ELRC160-22/23GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case no: ELRC160-22/23GP

In the matter between:

MNQOSILE JUSTICE
(Union / Applicant)


And
GAUTENG DEPARTMENT OF EDUCATION
(Respondent)

 
DETAILS OF THE HEARING
1. The matter was heard over several sittings. The last sitting was on 29 November 2023, the parties then submitted closing arguments thereafter. The Applicant, Justice Mqosile was initially represented by Tiyane Chauke, an official of SADTU and at the final sitting he was represented by Nvula Mthimkulu also an official from SADTU. The Respondent was represented by M G Ramalope, an official from the Gauteng Department of Education. The proceedings were recorded electronically and in writing.

2. The Applicant referred an unfair dismissal to the council following his dismissal on allegations of misconduct.

ISSUE TO BE DECIDED
3. The issue to be decided is whether the Applicant’s dismissal for the alleged misconduct was substantively fair.

BACKGROUND
4. The Applicant was employed by the Respondent in 2011 as an educator in Maths and Life Sciences at Beverley Hills High School. The Applicant was dismissed by the Respondent on 3 June 2022 on allegations of misconduct in that it is alleged that the Applicant administered corporal punishment on a leaner, one Sanele Tshabalala on 12 March 2016 and that he had assaulted Sanele Tshabalala with intent to cause grievous bodily harm. The Applicant continued to teach at the school from the time of the alleged incident until disciplinary action was instituted against him in September 2021. There was no notice of suspension or evidence led by either party of the Applicant’s suspension prior to the disciplinary proceedings being instituted.The Applicant earned a basic monthly salary of R29 498,25.

5. The Applicant would like to be reinstated to the position he held prior to his dismissal.

SUMMARY OF EVIDENCE AND SUBMISSIONS

The Respondent’s evidence
6. The Respondent called three witnesses to testify in these proceedings, Sanele Tshabalala, Lindiwe Gloria Tshabalala and one Doctor Timol.

7. The first witness to testify was Sanele Tshabalala who testified that on the day in question 12 March 2016, he and other learners were attending Saturday class that had been called by Ms Motsome. It was on this day that he was assaulted by the Applicant. The class had started late as the teacher arrived late for the class. After the class commenced there were learners that were making noise, the teacher then pointed at his friend Fedele and accused him of making noise. The witness raised his hand and sought to correct Ms Motsome regards who in fact was making noise, however she insisted she had heard Fendele. The Applicant then came into the class while the witness was addressing Ms Motsome and then called the Applicant and his friend Blessing Mahlangu, they went out of the class together with the Applicant and Ms Motsome. The Applicant asked the witness why he was making noise and thereafter slapped him. The Applicant slapped him on the left side of his face and had not given him an opportunity to explain what had taken place. He had slapped him on his eye and jaw.

8. He asked the Applicant why he had slapped him. He then took out his phone and he called his mother and told her what had happened, she then said she would come to the school in 10 minutes time. The Applicant left and went to his class and dismissed his learners after that Sanele thought that the Applicant had gone to the office; however he had already left the school premises by the time his mother had arrived at the school. Ms Motsome explained to his mother what had taken place and told her that the witness had been explaining to her about the people who were making noise. The witness was asked by his mother to apologise to Ms Motsome and thereafter he went to the doctor on foot after his mother had given him her medical aid card. His mother had called Mr Machitje to report the incident, Mr Machitje advised her that he was not at school, she should come to the school on Monday morning and he would address the issue, however, Mr Machitje ever addressed the matter. Even after his mother went to the school on Monday, Mr Machitje did not address the issue with her.

9. He consulted with Doctor Timol on the day and explained to him what had transpired, Dr Timol advised him to report the matter to the police, he went to the police to report the incident and was provide with a J88 which he took to the doctor to complete, however when he got back to the Doctor’s rooms, the Doctor had closed for the day. He went back with the J88 on Monday morning and the Doctor completed the form. The police officers advised him to report the incident to the Principal so that the matter could be allocated to police officers who deal with matter involving school learners, however, when he told Mr Machitje about it, he told him that he was unaware of police officers designated to investigate matters involving school children. The J88 that is part of the record is the second J88, the first one that he submitted to the police was lost or misplaced and the second one had to be done after the involvement of COSAS in the matter. His mother had sought the assistance of COSAS in 2017 because of the lack of progress in the matter, he was thereafter asked to take another J88 form for the doctor to complete.

