ELRC92-23/24KZN

Case : ELRC92 - 23/24KZN
Date of Award: 16 November 2023
Panelist : Vuyiso Ngcengeni
Province : KwaZulu Natal
Employee : Siyabonga Phumlani Mbuyazi
Employer : Department of Education – KwaZulu Natal
Issue : Inquiry by Arbitrator
Venue : Pietermaritzburg

Employer representative : Ms N Magoso
Telephone : 079 519 8473
Email : Nontobeko.MazibukoMagoso@kzndoe.gov.za

Employee Representative : Mr S Mvelase
Cell : 082 611 7043
Email : harrygwala@gmail.com


ARBITRATION AWARD
IN THE SECTION 180A INQUIRY BY ARBITRATOR

DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was scheduled before me on a number of days, the first being the 27th June and 2nd October 2023.

2. The matter was held under the auspices of the Education Labour Relations Council (the Council) in terms of s188A of the Labour Relations Act of 1996 as amended (LRA) in conjunction with Collective Agreement 3 of 2018 which allows for such cases to be held accordingly.

3. The Employee was present and he was represented by Mr S Mvelase, from SADTU trade union. The Employer was represented by Ms N Magoso. Since the matter involves an underage child, there was also an intermediary, and that was Ms BF Khanyile.

4. The hearing was conducted in English, there was an isiZulu interpreter. The hearing was electronically recorded.
5. The Employer submitted one bundle which consists of the charge sheet and six pages of print out copies of alleged communication between the Learner and the Employee. The Employee was charged with the following: -

Charge 1: It is alleged that in December 2022, you committed an act of sexual assault to a learner by the name of AZ (Learner) thereby contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998 as amended –

Count 1: It is alleged that you sent whatsapp messages with sexual connotations to a learner by the name of AZ as per documents in Bundle A.

Count 2: It is alleged that you asked the learner by the name of AZ to send you sexy pictures.

Count 3: It is alleged that you sent a picture of male private part to a learner by the name of AZ.

6. The Employee denies the charge and all its counts.

7. I received all the closing arguments by the 10th of October 2023.

ISSUE TO BE DETERMINED
8. I am called upon to determine whether the Employee is guilty of the charge laid against him and if so, determine the appropriate sanction.

BACKGROUND TO THE DISPUTE
9. The inquiry was held after the allegations stated above became known by the Employer. The Employer then suspended the Employee on 14 April 2023, and referred the matter to the Council for Inquiry By Arbitrator.

10. The Employee was employed on 15 February 2015 and he joined his currently, Eastwood Secondary School on 20 June 2018. The school falls under Northdale circuit, which is in Umgungundlovu district. He is a level one educator.

11. The learner, AZ was 17 years old at the time of the arbitration and she was a grade 12 learner at the same school, Eastwood Secondary school (the school).

SURVEY OF EVIDENCE AND SUBMISSIONS
Employer’s case
The learner (AZ) testified under oath as follows:-
12. The Employee was her Maths teacher at the beginning of 2023, but he was no longer teaching her at the time of his suspension.

13. She has a relationship with him, which is an online dating and it started on December 2022 and continued until January 2023. It ended after the schools have re-opened in 2023.

14. The relationship started when in December 2022, she asked him when were they supposed to collect their school reports. He responded to her question and further asked her if she can keep a secret, to which she said yes, she can. He then said he could see that, since in class, she was a quiet girl.

15. Her enquiry about a report was via a whatsapp platform, after she got his cell phone number from a whatsapp group which they created for history learners.

16. She cannot remember some of the things he said to her, but he used to call her “baby”. She told him that she was not comfortable with what was happening, and he told her to relax and calm down as no one would find out.

17. After some time, he asked her to send him her nude pictures. She did not do that and she told him that she does not take nude pictures. He said he would start because she was scared, and he sent the pictures. After the first one, she said “thank you”, and he then sent others.

18. She asked him if they were going to have sex as he had requested and he did not respond. She told him that it would be better on another day because she was scared.

19. After the schools have opened on January 2023, she told him that she was not comfortable with him and that even in the class, she could no longer focus. He said he could see that. He told her that they should just stop it and that she must delete everything, which to her meant delete the whatsapp chats. Since she had taken screen shots of the whatsapp chats, the screen shots remained.

