ELRC117-23/24WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN
CAPE TOWN

Case No: ELRC 117-23/24 WC

In the matter between

SIVATHO RIGALA Employee

and

DOE-WC Employer

Date of Award:19 November 2023
Arbitrator: A. Singh-Bhoopchand

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This Inquiry by Arbitrator was convened for hearing in terms of the provisions of section 188A of the Labour Relations Act no.66 of 1995, as amended (LRA) read together with the provisions of Collective Agreement 3 of 2018. The hearings were held over several days namely the, 15th of June 2023, the 21st of July 2023,the 28th of July 2023, the 18th of August 2023, the 13th of September 2023, the 20th of September 2023, and the 27th of October 2023. The matter was concluded when the final closing arguments were submitted on the 3rd of November 2023.

2. Mr Rigala, the employee, was represented by Mr J Adams, a representative of the trade union SADTU. The employer was represented by Ms Vuyokazi,Mthunzi a professional officer within the Labour Relations Directorate of the employer.


3. The minor learner, the complainant in this matter, was assisted by an intermediary, Mr Kova. Mr Kova also assisted the learner with language interpretation.

4. Two bundles of documents were submitted as supporting evidence to the oral testimonies.


5. The proceedings were digitally recorded, and long hand notes were also kept.

6. In keeping with the ELRC policy, the identity of the minor learner is protected, and she shall accordingly be referred to as learner “A”.


THE ALLEGATIONS

CHARGE 1

It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act No. 76 of 1998 (EEA), in that on or about January 2022, you committed an act of sexual assault on a grade 9 learner at Masakheke High School by:

a). Having sexual intercourse with her without her consent.
b). Kissing her on the lips


ISSUE IN TO BE DETERMINED

7. I must determine whether the employee is guilty of the allegations against him.

BACKGROUND

8. Mr Rigala was employed as an educator at the Masakheka High School. Following an alleged incident of assault perpetrated by Mr Rigala on learner A during December 2022, the learner informed her parents that she had been impregnated by Mr Rigala and that he had sexually assaulted her when he had sexual intercourse with her during or about January 2022 at his house. Learner A was fifteen years old at the time. Learner A’s father then reported the matter to the South African Police which resulted in his arrest and incarceration. He was still incaserated when this process began but he has since been released on bail. He is facing criminal charges of rape and assault. The criminal case/s are yet to be concluded.


9. Mr Rigala pleaded not guilty to the allegations against him. It is common cause that he has a clean disciplinary record; that he has a Foundation through which he performs community work including teaching children art and providing counselling and guidance to children that experience behavioral and mental health issues. He also
writes poetry. Mr Rigala claims to have played the role of a teacher, parent, mentor, pastor, and a counsellor to young children.

10. His version is that given his strong positive involvement with children through his Foundation he is someone that would not harm children in any way; that the learner had a “crush” on him and that she has been “used” by unknown persons to frame him and thus discredit him and cause his downfall and that the social media messages and conversations brought to theses proceedings in support of the Learner’s claims are a from fake account purporting to be his account.

EVIDENCE

I provide only a brief overview of the evidence led as all the evidence is on record. I shall refer to the evidence in more detail in my analysis.

The Employer’s Evidence

11. The main witness for the employer was Learner A. Her testimony in the main was that Mr Rigala began communicating with her privately on a facebook group that had created for school -work purposes. In his first communication in January 2022, he asked about her sexual preference -that is whether she preferred girls or boys. He then asked for her cellular phone number which she gave to him. This was followed by a request from him of pictures of her in the nude. She was surprised by this request, and she refused but he continued to beg her for the pictures. She then provided him with pictures of someone with a similar sized body as hers which she downloaded from the internet. She cut off the head so that he would not know that it was not her. He was very happy with the pictures and asked for more. She did not provide him with any more pictures but after this incident she viewed him in a different light at school. When she was at school, she often wondered what he was thinking. He warned her not to stare at him in class otherwise people would become aware that there was something happening between them. Soon thereafter she received a message from him saying that he loved her and that he wanted to have a relationship with her. At some point he had also asked her whether he could be “toxic” with her. Her response was “no”. When he asked her why she refused, she said that it is because he is old. His response was that he was then the right person to give her a nice experience. He asked her to delete these chats. He said that he could lose his job if this became known.