10. Following the incident, the witness started losing sight to his left eye, the eye was taking strain and he had to take breaks while he was reading. He wanted to study IT after completing Matric, however his plans had been derailed following the incident because his eyesight was deteriorating. Dr Timol had referred him to eye specialists at the St Johns Eye Hospital after he had gone back to see him with deteriorating eyesight in September 2016. He was advised that his retina had been torn apart and a retinal detachment operation was done.

11. He and the Applicant did not have a good learner/educator relationship because when he was in grade 10, the Applicant used to beat them (learners) up, however he had stood up to him and told him that corporal punishment was banned. He had failed and had to repeat grade 10 on two occasions. His mother had requested that his scripts be provided and was advised by Mr Machitje to write a letter requesting the scripts, because they could not be found, therefore he had to repeat the grade. He completed his matric in 202\17 and thereafter went to study at the Northwest University. Following the assault his life was impacted significantly as he had to adapt to the new way of living and the damage to his eyes and the extensive operations and surgeries he had undergone.

12. The witness testified that he had eye problems since grade one and was short sighted and had worn glasses from a young age, when the incident occurred, he was wearing contact lenses and had been wearing contact lenses since February 2015. The Applicant did not apologise for what had happened he had however threatened the witness’ mother and told her that Sanele must not think he is clever as he had people on the outside that could deal with him.

13. Under cross examination, the witness testified that the Applicant had taught him in 2014 in life sciences, his performance was normal but he struggled with Maths. The witness testified that the Applicant had threatened to fail him when he refused corporal punishment and he failed. He was always short sighted; however his sight had deteriorated following the incident and had to pay R8400,00 for his glasses. The witness denied that the Applicant had been called by Ms Motseme to come to her class and address the Applicant’s rowdiness. The Applicant called the witness and Blessing and Ms Motsome followed them outside, when he first came, he took Ms Motsome outside and then when he came back, he called them. The witness denied that he had been aggressive and was pushing the Applicant after he had told him to leave the class as contended by the Applicant. The Applicant had seen the witness speak on the phone; however he did not hear the conversation. His mother gave him the medical aid card so he could walk to the doctor because she was taking a taxi because she cannot walk long distances.

14. Sanele had his last appointment for laser on 24 April 2017, the 2016 date recorded was incorrect. The incident changed his life as he is now permanently blind in the left eye. He that he had spoken to Mr Machitje and he (Mr Machitje) had advised that he was not aware of the section in the police that handles matters involving school children. Dr Timol had written him a referral letter referring him to St John’s Eye hospital after he discovered that there was blood in his eye. The referral was done on 30 August 2016 because he had gone back to the doctor after the problems with his eyes persisted. The first J88 had been handed to the police and could not be found. The second J88 in the record is dated 1 June 2017. The matter had been reported to the school, however Mr Machitje did nothing to move the matter forward for a whole year, the matter was reported to the district office by Ms Motsitsi, the principal of Mukulusi school when she had come on rotation as the Acting Principal. Sanele denied had pushed the Applicant while he was trying to force entry into the class. The witness wanted the Applicant to be accountable for his actions.

15. Ms Lindiwe Gloria Tshabalala was the second witness to testify on behalf of the Respondent, she testified that Sanele went to school on Saturday 12 March 2016, at about 10am, he called her and advised her that he had been slapped by a teacher and was feeling dizzy. She then called the deputy principal, Mr Machitje to explain what had happened, he said to her, he was not at school, he would however attend to the issue on Monday. She then got into a taxi and went to the school to find out what was going on, she got to the class and opened the door, the teacher came out and explained to her what had happened and that it was a mistake that Sanele had been slapped. Ms Motsome explained to her that the Applicant had come into class while Sanele was talking to her, he called the boys to go outside and when they went outside, the only thing she heard was a slap. She then asked the teacher who had been making noise, she called them from the class thereafter the witness reprimanded them and asked that they apologise to the teacher. The teacher, Ms Motsome told her that Sanele had been slapped by the Applicant.