20. On pages 1 to 6 are the screen shots of their whatsapp conversations. The name at the top of all the screen shots is Mbuyazi, and there is no cell phone number reflected. There is also no date on the chats. The conversation from page 2 read thus –

Mbuyazi: Ngiyeza ngizokhlalisa
Response (no cell number: Lol woza babe
Mbuyazi: Lol ngyeza love sobabambana kshisha kunjalo
Response: Yeah, with emoji showing hands covering the eys
Mbuyazi: Mmmm lavele lavuma mangikhuluma nawe, with emoji covering both eyes
Response: Yin evukayo, with emoji covering the mouth
Mbuyazi: Ilona, with three emojis normally used on social media to reflect a penis.
Response: Mhhhm, with two emojis, one covering eyes, one smiling.
Mbuyazi: Zolthola Monday babe.
Response: Mhm alright, with emoji covering the eyes.
Mbuyazi: Yes babe. Wenzani kushisa kanje
…
Page 4
Mbuyazi: ok babe Ngizokwenzanjalo. I love u
Response: I love you too, with two hearts emojis.
Mbuyazi: Beginning with a heart emoji And kade wangichaza ngamehlo akho amahle and sinezinto zamadlozi sobabili. So ngizokphatha kahle babe.
Response: Mhm sthembe uzowamela amagama akho, emoji with eyes inserted, how do you know nginento yedlozi
….
page 5
Mbuyazi: S creen shot showing a picture of a penis and a very small part of what appears to be a white clothing on the upper waste is shown.
Response: Thanks babe.
Mbuyazi: Uzozbonela wena Monday babe selvukile.
Response: Mhm..manj Monday so heva
Mbuyazi: If ufuna babe. Cs iskath ngeke saba naso mase kuvuliwe sekufundwa zonke.
Response: Ai cha ngiyasaba kowenzzek ngeny day

page 6
Mbuyazi: Lapho u are so sexy, with a happy emoji.
Response: Thnk u cthandwa sam, with two smiling emojis and one with a hdand covering the mouth.
Mbuyazi: Starting with three emojis of a face and one of a heart, wena ngizokukhotha all over
Response: Mhmm can’t wait
Mbuyazi: Nam I cant mmmmm I will such it uze uchame, and two smiling emojis.
Response: four emojis, two crying, one covering mouth and one covering eyes.
Mbuyazi: Ey babe I cant wait. Kade ngathanda and kade ngakfuna, with a heart emoji.
Response: with a loughing emoji, Pho wongasho ngan

21. She does not know how did the school come to know about these conversations, she just saw her father coming to the school to report the incident and also to see the Employee.

22. The chats were sent to her mother, Khanyi, by her boyfriend who took them from her phone when he was viewing her pictures. The Employee cannot deny knowledge of these chats because she was chatting with him and he also asked her for her sexy nudes and sent a picture of his penis to her.

23. Her knowledge of online dating is that they were just dating online by using phones and it would end there, without having to physically meet. At school, she was not going to meet him, she was only going to see him in a class as he was teaching her.

24. The Employee has never touched her in an unbecoming manner. When he told her to delete the whatsapp chats, he did not mention the reasons for that and he also did not tell her why they should keep the issue a secret.

25. It was not appropriate for the Employee to have the chats with her, which are of a sexual nature. The purpose of the group was for the Employee to circulate notes, and had she blocked him, she was not going to access the notes in the group.

26. Cross examination- In 2022, she was in grade 11 – C or D, she cannot recall clearly. She is not sure as to how many grade 11 classes were at the school. She was doing Maths lit, Histiry, English, isiZulu, Tourism and Life Orientation. She cannot recall who was her class teacher.

27. Mr Duma is the one who issued reports on December 2022, but she cannot recall if he was her class teacher. The Employee was not her class teacher.

28. She asked the Employee for the reports because he was the one who was in the same chat group with her. It was at the beginning of December when she asked for the reports, and the reports were handed out later on in the month.

29. She got the Employee’s cell number from the group as she had not saved it. She could see some of the numbers in the group as to whom do they belong, since some people wrote their names. That does not mean that those who wrote the names could be identified as such, but others do write their real names.

30. The group was created in January 2021 and she cannot recall who added her into the group. She cannot recall who its administrator was. The Employee was a History teacher from the beginning of 2022. She cannot deny that at the beginning of 2022, the Employee was not a history teacher and that he started on the second half of the year.

