ELRC418-22/23LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MODIMOLLE

Case No. ELRC418-22/23LP

In the matter between

MEHLAPE MOTLOANE MARTIN Employee

And

LIMPOPO DEPARTMENT OF EDUCATION Employer

ARBITRATION AWARD (INQUIRY BY ARBITRATOR)

Details of hearing and representation

1. This inquiry is conducted in terms of Section 188A of the Labour Relations Act, 66 of 1995 as amended (the Act). The hearings took place at the Department of Education, NTK Building, Modimolle, Limpopo Province, on the 28th of October 2022, the 30th of November 2022, the10th of March 2023, the 14th of April 2023, the 3rd of July 2023, the 30th of Augus 2023, and was finalized on the 16th of October 2023.
2. The Employee, Mehlape Motloane Martin was interchangeably represented by K.G Ledwaba and Moloko Phooko both from Moloko Phooko Attorneys, while the Employer, Limpopo Department of Education was initially represented by Seleka David and later by Rambau T.R, both being employment relations officials of the Employer. The proceedings were digitally voice recorded and Christinah Kgatle and Herbert Matsenene were the Interpreters. The Intermediary was R.M Kupa. The parties handed in bundles of documents which I marked as follows, Bundle ‘A’ for the Employer and Bundle ‘B’ for the Employee.

Issues to be decided.

3. I must decide whether the Employee is guilty of the cited misconduct levelled against him or not. If guilty, I must determine an appropriate sanction.

Background and common cause issues

4. The Employee, Mehlape Motloane Martin has been employed since the 20th of June 1995. He is currently employed as a Deputy Principal at Jinnah Park Primary School. He was charged with four charges of misconduct (pages 5-8 of Bundle A) and was subjected to a pre-cautionary transfer to the Warmbath Circuit Offices.

Survey of the Employer’s evidence and argument.

Six witnesses testified for the Employer. The first witness for the Employer was Myemi Nontetshelelo Ayanda. Myemi Nontetshelelo Ayanda testified under oath and stated that:

5. She was an Educator at Jinnah Park Primary School. She joined the school in 2020. She was teaching Natural Science, Life Skills, and History. She was teaching Life Orientation in class on the 1st of June 2021 presenting a topic about abuse in a different context. She was making an example of abuse to learners. One learner started to cry, and she took the learner out of the class in trying to find out what was causing the learner to cry. While she and the learner were outside class, another learner who was a friend of the one crying came. She then told the crying learner to speak to her or someone whom the learner trusts. She also told the friend of the crying learner to take her friend to the bathroom and try to calm her down. The crying learner was B, and her friend was K. The learners (B and K) went and spoke to Madam Smith Jeanette (Smith). Madam Smith came to her after school and told her that those learners were telling her (Smith) that the Employee was abusing them. Madam Smith told her that she would find out more the following day ( the 2nd of June 2021).
6. During cross examination, Myemi Nontetshelelo Ayanda testified that B did not say anything to her. K said to her when she was outside class with B, the things that she was teaching were true and they were happening. She disagreed that there was another learner who came and told her what the Employee did to her (learner). B did not tell her why she (B) was crying.

The second witness from the Employer was Margaretha Maria de Bruyn. Margaretha Maria de Bruyn testified under oath and in English that:

7. She was an Educator at Jinnah Park Primary School. She oversaw the School Based Support Team (SBST). She was supportive of all the learners regarding emotional problems, scholastics problems as well as any other problem regarding the educators. On the 1st June 2021 Madam Smith reported to her about three (3) learners who were making allegations of sexual harassment against the Employee (Deputy Principal). She called the three learners to Madam Smith’s class. The three learners explained to her the allegations. She requested the three learners to each write statements which the learners did. The three learners were seated separately from each other when they wrote statements. Those three learners were B, K, and another learner whose name she forgot.
8. One of the three learners told her and Madam Smith that she (learner) did not want to go on with the allegations because the learner was afraid of her father. She was requested to meet with the learners and their parents at the police station the next day.
9. During cross examination, de Bruyn testified that she and Madam Smith spoke to the learners on 2nd of June 2021, and she does not remember why they spoke to the learners on 2nd of June 2021 when the incident was reported to her on the 1st June 2021. She does not agree that the charges against the Employee were fabricated to prevent the Employee from becoming a principal of the school.

The third witness from the Employer was Motalanyane Johannes. Motalanyane Johannes testified under oath that:

10. He was the Chairperson of the School Governing Body (SGB) of Jinnah Park Primary School. He was informed about the allegations against the Employee by the school principal. The SGB had a meeting to discuss the allegations and requested the Employer to precautionary suspend and investigate the Employee.
11. There was no cross examination.

