School in Mossel Bay in April 2021. He currently occupies the position of Deputy Principal Post Level 3 at Erika Primary School, with Persal number 53368282. The Employer became aware of the allegations against the Employee in April 2022 through the office of the Principal, Ms Miriam Fielies, who was informed by Mr Humphrey Koert, an Educator, of complaints received from certain parents. The matter was reported to Head Office and an investigation was conducted in June 2022 and on 20 June 2022 the Employee was suspended as a precautionary measure by the Head of Education, Western Cape. The Employee is currently still on paid suspension. A criminal complaint was also opened against the Employee by certain parents, not the Employer, and he is currently out on bail. He has not been convicted yet and the criminal case is still pending. These are the first incidents of alleged misconduct that have been brought against the Employee.

13. The identities of the Learners involved are protected. During 2022 they were in Grade 7 at Erika Primary School, aged around 13 and 14 years old. Learners A, B, C and F are girls and Learners D and E are boys. Charges 6 and 7 both relate to Learner F. The incidents are alleged to have occurred in the following locations:
Charge 1 in the classroom of Ms Jacobs.
Charge 2 in the computer room.
Charge 3 uncertain where this occurred.
Charge 4 in the computer room.
Charge 5 in the passage between the administration block and the computer room.
Charge 6 in the geography classroom.
Charge 7 in the computer room.

14. An in loco inspection of where the incidents occurred was also initially proposed, but was later decided against by the parties.

THE EMPLOYER’S EVIDENCE

15. The Employer only handed in the Employee’s charge sheet as documentary evidence, which had been exchanged, and called the following witnesses to testify in support of its case:

16. Ms Miriam Fielies, the Principal of Erika Primary School, Mr Humphrey Koert, an Educator at Erika Primary School, Mr Winston Seconds, a Sport Coordinator at Erika Primary School, Ms Kyla Figland, Guardian of Learner F, five female learners and three male learners aged between 13 and 14 years old who all attended Grade 7 at Erika Primary School during 2022. One female Learner witness and one male Learner witness were not part of the charges but were called as witnesses to the incidents.

17. The Learner witnesses’ evidence was presented virtually from the Employer’s venue in Mossel Bay through the appointed Intermediary Ms Wynona Titus so that the accused Employee’s bail conditions could be complied with. The Learner witnesses were not required to take the oath but affirmed that they would tell the truth. The adult witnesses presented their evidence under oath.

18. The names and surnames of the Learner witnesses are not disclosed in the award, and are identified as Learner A relating to Charge 1, Learner B relating to Charge 2, Learner C relating to Charge 3, Learner D relating to Charge 4, Learner E relating to Charge 5, and Learner F relating to both Charge 6 and Charge 7. Learners G and J were not part of the charges, but testified to the incidents that occurred in their presence.

19. The Employer’s witnesses’ evidence is summarised below in the sequence that they testified.

20. Ms Miriam Fielies testified as follows under oath in her evidence in chief: She had been an Educator for 32 years and Principal of Erika Primary School since 1 April 2021. As Deputy Principal the Employee was responsible for curriculum duties and taught subjects of Social Science, Technology, Creative Arts and Physical Education in Senior Phase Grade 7 and portfolio management such as performance management, quality assurance and finance. Like the other educators he did not have a fixed classroom and was a nomadic educator, predominantly using the computer laboratory. As a worker he was extremely diligent, hardworking and considerably punctual, considering he travelled daily from George to Mossel Bay and was willing to help and assist with extramural activities at the school. The Employee left the school premises in June 2022 after he was arrested on charges of alleged sexual misconduct towards a learner. She became aware of the allegations around 12 April 2022 when she received a telephone call from an educator that learners had made allegations to parents that the Employee had made sexual overtures to them. There were a number of learners involved and she mentioned their names. She obtained a statement from the class teacher Mr Koerts, who she asked to obtain statements from these learners. She collated the statements and contacted the Circuit Manager Ms Rozell Smit Neethling, who referred her to Ms Bathgate and Mr Allie in Cape Town to whom she forwarded the statements and the reports compiled by herself and Mr Koerts.

21. The alleged conduct of the Employee had an impact on staff morale, the trust component with the parents, with the social welfare of the learners and the pastoral duties of the educators questioned, with the biggest impact on the safety of the learners. The allegations against the Employee had cast aspersions in general against the education fraternity and in particular the educators at their school and it was deemed to be unsafe for learners to be present with the educators. With respect to trust the Employee was in top management at the school, with the safety and welfare of learners paramount. The learners come to the educators and that relationship has been severely disturbed by these allegations. The core duty and essence of education is to help and not to harm and if the Employee is found guilty it would throw the school in a quandary and the onus would become strong for them to preserve the wellness and safety of the learners inside and outside the classroom, with educators becoming aware of the effect of such conduct in the future.

22. Ms Fielies testified as follows under cross-examination: She had two Deputy Principals on the staff establishment, of which the Employee is the most senior one since he was appointed first and the other Deputy was acting. He is regarded as the second in charge and is delegated to stand in for the Principal when absent. There was no unhappiness whatsoever amongst the School Governing Body (SGB) and the staff when the Employee was appointed. She was part of the SGB proceedings and the Employee scored the highest in the interview. She confirmed that the allegations against the Employee came to her attention around 20h00 the evening of 12 April 2022 when parents of the Grade 7 B group had contacted the class teacher Mr Humphrey Koert that evening, who in turn contacted her. She and the class teacher proceeded with the matter the next day at school. No parents came to the school on 13 April 2022, nor were they advised to do so, with only the learners’ statements obtained that day in their own handwriting, with Mr Koert’s report included in her report to the Circuit Manager. She thought it was only the one parent who contacted Mr Koert the evening of 12 April 2022, being the mother of Learner A. Another parent contacted him on the way to school on 13 April 2022 and that is when he also heard from the other parents. She did not know why the parents instinctively went to Mr Koert. Mr Koert is a Grade 7 B class teacher at the school. She could not recall that there was any bad relationship between Mr Koert and the Employee or any other educators at the school as an outsider to Mossel Bay. She had a very good and sound relationship with the Employee before he was appointed at the schooI and they had worked together before. There were no allegations whatsoever against the Employee before this matter.

23. Ms Fielies testified as follows under re-examination: She knew and worked with the Employee originally since the Employee had been living in Mossel Bay a few years back and they were together at Indwe Secondary School when the Employee was the Branch Chairperson of SADTU and she was Secretary of the Branch.

24. Learner A testified as follows: She is 14 years old and is currently in Grade 8 at Sao Bras High School. She was in Grade 7 at Erika Primary School in 2022. The Employee was one of her subject teachers in 2022. She was here for the case of the Employee and the things that he did to her and othe learners. As to what the Employee said and did to her, he said to her that she will be preganant one of these days. He said this to her in Ms Jacobs’ class when he was observing there. Three other learners were in the class that day, being Learners B and J and one other learner. She understood from what the Employee said that she was sexually active, which she was not at that stage. She felt scared when he said that to her because he could not say that since he does not know her at all. He made this statement to her during the second quarter of 2022. After the Employee said this to her she left the class and went to Mr Koert her class teacher and told him what happened. She felt she must tell him because he was her class teacher. When she reported this to him he told her to write this all down on a page and stay with him in the class. She stayed in Mr Koert’s class until the Employee’s period was over.