16. The witness noted that Sanele was not in good state as his side was swelling. She gave him her medical aid card and told him to go to the doctor, she then stayed behind and asked about Sanele’s performance and behaviour and thereafter left the school. At the doctor Sanele was provided with a J88 form for the form to complete, he then took the form to the police so that it is completed. Sanele had been wearing glasses since he was six or seven years old because of problems with his eyesight, at some point he started wearing contact lenses, however following the incident, he had to revert back to wearing glasses.

17. On Monday morning she went to the school to see the deputy principal, Mr Machitje, she however did not meet with the Applicant as she would have expected, as she got out of the office onto the car park, she saw the Applicant, he was rolling up his sleeves and walking towards the her and said to her, “what your child wants to do to me, I have people outside that will do the same thing.” She was frightened by the Applicant’s conduct because she was alone, Sanele was in class and she had left Mr Machitje in his office. Following the meeting with Mr Machitje, there was no further report regarding the matter. Sanele started complaining about his deteriorating eyesight, he went back to Doctor Timol and then was referred to St Johns Eye Hospital. Several tests and operations were undertaken, it was revealed to him that they could not save his eye and he became blind. The fact that her son was now blind deeply paid her.

18. She and Sanele’s father went back to the school to attempt to have the issue resolved, however Mr Machitji refused to have them discuss the matter and contended that the witness had already taken the matter up with the District Office, so the district office would deal with the matter. It was when Ms Motsitsi came to the school that the matter was then taken up and reported to the District Office and the witness involved COSAS in the matter. The Applicant never apologised for what had happened to Sanele and the witness felt that justice had not been done in this matter. The witness was of the view that the Applicant was a hazard to children and should not be permitted to work with children.

19. In cross examination the witness reiterated that Sanele had started wearing glasses when he was young, about 7 or 8 years, he had a vision problem, however he did not have pain in his eyes, the problems started after 12 March 2016, his visions started deteriorating. Sanele started wearing contact lenses in 2015 on the recommendation of his doctor. The witness did not remember if the Applicant was teaching Sanele or not in 2016, however the Applicant had gone to Ms Motsome’s class and slapped Sanele. Ms Motsome told her Sanele had been hit and she saw it herself. It was put to the witness that it was the Applicant’s version that he told Sanele to come out of the class as he was disrupting class, the Applicant told him to leave and Sanele jumped and started screaming without necessarily being touched, the witness denied this version and contended that if this is what had indeed happened Sanele’s face would have not been swollen and Ms Motsume had told her that the Applicant had hit him. It was further put to the witness that the Applicant would testify that Sanele had hit him, however she denied the allegation and stated that if Sanele had indeed pushed him, he would have come to her and told her that this is what had happened.

20. The witness was of the view that when she went to school on Monday, the Applicant had an opportunity to explain his side of the story, however he refused to engage with her at all. The police had completed two J88 documents in this matter, one on the Monday after the incident and the second one was completed in 2017 after COSAS got involved in the matter. The second one was drawn up because the police could not find the first J88. The witness testified that when she saw Ms Motsome in March 2016, she was visibly pregnant and her feet were swollen.

21. Sanele consulted with Dr Timol on 12 March 2016 as testified, the doctor confirmed that he had consulted with Sanele and he had advised him that he had been assaulted by his teacher, he was not aware who the said teacher was, The doctor confirmed that the was injury to the Applicant’s jaw and left eye. He however in his testimony stated that he could not recall Sanele wearing contact lenses. He had completed the J88 in 2017, he did not recall completing a J88 in March 2016 and would have probably made a note of it. As a result of the said assault, Sanele developed a retinal detachment and he referred him to St Johns Eye Hospital for care as he is not an eye specialist.