12. He continued to ask her to meet him. She eventually agreed to meet him at his house, and he provided her with directions to his house. When she got to his house, she found Mr Riagala seated in the lounge with a friend named Luvuyo. There were beer bottles lying around. Luvuyo soon left after introducing himself. After Luvuyo left, Mr Rigala came over to where she was seated and sat himself on the armrest. He moved close to her and tried to kiss her, but she pushed him away. He reacted in an angry manner after she pushed him away. She tried to stand up and he came and stood in front of her and forcefully kissed her. He then pulled her, and a scuffle ensued. He appeared to be very angry and during the scuffle, she fell to the ground. While she was on the ground, he unbuckled her jeans and pulled it off her. He then pulled down his pants without removing it completely. He then penetrated her without a condom. She began to cry but as the music was on, no one would have heard her. After he was done, he went to his room to clean himself. He returned with a big blue towel which he gave to her. He told her that she could wipe herself and that he was leaving. He said that she could stay a while if she wished and that when she left, she could pull the door closed. She wiped herself, had a glass of water and then went home and had a shower. She did not tell anyone what happened.

13. After the incident she stopped talking to Mr Rigala and he also did not try to talk to her. He never asked her if she was all right. However, he did confront her about the way she looked at him.

14. Her monthly period was due on 7 February 2022, but it did not happen. She informed Mr Rigala of this on 10 February 2022. He tried to calm her and said that she should not worry and that she would soon begin her period. When she failed to get her period by the end of February, she informed him, and he told her to take a pregnancy test. The test confirmed that she was pregnant. She took a picture of the result and sent it to Mr Rigala. He then asked to meet her during break, and he told her to have an abortion. She was very afraid, but she could not tell her parents as they are very strict. She searched online and obtained the details of a doctor who provided her with pills which Mr Rigala paid for. She collected the pills from Mr Rigala’s house. She and Mr Rigala continued to talk at school – she told him that the pills were not working. She did not take the pills. He then said that they should come up with another plan. The plan was that she should sleep with someone else and blame that person for impregnating her. She felt that that was a better plan rather than killing the child. She then slept with someone that she knew from church choir, a boy named Sanele. She informed Mr Rigala that she had slept with Sanele. He said that after she completed matric, the truth will be told, and he will re-imburse Sanele.

15. She miscarried the child when she was seven months pregnant, and she was away from school for a while.


16. She had evidence on her phone of what transpired between her and Mr Rigala. Mr Rigala sent people to her home to try and steal her phone. She was not at home at the time. She has been able to retrieve some of the messages that were on her phone for the purposes of this hearing.

17. I will not record the lengthy and detailed cross examination of Learner ‘A” but shall refer to relevant points raised in my analysis.


18. The only other witness for the employer was Learner A’ s father. I do not identify him to keep the learner’s identity private. He testified that he learnt of his daughter’s pregnancy for the first time only when she began to complain of back pain. He arranged for her to see a doctor who confirmed that she was pregnant. He was shocked as to his knowledge she did not have a boyfriend. He asked his daughter who the father of the child was, and she gave a name that he does not recall. On the 13th of August 2022 she suffered a miscarriage.

19. On the 5th of December 2022 it was brought to his attention by his daughter’s friend, Annalita, that his daughter had been assaulted by Mr Rigala. Both girls then spoke about the details of the assault that happened on the 4th of December 2022 at Mr Rigala’s house. It is only then that he was told that it was in fact Mr Rigala that had impregnated his daughter. He was very angry when he learnt of this. He reported the matter to the police and Mr Rigala was arrested and charged for assault and rape.


20. He did not speak to Mr Rigala. He only heard his version in court where he confessed that he had sex with his daughter. He said that his daughter had harassed him. He finds it questionable that Mr Rigala did not report this alleged harassment to the school principal or to a social worker.

21. His daughter is severely traumatised by everything that has happened to her. He has also been stressed by what has happened.


22. On the 18th of December 2022 he was informed by his neighbours that two men were looking for his house. The neighbours reported that the men had been sent by Mr Rigala to look for his daughter’s phone.

23. Three ladies held his daughter hostage in a vehicle and begged her to withdraw the charges against Mr Rigala. Mr Rigala’s sister and his partners also contacted her and asked her to withdraw the charges.

The Employees Evidence

24. Mr Rigala testified that he first taught Learner ‘A’ in 2019 and that he never had any relationship with her other than that of a learner / educator relationship. He first started communicating with her in August 2022 because he noticed that she had been absent from school for a long time. He asked her friend Annalita for her contact number. Learner A’s response to his enquiry about her whereabouts was that she had had a miscarriage. He offered her his support and they subsequently communicated randomly when she updated him about her progress. In November 2022 she messaged him and asked him whether it was true that he was getting married. He considered this to be an unusual question form a learner even though it was common knowledge in the community that he was getting married.

25. He denied that the learner came to his house in January 2022. She did come to his house on the 2nd of May 2022 with her friend Annalita after an event. The next time she came to his house was on the 4th of December 2022. He denied that he assaulted her on that day. However, he had become very angry because the learner accused him of sleeping with her. He said he went to the kitchen and took a knife and held it close to the learner while questioning her. His wife held him back. He then left the room, went to the back, and cried.

