ELRC276-23/24FS

Arbitrator: SHIRAZ MAHOMED OSMAN Case Reference No: ELRC 276-23/24 FS
Date of award: 30 October 2023

In the Enquiry by Arbitrator between:

Department of Education-Free State Employer party

and

Mr. T Mokoena Employee party

DETAILS OF HEARING AND REPRESENTATION

1. The present dispute between the Department of Education-Free State (hereinafter referred to as the employer) and Mr. T Mokoena (hereinafter referred to as the employee) was referred to, an Inquiry by Arbitrator, in terms of Collective Agreement 3 of 2018, read with Section 188A of the Labour Relations Act no.66 of 1995, as amended (LRA). At the Inquiry by Arbitrator hearing, which was held at the respondent’s premises, in Bloemfontein, on the 16th of October 2023, the employee failed to attend, and the employer, was represented by, Ms. L Cweba.
2. I was satisfied that the employee was aware of the date; time and venue of the said hearing, however failed to attend. The notice of set down was sent to the employee, as well as the principal of the school, at which the employee is employed at, though the employee is suspended.
3. The Council tried to contact the employee telephonically, however the employee when he answered the phone, and learnt what the call was about remained silent, and eventually, the Council representative had to put the call down, as the employee had nothing to say. It is recorded that the employee, was notified via email, at mosikatsana@gmail.com and cliffordmokoena358@gmail.com.
4. I proceeded with the arbitration, in default, as per Council Rules.

THE CHARGES TO BE DECIDED:

5. I am to decide whether the employee, is indeed guilty of the following charge, as stated below:

Charge

You have contravened Section 17 (1) (b) of the Employment of Educators Act, no 76 of 1998, in that on 01/01/2023, you committed an act of sexual assault when you had sex with Ms. X a grade 10 learner of Mohato Secondary School, where you are employed without her consent.

BACKGROUND

6. The employee is an educator and was charged, as per the above allegation. He is presently, on paid suspension.
7. He was charged in terms of Sections 17 (1) (b) of the Employment of Educators Act no. 78, of 1998 (EEA). He was charged for sexual assault, of a learner.
8. For the purposes of this award, the learner, being underage, shall be referred to as Ms. X, so as to protect her identity. I shall also identify the learner’s young male friend who is mentioned in the award as Mr. Y, as if I mention his name, there is a possibility that the learner could be identified.
9. As stated above, in paragraph 3, I have outlined as to why this matter proceeded, in the absence of the employee, and was concluded in his absence.

SURVEY OF EVIDENCE AND ARGUMENT

10. The employer was given the opportunity to submit an opening statement and call witnesses. Though the employee had another learner, as well as the principal, it was decided not to call them, in the absence of the employee. Moreover, they would have probably regurgitated the testimony of the learner. In any event, they were not present at the scene of the alleged incident.
11. The employer called one witness, Ms. X, (the learner).
12. Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Act. Should any of the evidence, or argument not be reflected hereunder, then, it does not mean that, it is not considered.
13. In any event, I am required to deal with the substantive merits of the case.

