ELRC25-23/24NC

THE INQUIRY-BY-ARBITRATOR BETWEEN

THE SUPERINTENDENT-GENERAL
NORTHERN CAPE DEPARTMENT OF EDUCATION EMPLOYER

and

MR MZIWAMADODA THEODORE NGUBO EMPLOYEE

Case No: ELRC25-23/24NC
Dates: 05 June and 01 August 2023
Venue: Magistrates Court, Postmasburg

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is an award in the disciplinary matter (Inquiry-By-Arbitrator) between the Superintendent-General: Northern Cape Department of Education (hereinafter ‘the employer’), and Mr Mziwamadoda Theodore Ngubo, ‘the employee’.

2. The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) took place on, 05 June and 01 August 2023, at the Magistrates Court Building in Postmasburg. Both parties attended the Inquiry. The employer was represented by, Mr Tshiamo Liphuko, its Labour Relations Officer. The employee was represented by, Mr Kgeledi Matlala, a Regional Secretary from the trade union, South African Democratic Teachers Union (hereinafter ‘SADTU’).

3. The Inquiry was held under the auspices of the Education Labour Relations Council (hereinafter the Council), in accordance with section 188A of the Labour Relations Act (the LRA), read together with Clause 32 of the Council’s Dispute Resolution Procedure, as well as the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued in accordance with section 138(7) of the LRA.

4. The proceedings were digitally recorded, and Mr Mandilakhe Mbobi was the Interpreter. Ms Vuyo Tyebela was the Intermediary. The employee’s representative requested at the end of the Inquiry to submit his closing arguments in writing by, 04 August 2023, whereafter the award shall then follow.

ISSUE TO BE DECIDED

5. I am called upon to decide whether the employee misconducted himself, as per the allegations levelled against him. If I find that he did commit the misconduct, I must decide on an appropriate sanction.

BACKGROUND TO THE DISPUTE

6. It is common cause that the employee is employed by the employer as an Educator, in Mathematics, Natural and Physical Sciences since, 01 January 1998, at Ratang Thuto High School, in Boichoko, Postmasburg, to date. The employee was notified of the allegations on, 14 June 2022.

7. The allegations levelled against the employee are as follows:

Count 1
It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act No 76 of 1998, at or near Ratang Thuto High School that on the 3rd March 2022 you sexually assaulted a learner by inserting his tongue in the mouth of (the Learner) in Grade 12 C while you knew or ought to have known that you were not allowed to do so. [sic]

Count 2
On or about the 3rd of March 2022 at or near Ratang Thuto High School in the ZFM District you allegedly committed an act of misconduct in terms of Section 18(1)(f) of the Employment of Educators Act No 76 of 1998, that you inter alia, unjustifiable prejudices the administration, discipline or efficiency of the Department of Basic Education, an office of state or a school in that you kissed a learner (the Learner) while you knew or ought to have known that you were not allowed to do so.

Count 3
On or about the 3rd of March 2022 at or near Ratang Thuto High School in the ZFM District you allegedly committed an act of misconduct in terms of Section 18(1)(q) of the Employment of Educators Act No 76 of 1998, that you inter alia. While on duty, conducted yourself in an improper, graceful or unacceptable manner in that you kissed a learner (the Learner) while you knew or ought to have known that you were not allowed to do so. [sic]

8. The employee pleaded not guilty to the charges. The employee was properly served with a notice to appear at the Inquiry, and was provided with sufficient time to prepare for the case. His rights and obligations were also properly explained to him at the commencement of the Inquiry.

9. For purposes of this award, the name of the learner shall be kept confidential. The Learner was 19 years old at the time when the alleged incident took place. The alleged incident took place at the office of the employee. The employee denied having kissed the Learner.

SURVEY OF EVIDENCE AND ARGUMENT

10. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.

Documentary Evidence

11. The employee agreed to make use of the employer’s evidence bundle, which makes the employer’s document’s bundle the official bundle of evidence in these proceedings.