The Applicant’s case
22. Three witnesses testified in the Applicant’s case and below is a summary of the witnesses’ testimony.

23. The Applicant, Justice Mqosile testified that he was employed by the Respondent as an educator since 2011. He was also the teacher liaison officer at the school. On Saturday 12 March 2016, he had called Saturday class at Beverley High School at about 8:00am. He had an incident were a learner in Sanele’s class reported that Sanel had brought alcohol two school and he had assisted in handling the matter. The witness also knew Sanele as he had taught him Life Sciences in grade 10 in 2014. On the day in question he was teaching in science lab C75, two girls Sibongile and Busisiwe came and knocked on the door and advised that there was an issue in Ms Motseme’s class and requested that he come and assist. He then went to the class and opened the door and invited Ms Motsume and Sanele to come outside, he then asked Sanele why he was being disruptive in class, as it was a Saturday and the principal was not there, he then asked Sanele to go home if he did not want to be at school, however he refused to go home. He asked another learner to get Sanele’s bag so he could go home and Ms Motsume went back into class. Sanel tried to forcefully go back into class, however the witness closed the door by barricading him from getting in, Sanele insisted on getting in and tried to move the witness’ hand from the door. He told Sanele not to touch him and he thereafter left and went back to his class and Sanele also left and went behind the two mobile classes as he walked away. He did not see Sanele take out his phone, Blessing was not called to come out of class as he was not part of the altercation, it is only Sanele that came out of the class with the teacher and she told me that Sanele was being unruly. He did not give Sanele an opportunity to speak as all he wanted to do was to diffuse the situation, however it is not true that he had slapped Sanele. He only left the school after he had finished his class. It is also not true as testified by Sanele that he was in the habit of beating up learners, the conduct portrayed by Sanele does not match that of a teacher liaison officer.

24. On 14 March 2016, the witness was at work, he is usually at work between 7:00am and 3:00pm, he did not meet with Sanele on the day, The only occasion he had met Sanele’s mother when they met regarding the alcohol incident. Ms Motsome advised him that Sanele’s mother had come to the school on Saturday after Sanele had called her and told her that he had been denied entry into class, Ms Motsome however refereed Sanel’s mother to the Principal. Sanele’s mother was invited to come to the school on Monday, however she did not come to the school, this can be confirmed by the Deputy Principal, Mr Machitje, her visit would have been logged in the visitor’s logbook. He did not threaten her as alleged.

25. The classes at Beverley Hills has 40 to 50 learners, if Sanele had indeed been assaulted, someone would have been able to come and testify that Sanele came back into class with a swollen face, Sanele however had no witness to corroborate his version. He became aware of the allegations of assault against him in November 2016 and has not shown remorse or apologise as he cannot apologise for conduct that he did not do. It is also incorrect that he told Sanele that he would fail him, and there are policies and procedures in place governing how marks and results are dealt with. Sanele had passed the subjects that he was teaching therefore the notion that he said he would fail him is incorrect and is an attempt to make him look bad. He is a pastor and would lead prayers, he has served on many committees in the school and was the secretary of the SGB. Therefore the version portrayed by Sanele that he is a monster is incorrect. He was committed to his duties and worked well and has never sought to harm anyone.

26. He was aware that Sanele had been wearing thick glasses from the time he arrived at the school and his eyes were myopic since a young age and because of his eye issues always sat at the front of the class. The issue that he was wearing contact lenses on the day of the alleged incident is convenient as he relies on his glasses. It was incorrect that Ms Motsome was pregnant at the time of the incident in March 2016 as contended by Sanele’s mother. Ms Motsome gave birth in May 2017, and had died two hours after giving birth.