ANALYSIS OF EVIDENCE AND ARGUMENT

14. The applicant is charged, in terms of Section 17 (1) (b) of the EEA which provides “committing an act of sexual assault on a learner, student or other employee The allegation of sexual misconduct is not tolerated between an educator, and a learner. Hence, the Collective Agreement provides for an Inquiry by Arbitrator, instead of an internal disciplinary hearing, to avoid the learner/complainant from retelling her sequence of events repeatedly. It is indeed a more expeditious process, conducted by a Specialist Council panellist.
15. Essentially, Ms. X, testified that she had gone to the educator’s home, with her younger friend, Tumelo, to collect a t-shirt that she had ordered. Mr. Mokoena is in the business of selling branded t-shirts, an enterprising individual it would seem.
16. When the learner arrived at the educator’s home, there were three men in total at his house, namely the employee, Mr. Fessie, and an unknown gentleman. All three gentlemen were consuming alcohol. Ms. X is 16 years old, and still at school, in Grade 10. The learner was informed that her t-shirt would only be ready after the school vacation was over, as the educator’s factory was still closed.
17. Mr. Y, the learner’s younger male friend had made himself comfortable on the dining room chair, like probably any young boy would do. The learner enquired about Mr. Charles, a relative of hers, and was told that he was asleep in the lower, back bedroom.
18. Mr. Mokoena, then asked the learner to clear his dining table, and wash the dishes. Clearly, Mr Mokoena was exercising his patriarchal upbringing, or his authority as the employee’s educator. I suspect that the employee had known that the learner would not refuse, considering his authority as her educator. The learner obliged and carried out the tasks. When the learner was done with these chores, the employee further commanded the learner to sweep his floors.
19. When the learner was done with sweeping the floors, she was asked to make up the educator’s bed. I am guessing that this is where, all the other chores were leading to. The educator’s bedroom is next to the kitchen, and then there is the dining room. The employee took his laptop along, with the speaker and placed it at the door of his bedroom, whilst playing music. I suppose he had done so, to muffle any noise that might come from his bedroom. He had, indeed increased the volume of the music.
20. When the learner was about to exit the bedroom, he asked her to redo the bed, as he thought that it was not done properly. The learner redid the bed. The employee then told her to iron his t-shirt. When she was done, he took the iron away from the learner, and when she handed him the t-shirt, the employee grabbed her, pulled down her shorts and underwear.
21. Each time, the learner pulled up her underwear, the educator pulled it down. The educator threw her on the bed, on her stomach. He opened the learner’s thighs, and she kept closing her thighs, but the employee persisted, until he was able to penetrate her. Whilst he was penetrating the learner, the educator had had his hand over the learner’s mouth to keep her from yelling, for help. He was able to penetrate her from the back, as he had pulled her to the edge of the bed, whilst he was standing, he continued this devastating, morbid conduct. The employee then pulled the learner up against the wall, with the educator’s hand still, over the her mouth, he continued to penetrate the learner from behind. The music was still on.
22. When the educator heard Mr. Fessie calling for him, he quickly put on his clothes, and so did the learner. When Mr. Fessie opened the bedroom door, the educator still had his t-shirt in his hand, and he asked the educator, what he was doing to the child? According to the learner the employee insisted that he was not doing anything to her, and the learner was already dressed. Clearly, it was apparent to Fessie that there was some conduct that had occurred which was unbecoming of the educator.
23. Though the learner was dressed, Mr. Fessie had had the correct suspicion of what had happened. When the educator pulled off the learner’s pants, and underwear, Mr. Mokoena, himself had had no shirt on. He had dropped his pants to his feet. The learner tried to resist, and obviously she was no match for Mr. Mokoena. The learner was young and petit, and she was no match in terms of strength, for a fully grown man.
24. Moreover, it was established that the educator had not used any protection. This is plausible as he would not have had the time to fit on a condom, in the situation that they had been in. The educator had to be quick, as others were in the house, and therefore, he had only pulled off the learner’s pants, and underwear. Moreover, he would had to use his hands to grab, and silence the learner, therefore there was no way that he would have had the time, or the use of his hands, to fit on a condom. The other suggestion is that the employee’s desires had overcome him to such an extent, that nothing else mattered, but to have sexual intercourse with the learner.
25. To the learner, it appeared that though all three men were drinking alcohol, the educator was still in his senses. He had to be, to have orchestrated the learner to get into his bedroom and force himself onto her. After the incident the men had given the learner, and Mr. Y, the learner’s young male friend, a lift, close to her grandfather’s house. The learner had not told any adults about the incident, quite understandably so.
26. The incident emerged at school, when she had had a fight with Ms. Z, her friend, who then told of the learner having sex with her uncle. The learner approached the principal, about what Ms. Z had accused her of. Ms. Z was called into the office, where she disclosed that the learner had told her, that she was raped by Mr. Mokoena.
27. The principal called in a female educator to hear the learner out. The learner was more comfortable with another female educator, who was called in, to assist. The learner was told to write a statement, and the learner’s aunt was called into school to be told what had happened. It was then that her aunt informed the learner’s grandmother. Her aunt had later approached the police.
28. In the absence of the employee’s testimony, I am inclined to accept the version of the learner.
29. There is nothing before me to suggest that the learner was untruthful. It is highly improbable that the learner would fabricate such an elaborate story if it were not true.
30. I find the learner’s version to be consistent, reliable, and ultimately plausible in the circumstances.
31. For the brief reasons submitted above I find the employee guilty of the charge levelled against him.

SANCTION

32. In terms of Section 17 (1) of the EEA, an educator, must be dismissed if he or she is found guilty of –
(b) committing an act of sexual assault on a learner; student or other employee.
(c) having a sexual relationship with a learner of a school where he or she is employed.
33. There is no discretion, if found guilty of a Section 17 dispute, and dismissal is the only legislated sanction.
34. It is accepted, and established law that the allegation of sexual advances; inuendoes or relationships by educators, with learners, is not tolerated in the schooling environment. The employee went one step further and committed the heinous act of sexual assault. It is the fundamental right of a child to be educated in a safe environment and this right has been breached. In addition to these types of misconduct being intolerable, they also present as a safety hazard to young vulnerable learners.
35. The educator in the present instance committed statutory rape, which is unwanted sex with a minor. The learner’s aunt has commenced criminal proceedings at the SAPS and should ensure that the criminal matter is pursued through the courts.
36. In view of the educators’ conduct, as outlined hereinabove, the educator cannot be trusted in a schooling environment, or being in the presence of children alone.

AWARD

37. The employee, Mr. Mokoena, is found guilty of Charge 1.
38. The employee, Mr. Mokoena is dismissed, with immediate effect.
39. The employer, The Department of Education-Free State, must inform the employee, Mr. Mokoena of his dismissal immediately, upon receipt, of this award.
40. The Education Labour Relations Council, as the administrator of this Section 188A enquiry, is therefore entitled to:
o In terms of section 122 of the Children's Act, 38 of 2005, to notify the Director General: Department of Social Development, in writing, of the findings of this Arbitration.
o To send a copy of this arbitration award to the South African Council for Educators (SACE), for the revoking of Mr. J Mokoena’s, SACE certificate, though they indeed have their own processes before they do same.
o The employee must be listed in the sexual offenders list as a perpetrator and should not be permitted to work with children.

Signed at Kimberley on this 30th day of October 2023

ELRC PANELLIST
SHIRAZ MAHOMED OSMAN