ELRC144-23/24 WC

Commissioner: Gail McEwan
Case No.: ELRC144-23/24 WC
Date of Award: 13 December 2023

In the ARBITRATION between:

LUYANDA DYASOPU
(Employee)

and

THE WESTERN CAPE DEPARTMENT OF EDUCATION
(Employer)

Union/Employee’s representative: Luyanda Dyasopu

Employer’s representative: Kaizer Mbobo

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. Arbitration was held on 5 September 2023, 3 November 2023 and 30 November 2023. It was held virtually with the consent of the parties. Present was Luyanda Dyasopu (employee) who was represented by Eben Simons (Attorney – Simons Van Staden Attorneys). The Western Cape Department of Education (DOE) (employer) was represented by Kaizer Mbobo (labour relations officer). The Certificate of Outcome declaring this matter unresolved at conciliation is on file and is dated 19 June 2023. These proceedings were digitally recorded and both parties handed in bundles of documents electronically. The parties agreed that Dyasopu would be legally represented by Simons.

THE ISSUE IN DISPUTE

2. I am required to determine on a balance of probabilities whether the dismissal of Dyasopu was fair on substantive and procedural grounds.

3. I have considered all the evidence and arguments, but because the Labour Relations Act 66 of 1995 (the LRA) requires brief reasons (section 138(7)), I have only referred to the evidence and arguments that I regard as necessary to substantiate my findings and the determination of the dispute.

THE BACKGROUND TO THE DISPUTE

4. Dyasopu started working for the employer on 1 January 2015; worked as the Head of Department (HOD) and acting principal of Dlikidla Primary School in Beaufort West. He earned R32 417.37 per month and was dismissed on 8 May 2023. Dyasopu was charged with the following allegations: “(1) It is alleged that you are guilty of misconduct in terms of section 17(1)(d) of the Employment of Educators Act, no. 76 of 1998 (The Act), in that on or about 25 October 2022, you seriously assaulted Bongani Bokodo an employee of H.M Dlikidla Primary School, with the intention to cause grievous bodily harm by driving your vehicle, at a speed in an attempt to knock Sibongiseni Cekiso but instead hit Bokodo which resulted in injuries to his shoulder and/or knees; (1) (b): Alternative to charge 1: It is alleged that you are guilty of misconduct in terms of section 18(1)(r) of the Act, in that on or about 25 October 2022, you assaulted Bokodo, an employee of H.M Dlikidla Primary School, by knocking him with your vehicle when you attempted to knock Cekiso which resulted in Bokodo suffering from injuries to his shoulder and/or knees; (2) It is alleged that you are guilty of misconduct in terms of section 18 (1) (r) of the Act, in that you on or about 25 October 2022, assaulted Cekiso, an employee of H. M. Dlikidla Primary School by hitting him on his hand and/or neck.”

5. We spent some time narrowing down the issues in dispute and on the procedural side it was said that the SADTU representative had not been available in Oudtshoorn on 14 and 15 March 2023 and Dyasopu had requested a postponement which had not been granted. Dyasopu had left the hearing which had then continued in his absence. It was also held that Dyasopu had requested a bathroom break which had been refused which led him to wet himself and he had to buy new trousers. Dyasopu handed in a medical certificate for his absence on 15 March 2023. On the substantive side it was submitted that there had been some degree of provocation”. Mbobo held at arbitration that Dyasopu had unlawfully and without permission got information out of the individual files of people.

SUMMARY OF EVIDENCE AND ARGUMENT

The employer’s version and testimony was as follows:-

6. At the request of the employer we changed from a Zoom meeting to a Microsoft Teams meeting in order to view some video clips taken from the security cameras at the school. The video clips are without sound.
• The first clip watched is of the staff room where little is seen except for a desk and chair.
• The second clip shows Dyasopu walking towards his parked vehicle which is a silver/grey colour. He gets into the vehicle and reverses it at speed through a side gate at the school and then drives off up the side road where the vehicle turns left into another road and drives off.
• The third clip shows Dyasopu in the same vehicle coming up fast in the side road towards the corner where he previously had turned left. Dyasopu is seen turning the corner at speed where he leaves the tarred road; goes onto the pavement where three men are walking and bumps into one at speed with his vehicle. Dyasopu drives a short way past the accident scene then turns his vehicle around and slows down to look at the person he had run down with his vehicle. Dyasopu then heads off back down the side street. There are people running around and a vehicle arrives which loads the injured Bokodo plus another into the vehicle and drives off (we are told to take the injured man to the hospital).

7. Kaizer Mbobo (labour Relations) testified Dyasopu was given the notification to attend the disciplinary hearing on 2 March 2023 and therefore had ten days in which to prepare for the hearing which meant that the DOE complied with the procedural requirements of five days. Mbobo confirmed that the charges were very serious and therefore fell under section 17 (1) (d) of the Act. On 8 March 2023 Dyasopu was given an electronic copy of the bundle of documents to be used by the DOE. Dyasopu had many sheets of paper and was told to put them together into a paginated bundle. On 9 March 2023 Dyasopu was told that legal representation would not be allowed in the internal hearing and that he should arrange a union representative or a fellow colleague. Mbobo was present at the Oudtshoorn office for the two days on which the disciplinary hearing would take place on 14 and 15 March 2023. Dyasopu had signed in at 08h55 and the hearing was due to commence at 09h00. Brief introductions were made and Dyasopu requested a private meeting with Mbobo. The chair gave them thirty minutes. Dyasopu explained that he was present only to request a postponement as SADTU had not been available and his bundle of documents was not ready. Dyasopu also said that he had been told not to bring any of his witnesses and refused to tell his version of the events which led to his dismissal. SADTU is a National Union with many officials or colleagues that could have been representing Dyasopu as there had not been any short notice. The DOE had brought their six witnesses four of which were taken out of the school for the one day. Therefore a postponement was denied. There had been costs incurred by the DOE in all the arrangements. Mbobo had an off the record informal meeting with Dyasopu and Mbobo was called back to the hearing. The chair ruled that the hearing must proceed and Mbobo handed out documents that would be used. Dyasopu requested a bathroom break. Dyasopu had told the chair that he had to postpone the hearing to 24 March 2023 or Dyasopu would leave. Within five minutes Dyasopu had again requested a bathroom break and the chair said Dyasopu was simply wasting time and declined the further break. Dyasopu got up and left after saying the proceedings should proceed in his absence. Had Dyasopu not attended at all the matter would have proceeded in his absence and yet Dyasopu, with a dismissive wave of his hand had said the hearing should proceed but he would be leaving. Dyasopu went to his vehicle and left. Mbobo had told Dyasopu that it would be better if he said he was not well and Dyasopu had waved that suggestion off. Mbobo explained that it was untrue that Dyasopu wet his pants and that this was new evidence. Dyasopu had reported for work on 15 March 2023 and the sick certificate is a fake.