25. The other learners who the Employee said and did things to were Learners B, G, E, F, D, C and one other learner. With respect to Learner B she was present when they were in the computer room and the Employee wanted to lift up Learner B’s dress and Learner B said to him he cannot do that and he said he can touch where he wants and do what he wants. With respect to Learner F, they were with Ms Neethling in her class and one of the assistants sent Learner F to rinse out a cup, which she did. When Learner F returned with the cup the Employee was alone in the class. When she put the cup back the Employee touched her private parts. Learner F immediately told her what happened and they told Mr Koert who told her to write down what happened. Learner F was crying when she told her what happened. With respect to Learner E, he had told them that they had a rugby meeting outside and the Employee came out and kissed Learner E on the cheek in front of Mr Winston the Sport coach. Mr Winston had also told one of the parents. They were in the computer room and waiting for the bell to ring to go home when she saw the Employee take Learner D by the face, kiss him on his mouth and bite him on the nose. What happened to Learner C is that they were in the laboratory and Learner C said to the Employee that she wants to remove the bandage from the top of her leg and the Employee told her she cannot leave the class and must undress in the class. She refused and they covered her so that she can take off her pants to remove the bandage. They could all see how the Employee was looking at Learner C while she was busy undressing. They stood around Learner C to cover her because she could not undress in front of the boys and the teacher in the class. The Employee’s conduct towards her and the other learners was wrong as that is not how and educator must behave towards learners.

26. Learner A testified as follows under cross-examination: The Employee taught her History, Geography, Art, Music and Technology in 2022. When the Employee said to her she is going to be pregnant she said nothing and just looked at him. He spoke to her in normal tone. Nothing had happened in the class to make him say that. The Employee was teaching out of a text book and came and stood by her and was looking at her. She asked him what he was looking at when he uttered those words, whereafter she left and went to her teacher’s class. The class was calm at the time. She explained where the other Grade 7 learners were sitting in the class at the time. The Employee was talking very softly to her. Only Learners G and J and another learner heard what the Employee said as they were sitting next to her. The other learners told their parents what the Employee did. Some parents came to the school and some contacted her parents. When she told her mother, her mother contacted the Principal the same night. Learner F told her that when the Employee had touched her private parts, she had told the Employee that he cannot touch her and he just laughed. Learner F ran out of the class and came to her and started crying. As to what the Employee had said to Learner B, they were in the computer class and she was on her way to the bin, when the Employee wanted to lift her dress and she said no sir you cannot do that and he said to Learner B that he can touch and do what he wants. The Employee had also said to another learner in the computer room that she will be tired after only five rounds with him. She repeated what she had stated in her evidence in chief about what happened to the other learners.

27. She elaborated on what happened to Learner C and why the Employee told Learner C to undress in the class. Learner C wanted to go to the bathroom and remove the bandage because she was in pain and the Employee did not want her to leave and said she must undress in the class. Learner C pulled down her pants and took the bandage off. She started to cry when she saw how the Employee was looking at her. The other learners in the class did not react and were just looking why the Employee let her undress in the class. She did not go and report these incidents to the Principal but told her mother, who called the class teacher who told the Principal. Their class was normally very noisey and busy, but on the day of the incident with Learner C they were quiet and working.

28. No re-examination was required of this witness.

29. Mr Humphrey Koert testified as follows under oath: He is a Post Level 1 Educator at Erika Primary School in Mossel Bay and has been with the school since November 2020. He became aware of the allegations against the Employee on the evening of 12 April 2022 when Learner A’s mother called him and mentioned several things that the Employee had spoken about to the children, but he could not remember what things. He had told the mother she must keep off social media since it was dangerous things that she was saying and that he will call the Principal about the discussion between them and what happened. He telephoned the Principal and informed her about the discussion with Learner A’s mother. The Principal told him to go to the school the next morning and explain if further to her. The morning of 13 April 2022 the Principal gave him pages and envelopes and asked him to obtain statements from the learners on what happened between them and the Employee. He did not know what the learners wrote and he put the statements in the envelopes and took them to the Principal. He could not remember the names of all the learners who wrote statements as it was a long time ago, but it was perhaps Learners A, G and B and a few others. Learner A had specifically come to his class in the morning, which date and time he could not remember, and told him that she did not want to be in the Employee’s class, but he did not know why. She looked very upset and he let her sit in the class for the day.

30. Mr Koert testified as follow under cross-examination: The parent who reported the incident to him on 12 April 2022 did not come to his house as he was in Groot Brak River in Mossel Bay busy with sport and she contacted him by telephone. No learners reported to him, but the parent, and he felt the right thing to do was to call the Principal as he felt these were dangerous allegations and it was the first time something like that had happened to him. After the mother’s allegations he thought about what Learner A had said to him that she did not want to be in the Employee’s class. He had not asked Learner A at the time why she did not want to be in the Employee’s class and did not talk to the Employee about that afterwards.

31. There was no re-examination of this witness.

32. Learner B testified as follows: She is 14 years old and was presently in Grade 8 in Hillcrest Secondary School. During 2022 she was in Grade 7 at Erika Primary School. She was here for the case of the Employee, who is the Deputy Principal of Erika Primary School. What happened with the Employee is that he spoke about sex to them. He said he would also lift up her dress and touch and feel wherever he wants. His incident happened in the computer room during the first quarter of 2022. Learners G, D, A and J were present and saw and heard what the Employee did. This incident made her feel uncomfortable as nobody had said or spoken such things to her. There were also other learners towards whom the Employee behaved like that, being Learners E, G and D. Learner E was on the field and the Employee called him, he did not want to go and the Employee took him and kissed him on his nose. She was on the way home and passing the cars when she saw the Employee kiss Learner E on the nose. This happened in the first quarter of 2022. The Employee had kissed Learner D in the computer room during the first quarter of 2022. She knew about this incident because she was present and they were sitting together. Learner G was a boy who the Employee also kissed.

33. Learner B testified as follows under cross-examination: The Employee had spoken about sex and he said he will lift up her dress and he will touch where he does not need to touch and will do what he wants. That was the only statement he made to her. She felt uncomfortable about that statement and told her mother, who went to the school during the first quarter. She did not respond to the Employee when he said that to her and walked out of the class since it was time to go home. She was present during the incidents between the Employee and the other learners, which all happened on the same day. Learner E was on the sports field where she was also present. The Employee said he will lift her dress but she did not know if he did because she walked out. She did not feel him lift her dress as she had her bag on her back. The Employee was sitting and she was busy preparing herself to go and put her school bag on her back and passed him, therefore she did not know if he indeed lifted her dress, but Learner G and the others saw him do it. The Employee kissed Learner D on the nose. She responded to Learner A’s testimony that Learner D was kissed on the mouth that she knew that the Employee kissed Learner D on the nose.

34. Learner B testified as follows under re-examination: She was sitting two chairs from Learner D when the Employee kissed him in the computer room. From where she sat it looked like on the nose and not the mouth.

35. Learner G testified as follows: He is 15 years olf and is presently in Grade 8 at Sao Bras High School. He was in grade 7 in Erika Primary School during 2022. He was here about the things of the Employee, which things were about what he said to Learner B and did to Learner D. The Employee did not say anything to Learner B and only lifted up her dress. He followed Learner B when she walked past the Employee and he lifted her dress up with a pen. He was not sure that Learner B was aware that the Employee lifted her dress. When he saw that he told the Employee that he cannot do that and the Employee said to him he can do what he wants to do. The Employee first wanted to bite Learner B on the nose and then afterwards wanted to kiss him. This incident took place in the computer room. The whole class was present in the computer room on that day, which he saw with his own eyes.

