ELRC890-22/23NC

THE INQUIRY-BY-ARBITRATOR BETWEEN

THE SUPERINTENDENT-GENERAL
NORTHERN CAPE DEPARTMENT OF EDUCATION EMPLOYER

and

MR HULEPE ISAAC MOGASE EMPLOYEE

Case No: ELRC890-22/23NC
Dates: 06 June, 10-11 August 2023
Venue: Magistrates Court, Kuruman

AWARD

DETAILS OF HEARING AND REPRESENTATION

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

2. The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) took place on, 07 June, and resumed on, 10 and 11 August 2023, at the Magistrates Court House in Kuruman. Both parties attended the Inquiry. The employer was represented by, Mr Aone Leboko, 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 parties’ representatives requested at the end of the Inquiry, to submit closing arguments in writing by, 17 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 and English since, 01 January 2019, at AB Kolwane Primary School, in Kagung Village, Kuruman, to date. Following acts of alleged misconduct(s) on, 02 November 2022, the employee was subsequently placed on suspension on, 21 November 2022, to date. The employee was notified of the allegations on, 23 April 2023, through his attorneys.

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

Count 1
On or about the 2nd of November 2022, at or near Kagung in Kuruman you committed misconduct in terms of section 17 (1) (b) of the Employment of Educators Act, 1998 In that you inter alia committed an act of sexual assault on a learner, by watching pornographic material with the learners thereafter sexually assaulting them whilst you knew or ought to have known that you are not allowed to do so. [sic]

Count 2
On or about the 2nd of November 2022, at or near Kagung in Kuruman you committed misconduct in terms of section 17 (1) (e) of the Employment of Educators Act, 1998 In that you inter alia committed an act of being in possession of an intoxicating, illegal or stupefying substance in the school premises and giving it to some of the learners whilst you knew or ought to have known that you are not allowed to do so. [sic]
Count 3
On or about the 2nd of November 2022, at or near Kagung in Kuruman you committed misconduct in terms of section 18 (1) (e) of the Employment of Educators Act, 1998 In that you inter alia committed an act of endangering the lives of others by disregarding set safety rules or regulations when you gave an underage learner a knife to assault the school manager and everyone who gets in their way, whilst you knew or ought to have known that you are not allowed to do so while you knew or ought to have known that you were not allowed to do so. [sic]

8. The employer indicated that it will not pursue counts 2 and 3 at this Inquiry, but at another forum. The employee pleaded not guilty to count 1. 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 names of the learners involved in this case, shall be kept confidential. The Girl Child was 14 years old, and in Grade 5 at the time when the alleged incident took place. The alleged incident(s) took place at the private residence of the employee.

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 following bundles of evidence were handed-in:
Employer: Bundle A
Employee: Bundle R

Employer’s Case

12. Ms Lizeka Khosana “Ms Khosana’, the Girl Child’s Aunt and Guardian, testified as the first witness for the employer. She basically testified on how SADTU, on the day before the arbitration hearing (09 August 2023), went to fetch the Girl Child at their home, and after which the Girl Child never returned home, and was also absent from school on, 10 August 2023. Ms Khosana testified that the employee had an affair with the Girl Child, and that notwithstanding the Girl Child’s poor school attendance, the Girl Child always passed her exams.

13. Ms Khosana also testified how the Girl Child used to sleep over at the employee’s residence, and how the employee provided the Girl Child with food as well. She stated that the employer’s Mr Tshekoeng, made arrangements with them (the parents), to have the Girl Child testifying at this arbitration. Ms Khosana testified that although the Girl Child’s mother is employed and within reach, she (Khosana) and their mother (grandmother to the Girl Child) always take care of the child, and knows that the Girl Child is with the employee whenever she disappears.

14. The Boy Child, 13 years old and in Grade 6 at the time of the incident, testified as the second witness for the employer. He testified that he, the Girl Child and another boy child (N), once accompanied the employee to his residence in the employee car. The Boy Child testified that the employee, at his home, showed them pornographic material on his laptop, whereafter the employee took the Girl Child into his bedroom, and left him and N outside. He testified that he they heard the Girl Child making sexual screaming noises from the bedroom. The Boy Child testified that they did not give the employee permission to show them the pornographic material.