Employer’s Case

12. The Learner, testified as the first witness of the employer. She narrated how the day started on, 03 March 2022, from the first period until the first break, and how she decided to go to the employee’s office (her class teacher), to explain to him her absence from school the previous day. The Learner became emotional. She stated that she told the employee about her doctor’s visit of the previous day, and how she was found to be pregnant. The Learner stated that she became emotional at that point in time, and was in tears.

13. The Learner testified that the employee then grabbed the back of her shoulder, and rubbed it, as a way of trying to comfort her. However, she stated that the employee went further then that. She stated that the employee then kissed her and inserted his tongue inside her mouth. The Learner stated that she then angrily pushed the employee away from her, and asked him what he was doing, whilst she ran out of the office.

14. The Learner stated that she then ran to her class, and told her friends what happened. She stated that she also told a one Mr Manyongori about the incident, who then told her to tell the deputy principal, Ms Ngungu. The Learner stated that she narrated the incident to Ms Ngungu, who agreed that the incident was serious. She stated that upon her arrival at home, she then told her aunt about the incident, who did not waste time, and reported the matter to the police the following day, whereafter the criminal matter ensued.

15. The Learner testified that she did not go to school the following day, for fear of the employee. She stated that her concentration levels at school dropped, and was also scared of losing her unborn child, due to the stress. The Learner stated that she no longer wanted to be in the same room with the employee.

16. In cross-examination, the Learner stood by her testimony and agreed that the employee was a good teacher, but that she did not attend the employee’s first lesson after the incident. She added that the employee was also a former teacher of her aunt (her guardian).

17. Ms Roseline Menke Ngungu ‘Ms Ngungu’, the former Deputy Principal, testified as the second witness for the employer. She testified that she was shocked on, 03 March 2022, when the Learner came rushing to her and told her what happened during the break, whilst very emotional. Ms Ngungu stated that the Learner narrated the story to her, and told her how the employee kissed her on the forehead, and then on the mouth, whereafter the employee inserted his tongue in her mouth. Ms Ngungu stated that she then sent one of her colleagues to the Learner, to verify the story, after which the colleague returned to her with the same story.

18. Ms Ngungu stated that she and the colleague then went to the Acting Principal, and reported the matter. She stated that the Acting Principal called the employee in. Ms Ngungu stated that the employee then admitted to kissing the Learner on her forehead and on the mouth, in their presence, but denied having inserted his tongue in the Learner’s mouth.

19. In cross-examination, Ms Ngungu stood by her testimony, stated that she was shocked at first and could not believe the allegations, but was persuaded about it when the employee admitted in the principal's office about the kisses on the forehead and mouth. She acknowledged that the employee was a good and compassionate teacher.

20. In closing arguments, the employer’s representative submitted that there are no allegations from the employee’s side that the Learner’s version of the events is fabricated, or that there were any animosities between the employee and the Learner, or between the employee and Ms Ngungu. He submitted that the employee was found guilty in the criminal court for the same offence, the standard of proof of which is higher than in our forum. The representative submitted that the Learner did not consent to the kisses, and that the employee must be found guilty of the charges, and dismissed.

Employee’s Case

21. Mr Mziwamadoda, the employee, testified as the only witness in his case. He stated that he called the Learner into his office during a break on, 03 March 2023, and that the Learner told him what happened the previous day about the pregnancy. The employee stated that the Learner did not attend his double period after the break, and that he asked where the Learner was, and let go off of her.

22. The employee testified that he was shocked, shivering and had goose bumps during the last period, when the Acting Principal called him in, and told him about the allegations. He stated that he cannot remember what his answers to the questions were, which were posed to him by the Acting Principal and colleagues in the office. The employee stated that he has no previous misconducts on his records, and that the Learner was a quiet and disciplined learner, except for the day when she did not attend his lessons on, 03 March 2022. He stated that he was arrested two days later.

23. In cross-examination, the employee indicated that he was convicted in the criminal court in, February 2023, and that the Learner did not stop crying during the comforting process in his office. He stated that he does not know why the Learner would make such allegations against him, and why Ms Ngungu would tell a lie.