36. Learner G testified as follows under cross-examination: He was not sure in which term the incident with the Employee happened. The Employee kicked him on the backside when he wanted to leave the class and wanted to grab him back to kiss him but he ran away. He did not know why the Employee kicked him. He saw the Employee lifting Learner B’s dress with a pen from the back in the computer room. He was standing at the back when he saw this. He normally sat at the front of the computer room a few chairs from Learner B. The Employee wanted to bite Learner D on the nose but did not. He also wanted to kiss Learner D but he did not because Learner D pulled away.

37. Learner G testified a follows under re-examination: He was not sure if the Employee did bite or Kiss Learner D and only wanted to, because the Employee could easily have kissed Learner D or not.

38. Learner C testified as follows: She is 14 years old and is presently in Grade 8 at Sao Bras High School. She was in Grade 7 at Erika Primary School last year. The reason why she was here is because the Employee did wrong things last year which he should not have done. The Employee did wrong things to her in that she asked one day to go to the bathroom because she had sprained a muscle and he refused and told her to go and sit down. She was in a lot of pain in her leg and the bandage pressed and gave her a burning pain. She wanted to loosen the bandage with her hand and put her hand inside her pants but it was difficult to do. That is when her friends tried to sit around her to cover her. The Employee kept on walking up and down and her friends said he was looking at her all the time while doing so. She was sitting and crying and was trying all the time to loosen the bandage. The friends who covered here were Learner A, Learner G and another learner. They covered her so that the Employee could not see her personal things that he was not supposed to see. It was the top part of her left leg above the knee which was sore. This incident made her feel uncomfortable as he was older than her and she did not know him at all. As a teacher he was very strict and hit and scolded a lot. He had hit her over the buttocks with a cane to ask how far she is with her work. The Employee also talked about other things and spoke in class about how boys and girls made out nowadays, that it is lips against lips and not bodies against bodies and that they should make out with their bodies close to each other. He said this to the whole class and they reacted by shouting and making sounds and she and her friend said to the Employee that these are not the right things to talk about in class.

39. Learner C testified as follows under cross-examination: That day when she wanted to go to the bathroom she had hurt her leg at athletics during the long jump. It was a very serious injury as she was crying even afterwards and was still sitting with a sore leg now. As to what the Employee had said was wrong when he refused that she go to be bathroom, she had explained the bandage was tied too tight around her leg. She told the Employee what the matter was with her leg the same day but he did not want her to go to the bathroom. The Employee had not refused her to go to the bathroom before. There were other teachers who did not want them to go the bathroom during period time and they must ask permission to go when the bell rings. The teacher is not wrong to not give permission to go to the bathroom because the learners may roam around in the corridors. But she only went to the bathroom when she had a big need, which she had that day. The other teachers did not say the same things that he said in class, such as sexual things which the other teachers do not do. In Ms Manuel’s class she normally sat at the third table which is where the incident happened. The Employee hit her with the cane over the buttocks in the computer class when they came out, which happened on a different day. She told her mother all these things but she could not remember what her mother said. With the bandage all her mother asked if she told the teacher about it. She thought the bandage incident was late in the first term of the year.

40. Learner C testified as follows under re-examination: She explained the reason why she wanted to go to the bathroom that day, which was to take the bandage off her leg. Her specific words were “Sir can I leave the class please” and he said no, you must go and sit. She told him that the bandage is too tight on her leg and she needed to take it off. His words to her then were “no, go and sit, sit, sit”. The Employee was busy also attending to other learners and he was cross. She did not give the Employee reason to be furious because he was already cross with the other learners.

41. Learner D testified as follows: He is 15 years old and is presently in Grade 8 at Sao Bras Hight School. He was in Grade 7 at Erika Primary School in 2022. He was here because of the Employee, who bit him on the nose. The incident happened last year in the computer room. The whole class was present. The Employee made a joke and the whole class laughed. He then came closer and asked him why he was laughing and grabbed him at the front of his chest, bit him on the nose and then kissed him on the same place, being the nose. When the Employee bit and kissed him on the nose he felt bad because nobody else had ever done that to him.

42. Learner D testified as follows under cross-examination: Mr Koert was his class teacher in 2022. He was here because of what the Employee did, which was that he bit him on the nose and then kissed him. He did not know why the Employee came straight to him and bit and kissed him, but it was after he made a joke. He was not sure during which term this happened. At the time he sat at the bench in the computer room. He knew Learner G, who sat on the other side of the same bench last year. The table was in the middle with computers between them. Learner G did not see everything that happened to him. As to Learner G’s version that he saw the Employee come to him and wanted to bite him on the nose and kiss him but that he ran away, that was not true. He pulled away after it happened. He should be believed on what happened. He did not know if Learner G was lying. The whole class saw the Employee kissing him on the nose. With respect to the versions of Learner A that the Employee kissed him on the mouth and that of Learner G that the Employee wanted to kiss him but that he drew back, and his version that the Employee kissed him on the nose, the person to whom it happened should be believed.

43. Learner D testified as follows under re-examination: Learner A did see with her own eyes what happened on the specific day in class but she was sitting a little bit far away fom him. Learner G was not very far from him in the class but he was on the other side of the computers.

44. Learner J testified as follows. She is 13 years and is currently in Grade 8 at Sao Bras High School. She was in Grade 7 at Erika Primary School in 2022. She was here to testify that the Employee had discussions with them that he was not supposed to have. The Employee had sexual talks with them on how he prefers to make out and how boys and girls must hold each other and must make out. These sexual talks took place in different classrooms and the computer room. The talks happened in the second quarter since it was Covid during the first quarter and they came to school in groups. She felt very uncomfortable when he had these sexual conversations with them in class since they normally get this information in Life Orientation and that teacher, Ms N Jacobs, will keep it in line. Last year Learner D came late into the class in the computer room and the Employee held him and bit him on the nose. From where she and her friends sat it looked like the Employee was kissing him. This happened at the front of the computer room. She and her friends were sitting and working at a table against the wall on the left side of the computer room when one entered the room. When the Employee did that to Learner D, Learner D pulled back but the Employee was too strong.

45. Learner J testified as follows under cross-examination: The information on how boys and girls approach one another is normally conveyed in a professional manner in Life Orientation class. In Life Orientation they talk about that as part of a subject. The Employee can only talk about subjects that concern him such as History or Geography and he is not supposed to talk about how they have to hook up with guys. Learner D came into the class and they then saw the Employee grab Learner D on his face with both hands holding his face and bite him on the nose. As she remembered Learner D was sitting at the time. From where they were sitting it looked like the Employee was kissing him and she did not say that he was kissing Learner D. The different versions presented by Learner A and Learner D as well as her own version of what happened was put to her to which she responded that what she saw looked like the Employee was kissing Learner D on the mouth, not the nose.