31. Her first chat with the Employee was about when would they receive their reports. That chat is not part of the bundle, because not all the chats are in the bundle. She took the screen shots for her friend, not for everyone. Her friend suggested that they should post the chats onto the group.

32. She had done online dating before and it is only online and they don’t have to see each other. She was going to see the Employee only when he came to teach in the class, and they would not meet privately.

33. She took the Employee’s cell number from the group and she saved it by his name, that is Mbuyazi. She agrees that if she were to save the number by any other name, such as “dog”, the number will be replaced by such a name. All the names in her phone were allocated by her. (NB)

34. She told him that she was not comfortable with the chats and di so on many times. Those chats are not in the bundle. She knows that she can block a person when she does not want to chat with, however, not blocking him does not mean she was not uncomfortable with the chats.

35. It is not correct to say she cannot be trusted because she cannot remember certain things. The teachers at the school time table was changing regularly, so that is why she cannot remember them.

36. She cannot remember whether the chats were sent on December 2021 or January 2022, since the dates are not reflected. The first page was in December. The chats are not in a sequential order.

37. The picture of a penis on page 5 is from the Employee and she can see that through the lower part of the body, since she knows him. The screen shot is not as full as it was, there were three of such pictures and page 5 is one of them. On one of the pictures not in the bundle, he was not naked on his upper body and she could identify him because she knows his body shape. She agrees that people may have similar body shapes, and that could apply to the Employee.

38. She agrees that there are private pictures online, however, the one in the bundle is that of the Employee, because she was chating with him.

39. They were chatting after school and during that time, she was staying at Mbali township.

40. At first, her boyfriend sent the pictures to her mother. She begged him not to do that, but he insisted and did it. She is not aware of the reasons for her boyfriend to do what he did. He sent them to his phone, then he took her parents cell phone numbers from her around January 2023, and that is when he sent them to her mother, using his own phone. That was after two weeks since he had taken the screen shots.

41. She does not know how the screen shots ended up in her mother’s phone. Her father could have gotten them from her mother.

42. She did not delete the screen shots as she intended to post them on the social media. She and her friend wanted to expose the Employee and his filth. She did not go to the principal, as she was scared.

43. Her boyfriend got the pictures from her towards the end of January 2023. At that time, she had not yet exposed the Employee because she was scared. There would be no reason for her to save the number with the Employee’s name, if it was not his cell phone number.

44. She agrees that had she not saved the number using the Employee’s name, the cell phone number could now be reflected in the chats.

45. She denies that she intentionally saved the number using Mbuyazi’s name because she wanted it to appear as though she was chatting with him, when in fact that was not the case.

46. As reflected on page 5 at the top, she responded after the penis picture by saying “thanks babe”, because she wanted him to feel as though she appreciated what he did. She denies that in the chats, she was chatting with her boyfriend.

47. She never confirmed with the Employee whether the chats were actually between her and himself. (NB). She knew that the messages were from him.

48. She has never seen the Employee outside of the school. She saw him on July 2023, after the first sitting of the arbitration in Maqonqo, where she also has a home. He was passing by in his vehicle with his wife and he was going to a different direction.

49. When she said she never saw him outside of the school, she though the question was about the two of them meeting. She cannot recall seeing him again, at anyplace at all.


Ms Khanyisile Lembethe (Khanyi) testified on behalf of the Employer as follows: -
50. She is the AZ’s mother. She knows about the messages and she got them from AZ’s boyfriend via a whatsapp platform. After seeing them, she was not happy, and that was in January 2023.

51. She read the messages and then she forwarded them to AZ’s father, who in turn went to the school, after saying he did not know how best to deal with the matter. She did not speak with AZ about the messages, before her father went to school. The name ‘Khanyi”which appears in the screenshots refers to her.

52. The boy who sent the messages to her stated that Mbuyazi was a teacher at the school, and that is how she became aware of this fact.

53. Cross examination – Before seeing the messages, she was not aware that AZ had a boyfriend and she had never seen him, even after seeing the messages. The boy said the screenshots were messages from AZ’s phone and said he wanted her to know that there are other people involved with AZ, so if something happens to her (AZ), she should not come to him. The boy said AZ has told him that she had told her parents about him.