8. At the commencement of arbitration I had told Dyasopu that he needed to be alone and should ask his wife to take care of the children. At this juncture Mbobo raised a point that Dyasopu was not alone in the room. He stated that the conduct of Dyasopu was contrary to clause 142 (8) (g) and that he was in contempt by allowing others into the room. Mbobo also retracted his evidence regarding the whereabouts of Dyasopu on 15 March 2023 as the principal (Sylvia Nonsikolo) had sent two items to Mbobo. This confirmed that Dyasopu was absent from work on 15 March 2023 and that the medical certificate only covered the one day.

9. In cross-examination Mbobo confirmed that in terms of point 5.1 of schedule 2 of the Act the DOE was required to give an employee five days’ notice of a disciplinary hearing. On 9 March 2023 the chair had advised Dyasopu that legal representation would not be permitted in an internal disciplinary hearing. The hearing was to take place on 14 plus 15 March 2023 and from 9 to 14 March 2023 there had been five days’ notice although the notification had been served on Dyasopu on 2 March 2023. Mbobo held that therefore SADTU and Dyasopu had sufficient time (ten days) to prepare. Dyasopu was served on time and the DOE had no control over what Dyasopu had done between 9 and 14 March 2023. Mbobo and Dyasopu had spoken during a thirty-minute break and no representation had been arranged with SADTU. Also Dyasopu had told his witnesses that they were not required on 14 March 2023. Mbobo confirmed that on 15 March 2023 Dyasopu had been off sick. It was put to Mbobo that Dyasopu was making copies of his documents and instructing others. Mbobo confirmed that on 8 March 2023 he had sent Dyasopu an electronic copy of the DOE’s bundle of documents. It was put to Mbobo that he and the chair had put Dyasopu under pressure and he had wet his pants. Mbobo said that this was untrue and it was expected of Dyasopu to have told him or the chair if he had been unhappy. Mbobo added that it was a fallacy that Dyasopu was unfairly treated and this version had never been raised at the appeal hearing. Mbobo explained that Dyasopu had been wearing a blue suite and he had never wet himself. In addition there was no sign that the floor was wet where Dyasopu had been standing and Dyasopu never said he had wet himself. When Dyasopu had dismissively said to continue in his absence his pants had been dry and therefore Dyasopu was being untruthful. There had not been a wet seat or floor. Dyasopu was booked off sick on 15 March 2023 and no reason was given other than that he had a cold. It was put to Mbobo that the code Z00 or 200 is for a urinary tract infection (after arbitration I checked the code and found the following: 2023 ICD-10-CM Diagnosis Code Z00.00: Encounter for general adult medical examination without abnormal findings.). Mbobo held that no numbers are usually given on medical certificates. It was put to Mbobo that the chair had asked Dyasopu when the hearing would be held if a postponement was granted and Dyasopu had given the date of 24 March 2023. Mbobo was reminded that Dyasopu had returned to the hearing with this date written on his hand. Mbobo explained that section 17 (d) offences are very serious resulting in a mandatory dismissal if found guilty. In section 18 (1) there can still be a dismissal depending on the evidence. Mbobo said that the video evidence made the offence very serious and therefore the charge had been made under section 17. There was no doubt that Dyasopu ran his vehicle into Bokodo and injured him. There was nothing in re-examination.

10. Sibongiseni Cekiso (level one 1 educator who reported to Dyasopu as HOD) testified that he had joined the school in October 2018. Dyasopu is a colleague and HOD for English and Natural Sciences. Cekiso read out the charges against Dyasopu found on ER bundle page 3. Cekiso had been present on 25 October 2022 and charge 2 related directly to Cekiso. On 25 October 2022 there had been a staff meeting arranged by the HOD’s, Dyasopu and Xolani Makibi (HOD). The curriculum had been discussed and general matters relating to the school. Towards the end of the meeting arrangements were being made to form a committee with Velisa Mfatiekiso (educator now HOD). Dyasopu had wanted to be on that committee but this was objected to by Sisonke Daweti (educator Grade 4 mathematics and life skills) who had tried to explain that it was a bad idea for Dyasopu and Mfatiekiso to be on the same committee. Cekiso had tried to give support to this notion and Dyasopu had jumped up and pointed his finger in the face of Cekiso saying he would not entertain this suggestion. Dyasopu continued to point his finger in the face of Cekiso and had asked Mfatiekiso if he could speak to Cekiso regarding his behavior. Cekiso told Dyasopu that he was not happy with the manner in which he had been addressed. Dyasopu had snapped and asked Cekiso who he is to tell Dyasopu how to speak. Cekiso stood up and Dyasopu pointed his finger almost in the eyes of Cekiso. Dyasopu grabbed Cekiso who tried to push him away. Dyasopu grabbed Cekiso and punched him in the neck. Cekiso grabbed Dyasopu and pushed him to the floor as he was stronger than Dyasopu. 

Another educator entered the room and held Mfatiekiso. The t-shirt of Cekiso had been torn when Dyasopu was falling to the floor when he had grabbed onto the t-shirt worn by Cekiso. It had only been Dyasopu and Cekiso in the staff room at the time. Cekiso left the room as he wanted to get out of that situation. About seven to eight educators had been in the meeting. This had been the first time Dyasopu was accused of threatening someone. Dyasopu had previously been in a fist fight in front of the learners. Cekiso had been accused by another of assaulting him which was not true and was found to be untrue. Cekiso and two colleagues walked to the main gate and at the corner of the road from the side street a vehicle had revved and then at speed came towards where they were walking on the pavement. The vehicle was traveling at speed and things happened very fast. Dyasopu was the driver of the vehicle which hit Bokodo and Cekiso ran back to the school for help. Cekiso was referred to charge 1 and explained that Dyasopu drove a silver/grey BMW with which he had knocked down Bokodo. Dyasopu had exited his vehicle so hence Cekiso had run to get help. 