46. No re-examination was required of this witness.

47. Learner E testified as follows: He is 14 years old and is presently in Grade 8C at Sao Bras High School. He was in grade 7 at Erika Primary School last year. He was here to lay a complaint against the Employee. It was communicated to them in the hall one day that the weather is bad. The Employee came out of the office and kissed him and bit him on the cheek. He was standing outside with his team mates and coaches who told them that the rugby game was postponed. The coaches present were Mr Winston Seconds and Mr Wesso. The Employee was not part of the group or the meeting. When the Employee bit him on the cheek and kissed him on the mouth it was uncomfortable because it was embarrassing in front of his team mates. When the Employee did this to him he went to his parents and told his parents and stayed at home after that. His parents came to the school and that teacher Mr Koerts said he cannot do anything about that. He stayed at home for two weeks because he felt ashamed and could not face his team mates and friends. He did not know why the Employee did it to him. This happened between the first and second quarters of 2022.

48. Learner E testified as follows under cross-examination: The incident took place in front of the office. Present were the two coaches and six other learners. They all saw what happened to him and reacted by laughing at him.

49. No re-examination was required of this witness.

50. Learner F testified as follows: She is 15 years old and is presently in Grade 8 at Sao Bras High School. She was in Grade 7 at Erika high School last year. She was here to testify what the Employee did. The Employee had touched her on her vagina. The incident happened in Ms Neethling’s classroom. Nobody else was present in the classroom when this happened as the other learners were outside for break interval. She elaborated on what had happened. She came from the previous period and went to the computer room as another teacher asked her to make coffee. After she had made the coffee she went up to the class to get her bag when the Employee called her to where he was sitting at Ms Neethling’s table. She was standing next to the Employee when he touched her vagina and said to her he hoped it never happened again. When he said he hoped it will never happen again he referred to that she must not come late in his class. The Employee touched her vagina but putting his flat hand on top of her skirt. She felt uncomfortable when the Employee did this because she is not used to men touching her. This incident happened on 6 or 7 June 2022. She told her Guardian Ms Figland, whom she stays with, what happened. She also told Learner A and another learner what happened.

51. Learner F testified as follows under cross-examination: She repeated what happened that day, which was that she came from the previous period and went to the computer room. The one teacher asked her to make coffee, she went to make the coffee and after she made the coffee she went up to the classroom to fetch her bag. The Employee called her to the table and said what she had done is not going to happen again and he touched her vagina on top of her skirt. They were the only ones in the classroom and there was no educator assistant present. It happened during a break interval. There was not always an educator assistant present with the Employee. She also informed Learner A and another learner about the incident. Mr Koert was her class teacher that year. She did not inform any teacher or the Principal what happened. As to the Employee’s version that he did not touch her, he had touched her. She did not directly inform Ms Figland her Guardian what happened, but Learner A’s mother called her to inform her.

52. No re-examination was required of this witness.

53. Mr Winston Seconds testified as follows under oath in his evidence in chief: He works at Erika Primary School on the SGB and as Sport Coordinator. He explained what happened relating to Learner E, a Grade 7 learner last year at the school. After the first break he had a meeting with the under 13 boys’ rugby team. They stood on the steps of the office busy with the meeting and the Employee came out of the computer classroom and stood next to Learner E. While he was talking he saw the Employee kiss Learner E on his cheek. Learner E moved away from the other boys after that happened. The Employee was not part of the meeting with the boys. The incident happened last year in April 2022. Because some of the boys laughed he, Mr Seconds, also laughed because he did not take it seriously. Learner E did laugh too and moved far away from the Employee. The Employee also stood and laughed as he is always someone who makes jokes. In the 15 years that he worked with learners at the school he would not have done something like that to a learner because before he started at the school they do training not to touch children. He stood directly opposite the Employee and Learner E about three meters away. As to Learner E’s testimony that the Employee bit him on the cheek and kissed him on the mouth, in the position that he stood he saw a kiss.

54. Mr Seconds testified as follows under cross-examination: As Sport Coordinator he only dealt with sport, being rugby, athletics and cricket. The boys present belonged to the under 13 A rugby team and Learner E was part of the team. As to why he was laughing when the incident happened, it was because the other boys laughed and the Employee was always joking, so it did not seem serious to him. It was a kiss that happened.

55. Mr Seconds testified as follows under re-examination: On that day when the Employee came out he did not make a joke, he just stood next to Learner E and then kissed him and all of them laughed. They laughed because it was just a joke to all of them and not because it was an uncomfortable situation. Although the Employee had not made a joke before that, the Employee just kissed Learner E out of the blue.

56. Ms Kayla Figland testified as follows under oath in her evidence in chief: She confirmed she was Learner F’s Guardian for the whole year of 2022 when she was in Grade 7 at Erika Primary School. She is here at the arbitration because Learner F told her about a teacher who touched/molested her at school. She couild not recall the date on which Learner F told her this. Learner F told her that Learner A’s mother will be contacting her and Learner A’s mother told her that she must ask Learner F what happened at school. She approached Learner F and asked her what happened. Learner F started to cry and told her she was in another class the period before interval. When the bell rang for interval she went to go and fetch her bag in the Employee’s class. When she got to the classroom the Employee was alone in the class and he called her to the table where he was sitting. When she reached the table he asked her where she had been and she told the Employee that she was in the other teachers’ class, which is when he touched her vagina over her skirt. She had told the Employee that it was interval and she wants to leave, which is when she left the classroom. Learner F was very emotional and could hardly talk when she gave the version of what happened at school and she had to ask her constantly what happened and to open up. After she received this information she first went to the school and informed the Principal. After that she went to the SAPS to open a case of molestation. The SAPS opened the case but unfortunately it was thrown out and dismissed and they never heard why the case was dismissed.

57. Ms Figland testified as follows under cross-examination: She was Learner F’s Guardian from Janaury 2022 until December 2022. As to why this incident was not reported to Learner F’s father but to her as the Guardian, it was because Learner F stayed with them and it was her home. She did not take Learner F for a medical examination because Learner F had said that the Employee touched her over her skirt. When she reported this to the Principal she said she would look into the matter and see what she can do. She was unhappy because the SAPS told her when she went to find about the case that it was thrown out, which nobody had told her. She could not have done much else since the people with the responsibility did not tell her that the case was no more. They were told that Learner F had to go to Court, they were at the Court but the case never went further. She viewed this as a very serious case.

58. Ms Figland testified as follows under re-examination: It is a very serious case because she saw and knew that Learner F was so emotionally traumatised that she could not sleep at night. She noticed this change in Learner F’s behaviour after she told her what happened.

THE EMPLOYEE’S EVIDENCE

59. Only the accused Employee testified and elected not to call the other witnesses who had originally been indicated would be called to testify on his behalf.