54. She is certain that the chats in the screenshots were from AZ’s phone and she bases that on the type of conversations, which speaks about Mbali, where they used to stay and also that they were going to meet at Edenvale mall. These stated conversations were in the voice notes and they are not included in the bundle. Also, the learner at the time was wearing traditional bangles as she has ancestral calling.

55. The boyfriend said Mbuyazi was a teacher and that the chats came from him (Employee), that is what made her to believe that the Employee was the one behind the chats. The boyfriend was no longer at the school, after he matriculated in 2021.

56. She denies that the chats were not coming from the Employee, as there was no reason for AZ’s boyfriend to implicate the Employee. Even if AZ may have had problems with her boyfriend, they would not have implicated the Employee, seeing that the chats did not just happen on one day, they took place over a long period of time.

57. The screenshots are written Mbuyazi at the top. That does not mean they were between Khanyi (herself) and Mbuyazi, they were between Mbuyazi and AZ.

58. She concedes that AZ could save a cell number on her phone by any name she so chooses and when she chats, the chats would then appear as though she (AZ) was chatting with that specific person, whose name she would have allocated.

59. It sometimes happen that one can be able to see a person’s name on the whatsapp chat group, even if the primary person does not have the cell phone numbers of the other person, just as AZ said she did not have the Employee’s number.

60. AZ has said that the child appearing in what she alleged was the Employee’s profile pic, is the Employee’s child. She said this when she was interviewed by the Employer representative.

61. She does not know anything about AZ’s father having previously belonged to a same political faction of a political organisation as the Employee, and later, the Employee turned against him and thus leading to him losing his seat as a Councillor in the local municipality.

62. The reasons for her not to have gone to the school after seeing the chats were that she was at work, and AZ’s father was the one who was available. She denies that the story regarding the chats is a manufactured one, aimed at getting rid of the Employee, following his bad political history involving AZ’s father.

THE EMPLOYER ARGUEMENTS
63. The Employee said that AZ did not get his cell phone number of from the group chats of the class, but she was given the number by him and at no stage did he indicate why did he gave her his number, the only inference that can be drawn is that he gave her the number so that they can chats as she testified that they had an online dating.

64. AZ would not have maintained in her evidence that she took the Employee’s number from the class group chats, if she was given it by him, there is no need to dispute that. The chat in the document confirms that the main witness and the Employee were in a relationship.

65. The Employee alleged that AZ’s boyfriend found out about the chats between her and other boyfriend and then he sent them to her mother, but the Employee failed to mention the name of that boyfriend. Commissioner it is the submission of the Employer that the he did not mention the name of the other boyfriend because he knew very well that the other boyfriend for the chats is indeed himself.

66. The Employee is denying the number that is saved as Mbuyazi even if AZ, as the one who took the number confirmed that she took the number of the Employee, he failed to proof the owner of the number and did not tell us who was saved as Mbuyazi as he alleged that the number does not belong to him.

67. The Employee contradicted himself during his evidence in chief when he said that most of the time his status on WhatsApp is written Zanemvula, but during that time he is not sure what was written, as opposed to his evidence that the only people who will see his status are the one in his contact now if he says he is not sure what was written at that time, commissioner at this point in time were are leading evidence that the applicant witness testified that she took the number from the history class group chats, she was able to identify his number from there. The respondent during cross examination of AZ, the version was put to her that he gave her his number.

68. The Employee cannot claim now that AZ was not in his contact if she was not why then did, he gave her the number.

69. The Employer’s evidence is supported by the WhatsApp chats. The Employee and AZ were in a relationship, that there were chats which contained sexual connotation and that the educator did send the picture of his penis to AZ.

70. The Employer’s evidence must be admitted as true and the Employee has put the department of Education into disrepute. The Employee has contravened the Code of Conduct and Ethics of SACE as well as the Employment of Educator Act 76 of 1998.

71. If the respondent is found guilty of the offence he must be put on the register of the Sexual Offender.

Employee’s case
The Employee testified under oath as follows: -

72. He has been a teacher at the school since 20 June 2018 and he teaches Social Science and History on grades 9, 10 and 12. He is a grade 10-H class teacher.

73. He first knew AZ from grade 10, and that was in 2021. He categorically denies the allegations levelled against him as they are false. It was a mystery to him when he was informed about these allegations in March 2023, by the deputy Principal, Mr Pillay.