27. Under cross examination the Applicant testified that as a teacher he had a parental role to guide the learner to achieve their dreams, however he had not contributed to the destroying of Sanele’s dreams. He was not aware of the reason why his legal representative had not put the version that Ms Motsume had sent two female learners to call him to her class. He also testified that he did not know why it had not been put to Sanele when he testified that he had pushed the Applicant to gain entry into the class. He had asked Sanele to go home because the incident had occurred on a Saturday and the office was closed and the Principal was not there to attend to the issue, ordinarily he would have taken the learner to the principal’s office. The witness testified that he did not give Sanele an opportunity to explain on the day, all he wanted was to calm the situation and for the lesson to continue, he however did not slap Sanele and he was surprised that the doctor had stated with so much conviction in his report that Sanele had been slapped, however they omitted challenge this version with the doctor. The doctor’s report was dated 1 June 2017 and it was recorded that Sanele had been myopic since the age of six and his eyesight had always been a problem and it was not as a result of the assault. Sanele alleged that he was assaulted in March 2026, however he says his vision started to deteriorate in August and the record of the visits to the doctor is from August 2016. Sanele’s version was false because the Doctor had said Sanele had used cash, while the family said he had used medical aid and the doctor correctly captures that Sanele had said he was assaulted on the face by his schoolteacher. The subpoena that had been issued for certain documents had been withdrawn as it was not in his best interests that the matter be postponed and possibly proceed into 2024. He noted that Sanele had become blind after what the doctor recorded as sudden onset of blindness, however he can confirm that he did not assault Sanele. The Applicant as concerned that no one in Sanele’s class could testify regarding the swollen face, not even his friends, the Respondent’s representative had said he would call seven witnesses, then backtracked, and stated that he would no longer call the witnesses because there had been threats made to the witnesses. The contentions that he had been responsible for the Applicant’s loss of eyesight were malicious.

28. The Respondent’s second witness was Sibongile Sotshiva who was a former learner of Beverley Hills High school and in the same class as a Sanele. The teacher arrive late for the class and Sanele was complaining, while the teacher was explaining a problem on the board, Sanele was talking to his friends, the teacher reprimanded him, however he continued and was pointing at the teacher, she then asked them to call the Applicant. Sanele’s behaviour towards the teacher was violent. The Applicant then came by the door and called Ms Motsome and Sanele, they went outside and then Sanele came back into class and took his seat until the lesson ended, however she did not observe any changes on Sanele’s face. She had known Sanele since grade 10, and he had always worn glasses and was wearing glasses on the day in question.

29. Under cross examination the witness testified that had there been marks on Sanel’s face, she would have noted the changes because he passed by her desk on the way to his. The witness did not see or hear anything that happened outside and she could not confirm that the Applicant had hit Sanele or not. Sanele’s mother had not come to the class, it was put to the witness that in the disciplinary hearing she had testified that Sanele’s mother had come to the school, however she was now changing her version, she stated that perhaps the nerves had got the better of her, however she could not say she lied, however the testimony she is giving now should be believed because she had time to prepare. The witness read the J88 and testified that it stated that Sanele had been examined by a doctor who confirmed that he had been injured on the jaw and eye, perhaps it had taken a doctor to note that he had facial marks. She could not confirm or deny that Sanele had been assaulted because she could not speak to things that she never saw or heard.

30. Mr Sello Machitje testified that he knew the Applicant as an educator at Beverly Hills High School, on 12 March 2016, he received a call from Sanele’s mother who told him that her son had been removed from the class, as he was not at school, he asked her to come on Monday, however she did not come on Monday to the school as her attendance was not logged in the book.

31. Under cross examination, the witness testified that Sanele had been removed from class by the two educators, Ms Motsome, and the Applicant. The witness testified that he could not remember that in the disciplinary hearing he had testified that Mrs Tshabalala had told her that the Applicant had slapped her son. As Ms Tshabalala did not come to school on the 14th of March, he did not take any steps in respect of the matter, he was waiting for the mother to come as agreed, he did not call Mrs Tshabalala to find out why she was not coming because she was rude. Sanele was also rude and his word was final. The allegations that Sanele had been slapped had not been reported as there was insufficient information. The witness confirmed the information recorded on the J88; however he could not confirm that the educator referred to in the report was the Applicant. Ms Motsitsi was brought to the school as a result of the rotation of deputy principal. The witness did not know when COSAS had contacted the school and did not know anything about COSAS involvement in the matter. The witness confirmed that the medical certificate confirmed Sanele had been assaulted and sustained injury to the jaw and left eye, the sketch on the J88 stated that he was swollen on the nose and swelling means that one has an injury. He was however not aware what sudden onset of blindless meant as reflected on the document dated 30 August 2016. He was surprised that the Applicant would have accused him of such serious allegations because he was aware of the Applicant’s character and he was not aware of the allegations and he could not confirm if the Applicant had assaulted Sanele because he was not there.