60. Mr Marius Jansen, the accused Employee, testified as follows under oath in his evidence in chief: He confirmed that he was in his third year as Deputy Principal at Erika Primary School and that he had 24 years’ experience as an educator. He taught History, Geography, Music, Art, and Technology for Grade 7 and Physical Education for Grade 6 at Erika Primary School. He viewed the charges levelled against him as very serious, with his career at stake. He as Deputy Principal had a professional relationship with the Principal as well as the other educators, non teaching staff and the learners at the school. He was referred to the charge sheet and the testimony of the Learner witnesses associated with each of the charges and confirmed again that he pleaded not guilty to all these charges. With respect to Charge 1 he denied that he had ever said to Learner A that she is going to be pregnant one day. He would think that Learner A was lying when she said that, but he would never say that to her. With respect to Charge 2 he was shocked about what was testified to. He would never touch a specifc girl on her private parts or lift her dress. As he remembered the learners entered the class with this conversation and they teased one another about lifting dresses, specifically Learners B and G. The others were behind them and they all went to sit down. He only said they must not talk about such things and he was certain he said remember that everybody can do what they want but there can be problems if the other one is not going to feel happy about it. He left everything there and said to them it is dangerous what he heard there and did not speak further to them about it.With respect to Charge 3 he was not sure about the period but it was later in the morning when he entered the class and they were very busy and restless and he had to get them to calm down. He cannot remember if he said to Learner C that she cannot go to the toilet and she must wait first as he had just come in. He never said she must undress there. That morning when he was doing gate service he did not observe anything wrong with Learner C when she entered and she was as jolly as always. During the day he again asked he if she was alright and she nodded and he could not pick up that she was in pain but was normal. He referred to how the learners teased and provoked one another and how one day the girls were playing netball and they lost and the next day they all had bandages on their hands. If a learner got injured Mr Seconds and Aunty Dot are First Aiders whom they contact. He was not sure if he referred Learner C to the First Aiders but he was sure that he told her to remove the bandage. He never spoke to learners about sex in the class.

61. With respect to Charge 4 what he recalled about that day is that the learners were teasing and provoking one another and exchanged words and he stepped in to stop them and told them that he was still in charge. Learner D talked back to him and he told Learner D that he still loved him and said nothing ugly to him. He would never hurt Learner D or any child. He did not know why Learner D was not happy as he was not part of their conversation. He knew nothing about biting Learner D on the nose as it’s a safety aspect as to how he could use his teeth on somebody else’s open skin. It was his nature to make jokes in class to refrain from bad feelings because of his position and he does not like to hurt people. Regarding Charge 5 and the alternative charge involving Learner E, it was a normal day and he saw them standing at the steps outside the computer room. Learner E was not part of the group or team, he was just standing there behind the others although he practiced with them. They were talking about rugby rules and he mentioned to Mr Seconds about that the rules were not so strict in their days and that is when they laughed. Charge 6 and its alternative are regarded as serious charges and he explained his version of what happened with Learner F. The week of 6 to 10 June 2022 changed his whole llife and he did not know how long these things were coming. Monday 6 June 2022 the whole school, educators and non educators, had a workshop with Mr Robyntjies about dispute resolution, grievance handling, leave and misconduct. He spoke specifically about girls and emphasised that if men on the staff ever touched a girl you are “gone”. He had previously attended a same type of workshop with SACE and SADTU.

62. He was totally surprised on the Friday when he was caught and detained at school and taken to the police station, where they explained why he was there in front of everybody and it was very uncomfortable and ugly. Bail was initially denied and he was in prison from the Friday in Mossel Bay and was brought through to George for the whole week until Wednesday 22nd. His son was in Grade 10 in George and had to write exams. His daughter studying social work in Wellington was also writing exams, and had to quickly come home. It was very traumatic for him and his family. His wife is employed in the SAPS and she had to come to Mossel Bay to collect the car and all his belongings. When he saw this charge (6) at the police station he could only say to the police officer that he did not know about it and did not do it of touching someone else’s daughter. The roster would show where he was supposed to be and his movements. During intervals teachers are locking their classrooms due to happenings in the past, which he did not do. He was referred to the charge about him allegedly grabbing a boy with his hands around the boy’s face, biting his nose and kissing him on the cheek (Charge 5 involving Learner D). He thought it was Learner D who said words to him, of which he cannot remember all the words, and he said to him “I still love you” and he thought he just touched his forehead. With respect to Learner B he denied strongly that he lifted her dress with a pen. The whole class was there and could have told what happened. He did not even have a pen in his hand and did not do it. He had a Canon photocopy paper box lid with his things in and his bag when he walked from different classes. Learner F testified that he was alone with her in the class, but he was not alone with her in the class, that is why he referred to the roster for that day. The Principal and Mr Koerts the class teacher did not have any discussion with him about the allegations levelled against him, which also aggrieved him that nobody said anything to him the week of 10 June 2022 of even May or 10 April 2022. He viewed all the charges against him as very serious when he researched sections 18 and 17 of the EEA. He was very aggrieved and disappointed about the allegations brought by the learners themselves as he had given his whole life to education. After he came out of prison he consulted a psychologist and was also assisted by his wife and his Pastor. He could not believe the Learners’ testimonies, in particular Learner F who was a prefect in the first quarter and whom he had always hoisted up. The first day he had reported at the school as an educator there was an argument with Learner E as he was supposed to go to class and did not want to go to class, but he did not think it would end like this.

63. Mr Jansen testified as follows under cross-examination: He confirmed his postion, period of service and subjects responsible for and Grades taught. He did not have his own classroom last year and used a number of classrooms where educators were on off periods. He also confirmed his suspension since 18 July 2022. He was asked what type of learner Learner A was and responded that they are all busy and say things without thinking, shouting, screaming, talking loud in the class and talking back. He also knew Learner B, who had the same characteristics and was outspoken. He also knew Learner G, who was also very outspoken, talking his own talk and many times not at school, getting involved in fights and teasing other learners. Learner C was also very outspoken, busy, working, and finished work quickly so that she could go and talk again. Learner D was part of the same class of 7B and was also a busy learner, saying what he wants and often involved in fights. Learner D was off school for two days before the incident took place that he alleged he, Mr Jansen, had kissed and bit him, doing his own things and even his mother did not know where he was. Learner J was the same as the others, talking, did her work and was part of arguments and teasing. He knew Learner E as being the same as the others, teasing, participating in fights and arguments. Learner E was previously suspended for seven days for staying out of class and did not want to listen to any teacher at the school. He also knew Learner F as also very busy, running up and down, busy at the tuck shop, part of the prefects, doing unusual things, talking back and at times not doing her work. The behaviour of the whole class 7B was of being very talkative and him having to spend about five or more minutes to calm them down, with them very busy, always teasing, shouting and walking on the verandahs due to many times being thrown out by educators.

64. He responded to the allegations made by the learners when they testified. He never regularly spoke to them about sex or sex related issues but would many times talk to them about discipline, safety and behaviour. With respect to Leaner A’s allegation that he had indicated to her in Ms Jacobs’ classroom in the presence of other learners that she will be pregnant one of these days, he denied strongly that he had ever said that to her. He cannot recall the time Learner A left to go to Mr Koert’s classroom and she must have slipped out without him noticing. He was not aware that she had left the classroom since he was there assisting the two assistants as the learners were rowdy and noisey and the assistants called him and other teachers in to help. He cannot remember who the teacher was who was supposed to be at that class that time but he was not supposed to be there. As to Learner A testifying that the incident happened during one of his periods and that he was present, he was in the class trying to calm them down. He did not speak to Learner A that day, but maybe the whole class. He did not know why Learner A would make up a story like that he told her that she is going to be pregnant one of these days. He agreed that it was not put to Learner A when she testified about the assistants being in the class, that they were very rowdy and that he had to step in. He knew Mr Koert as a colleague and they had a professional relationship. As to why Learner A got so upset about something he had told her and went to sit in Mr Koert’s class, which Mr Koert confirmed, he could only comment that is what Mr Koert testified to. He did not know why Learner A went to Mr Koert’s class.