Bokodo sustained injuries and had to be taken to the hospital for treatment. Bokodo could raise his arm and his knees were injured. It was clear that Dyasopu had intended to run down Cekiso and Bokodo had been unlucky that he got hit. The school was tense when Dyasopu was around and since his dismissal the school is much calmer and all feel much safer. At the school there is now peace and harmony and even the learners feel it. Referring to ER bundle page 51 and 52 Cekiso explained that no-one had felt safe at the school and hence all had signed a petition in this regard. The petition calls for the removal of Dyasopu as after the incident when he had nearly killed Bokodo no-one felt safe. Cekiso confirmed that he could never again work with Dyasopu as he feels unsafe even now that he had given his evidence in regards to what had happened.

11. In cross-examination it was put to Cekiso that his version of events and those of Dyasopu are very different. Cekiso explained that Dyasopu had not been at the school very long and frankly they never got to know each other over the two to three months he had been at the school. Dyasopu was the new HOD. The tone of approach used by Dyasopu was wrong when they had interacted. Cekiso saw nothing wrong but Dyasopu made things unpleasant. Cekiso had mentioned this to Nonosikilelo Mbese (principal) prior to 25 October 2023. Cekiso had not been disciplined for the events that happened on 25 October 2023. Cekiso explained that he had not hit Dyasopu although he had pushed him. Cekiso had landed on top of Dyasopu during the scuffle and denied that he had made Dyasopu bleed at the mouth. Cekiso had seen Dyasopu the following day. It was put to Cekiso that Dyasopu had blood from his mouth when Cekiso had landed on top of him. Cekiso said he had not seen any blood. 

Makibi had taken Bokodo to the hospital. This had been the first time Dyasopu had assaulted Cekiso. An incident happened on 5 May 2022 in the science lab during a class with grade 7 learners. A police charge had been laid in that incident but nothing further happened. Cekiso had heard a commotion and went to see what happened but by the time he arrived the fight was over. On 25 October 2022 Cekiso had not hit Dyasopu and could not explain if or why he had blood from the mouth. Mr. (first name unknown) Jonkers (director of regional office) had never met with Cekiso. The document on EE bundle page 34 was a J88 (Report by authorized medical practitioner on completion of a Medico-Legal Examination) and is dated 29 October 2022. It was put to Cekiso that Dyasopu will say that others also saw that he was bleeding from his eye and lips. Cekiso denied hitting Dyasopu or the wall near his face – Cekiso said that it had never happened. It was further put to Cekiso that Dyasopu will say that Cekiso assaulted him - this was denied and Cekiso said he had never closed the door or the curtains. It was said that Dyasopu will also say that his belt from his trousers was broken and due to the incident with Cekiso Dyasopu will say he was mentally disturbed and fearful that Cekiso will assault him. Cekiso stated that he did not know what to say. 

Cekiso never closed the curtains – it was Dyasopu who hit Cekiso who then put him down but never hit him. Some woman had been present and it was put to Cekiso that Dyasopu is still receiving treatment about the vehicle incident. Cekiso confirmed that Bokodo was taken to hospital where he received treatment for his injuries and was then released. On 25 October 2022 Cekiso was sure that Dyasopu wanted to hit him and he had been walking with Bokodo and one other when Dyasopu came towards them at speed and knocked over Bokodo who had been unlucky to have been hit. No-one had pushed Bokodo into the path of the vehicle.

12 In re-examination Cekiso confirmed that he had not called an ambulance. Bokodo landed on top of the car and then fell to the ground when Dyasopu drove off. Makibi called an ambulance and then drove Bokodo to the hospital. Cekiso confirmed that he never assaulted Dyasopu on 25 October 2022 and could not explain why the J88 was dated 28 October 2022. Referring to EE page 34 according to this document Dyasopu was examined at 00h15 on 29 October 2022 (four days after the incident.) Cekiso stated that he could have been at the doctor for any reason but he suspected that this was a counter-attack from Dyasopu. Cekiso was aware that Dyasopu had made a police report about him. Cekiso explained that Dyasopu had friends at the police so laid the charges but then nothing had happened. Cekiso had gone to court and the case had been dismissed.

13. Bongani Bokodo (educator teaching grade 6 Xhosa and social science) testified that he knows Dyasopu as they were both at the same school. As HOD Dyasopu had some supervisory functions. There had been no problems with their relationship and Bokodo had been a mediator between Cekiso and Dyasopu with whom he never got along and had quarrels. On 25 October 2022 no-one had pushed Bokodo into the oncoming vehicle of Dyasopu – which is a greyish BMW. There had been a staff meeting where they were asked to nominate who would be giving out certificates. Dyasopu had appointed himself although Cekiso said that this would not work to have both Dyasopu and Mfatiekiso on the same committee. Dyasopu had pointed a finger at the face of Cekiso saying that he had been talking nonsense. Bokodo heard a noise from the staff room and then the fight had been stopped. Bokodo left the school at the main gate and near the corner had stopped to hear from Cekiso what had happened. The three educators were standing near the corner when Dyasopu approached in his vehicle at high speed. Bokodo was stuck against the fence so had jumped up, was hit on his knees by the vehicle and then fell on his shoulder and did not fall on his head. Dyasopu had stopped, exited his vehicle but never spoke to ask about the injuries he had caused. Makibi had taken Bokodo to the hospital for treatment. Dyasopu had never spoken thereafter to Bokodo and no apology was ever given. Dyasopu had left the scene. Dyasopu had used an aggressive tone when addressing Cekiso at the meeting saying that he was talking nonsense. On 25 October 2022 Bokodo had not seen any blood on Cekiso or Dyasopu. The three men had been very shocked when Dyasopu hit Bokodo with his vehicle. Bokodo never had any quarrels with Dyasopu and felt he had been hit by the vehicle driven by Dyasopu purposefully. 