74. He was shocked because he and AZ’s parents stay about 500 meters apart and yet her father, who is a former community leader as he was a Councillor, failed to communicate with him.

75. He took the learners in 2021 to Blood river museum in Ncome (outside Vryhed), in 2022, he took them to Durban hollocust museum. He had planned to take them away this year, in grade 12, before he was suspended.

76. It is impossible for him to have sent the said chats to AZ. He has known her from grade 9, and he knows her father too, so he cannot now send such messages. Since they stay on the same community, he sees her every time when he fetches water at the communal tap and also on the bus stop when she is waiting for the bus to school.

77. There is no way that he could have had such conversations with AZ, knowing that her father was a politician and that he may be connected.

78. At the school, he has organised extra classes that sit on Saturdays and that has been going on for a long time and the learners are not guarded by anyone else, and nothing has ever happened. So it does not make sense at all that all of a sudden, he would start sending the chats and the pictures to AZ.

79. In 2022, after the school’s classes were hit by storm, he was asked to assist on grade 11 learners and that is when he began to teach such learners.

80. He denies that AZ texted him on December 2022, asking for school reports, as there was no need for that. AZ’s class teacher at the time was Mr Duma and in any case, the learners had already gotten their school reports.

81. He did not create the whatsapp chat group in 2022. One of his work ethic is that he liaises with learners on a face to face basis and he keeps his notes in the file, in the class. The only whatsapp group he knows about is the one that as created by the grade 11-E learners.

82. The issue of Saturday classes was discussed on an ad-hoc basis, normally on Mondays and they would agree or not agree. Where they agreed, he would on Wednesdays issue letters, informing the parents accordingly.

83. The screen shots are written “Mbuyazi”and this is because we live in a time where children are socially wise, such that they can take another person’s name and save it with a different person. As an example, one can even save a number as “God” and they would appear as if they were chatting with God and then take screen shots reflecting such.

84. The only thing that attached him to the chats is his surname and there is nothing else.

85. Most of the time on his status on whatsapp, his name is Zanemvula, not Mbuyazi. He does not know what was written on his status at the time when the chats allegedly took place, but on this year, 2023, his status name is Zanemvula.

86. As he lives at Maqonqo, when he goes to fetch water in the nearby communal tap, he normally sees AZ and that has been the case since 2019. It is not true that AZ only saw him once after June 2023 as she uses the spaza shop which is next to the communal tap and she and her friends would normally be just outside the spaza shop and greet him. Since June 2023, he has seen her about four times.

87. When he came to the area (Maqonqo) in 2019, there were many complaints raised by the community on issues such as water. He and AZ’father belonged to the same political organisation. He was close to Mr Thina Maphumulo and in 2021 local government campaigns, they denied AZ’s father an opportunity to campaign and as a result, he ended up losing his post as a Councillor. That soured his relationship with AZ’s father such that even now, it is still bad and when he greets him (AZ’s father), he does not respond.

88. It is clear that AZ is affected by her father’s loss of a job, so anything that her parents say, she would comply. He sees AZ’s father almost every day. The screenshots have nothing in common with him, except his surname, not even the fact that he is an Educator or his area, Maqonqo are mentioned. The screen shots are not authentic and they can easily be printed these days, using technology.

89. He taught AZ this year, 2023 and he did not notice any difference on her at all, up to about March when he organised extra classes and she came to the class and there was no problem. He saw nothing untoward on her behaviour.

90. He saw the screen shots for the first time when he was being suspended.

91. He knew of the Grade 11-E whatsapp group and AZ did not belong to that group, she belonged to a grade 11-F group. In the Grade 11-E group, his name appeared as Mr Mbuyazi (History).

92. Cross examination – He was teaching at Unobhala School before coming to Eastwood. Unobhala is also within Umgungundlovu district. He came to the school after he was placed on suspension for 11 months whilst he was a Unobhala, and there was still no conclusion.

93. The allegations that were levelled against him at Unobhala were never proven, until he came to Eastwood.

94. He denies that he was transferred to Eastwood after the communicaty of Unobhala school chased him away. He stayed in that community and he was placed on suspension for 11 months without being charged until he came to the Council and demanded that he be charged or the suspension be lifted.