24. In closing arguments, the employee’s representative submitted that the case against the employee is orchestrated, based on the situation at the school, the character of the employee, the employee’s length of service, and the evidence of the employer’s witnesses. The representative submitted that this is not the first incident which happened at the school, and that the educators at that school do betray one another. He submitted that the employee had only one intention, which was to comfort the Learner. The representative stated that it was a trap.

ANALYSIS OF EVIDENCE AND ARGUMENT

25. As stated previously, the employee pleaded not guilty to the charges levelled against him. The employer called two witnesses and the employee was the only witness in his case. The Learner (who at the time was 19 years of age) gave reliable evidence, which was well corroborated by Ms Ngungu, who was informed about the incident on the same day.

26. The employee’s version of the event was not corroborated by anyone, and the employee’s version do not differ a lot, from that of the employer’s witnesses. The only difference in the versions is the employee’s denial that he inserted his tongue in the Learner’s mouth. I find this problematic and not plausible. The employee is in a position of loco parentis at the school and is not permitted to make any romantic gestures towards learners. Worse so, when the Learner trusted him, and expected him to fulfil his role as someone standing in loco parentis towards her.

Count 1
It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act No 76 of 1998, at or near Ratang Thuto High School that on the 3rd March 2022 you sexually assaulted a learner by inserting his tongue in the mouth of (the Learner) in Grade 12 C while you knew or ought to have known that you were not allowed to do so. [sic]

27. I must start by first analysing the evidence put forward by the parties, and to check, on a balance of probabilities, on whether the employee may be found guilty or acquitted on the charge. As stated above, the employee denied having inserted his tongue in the Learner’s mouth.

28. Evidence was led by the Learner, that the employee kissed and inserted his tongue, without her consent, into her mouth. This version of the Learner was well corroborated by the then Deputy Principal, Ms Ngungu, who was the second person to whom the Learner made the report. No inconsistencies were found between the two testimonies, and I therefore accept these versions of the two testimonies as credible and reliable.

29. The employee on the other hand, only disputed the insertion of his tongue into the mouth of the Learner. He did not dispute the kisses on the forehead and mouth of the Learner. When he had to comment on the versions of the Learner and Ms Ngungu during his cross-examination, the only thing which the employee had to say was: ‘I cannot remember’. He also stated that he ‘cannot remember the answers which he gave to the Acting Principal’, when the Acting Principal put the version of the Learner to him in the office.

30. Ms Ngungu gave direct evidence that the employee admitted to the kisses in the principal's office, because she was present at that meeting. I find it quite strange that the employee would not remember his answers to the acting principal now. The employee, who’s denial of the insertion of the tongue into the Learner’s mouth is not corroborated, and who all in a sudden cannot remember the admissions made to the acting principal, makes of him an untruthful and unreliable witness. It is for this reason that I accept the Learner’s and Ms Ngungu’s versions of the event more probable and acceptable, in that the employee not only just kissed the Learner on, 03 March 2022, but also inserted his tongue in the Learner’s mouth, without her consent.

31. The allegation in Count 1 is that the employee misconducted himself, in accordance with section 17(1)(b) of the Employment of Educators Act 76 of 1998 (hereinafter the EEA). I shall now turn to the EEA for more information.

Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of –
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner, student or other employee; (my emphasis)

32. Now, before I arrive at a conclusion that what the employee did was indeed an act of sexual assault, I will consult the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007, as amended (hereinafter the SOA), for a clearer view of what sexual acts and sexual assaults entails, and whether the insertion of the tongue into the Learner’s mouth, falls within any of these definitions.