After Dyasopu left the school Bokodo felt much more comfortable although he was still afraid of Dyasopu. Referring to ER bundle pages 51 and 52 on which there is a petition and grievance submitted by the educators at the school who had been hurt and traumatized by Dyasopu who was power hungry and a bully. Dyasopu had nearly killed Bokodo by hitting him with his vehicle. No-one thereafter had felt safe at the school while Dyasopu was present. Bokodo had signed this petition. Things at the school had now calmed down and Bokodo had no words to describe Dyasopu. Bokodo believed that the DOE had been correct to dismiss Dyasopu – who had never apologized for running him over with his vehicle and therefore that did not make him a good person. The J88 form in respect of Bokodo is on ER bundle page 6. Bokodo had been treated by Chrizelds Le-Ann Fertain. There are two dates on this form, the first being 25 October 2022 when Bokodo was first treated; Bokodo had X-rays on 25 October 2022 and Bokodo could not explain the date of 28 October 2022. Bokodo had signed the petition against Dyasopu as he is autocratic and he had no right to assault anyone. Dyasopu was a HOD but had no right to use his vehicle to cause harm or to settle anything. Now that Dyasopu had left, everyone got on with each other at the school. Bokodo stated that Dyasopu had purposefully left the tarred road and driven onto the pavement in order to run them over that day.

14. In cross-examination Bokodo confirmed that there was a history of Cekiso and Dyasopu not getting along with each other. Bokodo never had much to do with Dyasopu as he never fell under his supervision. Bokodo heard a commotion in the staff room and went back but Cekiso and Dyasopu had already been separated. Bokodo was not aware of who had started the fight. Bokodo never noticed any blood on Dyasopu and had seen both but never saw any blood. Referring to the J88 form (ER bundle page 6) Bokodo confirmed that there is a date of 28 October 2022 which he was unable to explain. The first treatment was received on 25 October 2022 and he had thereafter returned again so this may have been on 28 October 2022. Xolani Makibi took Bokodo to hospital and Bokodo was not told / unaware if Dyasopu had phoned twice to check on him. 

When the wife of Bokodo arrived at the hospital Makibi had left. Bokodo explained he could not say what had been said between Dyasopu and Makibi. It was put to Bokodo that Dyasopu had been assaulted by Cekiso which left Dyasopu incensed and he had never had any intention to harm Bokodo. Bokodo stated that if he had not been run down by Dyasopu purposefully then it was odd that Dyasopu never checked up on how Bokodo was recovering during the month he had been booked off from work following the incident. Bokodo explained that when he had been run over he had been in pain and did not recall everything thereafter clearly. Bokodo is related to Makibi and there were issues between Makibi and Dyasopu. Bokodo had been instructed by the principal to mediate between them. Referring to the petition (ER bundle pages 51 and 52) Bokodo thought that Dyasopu could be transferred to another school but that Dyasopu would still be a bully and autocratic.

15. In re-examination Bokodo was referred to ER bundle page 4 and confirmed that section 17 (1) (d) of the Act relates to serious misconduct. Bokodo agreed that the seriousness of the charges does not make the assault any less serious. Dyasopu had never come to check on the seriousness or extent of the injuries sustained by Bokodo. Bokodo stated that there had never been any signs of remorsefulness from Dyasopu.

16. In answer to questions from me Bokodo explained that he was doing okay but could not wave with his right hand with which he was still struggling. Bokodo is still on pain killers and has difficulty sleeping. The injury to his leg is recovering and he has a hospital appointment on 27 September 2023. The X-rays to his shoulder showed a dislocation. The vehicle driven by Dyasopu had it him on his left leg when he had jumped to avoid the collision. When the car hit Bokodo on his left he had fallen back on his right shoulder and right knee.

17. At this point we had run out of time and it was agreed that arbitration was adjourned until 3 November 2023 and 30 November 2023 was to be kept free in case we did not hear all the witnesses on 3 November 2023.

18. Arbitration continued on 3 November 2023. Eben Simons explained he worked for Legal Wise (a company where in return for some monthly subscription members could receive Legal Counsel and Other Legal Benefits) who advised there were insufficient funds for him to continue to represent Dyasopu. Hence he had no option but to immediately withdraw. Before being excused Dyasopu confirmed that he had been made aware of this development and accepted it as being correct. Dyasopu confirmed that he was ready to continue with arbitration without any representation. On that basis Simons was excused from this arbitration.

19. Mbobo was having great difficulty connecting to the meetings and when he managed to do so it only lasted a few minutes. Mbobo explained that he had been transferred from the Western Cape Department of Education to the Eastern Cape Department of Education. This was the second day in his new position and despite the assistance of the Information Technology (IT) Department he was unable to connect for more than a few minutes. Mbobo then requested a postponement of arbitration to allow him more time to fix the problems as this department was not set up as well as the other Department had been. Mbobo was confident that he would be ready to resume arbitration on 30 November 2023. On this basis postponement was granted.

20. Sisonke Daweti (Educator level 1, teaching mathematics and life skills to Grade 4) read out the charges levelled against Dyasopu and testified that she had been present on 25 October 2022 regarding the allegations made in the first charge. There had been a phase meeting with the staff which was chaired by Makibi. Both Dyasopu and Daweti were present. They were discussing the ceremony to award recognition certificates to good performing learners and which educators would be handing out the certificates after they had been designed and printed. It had been suggested that Velisa Mfatiekiso be on that committee plus Sibongise Bekiso (educator). Dyasopu never raised is hand and had just announced that he would chair the committee in meetings for the ceremony. Both the other names were then withdrawn as they did not work well together with Dyasopu. Dyasopu had said that this was nonsense. Cekiso had not said a word and that had been the last part of the meeting. All then left and only Dyasopu plus Cekiso remained in the room. Daweti was walking towards the main gate of the school as she was going home. When approaching the gate, she heard noises like chairs being displaced in the staff room and she thought that Cekiso and Dyasopu were fighting. The fight was stopped and Dyasopu went to the foyer of the offices. Daweti was told to accompany Cekiso to go home together with Bokodo. Dyasopu had asked who Cekiso was to tell him what to do. Both had pointed fingers at each other and Cekiso had blocked the hand of Dyasopu. Cekiso grabbed Dyasopu which made them both fall. Daweti never saw any blood on Dyasopu. When the three of them reached the gate they had been talking. They saw Dyasopu go out the side gate in his car travelling at high speed. 

As Dyasopu approached the corner the three were talking on the pavement by the main gate. Dyasopu turned the corner and went onto the pavement. Cekiso had jumped on the fence and Dyasopu hit Bokodo. Daweti had run to assist Bokodo and had been begging him not to close his eyes as he lay on the ground. Daweti was the only one assisting Bokodo. Dyasopu reversed a bit and got out of his car. Dyasopu was carrying a gun and he had tried to hide it from sight. Daweti had asked Dyasopu if he was there to finish them off. Bokodo was still closing his eyes. Dyasopu had the gun in his hand and had tried to conceal it under his t-shirt. Dyasopu then returned to his car and drove off at high speed. By this time Daweti had been very tearful and had gone with Bokodo when he was taken to hospital. Dyasopu had come close to Daweti and there had been no blood on his t-shirt or face. Dyasopu had not gone to the hospital.