The fourth witness from the Employer was Jeanette Smith-Hirschhorn. Jeanette Smith-Hirschhorn testified under oath and in English that:

12. She was teaching senior phase at Jinnah Park Primary School. There were three (3) learners, B, K, and L who brought complaints about the Educator to her. The learners reported to her that they were feeling uncomfortable with the behaviour of the Employee. She then reported the matter to De Bruyn who was the coordinator of the School Based Support Team.
13. During cross examination, Jeanette Smith-Hirschhorn testified that she does not recall the date of the incident, but the possibility was that it could be 1st of June 2021 at 10h00 before break. She reported the matter to De Bruyn the next morning. The learners indicated to her that the Employee was touching them inappropriately and asking them to kiss him (Employee) in his office. One of the learners said the Employee was looking under her (learner) skirt.

The fifth witness of the Employer was K. K testified under oath that:

14. She is 14 years old. She was in Grade 7 at Jinnah Park Primary School in 2021. In 2020 she was in Grade 6. On 31st of July 2020, she had an argument in class about an assignment. She did not agree with the topic, and she agreed with the Employee that whoever lost should pay. She lost and had to pay the Employee. The Employee told her to go to the Employee’s office and kiss him (Employee). It was after school when learners were leaving the classroom for home. She was left with the Employee. While she was with the Employee another Educator got into class. She then left the classroom for home. She did not tell anyone because she feared the Employee, thinking that the Employee might do something bad to her. She was having a child’s mind. She felt very uncomfortable and scared after been told to kiss the Employee and him (Employee) touching her breast and buttocks. The Employee spoke about waiting for her to finish schooling and the Employee would talk to her parents about marrying her. The Employee would say her breasts were too small and her buttocks too big. The Employee said every pimple on her face was counting the number of boyfriends she was having.
15. When the Employee was teaching in class the Employee would say if they do not understand they should come to the Employee’s office. When they are in the Employee’s office, the Employee would pull them closer to him (Employee). She went to the Employee’s office when she was not understanding something, and the Employee pulled her closer to him. She pushed the Employee’s hands and left the office.
16. The Employee proposed love to her. The Employee wanted her to be his girlfriend and he would go to her parents to propose marriage. She was uncomfortable about that because the Employee was a married person, and she was a primary school child. She was not feeling right because she had spoken
about those things.
17. During cross examination, K testified that during Covid-19 learners were leaving the classrooms in rows, but during the incidents that did not happen. On the day of the incident, she remained in the classroom when everybody was out. Every time she went to the Employee’s office, the Employee would hold her by her waist. The incidents happened before 31 July 2020. She does not remember how many times she went to the Employee’s office, that was why she would say most of the time. She together with B reported the matter to Madam Smith who requested them to write statements.

The sixth witness of the Employer was B. B who testified under oath that:

18. She is 14 years of age. She was schooling at Jinnah Park Primary School doing Grade 6 in 2021. She was harassed by her Deputy Principal, the Employee. The Employee always touched her breast and brought her closer to him. Every time that she would be in the Employee’s office, the Employee would bring her closer to his chest, saying he loves her, and he would marry her. The Employee once looked under her skirt. The incidents usually happened when it was casual day. She was scared that she could not tell her parents. She, together with K and L went to the police station accompanied by their parents and Madam Smith. At the police station they wrote statements but did not receive a case number.
19. During cross examination, B testified that she was harassed by the Employee. She could not remember the dates, but she remembered the incidents. It was possible for the learners to go to the staffroom. The Employee would say he loves her when she went to the Employee’s desk in the classroom. She was in Educator Ayanda’s class when Ayanda was teaching about harassment. Ayanda was the one who she saw crying.

Survey of the Employee’s evidence and argument.

One witness, the employee himself testified. Motloane Martin Mehlape testified under oath and in English that:

20. He was the Deputy Principal at Jinnah Park Primary School since 2017. He was charged with misconduct related to a 2020 incident in 2021. In July 2020 it was not business as usual because learners were alternating coming to school. It was the time that Covid-19 was killing people randomly. The school took a decision that no learner was allowed in offices. No visitors were allowed at school. In class a learner would sit alone on a desk. No learner was allowed close to the teacher. It was impossible for a learner to come to his office because there was a controller at the Administration Block managing access to the offices.
21. He never touched B’s breasts. He did not ask for kiss from a learner in classroom after school because teachers accompany all the learners from the classroom to the gate where learners would be catching their transport. It was impossible to be seen with a learner because the entrance of his office was in front of the reception.
22. During cross examination, Motloane Martin Mehlape testified that page 1 of Bundle B was the copy of the criminal case which was related to this incident, and it was struck off the roll by the court. The matter was a done deal matter because he did not know about the allegations while everybody knew about them. The learners (B and K) who testified in this inquiry fabricated the story against him. He was not the only male teacher at Jinnah Park Primary School. He would not comment on the statement that the learners did not fabricate the story against him.

