ELRC30-23/24GP

Panellist: Themba Manganyi
Case No.: ELRC30-23/24GP
Dates of Hearing: 07 & 11 August 2023
Date of Arguments: 18 August 2023
Date of Award: 15 September 2023

In the Inquiry by Arbitrator Hearing between

GAUTENG DEPARTMENT OF EDUCATION EMPLOYER

and

SADTU OBO MPHO MASINGA EMPLOYEE

Employer’s representative: Mr Danvour Manas


Employee’s representative: Mr Isaih Mukhuswani

Details of hearing and representation

1. This is an arbitration award emanating from an Inquiry by Arbitrator process referred to the Education Labour Relations Council (“the Council”) by the Employer, the Gauteng Department of Education. The arbitration proceedings were conducted on 07 and 11 August 2023 at the Employer’s Head Office in Marshalltown, Johannesburg.

2. Mr Danvour Manas (“Manas”), the Labour Relations Officer, represented the Employer and Mr Isaih Mukhuswani (“Mukhuswani”), an Official from SADTU, represented the Accused Employee, Mr Mpho Masinga (“Masinga”). Ms Edna Shibisi and Mr Marvin Seale, the Intermediary and the Interpreter from the Council, assisted with their respective services.

3. The parties held a pre-arbitration meeting on 04 May 2023 and the Employer exchange its bundle of documents during the said meeting. The Employee submitted its bundle of documents during these proceedings. The bundles were referred to as the Employer’s and the Employee’s bundle. Parties were allowed to call witnesses and to cross-examine the witnesses. At the end of the proceedings, the parties agreed to submit their closing arguments in writing on or before 18 August 2023. The parties duly complied. The proceedings were digitally recorded and I also took handwritten notes. The recordings thereof were retained by the Council.

Preliminary issue/s

4. Mukhuswani contested that the dates of the alleged incident were different on the Audi letter and on the notice of the disciplinary hearing. On the Audi letter, the Employer alleged that the incident occurred on or around March 2023 and the place where the incident allegedly occurred was stated as the computer room. Whilst on the notice of the disciplinary enquiry, the date of the incident is recorded as the period in 2022. However, the place where the alleged incident had taken place was not stated. Therefore, the Employee could not prepare for his defence adequately.
5. Manas responded by stating that the enquiry should not concern itself much about the precise date of the alleged incident as it was only one allegation that was levelled against Masinga and that it involved only one learner. All that the enquiry sought to establish was whether the allegation has merit or not.

Ruling

6. Having considered the parties’ submissions, I ruled that Masinga would not be prejudiced about the date of the alleged occurrence of the incident. I have considered that the allegation was brought forth by a minor and that the alleged incident was reported after a lapse of some time and the reporting was prompted by an incident that unfolded at the school around March 2023.

7. In view of the fact that there was only one allegation, detailing the same sets of facts, that was levelled against Masinga, the Employer will have to prove that the incident did happen and it would be for Masinga to rebut whatever evidence that would suggest that he committed the alleged misconduct. It was my considered view that the evidence that would be adduced during these proceedings would give guidance to the parties regarding the date of the alleged incident.

Issue/s to be decided

8. I am required to determine whether Masinga was guilty or not as alleged. In the event that I return a guilty finding, I will be required to determine the appropriate relief.

Rights and the procedure

9. All the rights commensurate with a fair process and the nature of the process were explained to the parties.

10. The Employer preferred the following allegation against Masinga:

It has come to the attention of the department that you conducted yourself in a manner that contravenes the provisions of the Employment of Educators Act 76 of 1998 as amended.

Allegation 1:
It is alleged that during 2022, you committed an act of sexual harassment in that, you forcefully grabbed and kissed a Grade 9 learner SD from Northriding Secondary School where you are currently teaching.

In view of the above you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.

THE NAMES OF THE LEARNERS ARE CONCEALED IN THIS AWARD TO PROTECT THEIR IDENTITY.

Pleadings

11. Masinga pleaded NOT GUILTY to the allegation.

Survey of evidence and arguments

12. The Employer called five (5) witnesses and the Employee called three (3) witnesses, including himself. All the witnesses testified under oath and the minor witnesses testified with the aid of the Intermediary. What follows hereunder is a summary of their evidence and not a verbatim account of what was said during these proceedings. However, it should not be misconstrued that I did not consider some of the evidence as I have considered all the evidence and the parties’ closing arguments.