21. In cross-examination Daweti confirmed she had not been present when the alleged assault of Dyasopu had taken place in the staff room. Daweti disagreed with Dyasopu confirming that Dyasopu and Cekiso were pointing their fingers in the others face. Daweti confirmed that Dyasopu and Cekiso had sat near each other in the staff meeting. Daweti knew nothing about the incident referred to in the second charge. Daweti confirmed that she had seen Dyasopu run down Bokodo with his car. Daweti had been close and had been on the edge of the pavement. There was nothing in re-examination.

The employee’s version and testimony was as follows:

22. Luyanda Dyasopu testified that he had chaired the staff meeting which started on 24 October 2022 but as they had run out of time the meeting had continued on 25 October 2022. When the meeting continued Dyasopu had sat next to Makibi and the meeting had started at 14h10 and ended at 16h30. Dyasopu explained that the focus of the meeting was on the year end ceremony for the learners. Cekiso had arrived late for the meeting and had opened his laptop. Cekiso was told to put his laptop away. During the meeting the educators were asked to nominate those, from amongst themselves, which should handle this ceremony and its committee. Mfatiekiso was nominated and Dyasopu did not get along with her. Cekiso said he would withdraw his nomination of Mfatiekiso as he knew they did not work well together. The HOD’s would then select themselves. At that point management withdrew. Dyasopu asked to speak to Cekiso who agreed although he closed the door and the curtains of the room. Cekiso had called Dyasopu ‘kwedi’ a small boy and this had not been the first time. Cekiso hit Dyasopu in the face around his eyes. Dyasopu fell down and had held onto Cekiso by his t-shirt. Dyasopu was on the floor and Cekiso kept using a chair to assault him plus he had also used his elbow. Dyasopu had bled on his mouth and face and the J88 (EE bundle page 34) confirmed that Dyasopu had been assaulted. Dyasopu said he had been assisted by Makibi who woke him up as he was unconscious and dizzy. Dyasopu had been bleeding from his mouth and left eye. His face swelled up; went blue and his left arm is still not well. 

Dyasopu left the meeting room and went out to see what his face looked like and this disclosed much blood on his face. Dyasopu left and drove out of the small gate and had driven past Daweti. At the other gate he saw Cekiso and Bokodo he drove past them and stopped. Dyasopu thought that Cekiso had pushed Bokodo into the oncoming car which is when Bokodo hit the left vender of his car. Bokodo never fell down and Dyasopu told him to sit down. Dyasopu was asked why he had run Bokodo down with his car and then Cekiso ran to get back into the school property. Dyasopu drove to the other side and told Cekiso to report what he had said before to Dyasopu. Cekiso was told to see how Dyasopu looked after Cekiso had assaulted him. Bokodo was bumped slightly by the car of Dyasopu. Cekiso said to Dyasopu to get out as he was bleeding. Dyasopu had contacted them to make sure Bokodo was okay. In fact, Dyasopu had contacted all twice to check on Bokodo and had driven twice to the hospital to check for himself. Dyasopu was in pain so went to the hospital to be checked out on 29 October 2022 as the pain was getting worse. Daweti had said the car had been speeding. Dyasopu had apologized to Daweti and she said she had forgiven him. Dyasopu carried on working at the school. Bokodo went home and hence there were different dates on the J88. Dyasopu was ignored by Bokodo.

23. Dyasopu was told to be at the disciplinary hearing to be held in Oudtshoorn on 14 March 2022. Dyasopu drove with his wife to Oudtshoorn from Beaufort West and they had arrived early. In Oudtshoorn he had gone to speak to Mbobo who was still preparing his bundles of documents for both parties. They then returned to the hearing and present was Mbobo and the presiding officer. Dyasopu requested a postponement as he never had a representative as all the SADTU representatives were attending a function in Cape Town. Dyasopu said he had also asked to be legally represented and was told his request was too late. It had been suggested that the hearing be postponed to 24 March 2023. The chair asked Dyasopu to wait for him in the foyer. Shortly thereafter Dyasopu was called back. Dyasopu was told that there would be no postponement and that the hearing would continue as scheduled. Dyasopu was shocked and left the hearing as he had wet himself. Dyasopu then said he was leaving and went to join his wife in their car. Before getting into the car Dyasopu had urinated outside the building. Dyasopu never went back to the hearing as he had felt unsafe.

24. In cross-examination Dyasopu agreed that he was an honest man as he never resorted to lies even when he was in a difficult situation. It was put to Dyasopu that his versions were inconsistent and the first plus second witnesses never said that he had peed himself at the hearing. Dyasopu agreed that he had peed himself inside. It was put to Dyasopu that he was lying as he never peed as he was never wet. Additionally, it was put to Dyasopu that he had not disputed the version given by Mbobo. Mbobo related the sequence of events which happened on 14 March 2023 in that Dyasopu had left the hearing and returned with the date of 24 March 2023. It was put to Dyasopu that this version had not been disputed. Dyasopu was reminded that the disciplinary report was in ER bundle pages 42 to 64. It was put Dyasopu that in the report there had been no misrepresentation. Dyasopu was asked to read paragraph 19 and 21 on ER bundle page 45 into the records which read as follows: “(19) Dyasopu made a formal application for postponement until 24 March 2023 and had not been supported for the following reasons: (21) Dyasopu could not find a trade union representative from SADTU since the union is attending to their business and could only be available on 24 March 2023. 

Dyasopu would not be able to represent himself since the charge he was facing was very serious”.
Dyasopu confirmed that what he had read out was correct. It was put to Dyasopu that he made the request for postponement to 24 March 2023. It was put to Dyasopu that the second time orally and in his own bundle what had now been said was contrary to what had been stated. It was put to Dyasopu that this is what he had said to the chair. Dyasopu could not recall when he had been served with the charges and then agreed it was served to him on 2 March 2023. It was further pointed out to Dyasopu that SADTU had also been served with this notification the same day. Dyasopu could not recall that he had applied for legal representation on 6 March 2023. It was put to Dyasopu that he had sufficient time to apply for legal representation which at the time had been denied. It was put to Dyasopu that he had been given sufficient time to arrange to be represented at the disciplinary hearing. Dyasopu disagreed that he had from 2 March 2023 to 8 March 2023. It was explained to Dyasopu that in terms of the ELRC rules he had five days and that was sufficient. It was put to Dyasopu that his disciplinary hearing was held twelve days later and therefore he had more than sufficient time.