26. Regarding the screenshots of WhatsApp conversations in the employer’s bundle pages 1-8, he denied the content thereof in so far as they relate to him. He said that the Face Book profile purporting to be his profile is not his and that it is a fake profile. He said that he suspects that the learner was the sender and the receiver of the messages; that she had created the fake profiles and that this was part of an orchestrated plan (by unknown adult persons) to bring him down, probably his colleagues and School Management staff. He also said when asked why the Learner would make up the allegations, that it was, he assumed, because the Learner had a crush on him though he could not say what she had done to give him this impression. He further assumed that the Learner had given him signs that she had a crush on him and that he had rejected her.

27. In response to the question as to why he did not report the learner’s behaviour to the principal, he said that in hindsight he should have done so but he was too shocked at the time.


28. Luvuyo Gonono testified that he is a friend of Mr Rigala and that he lives at the back of Mr Rigal’s house. He said that he first met the learner in May 2022 – he remembers this date because it was after a Dira Foundation event. He denied that he first met her in January 2022.

ANALYSIS

The applicable legal principles

29. The employer bears the onus to prove the allegations on a balance of probabilities. Any misconduct of a sexual nature is viewed in a very serious light in terms of the EEA to the extent that the sanction of dismissal is mandatory if the employee is found guilty.

30. Section 17(1)(b) of the EEA reads as follows:


An educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student, or other employee.

31. Assault is defined in our law as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires in another person a belief that such impairent of his bodily integrity is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened.

32. There can be no defence of consensual sex as in our law minors are incapable of consent.


33. Any act of a sexual nature is prohibited in terms of the SACE Code of Ethics to which all educators are enjoined to adhere to.

Is the employee guilty of the allegations?

34. I am faced with two conflicting versions and in terms of the specific allegations-the evidence of a single witness, a minor child at that. These are the challenges in evaluating the evidence. In cases of a sexual nature there are usually no witnesses other than the perpetrator and the victim. Unlike in a criminal trial, there is no need for an employer to prove the guilt of an employee beyond reasonable doubt. Proof on a balance of probability is sufficient.

35. The test for whether something has been proved on a balance of probabilities is whether the version of the party bearing the onus, is more probable than not. In determining the probabilities, evidence is assessed against human experience, logic, and common sense. Evidence must be evaluated holistically and not piecemeal.

“The credibility of the witnesses and the probability and improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the Respondent’s version. “

36. In dealing with conflicting versions the Supreme Court of Appeal has provided guidance:

“The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows: To conclude on the dispute issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; (c) the probabilities. As to (a) , the courts finding on the credibility of a particular witness will depend on its impressions about the veracity of the witness, That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance , such as (i) the witnesses’s candour and demeanour in the witness box, (ii) his bias, latent and blatant,(iii) internal contradictions in his evidence,(iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects on his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. “

37. Children, in this case a teenager, do not act and react in the same manner as adults, and it is therefore naïve to evaluate their evidence in the same way as one would evaluate the evidence of adults. Courts have recognised that the evidence of children cannot be assessed in the same way as the evidence of adults, that it may be wrong to apply adult tests for credibility to the evidence of children; that a fair trial must not only take into account the rights of the accused but also the rights and capabilities of children , that a contradiction in a child’s testimony should not necessarily be given the same effect as a similar flaw in the testimony of an adult and that evidence if given by an adult may have had a deficiency so grave as to require rejection of it as incredible, may in the case of a child be explicable as due to the limitation of a child’s immaturity rather than lack of rationality. In this case I must also consider that teenagers are at an impressionable age.

38. In terms of the cautionary rule of evidence in relation to child witnesses and single witneses, it does not mean that the evidence of children must be above any critisim. It requires only that the evidence accepted should be substantially satisfactory in relation to material issues or that it should be corroborated by other evidence. There is no rigid rule that corroboration must always be present before a child’s evidence is accepted. What is required of a presiding officer is a detailed evaluation, not confined to demeanour, of the extent to which the evidence of a child could be regarded as reliable and acceptable.


39. Overall, the question is not whether a witness is wholly truthful in all she says, but whether the arbitrator is satisfied that the story which the witness tells is a true one in its essential features.

40. I was impressed by the learner as a witness who despite being subjected to a lengthy and rigorous cross examination was consistent in her main story. The union was at pains to point out contradictions in her story. They related mainly to her getting exact dates, times, and other minor details wrong. This is not unexpected given her age, the trauma of having to testify and the difficulty in having to talk about a sexual experience in the presence of strange adults. The union argues for example that the learner changed her terminology when she accused Mr Rigala of sleeping with her (consensually) and then changing it to forcing himself on her. In my view, she was clearly uncomfortable when describing the sexual act. It was simply easier to refer to the whole episode as “sleeping with her”. Her testimony was clear that he forcefully kissed her and then penetrated her when she fell to the ground while tring to push him away.