15. In cross-examination, the Boy Child added that the Girl Child was not alone, but also accompanied by another girl child (M), the two of whom were taken in by the employee into the employee’s bedroom. He stated that he was asking N on why the girls were making noises, and N told him that the employee was having sex with the girls. The Boy Child testified that it was pornography movies which they have watched on the employee’s laptop, and that the five of them watched the movies inside the employee’s vehicle. He stated that a previous similar incident also took place, involving him, and two other learners (T & M). The Boy Child stated that this about this case, took place on a weekend.

16. The Girl Child, who was 14 years old at the time of the incident, testified as the third witness for the employer. The child was emotional at the commencement of the examination-in-chief, and the start of her testimony had to be delayed. She confirmed her guardian’s testimony about SADTU’s visit to their home the previous day. The Girl Child then went on to testify how the employee took them to his home, under a false pretence of asking them to help clean his residence, just for them to be exposed to pornographic movies, followed by the employee having sex with her.

17. The Girl Child described the sexual intercourses as painful, and that the employee slept with her on three different occasions. She stated that the employee promised to kill her if she told anyone about the intercourses. The Girl Child testified that the employee chased the others out of the room, whilst he had sex with her.

18. In cross-examination, the Girl Child stood by her testimony and stated that it was on the third occasion, when the employee had sex with her whilst other children were in close vicinity to the sexual act.

19. In closing arguments, the employer’s representative submitted that SADTU’s Full-Time Organiser went to the Girl Child’s home the day before the arbitration hearing (09 August), to intimidate her. He went on to submit that it is strange that the employee never mentioned anything about Klerksdorp in his testimony, yet Mrs Mgnakane brought evidence, which did not corroborate the employee’s version.

20. The representative submitted that the employer has proven its case on a balance of probabilities, and that the employee must be found guilty of the charge and dismissed. He further prayed that following a guilty finding of the employee, the employee’s name must be listed in the Child Protection Register.

Employee’s Case

21. Mr Hulepe Isaac Mogase, the employee, testified as the first witness in his case. He gave evidence about his good character, such as the extra mile he went for the employer; the extra duties which he performed all the years without extra remuneration, the various positions he held at the different committees of the employer, including his involvement in the School Governing Body (hereinafter referred to as the SGB); how he sacrificed his private vehicle to conduct official duties with it; how at some point, he sponsored R 10 000.00 of his own money to help the employer feed children at an event; and the list goes on and on…..

22. In cross-examination, the employer’s representative did not deem it fit to cross-examine the employee, because the employee did not comment or challenge the allegations against him during the examination-in-chief.

23. Mrs Mgnakane Susan Beetle “Mrs Beetle”, a Pensioner, testified as the second witness for the employee. She testified that the employee was not in Kuruman during the weekend of, 04 November 2022, in that five of them including the employee attended a wedding ceremony in Klerksdorp. Mrs Beetle testified that the travelled with the employee’s vehicle to Klerksdorp.

24. In cross-examination, Mrs Beetle stated that she and the employee were not together all the time on, Saturday 05 November 2022. She stated that they were together in the morning, and later in the afternoon. Mrs Beetle stated that it is not possible that the employee could have been in Kuruman during that weekend.

25. Mr Lesedi Morapedi ‘Mr Morapedi’, a Former Treasurer of the SGB, testified as the third witness of the employee. He basically corroborated the employee’s testimony about the employee’s good character, and how closely they worked together. Mr Morapedi stated that he heard about the rumours of sexual assaults by the employee for the first time in a parents meeting, where they were informed by the principal that the matter is with the employer. He stated that it is unlikely that the employee could commits such acts, and that this is a conspiracy against the employee, based on the tensions at the school between the staff, SGB, SMT, etc.

26. In cross examination, Mr Morapedi stood by his testimony and added that it was wrong for the matter to be reported to the employer first, without it being reported to the SGB first.