It was stated that Dyasopu had the employers’ bundle of documents in electronic form since 8 March 2023 which was six days prior to the hearing. It was put to Dyasopu that he was lying as he had never apologized to Bokodo whom he had bumped with his car. Even at this arbitration it was the evidence of Bokodo that Dyasopu had never apologized to him and this had not been disputed. This version of concern for Bokodo was new and had not previously been heard. Dyasopu agreed that he had laid a charge of assault against Cekiso with the police (EE bundle page 33) and that had been the only case he had opened. Dyasopu was reminded that he had been told by the principal that Bokodo had been discharged from hospital. Dyasopu agreed that Bokodo had been a witness during this arbitration and it was put to Dyasopu that this new version had not been put to Bokodo and that makes Dyasopu not credible. It was put to Dyasopu that Daweti said Dyasopu had apologized to her for just driving fast. It was put to Dyasopu that he had not put this alleged apology to Daweti when she had testified at arbitration and therefore Dyasopu was not being truthful. It was put to Dyasopu that he said he had never bumped Bokodo and then testified that he had tried to apologize to Bokodo in this respect.

Dyasopu said that he had almost bumped Bokodo and been conscious that Bokodo did not have enough oxygen in his body. It was put to Dyasopu that he had shown no remorse yet claimed he went to see Bokodo before the video of what actually happened had been shown. Dyasopu stated that in the video Cekiso had pushed Bokodo into his oncoming car. Dyasopu was reminded that all the witnesses had testified that Dyasopu had bumped Bokodo with his car and now Dyasopu is claiming that Cekiso pushed him. It was put to Dyasopu that three independent witnesses at the scene of the accident confirmed that Dyasopu had bumped Bokodo. It was further put to Dyasopu that the video evidence produced had not been disputed and no-one had said that Cekiso had pushed Bokodo. It was put to Dyasopu that he had tried to create the impression that on 25 October 2022 he had been assaulted by Cekiso. In this regard Dyasopu had first said he had a bruised eye and lip then it had been only the lip. 

Daweti on the day had seen Dyasopu and confirmed she had not seen any blood on Dyasopu. The photograph of the face of Dyasopu had only been sent on 3 November 2022. Dyasopu explained that the picture had been taken at about 18h00 on 25 October 2022 and the assault had happened at about 16h00. Dyasopu said that on 25 October 2022 he had been hospitalized. Dyasopu was reminded that on EE bundle page 34 it is confirmed that Dyasopu was examined on 29 October 2022. It was put to Dyasopu that he had possibly been assaulted at a shebeen or such like. It was put to Dyasopu that he is a liar and is violent. Dyasopu had told Cekiso to report what he did which demonstrated that Dyasopu was a bully and gave violent threats to others who were younger than him. It was put to Dyasopu that he had abused his power as a HOD. It was further put to Dyasopu that the tone used now was consistent with what others had said. Dyasopu was reminded that he was dismissed for assaulting two teachers. Dyasopu said he had been ignored by the DOE and therefore had to defend himself. It was put to Dyasopu that he was lying when he said that Cekiso had closed the curtains and door and then assaulted Dyasopu.

Dyasopu said that Cekiso had injured his arm. Dyasopu was referred to EE bundle page 33 and it was pointed out that no mention of any injury to his arm is made on the J88 report. Dyasopu was told that he lacked any credibility. It was put to Dyasopu that it had never been put to Cekiso that he called Dyasopu a small boy. Further he had never put it to Cekiso regarding the use of chairs in the assault. Dyasopu stated that he had no comments. It was put to Dyasopu that he had presented another new version that HOD’s could self-nominate for the awards ceremony yet this had not been put to any of the witnesses. Dyasopu was reminded that at arbitration he was given the chance to have his say. Dyasopu agreed that at the beginning of arbitration he had been represented by an attorney and who was competent in law. Dyasopu agreed that his lawyer had cross-examined the witnesses. Dyasopu was told that this bad behavior now was like it had been at his appeal hearing – Dyasopu was not honest and cannot be trusted. Dyasopu said he noted this comment and it was not disputed. Dyasopu said he had arrived early, before 09h00, for the hearing. Dyasopu agreed that he had arrived at 08h55 and the hearing was to have started at 09h00. Dyasopu said he had no comment when it was put to him that he arrived later than the witnesses of the employer and the chair of the hearing. Dyasopu agreed that he was the HOD acting head and therefore was a senior employee. Further it was agreed that other than Mbobo - Dyasopu was the most senior person amongst all the witnesses at arbitration and had to manage staff. It was agreed that the management of staff excludes assault. It was agreed that Dyasopu could have made use of the grievance procedure. Dyasopu is a member of SACE and had completed the training on the Code of Conduct for Educators. There was nothing said in re-examination.

25. Nozipiwe Booi (educator Grade 4 teaching History and Xhosa home language) testified that she had been in the staff meeting on 25 October 2022 regarding the phase management. A person is elected to carry out the design of the awards of the certificate for the year end ceremony. Mfatiekiso had been nominated and Cekiso was sitting close to Dyasopu. Dyasopu said he wanted to be on that committee and Cekiso said that it would not work given that Dyasopu and Mfatiekiso did not get along with each other. Dyasopu insisted that he would be on that committee and Cekiso in response withdrew the nomination of Mfatiekiso. The meeting ended with a prayer. Cekiso asked to speak to Dyasopu and Makibi after the meeting as there were issues between Cekiso and Dyasopu. 

The staff was moving slowly away from the staff room and Makibi had not stayed to talk as requested. Makibi was told that he should not leave the other two alone in the room. The noise of a fight breaking out was heard and they had rushed back to the staff room to check what was happening. Makibi said he heard Cekiso fall on top of Dyasopu. Cekiso then left the staff room and was seen heading to the entrance of the building. Dyasopu left but had blood on his mouth and his face was flushed plus the buttons on his shirt were damaged. Booi tried to control the anger of Dyasopu but he drove off in his car. Cekiso, Bokodo and another walked off towards the main school gate to leave and had been walking with Cekiso for his safety. Dyasopu was seen driving his car at speed up the side road and after turning the corner into the larger road; drove onto the pavement and he then bumped against Bokodo. Thereafter Dyasopu drove away and others were running to assist Bokodo who had been injured so was taken to hospital. Cekiso ran out and went to his home and Cekiso was carrying a long knife which he never attempted to hide.