ANALYSIS OF EVIDENCE AND SUBMISSIONS
32. A dismissal must be procedurally and substantively fair. While procedural fairness was not placed in dispute, I note that the alleged misconduct took place in March 2016, the Applicant was charged in September 2021, at least five and a half years later. That is a lapse of a long period between the occurrence of an alleged offence and instituting proceedings.


33. It was testified that there were delays were as a result of Mr Machitji’s failure or refusal to take action in the matter, the matter was subsequently taken up or reported to the District Office after the appointment of Ms Motsitsi as the Acting Principal at Beverly Hills High School around 2017. Mrs Tshabalala also testified that she reported the matter to COSA, who then also assisted in taking the matter forward. There is however no explanation on why following the report to the district office, it took at least another four years to institute disciplinary proceedings against the Applicant. It is stated that disciplinary action must be instituted and finalised as quickly as possible. The Constitutional Court in stated the following:

“It bears emphasising that the EEA itself provides that disciplinary proceedings must be completed in the shortest possible time-frame. This is the internal standard to which the Department is bound. Whilst failure to follow an internal disciplinary code is not in itself fatal, it remains a relevant factor in determining its impact on the fairness of the process.”

34. Having regard to this, I am of the view that there were significant delays by the Respondent in taking the necessary disciplinary steps against the Applicant.

35. Section 10 of the Schools Act which provides that

“Prohibition of corporal punishment
(1) No person may administer corporal punishment at a school to a learner.
(2) Any person who contravenes subsection (1) is guilty of an offence and liable on conviction to a sentence which could be imposed for assault.”

36. The Applicant was charged for contravention of the South African Schools Act 84 of 1996 and for assault with intention to cause grievous bodily harm. It is alleged that the Applicant slapped a learner, one Sanele Tshabalala, the Applicant denied the allegations. Corporal punishment is prohibited in terms of the Constitution of the Republic of South Africa and the South African Schools Act. Of importance in this matter is that there is no eye witness by either the Respondent or the Applicant in this matter, Ms Motsome, the educator who was teaching the Applicant at the time the incident occurred is unfortunately deceased and her testimony was unavailable.

37. It was testified by the Applicant that he had been advised by Ms Motsome that Sanele’s mother had attended at the school, he contended that she had attended at the school to find out why her son had been asked to leave the class, Sanele Tshabalala testified that he had called his mother following the assault by the Applicant to report the incident and she them came to school to find out what was going on and met with Motsome. Clearly from the Applicant evidence, Sanele’s evidence and Mrs. Tshabalala’s evidence, Sanele’s mother indeed went to the school on that Saturday morning. Prior to going to the school Mrs Tshabalala testified that she had called the Principal, Mr Machitji who advised her that he was not at school, she should come on Monday, Mr Machitji confirmed in his testimony that he indeed had a conversation with Mrs Tshabalala on the day in question, however the contents of their conversation differed, Mrs Tshabalala stated that she had called him because her son had been assaulted, on the other hand, Mr Machitji contended she has called to report that her son had been removed from the Saturday class. Mrs Tshabalala on her version following this conversation made her way to the school.

38. Sanele consulted with Dr Timol on 12 March 2016 as testified, the doctor confirmed that he had consulted with Sanele and he had advised him that he had been assaulted by his teacher, he was not aware who the said teacher was, The doctor confirmed that the was injury to the Applicant’s jaw and left eye. He however in his testimony stated that he could not recall Sanele wearing contact lenses. He had completed the J88 in 2017, he did not recall completing a J88 in March 2017 and would have probably made a note of it. As a result of the said assault, Sanele developed a retinal detachment and he referred him to St Johns Eye Hospital for care. I am of the view that Dr Timol’s testimony is credible and he would have no reason to lie. From Dr Timol’s testimony. It is evident that indeed an assault had taken place on 12 March 2016.