The Employer’s case

13. Learner SD testified that Masinga taught her Accounting in Grade 8 and 9 and during term 2 of 2022, she went to charge her phone in Masinga’s classroom. When she went to fetch her phone, Masinga told her that she must give him her phone numbers as a punishment and she gave it to him. She stated that Masinga used to call her almost every day. In one instance, Masinga wanted to take her out to a concert, but she refused and told him that her parents were very strict. She testified that during term 3 of 2022, she went to collect a book from the library and when she went out she bumped into Masinga getting into the library. Masinga told her that she must wait for him outside. When he came out of the library, he grabbed her into the computer room and he kissed her. After the incident, she went to class and told her friend Learner KN. Masinga called her after school and told her that she was a great kisser.

14. She testified that at the end of February 2023, Learner AN asked here if Masinga has done something to her and she responded in the affirmative. Learner AN told her that Masinga also did a similar thing to her. Ms King joined their conversation and they told her everything and she told them that they should report the matter to the office. On 01 March 2023, the news spread around the school and Learner AN and his friends tried to attack Masinga after they heard the news. She stated that she was shocked and scared when Masinga grabbed and kissed her because she knew that it was wrong for an educator to do what he did to her. She stated that she did not report the matter earlier because she was scared that no one would believe her. She testified that she also told her parents and that her parents opened a case at the police station.

15. Under cross-examination, she confirmed that she gave Masinga her correct phone number. She further confirmed that Masinga called her almost every day. She could not recall what time did she go to the library. She did not think that there was anyone who could have seen her when Masinga grabbed her and kissed her. She reiterated that Masinga grabbed and kissed her on her lips. She was not aware that there were cameras in the computer room. She stated that it was the first time that she was kissed at school. She confirmed that she had a relationship with Learner DC. However, she not aware if Masinga knew of her relationship with Learner DC. She disputed that Masinga warned her about her relationship with Learner DC. She disputed that Masinga requested her parent’s numbers to report her about her relationship with Learner DC. She resolute that what she was telling was the truth and not a made up story. She confirmed that she knew Learner KN and said that apparently Masinga had a relationship with her.

16. Mr Zola D (“Zola”) testified that he was Learner SD’s father and that his wife realized that Learner SD was self-harming by cutting her wrists and that Learner SD was withdrawn. He stated that on 01 March 2023. Learner SD confided to her mother that Masinga had forcefully kissed her. He stated that he felt disappointed about the incident as he had thought that educators were there to protect their children and not to harm them. He testified that they opened a police case against Masinga.

17. Under cross-examination, Learner SD told them about the incident in March 2023 because she was scared of him and he thought that her daughter was overburdened about the situation. He asserted that her daughter did not make up the story and that her daughter never lied.

18. Learner AL testified that Learner SD told her that Masinga asked her for her phone numbers and after that, Masinga was calling her. She stated that she once her heard Masinga asking Learner SD why was she not answering his calls. She stated that Learner SD told her that Masinga grabbed and kissed her in the computer room. She stated that she felt disgusted when Learner SD told her about the incident.

19. Under cross-examination, she stated that what she testified about was what Learner SD told her. However, she heard Masinga asking Learner SD why she was not answering his calls. She disputed a version that she liked spreading rum ours and stated that she never lies. She stated that she did not remember having a conversation with Learner K about Masinga in the girls’ bathroom.

20. Learner AN testified that she heard rumors at the school about Learner SD and Masinga and some day on her way to the Afrikaans class, some learner told her that Learner SD was not okay and that she (Learner SD) was self-harming. When they got to the Afrikaans class, she requested the Educator if she (Learner AN) could talk to Learner SD outside. When they got outside, she asked Learner SD what happened and Learner SD told her that Masinga forcefully kissed her in the computer lab. She told Learner SD to report the incident as it was wrong for an Educator to groom her.