1. Definitions and interpretation of Act (SOA)
'sexual act' means an act of sexual penetration or an act of sexual violation;

33. Section 1 of the SOA differentiates between a sexual penetration, and a sexual violation. Let us now see what the SOA says in relation to sexual violations:

1. Definitions and interpretation of Act (SOA)
'sexual violation' includes any act which causes-
(a) direct or indirect contact between the-
(i) …….
(ii) mouth of one person and-
(aa) the genital organs or anus of another person or, in the case of a female, her
breasts;
(bb) the mouth of another person; [my emphasis added]

34. Section 5 of the SOA then goes further on to define what a sexual assault is:
5 Sexual assault
(1) A person ('A') who unlawfully and intentionally sexually violates a complainant ('B'), without the consent of B, is guilty of the offence of sexual assault.
(2) A person ('A') who unlawfully and intentionally inspires the belief in a complainant ('B') that B will be sexually violated, is guilty of the offence of sexual assault.
35. Evidence was led that the employee was already found guilty of this offence in the criminal court. I have also found it probable that he has inserted his tongue in the Learner’s mouth. Having seen the definition of sexual assault, it is clear that what the employee did to the Learner was a sexual violation, the violation of which amounts to a sexual assault (the direct contact of his mouth with the mouth of the Learner), in light of the fact that the employee did not have the consent of the 19-year-old Learner to do so. The law is clear that what the employee did is prohibited, and that the employee is guilty of section 17(1)(b) of the EEA, which regards the act of the employee, as a serious misconduct.

36. The employee was also charged with a second count of misconduct:

Count 2
On or about the 3rd of March 2022 at or near Ratang Thuto High School in the ZFM District you allegedly committed an act of misconduct in terms of Section 18(1)(f) of the Employment of Educators Act No 76 of 1998, that you inter alia, unjustifiable prejudices the administration, discipline or efficiency of the Department of Basic Education, an office of state or a school in that you kissed a learner (the Learner) while you knew or ought to have known that you were not allowed to do so.

37. The facts of the case are that the incident took place on the school premises, in the employee’s classroom/office, whilst the employee was on duty, and was later on also convicted in a criminal court. It is common cause that the employer is a department of state, and that the incident happened at a school of the employer. No evidence was led that the administration of the employer was prejudiced. However, the evidence is clear that the discipline of the school, and the efficiency of the employer to serve its mandate, through the employee, was prejudiced.

38. Section 18(1)(f) of the EEA provides:

Misconduct
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she –
(a) fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating
to education and the employment relationship;
(b) wilfully or negligently mismanages the finances of the State, a school, a further education and
training institution or an adult learning centre;
(c) without permission possesses or wrongfully uses the property of the State, a school, a further
education and training institution, an adult learning centre, another employee or a visitor;
(d) wilfully, intentionally or negligently damages or causes loss to the property of the State, a school, a
further education and training institution or an adult learning centre;
(e) in the course of duty endangers the lives of himself or herself or others by disregarding set safety
rules or regulations;
(f) unjustifiably prejudices the administration, discipline or efficiency of the Department of Education, an
office of the State or a school, further education and training institution or adult learning centre;

39. As a professional teacher, the employee deviated from his professional duty of advancing the discipline of the school, and to safeguard the efficiency of the employer towards the Learner. I find the conduct of the employee to amount to ill-discipline, in that it is not expected of a professional teacher to make sexual advances to his learners. Based on these observations and facts of this case, it is my finding that the evidence of the employer shows that the employee is guilty of the second count, in that the employee, without justification, prejudiced the discipline of the school, and the efficiency of the employer, through this sexual conduct.

Count 3
On or about the 3rd of March 2022 at or near Ratang Thuto High School in the ZFM District you allegedly committed an act of misconduct in terms of Section 18(1)(q) of the Employment of Educators Act No 76 of 1998, that you inter alia. While on duty, conducted yourself in an improper, graceful or unacceptable manner in that you kissed a learner (the Learner) while you knew or ought to have known that you were not allowed to do so. [sic]

40. The evidence of the employer shows that the Learner, took the employee in her confidence and trust, by approaching the employee as her class teacher, to disclose to him the results of the doctor’s visit the previous day. Even the employee admitted in his evidence that the Learner was emotional, and crying, whilst the two of them were together. The evidence seem to suggest that notwithstanding this vulnerable state in which the Learner found herself in, the employee saw it as an opportunity, to prey on the Learner. The question of course is, how do you make love to someone who is in tears and vulnerable?

