ELRC176-23/24WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN
CAPE TOWN

Case No ELRC 176-23/24WC

In the matter between


T.Nzimakwe Employee

and

DOE-WC Employer

Date of Award: 07 December 2023
Arbitrator: A.Singh-Bhoopchand


ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This Inquiry by Arbitrator was held on 28 September 2023, 19 October 2023, and 17 November 2023 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, at the offices of the Western Cape Education Department in Cape Town. Mr Nzimakwe (hereinafter referred to as the employee) chose to present his own case despite applying and being allowed legal representation. The employer was represented by Ms Ovayo Tyhaliti, a professional officer within the Labour Relations Directorate of the employer.
2. The 20-year-old learner, the complainant in this matter, was assisted by an intermediary, Mr D. Kova. An interpreter, Ms Jennifer Biko was also present to assist with translation of the learner’s evidence.

3. In keeping with ELRC Policy, the name of the learner is being withheld and she shall be referred to as Learner A.

4. One bundle of documents was handed as evidence and shall be referred to where necessary. A WhatsApp voice note of learner A was also part of the evidence.

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 76 of 1998, (hereinafter referred to as the Act) in that on or about 22 September 2022, you committed an act of sexual assault on Learner A, a learner associated with Dr Nelson Mandela High School by:

1. Kissing her on or about her mouth and/or;
2. Placing her hand on your penis
.

ISSUE IN TO BE DETERMINED
5. I must determine whether the employee is guilty of the allegations against him, and if so, the appropriate sanction.


BACKGROUND
6. Mr Nzimakwe was employed as an educator at the Dr Nelson Mandela High School. He was suspended from service on 22 May 2022 after an investigation into the allegations.

7. He denies the allegations against him.

8. Mr Nzimakwe taught Learner A mathematics. She was in grade 12 at the time of the alleged incident. It is common cause that she had missed writing a scheduled mathematics test as she had been away attending a funeral. Upon her return, she asked Mr Nzimakwe if she could take the test. He agreed and arranged for her to write the test on or about 22 September 2022 in a class where he would be invigilating other learners. The maths paper that she wrote was one hour longer than the paper being written by the other learners on the day. When the other learners completed their paper, Mr Nzimakwe asked learner A to accompany him to his classroom where she could complete her paper. They thus went to his classroom. No other learners were his classroom at the time. Mr Nzimkwe told the learner that she could ask for clarity if she did not understand any question. Further details of what transpired as the learner wrote her paper, and as she was leaving the room after completing her paper, are in dispute.



EVIDENCE
The Employer’s Evidence

Two witnesses testified, namely learner A and an educator Ms Mnotoza. I provide only a brief overview of the evidence.

9. Learner A: She testified that Mr Nzimakwe was her teacher in grade 9, 10 and 11 and again in grade 12. He was a good teacher through the years– he was caring like a parent and always made sure that they did their work. He began to change in her grade 12 year. One day around June/July he came and sat behind her in class. When she turned around, he said that he “wanted her”. When she asked what he meant by this, he said that he wanted to be in a relationship with her. She understood this to mean that he wanted to be in a romantic relationship with her. This shocked her. She saw him as a parent and a protector, and she could not understand why he would want a romantic relationship with her.

10. Following that incident, on another day, Mr Nzimakwe called her while he was standing by the stairs. She went up to him. He told her that he had heard rumours at school that they are in a relationship. She asked him who had said so, but he refused to say. Later that same day, he messaged her on WhatsApp. He said that he will be free in the 6th period and that she should come and see him as he wanted to give her an answer to her question about the rumours. She told him that she would not go to his class as he could tell her whatever he wanted to say on WhatsApp. Thereafter she blocked him, and she did not speak to him on the phone again. She considered it inappropriate for a teacher to text a learner.

11. On the day of the incident, while she was writing the paper, she found that she did not understand question 6. She called Mr Nzimakwe and told him so. He said he would return shortly. He then left the room and when he came back, he said that he could not find the memo. He then wrote something down on paper and gave it to her saying that she should write as he had written. Upon completing the paper, she handed it to Mr Nzimakwe. She then went to the door to leave. The door was locked so she asked him to open the door. He then came close to her and said: “I gave you the answer-what are you going to give me?” She then told him that he should rather scratch that answer as she was not going to give him anything. He then said, “give me a kiss” When she refused, he came close to her and kissed her on her cheek close to her lips. She immediately moved away but he pulled her hand and placed it on his penis. She moved away and he then asked for a goodbye kiss. She refused and said that she would come back the next day. He responded by saying that she took him for a fool as he knew that she would not come back as there would be learners in the class. She then told him that she would come back after school when all the learners had left. As they were talking, another teacher walked past and Mr Nzimkawe then opened the door, and she left.

12. She went downstairs and immediately washed her face and then told a friend what had happened. She felt shocked and afraid and did not know what to do. Her friend told her that she should report the incident. She then reported the matter to Ms Mnotoza, and she also told her mother. She could not reach Ms Mntoza at the time, so she left a voice note for her. Ms Mntoza later responded and said that she would report the matter to the principal.