95. He did not apply for a transfer, he was not even offered an opportunity to choose another school, neither was he aware of Eastwood school.

96. He did not see a reason to put the issue of the excursions he had undertaken at the school to AZ, as the evidence thereof is at the school.

97. There are unknown persons in this matter, including the person who sent the screenshots to AZ’s mother and AZ’s father and they were never called to come and testify. The whole issue is based on speculation and the only thing that draws him onto it, is his surname.

98. The screen shots are tempered with as so many people are said to have had the screenshots go through them, as well as those that have created them. It is unfair that he is expected to respond to such.

99. AZ’s father is connected in the department of Education, and that was told to him by Pillay.

THE EMPLOYEE ARGUMENTS
100. The screenshots presented by the Employer are inconsistent because they have no logic in terms of the continuity of conversations as there are fragments of different conversations. There is nothing materially verifying that the conversations without any doubt are coming from him. The only thing that appears on top is how the contact was saved by the learner (saved as Mbuyazi) which does not point to him as one can save the contact in his or her own preference.

101. AZ clearly rehearsed what was on the screenshots as they have been in her possession for some time. In her evidence she said she engaged on online dating with the Employee which was odd because she is from Maqongqo the same place where he stays. When asked how she was sure that the picture of male genitals allegedly sent to her was the Employee’s, she stated that she imagined that it was the Employee’s as she saw him on a daily basis in class.

102. The imaginations are not material as they are based on her opinion. That alone clearly shows that she can imagine things and bring them to her own reality even if they are not so.

103. AZ’s evidence was marred with contradictions throughout the process with some of evidence she presented not in the bundle and she said she deliberately left it out as she wanted to only what was in the bundle to be seen and that is contradictory to the behaviour on a person wanting to expose the transgressor.

104. AZ failed to provide whatsapp chat conversations as verification but relied on the screenshots knowing very well that there are so many ways to create screenshot using many apps such as whatsapp mocks or simple saving someone’s conversations with another persons name so that one can implicate another person.’

105. In this regard, AZ is not a credible witness and her father and the Employee are in the opposing political camps and this influenced her to testify using fabricated evidence that does not stand rational test of authenticity

106. The Employer had the task to lead its evidence to erase any doubt but failed to do so. First they failed to call key witnesses to prove their case. One of the key witnesses whom his name was mentioned so many times was AZ’s father, who according to the evidence presented by both witnesses is the one who reported the case to school. The Employer also failed to call AZ’s boyfriend to account on the authenticity of the screenshots which would have helped the hearing to divide facts from fiction.

107. Both Employer’s witnesses agreed that the messages can be manipulated by using another person’s name in another person’s number. Furthermore the Employer failed to clarify how the evidence was stored to safeguard its authenticity as it has been in the hands of five individuals namely: AZ, her boyfriend, her mother, her father and the Acting Principal then finally reaching the hands of the Employer. That further left the huge gap for further manipulation.

108. The preponderance of evidence in the light of the of the above submissions shows that the evidence provided by the Employer failed to prove that the Employee is guilty of the charges laid against him.

ANALYSIS OF EVIDENCE AND ARGUMENTS
109. In Mudau v MEIBC and others (2013) 34 ILJ 663 (LC) the Court held that the Panelist's mandate in terms of section 188A is to determine on a balance of probabilities whether an Employee has committed an offence for which he/she has been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties. The terms of reference for the Arbitrator in terms of section 188A are, unless indicated otherwise, limited to determining whether an Employee has committed an offence and, if so, whether there exists a basis in fairness to terminate the employment relationship.

110. AZ averred that she had a relationship with him, which is an online dating and it started on December 2022 and continued until January 2023. It ended after the schools have re-opened in 2023. She further averred that the relationship started when in December 2022, she asked him when were they supposed to collect their school reports and that in his response, he asked if she could keep a secret, to which she said yes.

111. She submitted that he used to call her “baby” and when she told him that she was uncomfortable with what was happening, he told her to relax and calm down as no one would find out. After some time, he asked her to send him her nude pictures, which he did not do. He then started by sending his own pictures, displaying his penis. She asked him if they were going to have sex as he had requested and he did not respond.

112. During cross examination, she mentioned that Mr Duma is the one who issued reports on December 2022, but she asked the Employee for the reports because he was the one who was in the same chat group with her.