41. Section 18(1)(q) of the EEA provides the following:
Misconduct
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits
Misconduct if he or she -
(q) while on duty, conducts himself or herself in an improper, disgraceful, or unacceptable manner.

42. It goes without saying that the conduct of the employee, was not just improper and unacceptable, but disgraceful in every sense of the word. As someone who was supposed to act in loco parentis towards the emotionally devastated Learner, the employee abused his position of trust and authority to attend to his sexual desires towards the Learner. This is disgraceful in every respect. To rub a crying learner on her shoulder is but one thing, but to kiss her and inserting one’s tongue in her mouth, whilst having tears on her face, is an act which must be condemned with the severity it deserves. It is my finding that employee has misconducted himself, and is guilty of count 3, as provided for by paragraph 18(1)(q) of the EEA.

VERDICT

43. The employee is hereby found guilty of all three counts of misconduct, as indicated in paragraph 7 above.

SANCTION

44. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the EEA’s provisions dealing with incapacity, misconduct and appeals, provides the following:

Substitution of section 17 of Act 76 of 1998
10. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 17 of the
following section:
“Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of—
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner. student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or
other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e). (2) If it is alleged that an educator committed a serious misconduct I contemplated in subsection
(1), the employer must institute disciplinary proceedings in accordance with the disciplinary code
and procedures 35 provided for in Schedule 2.”

45. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having sexually assaulted a Learner in accordance with section 10 of the ELAA. A dismissal therefore automatically follows a guilty finding. If put differently, one may also say that the employee is dismissed by operation of law, after being found guilty of having sexually assaulted a learner of the school where he was employed at.

46. It follows that based on the provisions of the law (the ELAA), a dismissal is mandatory and the appropriate sanction which must be handed down on the employee. No further mitigating or aggravating circumstances can overrule this provision of the law. The employee in my view abused his authority as a teacher and betrayed the trust placed in him whilst standing in loco parentis towards the learner.

47. Having found the employee guilty of all three counts, more so count 1, which is based on paragraph 17(1)(b) of the EEA, which provides for a mandatory sanction of dismissal, upon a guilty finding, it is my conclusion that by operation of law, the employee must be dismissed.

CHILD PROTECTION REGISTER

48. The parties did not address me on whether the employee’s name must be recorded in the Child Protection Register if found guilty. Of cardinal importance is whether the Children’s Act 38 of 2005 (hereinafter ‘the CA’) is of relevance to the instance of the Learner. Section 1 of the CA provides the following:

1 Interpretation
(1) In this Act, unless the context indicates otherwise-
‘child’ means a person under the age of 18 years;

49. Section 1 of the SOA also defines a child as follows:
1. Definitions and interpretation of Act
(1) In this Act, unless the context indicated otherwise-
‘child’ means a person under the age of 18 years and ‘children’ has a corresponding meaning

50. It is clear from the definitional clauses of the CA and the SOA that a child is a person under the age of 18 years. The common cause evidence of this case is that the Learner was 19 years of age, at the time of the incident, and no longer a child. The provisions of the CA which only applies to children, is therefore not applicable in this case. I shall as a result, not make an order, that the findings of this case be reported to the Director-General of the Department of Social Development.

51. In the premise, I make the following award:

AWARD

52. Mr Mziwamadoda Theodore Ngubo, is found guilty of the three charges levelled against him, by the Superintendent-General: Northern Cape Department of Education.

53. The mandatory sanction of dismissal is imposed with immediate effect on Mr Mziwamadoda Theodore Ngubo.

54. The General Secretary of the Education Labour Relations Council is directed to serve this award on the South African Council of Educators.

This is done and dated on, 05 August 2023, at Kimberley.

Adv. David Pietersen
ELRC COMMISSIONER

Inquiry-By-Arbitrator