13. Yolisa Mnotoza: She is an educator at the school. She taught learner A when she was in grade 9 & 10. Learners generally regard her as a motherly figure, and they feel comfortable talking to her. She confirmed that she had received a voice message from learner A in which she reported the allegations in the charge as well as the circumstances under which it happened. Learner A sounded shaky and not like her usual self. She is a quiet reserved child. After she heard the message, she took Mrs Caso the Head of Department, as a witness with her to the principal’ s office to report the matter. She played the voice note for them. The principal said that she would report the matter.

14. She also said that she had testified previously regarding an incident where Mr Nzimakwe had asked a grade 9 learner to come to his class. He was found guilty in respect of that incident, and he was suspended for three months. He also had to pay a fine and he received a Final Written Warning.

The Employees Evidence

15. Thokozani Charles Nzimakwe: He confirmed that he taught learner A when she was in grade 12 in 2022 and that he had also taught her in previous years. He said that they had a normal teacher / learner relationship.

16. He agreed that he had spoken to the learner on the stairs and that he told her that he had heard rumours that they were in a relationship.


17. He confirmed that on the day in question he had told Learner A that she could ask for clarity if she did not understand any question. However, he said that she did not ask for any clarity, He also confirmed that the door was locked while they were in the class. He said he had to lock the door because it was very windy on that day and the door would have blown open if it was not locked.

18. He confirmed that at some point while the learner was busy writing, that he did leave the room. The reason though was because he needed to fetch a red pen.


19. He denied that he had any conversation with the learner as she left the room, and he denied the allegations against him.

20. He believes that Ms Mnotoza has a vendetta against him because she has testified against him previously.


ANALYSIS OF EVIDENCE AND ARGUMENT

The applicable legal principles

21. 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 Employment of Employment Act to the extent that the sanction of dismissal is mandatory if the employee is found guilty.

22. Section 17(1)(b) of the Employment of Educators Act 96 0f 1998 (as amended) 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.

23. 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 impairment 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 the victim is violated or threatened. The element of unlawfulness means that there must not be a justification ground for the action, such as for example consent by the victim or lack of intention to commit the misconduct -in other words accidental unintentional bodily contact is excluded from the definition.

Conduct of a sexual nature perpetrated on learners is also prohibited in terms of the SACE Code of Ethics to which all educators are enjoined to adhere to.

24. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in the light of all the circumstances. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act and the circumstances surrounding the conduct.



Is the employee guilty of the allegations?

25. As is usually the case with incidents of a sexual nature, there are no witnesses to the incident save for the parties involved. I am faced with conflicting versions. The employer must prove the allegations on a balance of probabilities.

26. 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. “

27. 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 come to a conclusion 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 extra curial 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. “

28. Although there are no other witnesses to the incident itself, the voice message that the learner left for Ms Mnotoza is persuasive. I listened to the message during the proceedings. The learner does indeed sound disturbed as testified by Ms Mnotoza. This is consistent with the learner’s testimony that she was shocked and upset by the incident- she reported the incident soon after it happened. It therefore lends credence to the learner’s version.

29. The learner’s description of her reaction after the incident-the fact that she washed her face is a typical reaction of a victim of a sexual assault. Rape victims are known to want to wash themselves immediately. In this case, the first thing that the learner did was to wash her face because she was kissed on the face.


30. The context and background or a build up to the incident also lends credence to the learner’s version. I refer to the learner’s evidence that Mr Nzimkawe had told her that he wanted to be in a romantic relationship with her. This is what probably led to the rumours about them being in a romantic relationship. That there were rumours was confirmed by Mr Nzimakwe himself. There is also evidence that Mr Nzimakwe had tried to lure her to his classroom previously which is also suggestive of his intentions. Against this background, the incident appears to be a natural progression.

31. All in all, the leaner came across as a credible witness. Mr Nzimakwe, on the other hand did not. His version was effectively a bare denial. Although a bare denial does not necessarily mean that he is not telling the truth, his denial must be balanced against the employer’s version and the probabilities. He makes a bald claim that Ms Mnotoza is responsible for his predicament. He provides no reason for why Ms Mnotoza would want to frame him. He provides no explanation for how Ms Mnotoza would get a random learner to fabricate a story with such detail. There is no evidence of any special relationship between Ms Mnotoza and Learner A that would suggest that Ms Mnotoza had any power to influence her to fabricate a story. Neither is there any plausible reason why Learner A would want to fabricate a story. His claim is highly improbable and appears to be nothing more than a desperate attempt to cast blame elsewhere.

32. In the totality of the evidence, the only logical conclusion is that the employer’s version is the more probable version, and that Mr Nzimakwe is guilty of the allegations against him.


33. Section 28(2) of the Republic of South Africa 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.


SANCTION
34. I have already stated that in terms of Section 17 (1) Employment of Educators Act, 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.

35. 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 T. C Nzimakwe, is found guilty of Charge 1.
2. The employee, Mr T.C. Nzimakwe, is dismissed with immediate effect.
3. The employer, The Western Cape Education Department must inform the employee, Mr T.C Nzimakwe 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 Nzimakwe’s SACE Certificate.
5. Mr T.C Nzimakwe is found unsuitable to work with children in terms of section 122(4) of the Children’s Act 38 of 2005.
6. 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 of Social Development inwriting of this finding made in terms of section 120(4) of the Children’s Act 38 0f 2005, that Mr Nzimakwe is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 part B of the register.


A. Singh-Bhoopchand
Arbitrator
ELRC Panellist