Analysis of the evidence and arguments

23. The Employer was required to prove on the balance of probabilities that the Employee was guilty of misconduct as charged. The Employee was charged with committing acts of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, 76 of 1998 (the Act) in that, Charge 1, in the year 2021 or any period incidental thereto, at or near Jinnah Park Primary School, he committed an act of sexual assault in that he 1, proposed love to K, a 12 years old learner at Jinnah Park Primary School, 2. Touched K’s buttocks, 3. Touched K’s breasts, 4. Proposed love to B, a 12 years old learner at Jinnah
Park Primary School, 5. Touched B’s buttocks, 6. Touched B’s breasts.
24. Charge 2, he contravened section 18(1)(a) of the Employment of Educators Act, 76 of 1998 (the Act) in that, in the year 2021 or any period incidental thereto, at or near Jinnah Park Primary School, he failed to comply with or contravened the South African Council of Educators Act, 31 of 2000” Code of Professional Ethics”; item 3.5 by failing to avoid any form of humiliation, and refrain from any form of abuse, physical or psychological in that: 1, he proposed love to K, a 12 years old learner at Jinnah Park Primary School, 2. Touched K’s buttocks, 3. Touched K’s breasts, 4. Proposed love to B, a 12 years old learner at Jinnah Park
Primary School, 5. Touched B’s buttocks, 6. Touched B’s breasts.
25. Charge 3, he contravened section 18(1)(a) of the Employment of Educators Act, 76 of 1998 (the Act) in that, in the year 2021 or any period incidental thereto, at or near Jinnah Park Primary School, he failed to comply with or contravened the South African Council of Educators Act, 31 of 2000” Code of Professional Ethics”; item 3.8 by failing to refrain from any form of sexual harassment (physical or otherwise) of the learner in that: 1, he proposed love to K, a 12 years old learner at Jinnah Park Primary School, 2. Touched K’s buttocks, 3. Touched K’s breasts, 4. Proposed love to B, a 12 years old learner at Jinnah Park Primary School, 5. Touched B’s buttocks, 6. Touched B’s breasts.
26. Charge 4, by acting as in charges 1 and 2 above, he failed to comply with or contravened the South African Council of Educators Act, 31 of 2000” Code of Professional Ethics”; item 3.8 by behaving in a way that does not enhance the dignity and status of the teaching profession and that brings the profession into disrepute.
27. In Mudau v MEIBC and others (2013) 34 ILJ 663 (LC) the court held that the Panelist’s mandate in terms of section 188A of the Labour Relations Act, 66 of 1995 as amended is to determine on the balance of probabilities whether an employee has committed an offence for which he or she has been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties. I have considered the closing arguments of the parties, documentary and oral evidence led, in determining the outcome of this matter.
28. The testimony of the Employer in the main was that the B and K were in the classroom where the Educator, Ayanda was teaching Life Orientation. Educator Ayanda was giving examples of abuse to the learners of Grade 7 in 2021. B started to cry, and she was taken out of the classroom by Ayanda. While they were outside the classroom, another learner, K joined them. Ayanda told B to tell any Educator she trusts the reason she was crying. B and K went to Madam Smith. They told Madam Smith that the Employee has been touching them inappropriately and asking for a kiss. One learner told Madam Smith that the Employee looked under her skirt. Madam Smith reported the matter to Educator De Bruyn, who oversaw the School Based Support Team. Madam Smith requested B, K, and another learner to write statements regarding the alleged abuse by the Employee, which they did. The third learner was L and she decided not to proceed with the matter, because she was afraid of her father. Madam Smith together with the parents of B, K and L went to the police station to open a criminal case against the Employee.
29. B and K testified that the Employee would tell the learners to come to his office if there was something that the learners did not understand. Every time that B and K went to the Employee’s office, the Employee would hold them closer to him. The Employee would touch their buttocks and breasts. The Employee would propose love and promise to marry them. B and K would be told by the Employee that he (Employee) would go to their parents and propose marriage. B and K testified that the incident happened in 2020 when they were in Grade 6 at Jinnah Park Primary School. However, they were reminded of the incidents in 2021 while they were in Grade 7 class of Educator Ayanda. Ayanda was teaching life orientation and giving examples of abuse. B and K then thought of these incidents of abuse they suffered in the hands of the Employee in 2020. B and K testified that they feared the Employee to an extent that they did not tell their parents about the abuse (sexual assault) they suffered from the Employee. K testified that during 2020 learners were leaving classroom in a row, but that did not prevent the incident of proposing love by the Employee to happen.
