ELRC135-23/24WC

Commissioner: Jacques Buitendag
Case No.: ELRC135-23/24WC
Date of Award: 27 October 2023

In the INQUIRY between:


ABRAHAM MARTHINUS
(Union/Applicant)

and


WESTERN CAPE EDUCATION DEPARTMENT
(Respondent)

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This inquiry, in terms of section 188A of the Labour Relations Act, 66 of 1995 as amended (LRA), took place under the auspices of the Education Labour Relations Council (ELRC) on 6 July-; 21 August-; and 6 October 2023 at the premises of Western Cape Education Department (WCED) in Cape Town.

2. The proceedings were digitally recorded.

3. Mr. T Swartz of T Swartz Attorneys represented the Educator, Mr. A Marthinus. The WCED was represented by its Labour Relations Officer, Ms. V Veary. Ms. S Marks attended the proceedings as the intermediary.

4. The parties submitted heads of arguments on 13 October 2023.

BACKGROUND

5. On 25 September 2018 the parties to the Education Labour Relations Council (ELRC) entered into Collective Agreement 3 of 2018 which provides for compulsory inquiries by arbitrators in cases of disciplinary action against educators charged with sexual misconduct in respect of learners.

6. The WCED received allegations of misconduct of a sexual nature against Mr. Abrahams and on or about 25 May 2023 the WCED requested the ELRC to appoint an arbitrator for an inquiry into the alleged sexual misconduct allegations.

7. Mr. Abrahams is employed as a post level 1 educator at Symphony Primary School on a fixed term contract which expires on 31 December 2023. He has more than 32 years of experience as an educator.

8. The WCED leveled the following allegation against Mr. Abrahams:

“It is alleged that you guilty of misconduct in terms of section 18(1)(dd) of the Employment of Educators Act 76 of 1998 (hereinafter referred to as the Act ), to be read with Section 5 of the Criminal Law (Sexual Offenses and Related Matters) Amendment Act, Act 32 of 2007 in that during the period of November 2022 to February 2023, you unlawfully and intentionally sexually violated Learner A (a grade 1 learner enrolled at Riebeeckstraat Primary School), without her consent, by using his finger to touch her vagina.”

9. The leaner is seven (7) years old and her identity is protected.


10. At the Inquiry Mr. Abrahams acknowledged that he understands the allegation levelled against him and he pleaded not guilty to the allegation.

THE ISSUE IN DISPUTE

11. I must determine whether Mr. Abrahams is guilty, on the balance of probabilities, of the allegation as referred to in paragraph 8 above, and if so, I must determine the appropriate sanction.

SUMMARY OF EVIDENCE AND ARGUMENT

12. I have considered all the evidence and arguments presented, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence and argument that I regard as necessary to substantiate my findings in the determination of this matter.

The WCED’s evidence and argument
13. Learner A is in Grade 1 at Riebeeckstraat Primary School in Belhar. She testified through the intermediary.

14. Leaner A testified that Uncle Abie (Mr. Marthinus) and her grandmother come to fetch her, her bother (who is 15 years old, and her uncle (who is 13 years old and the son of the grandmother) and took them to Mr. Marthinus’s house. She, her brother, and uncle slept in one bedroom. She described that there was a bunker bed in the bedroom. She and her uncle were sleeping on the bottom bed and her brother on the top bed. Mr. Marthinus and her grandmother were sleeping in another bedroom. Leaner A testified that she was wearing a blue sweater and green trunks that night.

15. She said it was dark, but the bedroom door was ajar and she could see a kitchen light was shining. Leaner A testified that Mr. Marthinus came into the bedroom. She was awake but Mr. Marthinus did not know that. He was wearing trunks, a sweater and had his glasses on. He went to sit on the bed next to her, slipped his fingers under her shorts and touched her private parts. Leaner A demonstrated what happened to her by using an anatomical doll. She demonstrated by pulling the shorts of the doll slightly away and touching where the vagina would be. She testified that Mr. Marthinus then left the room. She was sad and wanted to cry because “it was not okay for anyone to touch her private parts”.