26. In cross-examination Booi confirmed that she had seen the video which included the view of when Dyasopu bumped Bokodo. Booi agreed that she had worn a red top that day. Booi was referred to the petition against Dyasopu (ER bundle page 52) and agreed that she had signed it. Booi had added her signature in protest against the behavior of Dyasopu on 25 October 2022. Booi was asked if there was any of her evidence that she wished to retract or rectify. Booi confirmed that at the meeting Dyasopu had said ‘nonsense’ in response to Cekiso when he had said that Dyasopu and Mfatiekiso did not get along and therefore could not work together. Booi also wanted to add that Dyasopu had been driving fast when he turned the corner before bumping into Bokodo who then had to be taken to the hospital. 

It was put to Booi that she was the only witness to say that Cekiso had returned carrying a knife and therefore this is a lie. Booi then said that Cekiso had a knife in his back pocket. Booi was in a good place to see when Bokodo was run over but it was agreed that she had not been the closet person to the scene of the incident. Booi admitted that she was far away and could only say that Dyasopu had been speeding in his car. It was put to Booi that it is new evidence that Bokodo stood up after he had been hit by the car of Dyasopu which had not happened as Bokodo was injured. It was further put to Booi that it was new evidence that Dyasopu approached the three but had first stopped before he bumped Bokodo. Booi insisted that she had seen Dyasopu hit Bokodo with his car. It was put to Booi that she said the shirt worn by Dyasopu was torn and Booi corrected that by saying the buttons had been incorrectly buttoned up and the face of Dyasopu had looked dirty. It was put to Booi that she could not have known that Cekiso had asked to meet with Dyasopu after the meeting. Booi said that she had not been aware that arbitration had started and so had listened to parts of it. (her presence had not shown on the screen). There was nothing said in re-examination.

27. Xolani Makibi (HOD languages and social science) testified that there was a staff phase meeting on 25 October 2022 of which he had been the chair. All educators were involved and the HODs’ were going to oversee the election of educators to run with the award ceremony preparations for the year end. Makibi saw Cekiso beating Dyasopu and Makibi had separated them. Makibi was also the person who drove Bokodo to the hospital. Makibi had listened at the commencement of arbitration today as he had not been aware that arbitration had started. (He had not shown as being present on the screen). Makibi agreed that the version of Dyasopu may be correct and they had been colleagues. It was put to Makibi that Dyasopu claimed to have phoned all three in his concern for Bokodo but had never received an answer. It was put to Makibi that he was protecting his friend. There was nothing said in re-examination.

28 It was agreed by both parties that they would submit their written closing arguments to me by no later than 17h00 on 7 December 2023. Closing arguments were received from both parties, the contents of which have been noted.


ANALYSIS OF THE EVIDENCE AND ARGUMENT

29. As the saying goes “you can't unring a bell!” This expression means that you cannot undo what has been seen to have been done. In the early stages of arbitration some video footage was shown (the most compelling evidence) which was when Dyasopu is seen driving up the side road at speed; turning the corner through a stop street; leaving the tarred road; driving onto the pavement as seen by the dust cloud it leaves behind the car driven by Dyasopu where the three educators were walking and the moment he drives straight into Bokodo leaving him lying on the ground. Dyasopu then drives back to where Bokodo is lying on the pavement; takes a quick look and then drives off leaving the scene of an accident. That is what I saw and there was no dispute about the authenticity of the video footage. If the driver of the vehicle leaves the scene of the accident in South Africa it is required that the “accident” is reported to any police officer at a police station or at any office set aside by a competent authority (e.g. Metro Police) for use by a traffic officer, and there produce his or her driving license and furnish his or her identity number and such information as required. Nothing was said about this requirement during arbitration which is a great omission on the part of both parties.

30. On the procedural side Dyasopu held that he had been unable to get a representative from SADTU to represent him at his disciplinary hearing. Dyasopu had twelve days in total to arrange for a representative and just explained that SADTU (a national union) were all involved in a big event in Cape Town. Dyasopu never produced any proof that he had approached SADTU or had tried to get a letter from them asking for a postponement of his case in order for him to be represented. By the time he got around to asking to be legally represented it had been too close to the date of the hearing with all the logistical issues in getting everyone to Oudtshoorn. Dyasopu arrived on time for his disciplinary hearing and he was given a thirty-minute break to speak to Mbobo. It is highly unlikely that Dyasopu as claimed had wet his pants in anxiety. There were no signs of this on the dark blue suit he wore or any wetness where he had stood. Additionally, if you just wet your pants why also relieve yourself outside after telling the chair dismissively to proceed with the hearing as Dyasopu was leaving. Dyasopu took the decision to leave of his own accord after the very last minute request for a postponement as he never had a representative. At arbitration Dyasopu was legally represented until 3 November 2023 when his lawyer recused himself from the proceedings. Dyasopu agreed then that he could represent himself so arbitration could proceed. Again that was his choice. No further mention was made as to why SADTU could not be present to represent him at arbitration. Dyasopu was the creator of all the problems regarding representation and cannot now claim procedural unfairness. I therefore find on a balance of probabilities that the procedure followed by the employer aligns with the provisions of Schedule 8 – Code of Good Practice: Dismissals of the LRA (albeit in his choice to be absent) and his dismissal is found to be fair on procedural grounds.