21. Under cross examination, she stated that she was very close to Learner SD and that Learner SD always told the truth. She stated that Learner SD did not tell her that her hand was painful from the grab. She averred that Learner SD told her about the incident on a Wednesday in March 2023 after the break. She confirmed that she knew the incident where Masinga asked Learner SD about the phone calls. She refuted a version that Masinga went to Learner SD’s desk when he asked her about the phone calls and stated that Masinga was at his desk. When asked about Learner AL, she stated that Learner AL mixed with the wrong crowd and at times she said doubtful things. However, Learner AL did tell the truth at times. She also disputed a version that Learner SD was lying and that she fabricated this whole thing. She submitted that there were a lot of learners who left the school and those learners have alleged that Masinga touched them inappropriately. She stated that Learner SD had not reason to lie about this allegation. She confirmed that she knew that Learner SD had a relationship at school, but refuted the version that Learner SD and the boy she was involved with ever kissed.

22. Learner AsN testified that he heard from Learner AN that Masinga touched her and Learner SD also told him that Masinga grabbed and kissed her. He stated on the day when Learner SD told him about the allegation, they were in the courtyard, more female learners came forward alleging that Masinga inappropriately touched them and that he has done that for years. Then the learners went to Masinga’s classroom to confront him about the allegations. However, Masinga left the school premises before they could confront him. He stated that he felt heartbroken when Learner SD told him about what Masinga did to her.

23. Under cross-examination, he stated that Masinga was a very encouraging teacher and that his subjects very well. He further stated that Masinga was very strict. He submitted that learners liked Masinga because he would at times make jokes. He confirmed that it was the first time that Learner AN told him about her encounter with Masinga and when she told him she was crying. He stated that Learner AN has an ancestral calling, but refuted that she told him about Masinga when she was in a state of the ancestral calling. He stated that Learner AN was a very kind person and that he did not think that she would lie about something like this. He confirmed that he would not know for sure that Masinga grabbed and kissed Learner SD because he was told by Learner AN. He stated that Learner SD was a very kind and friendly Person and that she did not keep a certain type of friends. He further stated that Learner SD never lied to him before or heard her lying to someone else.

The Employee’s case

24. Masinga testified that the allegation levelled against him was not true. He has never been involved with a learner in the five years that he has been teaching. He stated that what he knew was that learners did not like him because of the discipline that he instills. He submitted that learners have promised him that they would land him in trouble. He stated that there was an educator that was dismissed on allegation of racism that came up with learners who were in Grade 8 and those were the same learners who are currently in Grade 9. He stated he knew Learner SD because he taught her and that Learner SD was quiet and well-behave child when she is in class. However, she was different when she was out of class. He submitted that Learner SD changed when she started dating at school. She and her boyfriend would talk in class whilst he was teaching. He then decided to separate their sitting arrangement and Learner SD’s boyfriend asked him why did he separate them, but he did not take it serious. He stated that he did not know why Learner SD would accuse him of this allegation, but he knew that Learner SD was kissing boys at school. He stated that he had Learner SD father’s cellphone number and he promised her that he would call her father about her relationship, but he never did call her father.

25. He stated that it was a blatant lie that he grabbed and kissed Learner SD in the computer room. He could not do such a thing as he was a parent to a three year old girl. He stated that there are CCTV cameras all over the school. He stated that there could be a very little possibility that there could be no one at the computer room because the Mathematics Educators use the computer room and other Educators use the library during breaks. He stated that he requested for the video footage from the school, but it was not forthcoming. He averred that if someone would come and say that he was lying that person would not know him. He studied to become an Educator because he wanted to help the children.

26. Under cross-examination, he reiterated that the allegation was false. He stated that he could see that some learners did not like him as he could see how the learners felt. He stated that he separated Learner SD and her boyfriend because their relationship affected their school work. It was put to him that he separated Learner SD and her boyfriend because he was attracted to Learner SD. In his response, he stated that he was not that kind of a person. He cannot be attracted to a Grade 8 learner and that he does rearrange the sitting arrangements between boys and boys as well. Regarding Learner SD’s father’s cellphone number, he said that he acquired the number from her father and that he realized that he had her father’s number after she gave her the correct number the following day. He stated that he did not know why Learner SD would chose him amongst all the Educators to her phone in his classroom and that he did not understand why did she breakdown now when she saw him during these proceedings. Regarding the CCTV footage, he said that he could not have raised it with the school Principal as he was restricted to talk to him. However, he raised the issue with the Employer’s representative.