30. The Employee’s testimony in the main was that 2020 was the year of Covid-19. The school took a decision that no learner was allowed closer to an Educator. Visitors were also not allowed on the school premises. It was impossible for a learner to access his office. Learners were leaving the classroom in a row and accompanied by Educators up to the gate. The Employee further testified that he never touched B’s breasts and asked kiss from a learner. During cross examination, the Employee testified that B and K fabricated a story against him. However, the Employee failed to comment on the statement that B and K were not fabricating story against him. The Employee also testified during cross examination that he was not the only male Educator at Jinnah Park Primary School.
31. Based on the testimony of both the Employer and the Employee, I deduced that there could have been sexual harassment of learners B and K by the Employee. The Employee in his evidence in chief failed to challenge the evidence of all the witnesses of the Employer. The Employee only testified about the situation at school during Covid-19 pandemic. The fact that learners were not allowed close to an Educator and in the Employee’s, office do not give guarantee that the Employee could not have sexually harassed B and K. It was still possible that B and K would go to the Employee’s office whenever there was something they did not understand in class. The Employee went further to testify that he never touched B’s breasts and neither did he ask for kiss from a learner. I do not
believe this evidence by the Employee. The Employee referred to page 1 of his bundle, Bundle B. This document was a copy of a case docket that the Employee testified that was related to a criminal case opened by B and K against him, and that case was struck off the roll. When I look at the document, I do not see any names of B and K on it. This evidence is misleading. The case docket does not relate to the criminal case opened by B and K. The Employee failed to convince me why B and K would have chosen him amongst all the male Educators at Jinnah Park Primary School and fabricate sexual harassment stories against him.
32. The evidence of the Employer is more probable than the evidence of the Employee. It is not possible that a learner who was 13 years in 2021 fabricate stories about incidents which happened a year ago (2020). Even though both B and K could not remember the exact dates of the incidents, they were able to testify where and how the incidents occurred. B would not have cried if nothing
had happened related to the incidents. Both B and K knew the Educator who was harassing them sexually. Both B and K explained to their Educators about the incidents. They did not have problems in writing statement and going to the police station to open a criminal case against the Employee. If the incident never happened B and K would have refused to write statements and opened a criminal case against the Employee.
33. In view of the above analysis, it is therefore my finding that the Employer has on a balance of probabilities proved that the Employee committed the misconduct and as such he is found guilty of Charge 1. Charge 1 involves a contravention of section 17(1)(b) of the Employment of Educators Act, 76 of 1998. I find that the other charges brought against the Employee amount to an unwarranted splitting of charges since the evidence required to prove Charge 1 is likewise required to prove them. The Employer was a little zealous in the formulation of the charges against the Employee.
34. Having found the Employee guilty as charged in terms of section 17(1)(b) of the Act, the sanction of dismissal is mandatory, irrespective of the mitigating factors. The interests of the learner should prevail. Sexual assault of a learner is not acceptable in a school environment. Educators play the role of parents at school. They must ensure that learners are educated and not sexually harassed.
35. Section 120(1)(c) of the Children’s Act, 38 of 2005 makes provisions for a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. The Employee was found guilty as charged. Considering the above, I make the finding on the unsuitability of the Employee to work with children in terms of section 120(2) of the Children’s Act, 38 of 2005.

Award

36. I find that the Employee, Mehlape Motloane Martin is guilty of misconduct as charged.
37. I impose the sanction of mandatory dismissal with immediate effect.
38. Mr. Mehlape Motloane Martin is found unsuitable to work with children in terms section 120(4) of the Children’s Act, 38 of 2005.
39. The General Secretary of the ELRC must, in terms of section 122 (1) of the Children’s Act, 38 of 2005, notify the Director General: Department of Social Development in writing of the findings this forum has made in terms of Section
120(4) of the Children’s Act, 38 of 2005 that Mr. Mehlape Motloane Martin is unsuitable to work with children and for the Director General to enter his name as contemplated in section 120 in part B of the register of sexual offenders.

VICTOR MADULA
ELRC PANELIST
30 October 2023