39. From the evidence adduced at the hearing, I noted that the relationship between the Applicant and Sanele was not a very good one, there were allegations of previous allegations on which the Applicant had allegedly hit Sanele and other learners and allegations that the Applicant had said he would ensure Sanele fails his grades, while Sanel did repeat grades, I do not believe anything turns on this testimony. The question I must answer is did the Applicant hit Sanele as alleged.

40. Sibongile testified on behalf of the Applicant, the difficulty with Sibongile’ testimony is that her version was never tested with the Respondent’s witness and it also differed in some respects with the Applicant’s testimony. The Applicant testified that Sanele had been given his bag and thereafter left the school, Sibongile testified Sanele had come back into class until the end of the lesson.

41. The Applicant and Sanele Tshabalala are the only two people who were present when the incident took place outside the class room and they both have contradictory versions of the incident, and significantly the Applicant denies that he assaulted Sanele as alleged. As I have established above, Mrs Tshabalala made contact with the Principal after Sanele had called her and advised her that he had been assaulted, she went to the school to find out what was going and then gave Sanele her medical aid card to attend at the doctor who specifically recorded that he had treated Sanele for assault. No case has been made on why Sanele and his mother Mrs Tshabalala would have lied. It was in fact testified that Mr Machitji avoided dealing with the matter and on one occasion refused to meet with Sanele’s mother and father. The matter was only brought to the attention of the authorities after Mrs Tshabalala reported the matter to COSAS and with the assistance of the acting then actin Principal, Ms Ms Motsitsi who reported the matter to the district office.

42. While there is clearly evidence to show that Sanele Tshabalala was assaulted as recorded by the doctor and as a result of the assault was injured to his jaw and left eye and subsequently lost his eye sight and is now blind in the left eye, I do not believe there is sufficient evidence on a balance of probabilities for me to confirm that the Applicant had the intent to cause grievous bodily harm to the Applicant. Wrongly so the Applicant slapped Sanele as method of instilling discipline, however I doubt that he would have anticipated such severe consequences as a result of his actions.

43. As I stated above there was a long delay in bringing these proceedings, while this issue was not raised by either party in the hearing, it would result in a finding of procedural unfairness, The finding of procedural unfairness however does not detract from the seriousness of the charges against the Applicant who administered corporal punishment in breach of section 10 of the South African Schools Act by slapping a learner and causing injury to his jaw and left eye. While I made a finding that there does not seem to have been an intention to cause grievous bodily harm, Sanele suffered an injury to the eye. Of particular relevance is that a serious violation of the child’s rights, was caused by the assault administered by the Applicant.

44. I am of the view that on a balance of probabilities, the Applicant administered corporal punishment when he slapped Sanele Tshabalala on 12 March 2016. Notwithstanding that the Sanele Tshabalala was unfortunately blinded pursuant the assault and slap to his face, I am of the view that the Respondent has not discharged the onus that the Applicant had an intention to cause grievously bodily harm corporal punishment is a serious offence as articulated in the Schools Act, and as a result a sanction of dismissal would be fair.

45. I am of the view that the Applicant’s dismissal was procedurally unfair but substantively fair for the reasons I have mentioned above. The Respondent is ordered to pay the Applicant compensation equivalent to three months a salary in an amount of R88 494,75 (29 498,25 x3).

AWARD
46. The Applicant Justice Mqosile’s dismissal by the Respondent, the Gauteng Department of Education, was procedurally unfair but substantively fair.

47. The Respondent is ordered to pay the Applicant compensation in an amount of R88 494,75, equivalent to three months’ salary for procedurally unfair dismissal calculated at the Applicant’s salary rate at the date of dismissal.

48. The Respondent must pay the Applicant compensation by 29 February 2024.

Dated at Johannesburg on this 25th of January 2024.

Nzwisisai Dandadzi