31. I have before me two mutually destructive versions of what happened on 25 October 2022. Again I point out that one cannot unring the bell. In terms of the first charge the video evidence is compelling in that Dyasopu is seen leaving the school after the meeting which only value is to be able to identify the car driven by Dyasopu in the other video clip. The video evidence of Dyasopu ‘bumping’ Bokodo was backed up by eye witness testimony from Cekiso, Daweti, Booi and Bokodo himself. Bokodo had tried to jump and hang on the fence to avoid being hit by the car coming straight at him but ended up getting hit on his knees by the vehicle driven by Dyasopu and had fallen to the ground on his right shoulder. The other two narrowly escaped injury and Cekiso ran back to the school building to get help. Bokodo had never sat up as claimed by Dyasopu as he was falling in and out of consciousness and hence the panicked response of Daweti for Bokodo to at least keep his eyes open. Bokodo testified that the ‘bump’ he received from the car of Dyasopu had been purposeful; no-one had pushed Bokodo into the path of the car driven by Dyasopu; and thereafter Bokodo due to having been hit by the car did not recall exactly what happened. Bokodo was taken to hospital where he had been treated and x-rayed. All this evidence adds to and corroborates the video evidence when Bokodo was hit by the car which Dyasopu was driving. The evidence of Daweti that when Dyasopu turned his car around; he got out the car and walked to where Daweti was nearly in tears trying to keep Bokodo opening his eyes. Daweti testified that Dyasopu on his approach to where Bokodo lay on the ground had been carrying a gun which he had attempted to hide with his t-shirt. Daweti asked Dyasopu whether he was there to finish them all off. This evidence was not disputed by Dyasopu and leaves one to wonder what he intended to do with the gun; whether he has a license to carry a firearm and why keep carrying it when heading to the scene of a motor vehicle accident which he had purposefully caused. Cekiso at this time had run back to the school to get help. It seems that most witnesses thought that the intended victim of the car ‘bump’ was Cekiso and this is confirmed by the evidence of Dyasopu and his claim of provocation. In the event that Cekiso had called Dyasopu a ‘small boy’ Dyasopu had options available to him to sort this out and there is no excuse for the revenge attack perpetrated by Dyasopu who regrettably hit Bokodo and caused him grievous bodily harm. In the circumstances I find on a balance of probabilities that Dyasopu is guilty of the first charge he faced.

32. What happened in the staff room is less clear as the video footage used shows only a chair and a desk. It is common cause that this had been a phase meeting with all educators present. Makibi testified that he had chaired the meeting so it could not also have been chaired by Dyasopu as claimed. There had been a call for nominations for those who would arrange the printing of Certificates and their design intended to be awarded to good performing learners at the school at a ceremony to be held at the end of the year. After Cekiso had nominated Mfatiekiso – Dyasopu had said he would be on the committee to chair and control things. Daweti said that this was not a good idea as it was known that Dyasopu and Mfatiekiso did not get along. Dyasopu had said that this was nonsense and insisted he would be chairing that committee. In that case Cekiso said he would withdraw his nomination of Mfatiekiso as to give support to this notion of not being able to work together. This had triggered Dyasopu to jump up and point fingers in the face of Cekiso. Adding to the temper and lack of apparent anger management issues of Dyasopu when Cekiso had told Dyasopu he objected to the manner in which he had been spoken to Dyasopu asked who he was to tell Dyasopu what he could and could not say. Cekiso was standing up as if about to leave and Dyasopu was pointing fingers right near the eyes of Cekiso. Dyasopu was the aggressor as he grabbed Cekiso which is when Cekiso held Dyasopu who then fell to the ground whilst grabbing the t-shirt of Cekiso. Dyasopu was lying on the floor when Cekiso exited the staff room. In the event that Dyasopu had to be woken up into consciousness by Makibi this version should have been put to Makibi but never was which leaves me wondering if this version could in any form be true. Not a single person other than Booi that day had seen any blood from the mouth or eye of Dyasopu. Dyasopu also claimed that his face swelled up; went blue and his left arm is still not well. Yet on the J88 form on EE bundle page 34 it is confirmed that Dyasopu was attended to for bruising on his right eye and swollen lips. No injury to his arm is mentioned nor any bleeding from his eye or mouth. They were simply diagnosed as being swollen on 29 October 2023. In the circumstances I find on a balance of probabilities that Dyasopu as the aggressor is guilty of the second charge.

33. Dyasopu never had much respect from the other educators at the school who had all signed the petition to remove him as HOD and from the school. Dyasopu was not credible in his version of events as he kept changing his mind. First he had bumped Bokodo and then Cekiso had pushed him into the path of the speedy approach of the car driven by Dyasopu. The injuries allegedly sustained during the scuffle with Cekiso do not match what is confirmed in the J88 form submitted by Dyasopu. Makibi testified that he had separated Cekiso and Dyasopu and this evidence was not disputed. It was never put to Makibi that Dyasopu had been unconscious when he separated then in the staff room. After the ‘bump’ - Bokodo had never sat up but had been lying down going in and out of consciousness. Dyasopu testified that he had ‘bumped’ Bokodo lightly which is not supported by the evidence in that Bokodo a year later was still receiving treatment for his injuries. There had never been a chance for Cekiso and Dyasopu to talk after the incident with the car as in the video Cekiso is seen running back to the school building to get help. It was the claim of Dyasopu that he had been hospitalized on 25 October 2022 which cannot be true as Dyasopu went to get checked out only on 29 October 2023 as confirmed by the J88 report. Throughout the proceedings Dyasopu never showed any remorse for his actions and according to Bokodo he had never apologized for purposefully hitting Bokodo with his car.

34. I have found Dyasopu guilty on a balance of probabilities of the two charges he faced. Therefor the dismissal of Dyasopu is found to be fair on substantive grounds. The dismissal has also been found to be fair on procedural grounds. The first charge was correctly brought in terms of section 17(1) (d) of the Employment of Educators Act, no. 76 of 1998 (EEA) which states the following: “17. Serious misconduct. (1) An educator must be dismissed if he or she is found guilty of - (d) seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee.” Section 17 of this Act makes dismissal for transgressing any of the misconduct cases listed therein compulsory. This is so because of the use of the term “must” in its opening sentence. I therefore must uphold the sanction of dismissal as mandated in section 17 of the EEA. The second charge is included as I find on a balance of probabilities that it is fair to uphold the sanction of dismissal as it is proven in this matter that Dyasopu was intent to cause grievous bodily harm to Cekiso but ended up causing such to Bokodo. When an educator / HOD demonstrates no control of his anger management issues which results in such heinous behaviour then I do not believe he is suitable to again work with children. The South African Council of Educators (SACE) is directed to revoke the certificate of Dyasopu.

AWARD

35. The dismissal of Luyanda Dyasopu is found to be both procedurally and substantively fair and the sanction of dismissal is upheld. Further Dyasopu is found to be unsuitable to ever work again with children in terms of the Children’s Act and his SACE certificate is to be revoked. Consequently, this case is dismissed.

Gail McEwan
COMMISSIONER