65. With respect to Charge 2 and Learner B’s testimony about lifting her dress and saying to her that he will do what he wants to do and touch where he wants to touch, that was a whole lie. They had come into the class with the conversation of lifting up skirts and he just asked them what they are talking about as the things they are talking about they can do what they want but if one party is not happy things can end up in Court. He did not say that it happened at the beginning of the day but when they entered the classroom for his period. He heard that Learner G had testified that they were walking out of the classroom and that he was behind Learner B and that he, Mr Jansen, had lifted her skirt with a pen and Learner G told him that he could not do that, that he had never did that since he had things in his hand, his bag and his little box and he was disappointed that Learner G was telling lies like that and that other learners had testified in the same way. He was only now aware of the fact that Learner C was forced to undo her pants in the classroom to remove the bandage around her leg after he refused that she leave the room. They had said that her friends tried to protect and sit around her so that he and the boys could not see what she was doing, because they were always together. When Learner C asked to go to the bathroom there was a lot of disruption in class and he asked her to please sit down so that he could get order in class. He thought she asked to go to the toilet, but he was not sure now. He cannot remember if she said anything about her leg either at the time.

66. Regarding the allegation of Learner D that he had kissed and bit him in the computer room, he responded that the learners were busy with an argument and Learner D said ugly and rude things to him, to which he responded to Learner D that he still loved him as it was in the past and kissed him on the forehead, but never bit him. He kissed him on the forehead to show that he still loved and cared about him. He realised he made a mistake by kissing a learner at school on the forehead. He agreed that this was the first time he had testified that he kissed Learner D on the forehead and that this version was not put to Learner D when he testified. The other learners had all given different versions of what happened between him and Learner D. With respect to Charge 5 and Learner E, he was not involved with the school rugby club. He disagreed with Learner E’s version that he had walked up to him and out of the blue kissed him on the cheek. His version was that Learner E was being teased by the boys in the team, which he did not know about what, but he could see that Learner E was standing aside and looked as if he was about to cry. They were talking about rugby rules and he, Mr Jansen, mentioned that the rules were very different 20 years ago. He did not mean to harm Learner E, but just said stop the teasing like he did all the time. He did not bite Learner E but kissed him on the forehead. He agreed that this was the first time that he mentioned about kissing Learner E on the forehead and confirmed that this version was never put to Learner E when he testified. He had a professional relationship with Mr Seconds as a colleague. He heard that Mr Seconds testified that he saw him, Mr Jansen, kiss Learner D on the cheek. His version was not put to Mr Seconds since he was sitting and listening to what they were all saying over the three days, which was really upsetting, so he did not want to. He did not respond to the question whether it was unprofessional as Deputy Principal to kiss a learner in the presence of others. He did not comment to Learner D’s testimony that he felt uncomfortable because he had kissed him on the cheek, and added that was the learner’s feelings.

67. Learner F’s testimony was repeated to him. He was in total disagreement with her testimony and would never do anything disgraceful like that. It was this time a year ago and he could not remember touching Learner F. He would never do something like that to any girl. Her version was so fluent that nobody would believe her. He was also never there. He could not remember an incident that Learner F was late because she made coffee for another teacher. He did recall making use of Ms Neethling’s classroom that day, but it was not before any break time on that day. Some discussion followed surrounding what period it would have been, with it requested that a timetable for 6 or 7 June 2022 be provided to establish this. They were writing tests in the morning session, which are followed by 20 minute periods until the end of the day, with the period he was supposed to be in Ms Neethling’s class being between the first and second breaks. He agreed that his version of the time frame was not put to Learner F when she testified. Why this was not put to Learner F is because as previously stated he was amazed about the things said about him. He had his timetable and was going to put it straight to Learner F that he was never there before break. He would also never be alone in a room with a learner, when he was aware that they had a session with Mr Robyntjies the previous day. As to Ms Figland’s version that Learner F had told her that he had touched her vagina over her skirt and that Learner F was very emotional and cried, he could not respond to that as it was Learner F’s version and he did not know what happened at the house afterwards. He had not heard before what transpired between Learner F and Learner A and what Learner F told Learner A and responded to why they would say that he touched Learner F that his character was damaged. As to how far the criminal case was, it had progressed far and he was last in Court in April 2023.

68. Mr Jansen testified as follows under re-examintion: This case had been a strain on his emotions, especially the last allegation and he could not say he was through it yet and it is still bothering his mind. He did not think it will ever be out of his system.

CLOSING SUBMISSIONS

69. Written closing submissions were requested by the parties and were agreed to, for submission to the ELRC and copied to one another and the Panelist by 15 June 2023. It was agreed that the parties would also include mitigating and aggravating factors in their closing submissions in the event of a finding of guilt. Both closing submissions were received by due date.

70. The Employer’s closing submissions are summarised as follows:

71. On 19 April 2022 it was reported that the Employee had made himself guilty of misconduct, which was followed by an investigation whereafter it was decided to charge him with seven counts of misconduct. Reference was made to the evidence of their witnesses, of which the detail is not repeated, save to highlight the following:

72. The Employee’s version was not put to Learner A and Mr Koert with respect to Charge 1, neither was his version put to Learner B with respect to Charge 2, nor to Learner C with respect to Charge 3, with Learner A also corroborating Learner C’s version, to Learner D with respect to Charge 4, with Learner J corroborating the evidence of Learner D, to Learner E and Mr Seconds with respect to Charge 5, with Learner A also corroborating Learner E’s evidence. The Employee’s version was put to Learner F with respect to Charge 6 and that he did not touch her vagina, which she denied and kept to her version of what had happened. Learner F had shared what happened in the classroom with Learner A, with the Employee’s version of that incident not put to Learner A, neither to Ms Figland, Learner F’s Guardian.

73. The Employee had responded to each of the charges as follows: Charge 1 – he never uttered those words to Learner A, with the view that the learner lied. This version was however not put to the Employer’s witnesses. Charge 2 – he was schocked to hear what the learners were testifying and would never touch a learner’s private part or dress. His version that the learners came into the classroom discussing dresses that were lifted up, was never put to the Employer’s witnesses. Charge 3 – he could not recall Learner C asking him to go to the bathroom, did not tell her to undress, and also denied talking about sex and wrong stuff with the learners, with this version not put to any of the Employer’s witnesses. Charge 4 – he did not recall wanting to bite Learner D on the nose, but that he kissed Learner D on the forehead, with this version not put to any of the Employer’s witnesses. Charge 5 – he denied biting Learner E, but kissed him on the forehead, which version was not put to any of the Employer’s witnesses. Charge 6 – he knew nothing about the charge and that he would never do something like that, which version he kept to under cross-examination.

74. The Employer concluded that all the Employer’s witnesses were credible and honest and kept to their versions, with any contradictions in their testimonies not of any material weight. Charges 4 and 5 related to the Employee kissing both boys, but it is not specified in the charge sheet where he kissed Learners D and E. It however did not mean that the other learners and Mr Seconds were lying because they identified a different part where they were kissed. It was only under cross-examination that the Employee admitted that he kissed both boys on their foreheads.

75. They were of the view that the Employer’s witnesses’ versions were more probable than that of the Employee. It was also pointed out that all educators subscribe to the standards of SACE in which they are inter alia enjoined to act in an appropriate manner which respects the dignity, beliefs and rights of the learner and refrain from inappropriate physical contact with learners. The Employer accordingly requested that the Employee be found guilty of all the charges levelled against him.