113. She stated that she got the Employee’s cell number from the group and she conceded that if she were to save the number by any other name, such as “dog”, the number will be reflected by such a name. All the names in her phone were allocated by her.

114. Khanyi stated that she got the chats from AZ’s boyfriend via a whatsapp platform in January 2023. She then forwarded them to AZ’s father, who in turn went to the school. She did not speak with AZ about the messages, before her father went to school. The name ‘Khanyi” which appears in the screenshots refers to her. The boy who sent the messages to her stated that Mbuyazi was a teacher at the school, and that is how she became aware of this fact.

115. The Employee said that it is impossible for him to have sent the said chats to A, whom he had known since she was in grade 9, and he knows her father too, so he could not in December 2022, start sending messages to her. He further said that there was no way that he could have had such conversations with AZ, knowing that her father was a politician and that he may be connected.

116. He denied that AZ texted him on December 2022 asking for school reports, as there was no need for that. AZ’s class teacher at the time was Mr Duma and in any case, the learners had already gotten their school reports.

117. He stated that he did not create the whatsapp chat group in 2022.

118. The Employee further stated that the screen shots are written “Mbuyazi” and this is because we live in a time where children are socially wise, such that they can take another person’s name and save it with a different person and such names would be the names appearing on her phone during the chats. The only thing that attached him to the chats is his surname and there is nothing else, not even the fact that he is an Educator or his area, Maqonqo are mentioned. The screen shots are not authentic and they can easily be printed these days, using technology.

119. Regard must be had to the few critical facts in this matter and those are: AZ said she got the Employee’s number from the group; that she is the one who saved the number on her cell phone by the Employee’s surname; her admission that she could have saved any number by any name she so chose.

120. It is worth noting, albeit strangely, that although this matter hinges so much in cell phone conversations and whom the conversations were between, there is not a single cell phone number that was submitted by either party, more especially, the Employer. Further, there is not a single cell phone number that appears in the screenshots, AZ’s name is also not mentioned at all in the screenshots. The only name that appears in all the screenshots at the top left is that of “Khanyi” and AZ’s mother has mentioned that such name referred to her.

121. AZ admitted that nudes /pictures of people’s private parts exist on the internet, but she said that the one contained in the bundle is that of the Employee, and the basis for that is because she was chatting with him. Her basis therefore are incredulous in my view, as she could not provide any evidence to substantiate that behind the name “Mbuyazi” which she created and saved on her phone, actually lies the Employee’s cell numbers.

122. In light of the above, regards must further be had to the fact that it is true that we live in times of abundance flow of information and such is accompanied by misinformation, particularly in social media. We live in times where so much information is accessible through the internet and that includes pictures of virtually anything. .

123. The foregoing goes hand in glove with editing and manipulation if images, names and conversations for a variety of purposes which those involved would seek to pursue. In this regard, the Employee’s submission that the screenshots lack authenticity as they could have been easily manufactured through the very social media, to implicate him is plausible.

124. AZ mentioned that she is the one who initiated the conversation by enquiring from the Employee as to when would they receive the reports for the end of the year. She said she took the Employee’s name from the group and she asked him because she was the only teacher in the group.

125. The above is disputed by the Employee. It is common cause that the Employee was not AZ’s class teacher. Asking for the date in which school reports would be released is a general public question, which anyone would have asked from any person. No evidence was provided as to why then did AZ go to such strides as to write down the number and save it by the Employee’s name and then privately, enquire about reports, a public question that she could have effortlessly written in the group and any person in the group could have responded.

126. It is important to note that the Employee denied having belonged to the group in which AZ said she obtained his numbers from. There is no information that was provided at all by the Employer in relation to the existence of such a group which would have shed light on how was it created, who were its members and who was its administrator and responsible to add members.

127. Having regard to the conspectus of evidence placed before me, I am of the view that on the balance of probabilities, the Employer has failed to discharge the evidentiary burden that it had in this case. It follows therefore that the Employee is not guilty of the charge and all its counts.


AWARD

128. The Employee, Mr SP Mbuyazi is not guilty of the charge laid against him.

129. The Employee’s suspension is hereby lifted with immediate effect.

130. The Employee is ordered to report back to work within three days after receiving this award.




Vuyiso Ngcengeni
Panelist / Commissioner