16. Under cross-examination Learner A confirmed that the incident happened at Mr. Marthinus’ house. She confirmed that it was not the first time that she was at his house. She said that it was the first time that Mr. Marthinus had touched her inappropriately. She called Mr. Marthinus a liar when it was put to her that he would say that he never touched her private parts and did not enter her bedroom that night.

17. Learner A testified that she told her mother and her teacher, Ms. Arendse what had happened and that her mother and father took her to the Police station. She could not remember the date of the incident but said that is happened on a Saturday.

18. Leaner A was confronted with the report of Ms. Arendse which indicates that Leaner A said that her sister and brother slept at the grandmother’s place when the incident happened. Leaner A maintained with her version that the incident happened as she described earlier in her testimony and that her sister was not at Mr. Marthinus’ house on the night of the incident.

19. Learner A’s mother testified. Her name is not being disclosed for the purposed of this award as it may result in the disclosure of Leaner A’s identity. She testified that when she arrived home on Monday 27 February 2023 her elder daughter told her that Leaner A wanted to tell her something. Leaner A then began to cry and said “mommy you are going to be angry”. The mother testified that she took Leaner A on her lap and that Leaner A told her that “Uncle Abie did big people stuff to me.”
Leaner A then told her that Mr. Marthinus put his hand on her private parts.

20. She said that criminal charges were laid, and that Leaner A was examined at Karl Bremmer Hospital. Learner A is also receiving counselling.

21. She testified that her elder daughter told her that she did not went with the others to Mr. Marthinus’s house when the alleged incident happened.

22. She also confronted her mother about what Leaner A said. Her mother’s facial expression was blank and their relationship is now strained.

23. Under cross-examination she confirmed that there was a good relationship between her, her mother and Mr. Abrahams. She confirmed that Leaner A has also reported what has happened to Ms. Arendse.

24. Ms. Arendse confirmed that Leaner A is in her Grade 1 class. She describe Learner A as a bubbly and loveable child.

25. Ms. Arendse testified that Leaner A was absent on 28 February and 1 March 2023 and when she returned to school she enquired about her health as she thought that Learner A was ill. The leaner then started to cry and told her that she went with to Mr. Abahams’s house with her grandmother where Mr. Abrahams touched her private parts.

26. Under cross-examination Ms. Arendse was confronted with her report which indicates that Leaner A told her that her sister and brother slept at Mr. Abrahams’ house. Ms. Arendse maintained that she believes Leaner A.

27. Ms. Veary’s heads of arguments is on record and I have considered it. She argued that Leaner’s A’s version is to be accepted; that the WCED has proven to allegation against Mr. Abrahams; and that dismissal is the only appropriate sanction.


Mr. Abrahams’ evidence and arguments
28. Mr. Abrahams testified repeatedly under evidence in chief that Leaner A was not at his house on 27 February 2023 and that he did not touch her inappropriately. He agreed that he has a bunker bed in one of the bedrooms. He had no comment when asked why an intelligent child would say that he has touched her private parts when it did not happen. Mr. Abrahams testified that Leaner A slept over once but that this was in 2022. He testified that he does not sleep with his glasses on.

29. Mr. Abrahams testified that he is out on bail and that there was no evidence in court that Learner A’s hymen was teared or penetrated. He said that there were no previous complaints of this nature against him.

30. It was put to Mr. Abrahams under cross-examination that Leaner A never said the incident happened on 27 February 2023. Mr. Abrahams explained that the state alleges in court that the incident happened on 27 February 2023. It was put to Mr. Abrahams that the incident happened the weekend before 27 February 2023 (which was a Monday).

31. Mr. Abrahams testified that Leaner A, her brother, and his son (Leaner A’s uncle) slept over once in the bedroom (mentioned by Learner A) and repeated that this was in 2022.

32. Leaner A’s grandmother testified. Her name is not being disclosed for the purposes of this award as it may result in the identity of Leaner A being revealed. She testified that she has two children with Mr. Abrahams. She, Leaner A, and Leaner A’s her bother as well as her child slept over once at Mr. Abrahams’s house, but this was in 2022.