76. Aggravating factors referred to were such as that the Employee’s misconduct is viewed in a very serious light and that since these offences were conducted while the world was facing a life-threatening pandemic the Employee persisted in touching the learners; that he as Deputy Principal is in a position of trust and by his actions had broken this trust; that he should have known his conduct would have been frowned upon as unacceptable and inappropriate and which would not be condoned by the Employer; and that he as Deputy Principal should have led by example and created a safe environment to protect all learners in an environment where sexual abuse and harassment in schools is becoming an escalating problem. The Employee could not be given another opportunity to abuse learners. The Employer could not reasonably be expected to take that risk again and could be held civilly liable if the Employee committed a similar offence in the future. As to whether the trust relationship is irrevocably broken down, the Principal had testified that the safety of learners has been affected by these charges and a possible finding of guilt. The Employee had shown the Employer that he cannot be trusted, which cannot be mended by any mitigating circumstances.

77. In the light of the seriousness of the charges and the fact that the trust relationship has been irretrievably broken down the Employer implored that the Arbitrator dismiss the Employee with immediate effect.

78. The Employee’s closing submissions are summarised as follows: Reference was made to the evidence of the Employer’s witnesses and that of the Employee, with the detail not repeated, save to highlight the following aspects of their testimony: The Principal had testified that the Employee was at the time of his suspension responsible for curriculum, teaching, portfolio management and school finances and was a diligent and punctual person who utilised venues like the computer room and various classrooms to teach learners. It was the first time that she heard about such behaviour from the Employee when she got news of the allegations levelled against the Employee on 12 April 2022.

79. With respect to the learners’ testimonies the following was highlighted: Their testimonies are key since they are the direct persons affected or who saw and witnessed the Employee’s acts. The learners who testified had mixed evidence and did not fully corroborate other witnesses’ versions, with examples provided, such as – that the one learner witness saw the Employee wanting to kiss Learner D on the nose, and the one said he did kiss Learner D on the nose and the other said he kissed Learner D on the cheek; that they were not sure when the incident occurred as some said in the first quarter and the others said in the second quarter of 2022; the learners’ estimation of distances between the Employee and the affected learner was not accurate; Learner D had testified that the Employee grabbed him and kissed his nose, whilst most of the learners testified about him being kissed on the cheek, mouth and nose. Learner E also testified that the Employee kissed him on the cheek, which was contrary to what was testified by other learners; Learner F’s version of the incident that occurred was hard to believe as true since it was only her version and not tested because she and the Employee were the only two persons inside the classroom, with the Employee disputing all that was testified by Learner F.

80. With regard to the testimonies of the parent (Guardian), Principal, Educator and Sport Coach, this was not a true reflection of the evidence, which was based on the testimonies of the learners and cannot be used to determine whether the employee had committed misconduct. Only the evidence of Mr Seconds the Sport Coordinator should be considered as valid since he claimed he saw the Employee kiss Learner E, which was not disputed by the Employee.

81. The Employee in his evidence in chief and cross-examination highlighted the following: He did not want to call learners as witnesses in this case since it is of a serious nature and his bail conditions would not allow it. As an adult he knew exactly what happened during the period and is also aware of some of his actions which he did not think constituted acts of misconduct such as unintentionally kissing a boy learner. He did not touch a learner’s private parts and believed that the learners were drilled (coached) to say all the wrong things against him.

82. The Employee party concluded that in making the determination it should be considered that the Employee remains commited to his profession, has a guilty conscience regarding the alleged sexual misconduct, with this case damaging his reputation and career at large. The Employer had also failed to prove any act related to sexual misconduct, whereby the Employee is not guilty of the charges brought against him.

ANALYSIS OF EVIDENCE AND ARGUMENT

83. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the accused Employee, Mr Marius Jansen, is quilty of the seven charges of alleged misconduct leveled against him by the Employer, the Western Cape Education Department, as well as the sanction if guilt is established on some or all of the charges.

84. I am mindful that the onus is on the Employer to prove that misconduct of an improper, unacceptable, unprofessional or a sexual nature has been committed by the Employee and that I am required to consider the prescripts and provisions as contained in section188A Inquiry by Arbitrator of the LRA, Collective Agreement No 3 of 2018 (the Collective Agreement), clause 32 of the ELRC Dispute Resolution Procedures and sections 17(1)(b) and 18(1)(q) of the EEA in terms of which the charges against the Employee were formulated. Of particular relevance in arriving at my findings and sanction in this matter is clause 5 The Outcome/Judgement/Arbitration Award of the Collective Agreement, which states as follows at 5.1:
5.1 An arbitrator arbitrating a dispute in terms of this collective agreement must, in the light of the evidence presented, and with reference to the following, direct what action, if any shall be taken against the educator:
5.1.1 the concept of fairness as provided for in the Labour Relations Act, as interpreted by the Courts;
5.1.2 the SACE Code of Professional Ethics for educators;
5.1.3 the United Nations Convention on the Rights of the Child (CRC) in 995;
5.1.4 the African Charter on the Rights and Welfare of the Child;
5.1.5 the best interests of the child as enshrined in section 28 of the Constitution of the Republic of South Africa;
5.1.6 the sanctions provided for in the Employment of Educators Act, including the mandatory sanctions of dismissal prescribed for certain forms of misconduct by the Employment of Educators Act;
5.1.7 any other relevant factor.

85. From the onset I am aware that this matter poses the particular challenge of the testimony of child witnesses as defined in the Childrens Act No 38 of 2005 (the CA) and the application of the principle of the best interests of the child as contained in section 28(2) of the Constitution of the Republic of South Africa, as well as the precautions relating to the assessment of the evidence presented by children in these type of proceedings.

86. In making this determination I therefore have to consider the reliability and credibility of the evidence of the parties’ witnesses, in particular that of child witnesses. In order to reach a just verdict I should also consider all the relevant admissible evidence. For this reason the basic principle in evaluating evidence is that evidence must be weighed in its totality. In this regard Navsa JA in S v Trainor 2003(1) SACR 35(SCA) at 41b-c said the following:

“A conspectus of all evidence is required. Evidence that is reliable should be weighed alongside such as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable, the quality of the evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of course; must be evaluated against the onus on any particular issue or in respect of the case in its entirety....”

87. When evaluating or assessing evidence, it is therefore imperative to evaluate all the evidence, and not to be selective in determining what evidence to consider. As Nugent J (as he then was) in S v Van der Meyden 1999 (1) SACR 447 (W) stated at 450:

“What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored.”

88. From the aforementioned it is therefore clear that the evidence must be assessed in its totality in order to arrive at a meaningful conclusion.

89. Without repeating their evidence, of which sufficient detail is provided in the body of the award, I find the evidence of the Employer’s witnesses as by and large credible and consistent, with the deviations that occurred ascribed to the time that elapsed since the incidents occurred and that such discrepancies which arose in the detail of the Learner witnesses’s evidence not being of such impact that this evidence should be disregarded in total. The adult witnesses, as well as the Learner witnesses, also made a favourable impression on me during their testimony. The learner witnesses were also open and not reticent to talk about sensitive issues.