27. Learner LD testified that the learners of Northriding Secondary School have different personalities, views and opinions and that she would not lie about their conduct as they conduct themselves well. She stated that Masinga taught her Grade 8 and 9 and that he was a disciplinarian who would punish a learner for not doing their school work. If a learner did not do his work, he would make the learner to sit on the floor or go outside the classroom. She stated that she knew Learner SD from school as a person with two different personalities. She stated that she was not friends with Learner SD, but they do talk at times. She said Learner SD’s responses at times are blunt and that she articulates what she felt. She could not comment about the allegation against Masinga as she was not there when it happened. She confirmed that she wrote the statement on page 1 of the Employee’s bundle and restated that she overheard Learner AL talking to another learner in the bathroom. Learner AL was telling this other learner that she lied about Masinga and that she was only offering emotional support to Learner SD. She then reported what she heard to Mr Mdunge (an Educator) and he said she must write a report and give to him or the Principal.

28. Under cross-examination, she confirmed that she did not know anything about the allegation. She stated that she came to testify about what she heard in the girls’ bathroom.

29. Learner KM testified that Masinga taught her in 2022 and now she was in Grade 11. She stated that he was a good Educator and strict, but at times he would not be strict. She stated that she did not believe the allegation because Learner SD tells lies at times. She stated that she did not believe that Masinga would do what is alleged because he has a family. She submitted that she did not have proof that Learner SD was lying, but she heard Learner AL in the bathroom telling her friend that she lied to support Learner SD. She said that she felt as if the learners have plotted a conspiracy against Masinga.

30. Under cross-examination, she admitted that she was not present when Masinga allegedly grabbed and kissed Learner SD. She said that her version has to be believed as Masinga has taught her for longer as compared to the other learners who he taught for a few months. She stated that if a male Educator were to touch her inappropriately she would report immediately to the school and to her parent. She stated that she wrote the statement on page 2 of the Employee’s bundle because Masinga taught with passion and she believed that he would not take advantage of learners.

Analysis of evidence and argument

31. This is an award in terms of section 138(7) of the Labour Relations Act 66 of 1995, as amended (“the LRAA”). Therefore, these are the brief reasons for my finding.

32. It is trite that the test that is applicable in employment law is that of “on a balance of probabilities” and not “beyond reasonable doubt”. It is trite that in proceedings where minors are involved, the arbitrator should endeavor to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify and facilitate the ascertainment of truth so that the best interests of the child are upheld and to promote maximum accommodation of child witnesses without prejudice to the rights of the accused educator. I am satisfied that the environment in these proceedings was conducive for children to testify. Save for where Learner SD broke down before the proceedings commenced when she accidentally saw Masinga in the corridors.

33. The evidence was led that the alleged incident occurred during the third term of 2022. However, the alleged incident was only reported on or about 01 March 2023. Clearly, there was a delay in reporting this alleged incident. However, the Constitutional Court has held that the sexual assault of children has the inherent effect of rendering child victims unable to report the incident, sometimes for several decades and that they should not be penalized for the consequences of their abuse by blaming them for the delay.

34. Sexual harassment often takes place in isolated circumstances, away from the glare of the third parties. In such cases, there is little more than the complainant’s version, the alleged perpetrator’s version, and the objective facts. It behooves a trier of fact to interrogate both versions to determine where the truth lies. In this case, Learner SD testified that Masinga grabbed and kissed her in the computer room. Expectedly, Masinga denied this allegation. It is only Learner SD and Masinga who carry the first-hand knowledge of what transpired. In Old Mutual Life Assurance SA (Pty) Ltd v Makanda and others , the Court emphasized the importance of a Commissioner’s duty to grapple with mutually destructive versions tendered by single witnesses. The correct approach to untangling this knot is to assess both versions against three factors, namely: credibility, reliability, and the probabilities.

35. Let me start with Masinga’s testimony. He conceded that the requested Learner SD for her father’s cellphone number to report her about her tardy school work and she gave him a number. However, when he called the number later in the afternoon, Learner SD answered the phone. So he discovered that Learner SD gave him her cellphone number instead of her father’s number. When he confronted Learner SD the following day, she gave him another number. When he saved the number, he realized that he already had the number saved in his phone. It was his testimony that he got the number from her father sometime back. However, he did not know that Zola was her father at the time he requested him for his number when he (Masinga) saw Zola driving a car that he had an interest in buying. Zola testified in these proceedings. Surprisingly, this version was not put to him. Zola testified that it was his first time to see Masinga in these proceedings.