33. Under cross-examination she testified that she and Mr. Abrahams is not in relationship at the moment but that she would like to be. She agreed that she is financially dependant on Mr. Abrahams and that she has an interest in protecting him. When asked why Leaner A would lie about what happened, she said that she does not know what to answer.

34. Mr. Swartz’ heads of argument is on record, and I have considered it. He argued that the date of the alleged incident is unknown; that Mr. Abrahams has not changed his version; and that the WCED has not proven the allegation on a balance of probability. Mr. Swartz argued that if Mr. Abrahams is found guilty that, after considering all the circumstances, mercy ought to be shown.

ANALYSIS OF EVIDENCE AND ARGUMENTS

35. The WCED bears the onus to proof the allegation levelled against Mr. Abrahams on a balance of probability. In WESUSA & Others vs Jacobz 2000 8 BLLR 977 (LC), the Court remarked that “the onus will be discharged if the respondent can show credible evidence that its version is the more probable and acceptable version. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondents version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradictions is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that a the end of the day one can say with conviction that one version is false and be rejected with safety”. The onus will not be discharged by raising mere suspicions of misconduct.

36. The versions of Leaner A and Mr. Marthinus are mutually destructive. Mr. Abrahams claims that he did not sexually violate, assaulted or abused Leaner A. Leaner A’s version is that Mr. Abrahams has indeed touched her vagina one night when she slept over at his house. I need to determine, on the probabilities whose version is more believable.In Department of Health KZN v PSA and others (DA 4/15) (2018) 39 ILJ 1719 (LAC) (handed down on 20 March 2018) the Commissioner was also faced with two conflicting versions. The Court held that the determination of such disputes needs an assessment of the credibility of evidence and the decision arrived at on a balance of probabilities.

37. I am acutely aware of the fact that a positive allegation are not necessarily more truthful that a mere denial of the allegation. The fact that Mr. Abrahams’ version is a denial does not make his version more or less probable than Leaner A’s version. It was noticeable however that Mr. Abrahams has repeatedly denied any incident between him and Leaner A on 27 February 2023. I accept that the incident probably did not happen on this day but having regard to all the factors I am persuaded by the evidence of Leaner A, that she was indeed sexually violated by Mr. Abrahams. Let me explain why I came to this conclusion.

38. The imaginativeness and suggestibility of children, their memory, understanding of the importance of telling the truth, their capacity of observation, recollection and narrative ability, their age, mental ability and development is just some of the factors that our Courts have held to be taken into account when scrutinising the testimony of a child. I must hasten to add that this does not mean that the evidence of children should be approached on the basis of assuming that all children make false allegations, have poor memories or is highly suggestible.

39. The general quality of the testimony of Leaner A, within the content and structure of her own evidence and the corroborated facts about the layout of the bedroom; the detailed description by Leaner A using the anatomical doll of the abuse; her clear identification of Mr. Abrahams being the person who abused her, coupled with the testimony of Leaner A’s mother when Leaner A has reported the incident to her, her emotional state and her explanation what has happened to her; as well as the evidence of Ms. Arendse when Learner A has reported to her what had happened, are some of factors that I considered in examining Learner A’s credibility as a witnesses.

40. Leaner A’s description of what had transpired that night between her and Mr. Abrahams remained, at its core, the same during her testimony in chief and during cross-examination. I did not get the impression that the evidence of Learner A has been rehearsed or that she has imagined or made up what had happened to her in the bedroom, and it was clear that her recollection of the event is causing her anxiety and grief. It is not possible to determine the exact date when this incident happened but given Leaner A’s age and developmental stage it cannot be expected of her to recall the date of the incident. I am however persuaded by the testimony of Learner A and when the incident was reported to her mother that it probably happened over the weekend prior to 27 February 2023. I find Leaner A to have been credible witnesses and I have no reason to reject her version and what she has experienced on that night. I find her version more probable than Mr. Abrahams’ denial.

41. Mr. Abrahams is charged in terms of section 18(1)(dd) of the EEA which reads as follows: “(1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she – (dd) commits a common law or statutory offence. Section 5 of the Criminal Law (Sexual Offenses and Related Matters) Amendment Act, Act 32 of 2007 provides that a person (“A”) who unlawfully and intentionally sexually violates a complainant (“B”), without the consent of B, is guilty of the offence of sexual assault.