90. No substantive motives could be found as to why the Employer’s witnesses would fabricate their evidence and versions. In particular I find insufficient grounds to dismiss the evidence of Learner F as a fabrication, albeit single witness evidence and disputed by the Employee, since it was supported by her communications to Learner A and her Guardian, who had observed the emotional and traumatic effect it had on her.

91. With respect to the Employee’s evidence and his defence to the charges, it is understandable that given the very serious nature of the charges leveled against him and the devastating impact on his career in the event of findings of guilt on some or all of these charges, that he would be in denial to most of the charges. Of concern, as pointed out too by the Employer in closing, is that certain of the Employee’s versions that came forward during his testimony, were not put to the Employer’s witnesses when they testified, hence these versions could not be properly tested. Of note is that the Employee had conceded that he in the presence of others had kissed boy Learners D and E, but on the forehead and that these were unintentional gestures.

92. The Employee was charged in terms of sections 17(1)(b) and 18(1)(q) of the EEA, which respectively read as follows:
17(1)(b) committing an act of sexual assault on a learner, student or other employee;
18(1)(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner.
A finding of guilt on a misconduct defined in section 17(1)(b) of the EEA carries the mandatory sanction of dismissal. A finding of guilt for a misconduct defined in section 18(1)(q) of the EEA does not carry the mandatory sanction of dismissal, with a range of applicable sanctions listed in section 18 (3) of the EEA, which includes dismissal, if the nature or extent of the misconduct warrants dismissal.

93. As to what constitutes “sexual assault” as referred to in section 17(1)(b) of the EEA, guidance is firstly sought from The Concise Oxford Dictionary, Eighth Edition which inter alia defines “assault” as follows: a violent physical or verbal attack; in law an act that threatens physical harm to a person (whether or not actual harm is done). This implies that an element of actual or threatened physical harm should be present in the action perpetrated. This Dictionary also defines “sexual” as pertaining to relations between the sexes, with specific reference to mutual attraction and to gratification of resulting desires. The term “sexual assault” could therefore be regarded as a violent act or the threat of such an act to gratify sexual desires. To these elements could also be added the accompanying emotional harm and distress inflicted on the victim.

94. I find it necessary, in the context of prevailing labour legislation, to also refer to the prescripts relating to and definitions of sexual harassment as contained in the 2005 Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (the Code) issued under the Employment Equity Act No 55 of 1995 (the EQA), and the new Code of Practice on the Prevention and Elimination of Harassment in the Workplace.

95. In terms of this legislation and the related Code sexual harassment is regarded as a form of unfair discrimination in the workplace and is described as unwelcome conduct of a sexual nature which inter alia violates the rights of an employee. The unwelcome conduct must also be of a sexual nature and includes physical, verbal or non-verbal conduct, with examples provided. Notably the physical conduct includes all unwelcome physical conduct, ranging from touching to sexual assault and rape. The Code specifically refers to sexual harassment as a form of misconduct, which includes sexual assault.

96. Although these prescripts relate to the workplace and the rights of an employee, the same principles could also be applied to the rights applicable in other situations and to other persons, such as children, in that “sexual assault” would also refer to sexual contact or behaviour that occurs without the explicit consent of the victim, whether or not it is accompanied by violence or threats, and would include intentional and unwanted physical contact or unwanted sexual touching of a victim’s private parts, as had occurred in the case of Learner F in this matter. This would include the unwelcome and unsolicited physical contact of kissing the two boy learners, whether on the cheek, mouth or forehead, which had the effect of making the recipients uncomfortable or embarrassed.

97. The standards and Code of Professional Ethics (the Code) of the South African Council of Educators (SACE) are referred to in establishing what is improper, disgraceful or unacceptable conduct, with specifc reference to item 3 of Conduct: The Educator and the Learner relating to the conduct required of an educator in that he/she inter alia -

3.1 respects the dignity, beliefs and constitutional rights of learners and in particular children, which includes the right to privacy and confidentiality;
3.5 avoids any form of humiliation, and refrains from any form of abuse, physical or psychological;
3.6 refrains from improper physical contact with learners;
3.9 refrains from any form of sexual harassment (physical or otherwise) of learners;
3.12 uses appropriate language and behaviour in his or her interaction with learners, and acts in such a way as to elicit respect from the learners;
3.13 takes reasonable steps to ensure the safety of the learner;

98. Based on the foregoing descriptions of “sexual assault” and “improper, disgraceful or unacceptable” conduct in the SACE Code I have made the following determinations, on the evidence presented in the Inquiry and the submissions made by the parties, on whether the Employee is guilty, on the balance of probabilities, of the charges levelled against him. Since no evidence was led in the proceedings with respect to Charge 7, no finding can be made in this regard. The findings on each of the charges are as follows, with the detail of the charges not repeated again:

Charge 1 Relating to section 18(1)(q): Guilty
Charge 2 Relating to section 18(1)(q): Guilty
Charge 3 Relating to section 18(1)(q): Guilty
Charge 4 Relating to section 17(1)(b): Guilty
Charge 5 Relating to section 17(1)(b): Guilty
Charge 6 Relating to section 17(1)(b): Guilty

Findings of guilt have been made on the main charges only, not the alternatives.

99. On the evidence I am accordingly satisfied that the Employer had succeeded in discharging its duty to prove the Employee’s guilt on the charges of sexual and improper misconduct on a balance of probabilities, for the reasons already described above. It follows that the Employee is guilty of charges 1 to 6 as preferred against him in the charge sheet.

SUBMISSIONS ON SANCTION AND ANALYSIS THEREOF

100. Due to the nature of this matter, the best interests of the child require to be highlighted again, since the child must be considered before a decision affecting his or her life is made, as provided for in section 28(2) of the Constitution of the RSA and section 8 of the Childrens Act No 38 of 2005 (the CA). This principle is reinforced by the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) in which it was held that section 28(2) of the Constitution of the Republic of South Africa imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. This consequently also binds arbitrators or panelists in a forum such as this to give consideration to the effect their decisions will have on childrens’ lives, and learners collectively, when they determine sanctions in matters of this nature.

101. Section 17(1) of the EEA states that an Educator must be dismissed if he or she is found guilty of serious misconduct, which includes sexual assault/misconduct. No other lesser sanctions are provided for in these circumstances, since dismissal is peremptory by law. Aggravating and mitigating circumstances therefore do not require to be considered before the appropriate sanction is determined by the presiding officer or Arbitrator as no discretion can be applied, with the only outcome and sanction being that of dismissal. A finding of guilt in terms of section 18(1) of the EEA provides for sanctions other than dismissal, depending on the nature and extent of the misconduct. It would however serve no purpose to provide a separate sanction on each of the charges that the Employee has been found guilty of, but rather one overall sanction that applies to all the charges. The Employee has been found guilty of three charges that attract the mandatory sanction of dismissal, hence the overall sanction will be that of dismissal. In the light of the best interests of the child being paramount, no other sanction than dismissal would in any event have been appropriate, since the Employee can as a result of his conduct no longer be entrusted with the emotional and physical safety and welfare of learners placed in his custody.

AWARD

102. The Employee, Mr Marius Jansen, is found guilty of three charges of misconduct in terms of section 17(1(b) and three charges of misconduct in terms of section (18)(1)(q) of the Employment of Educators Act No 76 of 1998 (the EEA).

103. The Employee is to be dismissed with immediate effect as prescribed in section 17(1) of the EEA.


Panelist: Alta Reynolds