27. Mr N, the other boy child, testified as the fourth witness for the employee. He stated that he was expelled from the school and is now at another school. He denied ever having visited the employee’s house, or with the Girl and Boy for that matter. Mr N stated that he hardly knew the Boy Child and only knows him by passing. In cross-examination, Mr N stood by his testimony, and stated that even his mother can attest to the fact that he was never at the employee’s house.

28. Ms M, the other girl child, testified as the fifth witness for the employee. She stated that she was paid a visit two days ago by the employer, and was pressured to state in a statement that the employee raped the Girl Child. Ms M stated that she refused to say that, and eventually told the truth. She also denied having ever visited the employee at his place of residence with the Girl Child.

29. In cross-examination, she denied that the employee has ever assisted them with homework, or that the Girl Child ever told her anything about the employee. She stated that her parents prohibited her from continuing her friendship relationship with the Girl Child, and denied that she wanted to prejudice the Girl Child.

30. Mr Motsholathebe Abel Melokwe ‘Mr Melokwe’, the Full-Time Shopsteward (FTSS) of SADTU, testified as the sixth witness of the employee. He confirmed that he visited the home of the Girl Child, but with the purpose of engaging the child’s mother. Mr Melokwe stated that the mother told him that the Girl Child did not open up to her about the incident, and that the Girl Child had a habit of staying away from home, and that the brother of the Girl Child was better than her.

31. In cross-examination, Mr Melokwe stated that he knows the consequences of perjury, and denied having intimidated the Girl Child, and stated that he only spoke to the mother. In re-examination, he stated that he eventually spoke to the Girl Child, but through the mother.

32. In closing arguments, the employee’s representative conducted a survey through the testimonies of all the witnesses, and pinpointed the contradictions between the versions of the employer’s witnesses and that of the employee’s witnesses. The representative submitted that the employee became a threat to the employer, based on the employee’s hard work and discipline, thus the children were used to fabricate all the allegations against the employee. He requested that I should order costs against the employer, if I find the employee not guilty, as imbursements for the SADTU’s travelling expenses.


ANALYSIS OF EVIDENCE AND ARGUMENT

33. As stated previously, the employee pleaded not guilty to the charge levelled against him. The employer called three witnesses, two of whom were the ‘victims’ and referred to as the Girl Child and Boy Child for ease of reference. The employee called six witnesses, two of whom were children. All four child witnesses testified through the court’s closed-circuit television. The adult witnesses testified in court.

34. The employer’s case is that the employee sexually assaulted a minor and displayed prohibited pornographic material to the four children. The employee contended that he is not guilty of the allegations, and that he was framed. I shall now proceed to consider the allegation(s), the facts and evidence of case, as well as the application of the law on the facts.

Count 1
On or about the 2nd of November 2022, at or near Kagung in Kuruman you committed misconduct in terms of section 17 (1) (b) of the Employment of Educators Act, 1998 In that you inter alia committed an act of sexual assault on a learner, by watching pornographic material with the learners thereafter sexually assaulting them whilst you knew or ought to have known that you are not allowed to do so. [sic]

35. I must start by evaluating the credibility and reliability of the witnesses of the parties. As regards the first witness of the employer, the guardian of the Girl Child, she came forth as someone who was out to tell the truth, irrespective of whether the truth will prejudice the employer’s case or not. I therefore find her to be a credible and reliable witness, and accept her testimony in totality.

36. The Boy Child was the first ‘victim’ or child witness to testify. He narrated what transpired on that weekend of 04 November 2022, and how the employee lured them into thinking that they (the children) were about to do cleaning work, at the employee’s home. Notwithstanding the evidence of the employee’s witnesses, I find the Boy Child to have been a credible and reliable witness. This is for the simple fact that the employee, through his witnesses, did not rebut everything which the Boy Child testified upon.

37. Then there is the Girl Child. The third and last witness of the employer, and the one who was allegedly sexually assaulted. She also gave direct evidence, and of which only a certain portion thereof was challenged by the employee’s witnesses. Based on the fact that the rest of her evidence was left unchallenged by the employee, I find the Girl Child to have been a credible and reliable witness as well.

