ELRC435-23/24EC

Panellist/s: Jonathan Gruss
Case No.: ELRC435-23/24EC
Date of Award: 13 December 2023

In the DISCIPLINARY ENQUIRY between:

BONEKELE SODOLI (Employee)

and


DEPARTMENT OF EDUCATION : EASTERN CAPE
(Employer)

Employee’s representative: Mr Mhlonto (NAPTOSA)


Employer’s representative: Mr Tsheko


DETAILS OF HEARING AND REPRESENTATION

1. This matter was set-down for an enquiry by arbitrator as provided for in terms of Clause 32 of the ELRC Dispute Resolution Procedures read with clause 3 of ELRC Collective Agreement 3 of 2018. The enquiry takes the form of a Section 188A of the Labour Relations Act, Act 66 of 1995 enquiry by arbitrator. The enquiry was scheduled on 30 October 20223 and 7 December 2023 at the Magistrates Court in Mdantsane in East London. The accused Employee, Bonakele Sodoli was represented by Mr Mhlontlo from NAPTOSA. The employer, Department of Education: Eastern Cape was represented by Mr Tsheko.

BACKGROUNDS

2. The matter was set-down for an enquiry by arbitrator initially on 30 October 2023, at the commencement of proceedings there was a preliminary point raised by the Employee claiming that he did not consent to the enquiry by arbitration and that Schedule 2 of the Employment of Educators Act does not provide for such procedures and Section 188A requires consent. I issued an oral ruling on record that the preliminary point is dismissed in that Clause 32 of the ELRC Dispute Resolution Procedures read with clause 3 of ELRC Collective Agreement 3 of 2018 provides for an enquiry by arbitrator where sexual misconduct is suspected. Section 188A(1) prescribes that the employer may with the consent of the employee or in accordance with a collective agreement, requests the Council to appoint an arbitrator to conduct an enquiry into allegations about conduct or capacity of an employee.

3. The Employer’s representative indicated that the charges of sexual misconduct involves three complainants , Milile Chabalala, Dambile Mahle and Lukhangela Ngcaphu and the alleged incident occurred during April / May 2020 and the matter was reported by the SGB based on messages placed on social media. Currently the witnesses were unavailable, Ms Chabalala was in Mthatha attending to a bereavement in her family, Ms Ngcaphu was busy writing her final Grade 12 examinations and Ms Mahle was in Cape Town studying at University and also writing examinations. On the instance and request of the Employer due to the unavailability of the witnesses this matter was postponed for 7 and 8 December 2023. This date was chosen in that the schools would be closed for holidays and those writing examinations would have been available to testify. The Employer was however cautioned that should any of his witnesses not attend the next enquiry date the Employer will have to rest with the witnesses available. The Employee pleaded to the charges after further particulars were provided. The matter was thereafter postponed so that the Employer could arrange the attendance of their witnesses.

4. When the matter reconvened on 7 December 2023, Mr Tsheko the Employer’s representative indicated that they were still experiencing difficulties with their witnesses. Ms Milile Chabalala who previous was writing exams who is 23 years old was in Mdantsane but was busy baby sitting and therefore unavailable to give evidence. Ms Lukhangela Ngcaphu who also wrote Std 12 this year cannot be traced, the same goes for Ms Dambile Mahle who is at University in Cape Town, and she also cannot be located or traced.

CHARGES

5. The Employee was charged with three (3) incidents of misconduct.

5.1 Contravening section 17(1) (b) of the Employment of Educators Act 76 of 1998 as amended by committing an act of sexual harassment.
(a) You committed an act of sexual assault to a grade 12 learner in that you in class said “ Yeses wena mntana ndini umnandi ebedini” (translated means “Jesus you can satisfy a man in bed.”)

(b) You committed an act of sexual assault to a grade 12 learner in that you made calls sometimes they would be around 02h00 in the morning, to inform her that you had sex with Thando and lower the phone to show your naked bodies and sometimes wrapped in a towel.

(c) You committed an act of sexual assault to a grade 12 learner in that you during physics period, you would get to the table to rub your cheeks against hers cheeks. You would at times ask that “Ngaske ndibenomfazi onjengawe” (translated means “How I could wish I could have a wife like you”)

6. As alluded to, a not guilty plea was entered by the Employee as relates to the charges claiming that he did not commit the misconduct as alleged.
7. Due to the absence of the Employer’s witnesses, the respondent closed their case without calling any witnesses.
8. The Employee’s representative in closing argued that the alleged incidents’ occurred during April / May 2020 and during that period the schools were closed due to the Covid lockdown and only opened on 8 June 2020 and 1 July 2020. Therefore, Mr Mhlontlo argued that when the alleged misconduct was allegedly committed the “victims” and the Employee were not at school and therefore it was improbable that any misconduct was committed.

FINDING

9. I’m required to determine whether the Employee is guilty of committing an act of sexual harassment as set out in the charge sheet. In the absence of any evidence implicating the Employee I find the Employee, Mr Sodoli not guilty and as such, such a verdict is recorded on all three (3) charges.

AWARD

10. The Employee, Bonakele Sodoli (Persal Number 52141799) is found not guilty of contravening Section 17 (1) (b) of the Employment of Educators Act, 76 of 1998 as amended by committing acts of sexual harassment by:
10.1 An act of sexual assault to a grade 12 learner in that he allegedly said to Lukhangela Ngcaphu in class “Yeses wena mntana ndini umnandi ebedini” (translated means “Jesus you can satisfy a man in bed.”)
10.2 An act of sexual assault to a grade 12 learner, Dambile Mahle in that he called her sometimes around 02h00 in the morning, to inform her that you had sex with Thando and lower the phone to show her his naked bodies and sometimes wrapped in a towel.
10.3 An act of sexual assault to a grade 12 learner Milile Chabalala in that he during physics period, would get to the table to rub his cheeks against her cheeks and would at times say “Ngaske ndibenomfazi onjengawe” (translated means “How I could wish I could have a wife like you”)

Name: Jonathan Gruss
(ELRC) Arbitrator