41. The learners story began with what can only be described as a typical scenario of “grooming” of a potential victim. He gave her the impression that he was interested in pursuing a romantic relationship with her and that he was “in love” with her. Though she did not articulate this, it was clear that she was flattered by his interest in her and that she believed that his interest was genuine. It is against this background that she was lured to his house. She did not expect the sudden sexual assault.

42. The union made much of the fact that she did not report the assault to anyone at the time and that she saved Mr Rigala’s name with a heart icon after being sexually assaulted. This is by no means fatal to the learner’s version. 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 penalised for the consequences of their abuse by blaming them for the delay. As for the heart icon, it is quite possible and plausible that she had developed feelings for him despite the incident.

43. The testimony of the learner’s father was persuasive. He corroborated the learner’s version that someone had been sent by Mr Rigala to steal the learner’s phone because of the incriminating conversations that were in her phone. Mr Rigala testified that the person named by the learner and her father in this regard, is in fact the learners’ uncle and therefore could not have been sent by Mr Rigala. This was never put to the learner or her father. The evidence is thus untested and falls to be rejected.

44. The evidence of the employer must be balanced against that of the employee. Mr Rigala was at pains to point out that he has a strong community involvement for the betterment of children. This, by itself does not mean that he is incapable of perpetrating a sexual assault against a child. His defence is largely a conspiracy theory. His claim of the fake Face Book Account is improbable. In her testimony, the Learner referred several times to her struggle to obtain money for data whenever she needed to use the internet. It is therefore unlikely that she would have so much access to the internet to create false accounts. It is also unlikely that she would have gone to such great lengths to fabricate evidence against him. In fact, the evidence was that she was trying to protect Mr Rigala by agreeing to go to the extent of sleeping with someone so that she could blame her pregnancy on that person. Mr Rigala had already warned her in social media chats that if it were known that he was the father of her child, that he would lose his job. Had it not been for the assault on her on the 4th of December 2022, the learner would have probably continued to protect him.

45. His conspiracy theory goes further, with his claim that the plan to bring him down was orchestrated by adults who used the learner. He said that it was probably his colleagues and the School Management, yet he had no evidence to support his theory. In fact, he said that it was an assumption on his part. There was no explanation or reason provided as to why these individuals would choose a random learner, and to make her go to such lengths to fabricate evidence against him. It is not just improbable, but highly improbable.

46. It is also questionable, if it is indeed so that the learner had harassed him, why he did not report this to the school Principal. Furthermore, given the work that his charitable Foundation performs, it is questionable why he did not refer the learner for counselling when he learnt of her miscarriage, or at the very least report her condition to the school principal so that counselling could be arranged through the school channels. His inaction in this regard speaks volumes and is yet another reason to conclude that his version is improbable, and that the version of the learner is the more probable one.


FINDING

47. I find Mr Rigala guilty of Charge 1(a) and 1(b).

SANCTION


48. Section 28(2) of the Constitution of the Republic of South Africa, 1996 provides that the best interests of the child are of paramount importance in every matter concerning the child. I have accordingly considered the effect that this decision will have on the life of this child as well as the other children in that school and any other that the educator may be tasked to teach in his teaching career. Children have a right to be protected, more especially in the school environment where they are placed in the care of educators.


49. I have already stated that in terms of Section 17 (1) of the EEA, an educator must be dismissed if he or she is found guilty of misconduct of a sexual nature with a learner of a school where he or she is employed.

50. There is no discretion for the arbitrator to consider any other alternative sanction, short of dismissal. Dismissal is the statutory sanction.


AWARD
1. The employee, Mr Sivatho Rigala is found guilty of Charge 1(a) and 1(b).

2. The employee, Mr Sivatho Rigala, is dismissed with immediate effect.


3. The employer, The Western Cape Education Department must inform the employee, Mr Sivatho Rigala of his dismissal immediately upon receipt of this award.

4. The Education Labour Relations Council as the Administrator of this Section 188A inquiry is entitled in terms of section 122 of the Children’s Act, Act 38 of 2005, to notify the Director General: Department of Social Development, in writing of the findings of this Tribunal.
To send a copy of this arbitration award to the South African Council for Educators (SACE) for the revoking of Mr Sivatho Rigala’s SACE Certificate

5. The employee is declared unfit to work with children i.t.o section 120 (4) of the aforementioned Children’s Act.

A. Singh-Bhoopchand
Arbitrator
ELRC Panellist