38. Then came the employee, Mr Mogase. In his testimony, he did not deny having committed the acts of displaying pornographic videos to the children, and to having sexually assaulted the Girl Child. The last first and last time he denied the allegations against him, was at the pleading stage, at the commencement of this arbitration. His silence on the allegations made me wonder why his witnesses would put forward evidence which he (the employee), has never established. The employee’s testimony did not address the allegations against him. Though I do find him credible in relation to what he stated (which was not disputed by the employer), I do not regard his testimony as reliable, based on the fact that it does not address the allegations against him.

39. Then we had the pensioner Mrs Beetle. Her testimony sought to remove the employee from the ‘misconduct scene’, by standing as his alibi. The problem is, that Mrs Beetle’s version was never put to the employer’s witnesses for comment. Though she appeared to be credible witness (in that she looked like she knew what she was talking about), I cannot rely on her evidence for the simple reason that her version was never raised by the employee to lay a foundation for his defence, and that the version was never tested with the employer’s witnesses.

40. The former SGB Treasurer and friend and close ally to the employee, Mr Morapedi, basically builded on the good character of the employee, Mr Mogase. Being that close to the employee, he said nothing about the Klerksdorp trip of the employee for that weekend, other than to say that the employee is not capable of doing such things. His allegations that conspiracy theories were formed against the employee were never mentioned by the employee during the employee’s testimony, or corroborated by any other witness. For this reason, I find Mr Morapedi to lack credibility (based on his close friendship with the employee), as well as unreliable.

41. Mr N, whom one would have expected to corroborate the Boy Child’s version, was also approached by SADTU, and who sought to discredit the testimony of the Boy Child and that of the Girl Child. Of interesting to note is that though Mr N claimed that he did not know the Boy Child that well, he had a fight with the Boy Child, outside the court house, during the arbitration proceedings, prior to his testimony. No further evidence was presented to me pertaining to how the fight started and ended. Mr N testified that he was expelled from the school. This gives me a reason to doubt the truthfulness of his testimony, in that he appeared to have a score to settle with the school, based on his demeanour, and the invalidations of everything which the Boy and Child witnesses testified about. I therefore do not regard him as a credible and reliable witness.

42. Then we had Ms M, who was supposed to corroborate the version of the Girl Child in particular. I do not know how the employer conducted its investigation, that the sworn statements of both Mr N and Ms M were not obtained beforehand. Be that as it may, she was also visited prior to the hearing by the employer to remind her of the arbitration, but also by SADTU. SADTU’s representative submitted that they were also investigating the case.

43. What is strange, is why their investigation only commenced a day before the sitting of the already postponed arbitration. These representatives of SADTU never requested a copy of the investigation report from the employer, and they have also not conducted a pre-arbitration conference with the employer, in order to narrow the issues of this case. Ms M became emotional and started to cry, whilst telling her ‘real truth”, why? The proceedings even had to be paused. My inference is that there is more to Ms M’s testimony then what meets the eye. Like Mr N, she only denied not having been with the Boy Child and Girl Child at the employee’s place on that Saturday, without telling us where they were on that Saturday (no alibi). It is for that reason that I do not find Ms M to be a credible and reliable witness.

44. So, we also had the testimony of the FTSS of SADTU, or put differently, the self-acclaimed ‘investigator’. Truly speaking, this so-called investigation of Mr Melokwe looked more like witness tampering, then an actual investigation. No investigation report was presented by him, and the employer was also not aware of the investigation, or at least, notified of such an investigation. Be that as it may, Mr N and Ms M turned against their own friends and came to the aid of the employee. My question is, would this have been the case, if Mr Melokwe never conducted his ‘investigation’.

45. Mr Melokwe mainly gave hearsay evidence at the arbitration. He only conveyed the version of the Girl Child biological mother, the mother of whom did not testify at the arbitration. Mr Melokwe testified about the hearsay evidence, just because it was favourable to the employee’s case. Even the hearsay evidence itself, it does not disprove the allegations against the employee, other than that the Girl Child did not disclose fully to her mother what actually happened. I do not regard Mr Melokwe’s evidence as reliable and assisting this arbitration.