42. I find that Mr. Abrahams came into to the bedroom at night where Learner A was laying on the bunker bed, proceeded to her side of the bed, pulled her shorts away and touched her vagina. He was clearly identified as the perpetrator by Learner A who even recall the clothes he was wearing and that he had his glasses on. The conduct of Mr. Abrahams shows intent. His conduct was unlawful because a 7-year-old cannot given consent and there is no other justifiable ground for his conduct. Learner’s A’s bodily integrity was impaired and she was sexually violated. I find on a balance of probability I find that Mr. Abrahams has indeed sexually assaulted Learner A. He is guilty as charged.

43. I must now consider the appropriate sanction.

44. The WCED has argued that Mr. Abrahams has broken the trust relationship and has called for his dismissal.

45. It is trite that mitigating factors such as the personal circumstances of an employee should normally be considered before deciding the appropriate sanction. I considered Mr. Abrahams’ personal circumstances, his years of service and clean record as well as the other mitigating factors presented by Mr. Swartz in his heads of argument. I also considered that Mr. Abrahams will probably find it difficult to secure employment in the education sector if he is dismissed.

46. I must take into account that the South African Constitution stipulates that every person has the right to human dignity (section 10) as well as freedom and security, including the right to bodily and psychological integrity (section 12). And that a child has the right to be protected from maltreatment, neglect, abuse, or degradation (section 28(1)(d)) and should not be required to commit acts that i) are inappropriate for a person of that child’s age; or ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral, or social development (section 28(1)). The Constitution also states that the best interest of the child shall be paramount in any matters affecting the child (section 28(2)). In this regard the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC, held that section 28 of the Constitution impresses an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance. Courts and administrative authorities are constitutionally bound to consider the effect their decision will have on children’s lives.

47. I considered the Code of Professional Ethics contained in section 3 of the South African Council for Educators (SACE), Act 31 of 2000, which provides that an educator must inter alia: respects the dignity and constitutional rights of learners; avoid any form of humiliation, and refrains from any form of abuse, physical or psychological; refrain from any form of sexual harassment (physical or otherwise) of learners; refrains from any form of sexual relationship with learners from any school; take steps to ensure the safety of the learner; and not abuse the position he or she holds for inter alia personal gain.

48. Educators are entrusted with the care of children and they must act with utmost good faith in the conduct towards learners because society must be able to trust educators unconditionally with their children. Learner A is a 7-year-old child who has a general right to be protected from sexual abuse, harassment and sexual assault. Mr. Abrahams’ conduct towards Learner A was inappropriate, unacceptable and far removed from acting in the best interest of a child. He has unfortunately failed in his obligations as an adult; as an educator; and as a protector of children. Mr. Abrahams has breached this trust and he has displayed no remorse for his conduct during the Inquiry. The seriousness of the offence is such that an employment relationship between Mr. Abrahams and the WCED cannot possibly continue especially in light of the duty in terms of the Constitution to consider the interest of children as paramount.

49. In terms of section 18(1)(q) of the Employment of Educators Act, it constitutes misconduct if an educator “while on du
49. Lastly, section 120(1) of the Children’s Act, No 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” Section 120(2) of the act provides that a finding that a person is unsuitable to work with children may be made by such forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. Having regard to the seriousness of Mr. Abrahams conduct, I find him unsuitable to work with children.


AWARD
1. I find Mr. Abrahams guilty as charged.
2. The sanction is summary dismissal.
3. The WCED must inform Mr. Abrahams of the date of his summary dismissal.
4. I find Mr. Abrahams unsuitable to work with children in terms of Section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the Children’s Act 38 of 2005, notify the Director-General: Department of Social Development in writing of the findings of this forum for the Director-General to enter his name as contemplated in section 120 in Part B of the register.
5. The ELRC must send a copy of this award to the South African Council for Educators (SACE) to consider revoking Mr. Abrahams SACE certificate.


ELRC Commissioner: Jacques Buitendag