36. Learner SD testified that Masinga requested her cellphone number as a punishment. The only rebuttal on this version was whether requesting ones number was a punishment. It was never disputed that Masinga requested Learner SD’s number. Another contradiction in Masinga version was that when he requested Learner SD’s father’s number he wanted to report her. He got the number, but he did not report her. His reason was that because Learner SD promised him that she will no longer neglect her school work. I therefore find that Masinga was not truthful in this respect. Thus, not a credible witness.

37. Masinga further testified that there was a CCTV camera in the computer room and all over the school premises. On the other hand, Learner SD denied any knowledge of a CCTV camera in the computer room. It was only Masinga who testified about the existence of CCTV cameras in the school. The existence of a CCTV camera in the computer room was not tested with the other witnesses. In my view, this was critical evidence that would have assisted Masinga in defending his case. For reasons only known to him, he failed to produce this evidence. He stated that he requested the video footage from Manas, but it was not provided. He left it at that. If indeed there were functional CCTV cameras in the school, the Department’s case would have been made easy by viewing same. It therefore follows that there is no functional CCTV camera in the computer room. It would not be farfetched that Masinga knew that the camera was dysfunctional. Hence, he did not press hard in being provided with same.

38. All the Employer’s witnesses testified that Learner SD did not tell lies. Masinga did no rebut this evidence. Neither did any of his witnesses testify that Learner SD was a deceitful person. Save for Learner KM who stated that Learner SD lied at times, but she did not tender any evidence to that effect. I am therefore persuaded that Learner SD was a truthful person. She did not hesitate to admit under cross-examination that she had a relationship with another boy learner at the school. Zola spoke so highly about the demeanor of his daughter. When Learner SD reported this incident to her parents, they immediately opened a criminal case at the police station. This shows the level of trust that Learner SD’s parents have in her. It is therefore my finding that Learner SD is a reliable and credible witness.

39. Learner LD’s evidence that she overheard Learner AN talking to another learner in the toilet about Masinga is also worth interrogating. Learner LD authored a statement (page 1 of the Employee’s bundle) and testified that Learner AN told another learner that she (Learner AN) lied when she said that Masinga also touched her. The only reason she (Learner AN) was crying it was because Learner SD was crying and she was supporting her. Under cross-examination, Learner AN stated that she did not recall having this conversation in the bathroom. It is my considered view that even if Learner AN lied about Masinga touching her, there is nowhere where she (Learner AN) ever doubted that Learner SD could be lying about her encounter with Masinga. Consequently, I find that Learner LD’s statement and testimony did not take us anywhere to discredit Learner SD’s allegation against Masinga. Just as much as the evidence of Learner KM. Learner KM led character evidence in support of Masinga simply because she harbored a belief that Masinga did not commit the alleged misconduct.

40. Is there any motive for Learner SD to implicate Masinga? Masinga testified that learners did not like him and they promised to take him down because he was a disciplinarian. In my view this was a serious threat to his livelihood. It would be expected of a reasonable man to report such a serious threat to the Principal or to another Educator. He did nothing about this threat simply because there was no such a threat. He also stated that the very same Grade 9 learners led to the dismissal of another Educator for allegedly being racist. This version was not put to any of the Employer’s witnesses. I therefore find that there was no motive for Learner SD to fabricate this allegation. Subsequently, I find that the Employer succeeded in discharging its burden of proof, on a balance of probabilities, that Masinga forcefully grabbed and kissed Learner SD in the computer room.

Award

I find
41. On a balance of probabilities that Mr Mpho Masinga IS GUILTY of the allegation levelled against him.

42. In view of my guilty finding, I find that dismissal would be appropriate under the circumstances. This is so because Educators are entrusted with the care of children and adolescents. Therefore they must act with the utmost good faith in their conduct towards learners as society must be able to trust educators unconditionally with children. If educators breach this trust, dismissal is generally the most appropriate sanction.

43. I also find that Mr Mpho Masinga is unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the Council must, in terms of section 120(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the finding of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005 that Mr Mpho Masinga 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.

44. I further find that the Educator, Mr Mpho Masinga, as a consequence to the transgression as referred to in paragraph 7 herein-above is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.


Arbitrator: Themba Manganyi