46. As stated above, I do not accept Mrs Beetle’s evidence about the employee’s alibi, because the employee never raised this alibi at any stage of the proceedings (opening statement, pleading stage, and during his own testimony). Not even Mr Melokwe’s ‘investigation’ confirmed this alibi. I shall now proceed to weigh up the evidence of the parties, in light of the allegations, and the provisions of the law:

The Pornographic Movies

47. Both the Boy Child and the Girl Child led uncontested evidence that the employee showed them pornographic videos, on the employee’s laptop, in his car. Mr N and Ms M only denied their presence at the event, without telling me where they were on that Saturday. Even Mr Morapedi did not deny this, other than to say that it is unlikely that it could have happened. The employee did not deny this during his testimony. I am therefore not persuaded that the employee has raised a defence against the allegation.

48. My finding, on a balance of probabilities it that the Boy and Girl’s version of the pornographic videos is more probable than that of the employee, and that the employee is guilty of this allegation.

The Sexual Assault

49. The Girl Child claims that the employee, immediately after the watching of the movies on his laptop, took her into his bedroom and had intercourse with her, and even threatened to kill her should she scream or saying anything about it. The Boy Child is the direct eyewitness, who corroborates the Girl’s testimony, that the employee and the Girl went into the bedroom, and had sex. People like Mr N and Ms M, who claimed to have been absent from the scene, cannot in my view, disprove these two versions. That also applies to the employee, who did not even deny this under oath. It is therefore probable that the employee had intercourse with the minor Girl Child.

50. Even if I might be wrong with the amount of weight that I am attaching to the versions of the Boy and the Girl, the Girl Child led uncontested evidence that this incident of the weekend of, 04 November 2022, was not the first time she had sex with the employee. She stated that it was the third time. This evidence was not challenged or rebutted during the cross-examination of the Girl Child. The employee also, did not comment on this during his testimony. None of the employee’s witnesses, including their ‘investigator’, commented on this. My finding is that the employee had sexual intercourses at least twice with the Girl Child, just in case if I am wrong about his alibi of 04-06 November 2022. He literally had a sexual relationship with a minor, a minor who could not give consent.
51. 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)

52. The evidence of the employer is overwhelming, in that the employee did not just expose the children to pornographic videos, but also sexually assaulted the Girl Child, at least three times (or two times) for that matter. This is in direct violation of the law, and amounts to a serious misconduct.

VERDICT

53. The employee is hereby found guilty on the charge of sexual assault.

SANCTION

54. 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.”

55. 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 the Girl Child 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 the children of the school where he was employed at.

56. 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 children.

57. Having found the employee guilty of the count, 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

58. The employer, in its closing arguments, addressed 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 children. 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;


59. Section 1 of the Sexual Offences Act 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

60. Section 122(1) of the CA provides the following:

122 Finding to be reported to the Director-General
(1) The registrar of the relevant court, or the relevant administrative forum, or if the finding was made
on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing-
(a) of any findings in terms of section 120 that a person is unsuitable to work with children; and
(b) of any appeal or review lodged by the affected person.

(2) The Director-General must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.

61. It follows that the finding which I have made in paragraph 53 supra necessitates that it be forwarded in writing to the Director-General of the Department of Social Development. This is for purposes of entering the employee’s name in Part B of the Register.

62. Based on this evidence, I shall make an order that the employee’s name be reported to the Director-General of the Department of Social Development, for listing in the Child Protection Register.

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

AWARD

64. Mr Hulepe Isaac Mogase is found guilty of the charge levelled against him, by the Superintendent-General: Northern Cape Department of Education.

65. The mandatory sanction of dismissal is imposed with immediate effect on Mr Hulepe Isaac Mogase.

66. Mr Hulepe Isaac Mogase is found unsuitable to work with children, in accordance with section 120(4) of the Children’s Act 38b of 2005.

67. The General Secretary of the Education Labour Relations Council must, in terms of section 122(1) of the CA, notify the Director General of the Department of Social Development in writing of the findings of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005, that Mr Hulepe Isaac Mogase is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.

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

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

Adv. David Pietersen
ELRC COMMISSIONER

Inquiry-By-Arbitrator