ELRC237-21/22EC

Case Number: ELRC237-21/22EC
Commissioner: MBULELO SAFA
Date of Award 07 February 2024
In the ARBITRATION between: -

DEPARTMENT OF EDUCATION: EASTERN CAPE
Applicant


And


MBEJE, NJABULO SIPHESIHLE
Respondents


DETAILS OF THE HEARING AND REPRESENTATION

1. The matter set down for arbitration on the 25 February 2022 at Lusikisiki Children’s Court, at Maluti Education offices on the 25 February 2022, 22 July 2022, 21 to 22 August 2023, 30 October 2023 and concluded on the 08 December 2023.

2. The Applicant was represented by Mr Loyiso Mashoai who is their Labour Relations Official and the Respondent was represented by Ms Ntombodumo Maqhashalala from SADTU on the first day and represented by Mr Sicelo Mkize from Mkize Attorneys on subsequent days.

3. The intermediary appointed by the ELRC was Ms Xana and the sign language interpreter was Mr Nogubha from Sive Special School.

4. The proceedings were recorded in an audio recorder.


ISSUES TO BE DECIDED


5. Whether or not the Respondent is guilty of the charges proffered against him by the Applicant and to make an appropriate award/sanction in terms of section 18(3) of the Employment of Educators Act.

BACKGROUND TO THE ISSUE

6. The Respondent is employed by the Applicant as an educator at Sive Special School (the school) in the Alfred Ndzo West District of the Applicant. He is employed in terms of the Employment of Educators Act.

7. The proceedings here are in terms of ELRC Collective Agreement 3 of 2018 which provides that it is mandatory that in misconduct cases where the allegations against the educator relate to alleged sexual misconduct against a learner the matter must be dealt with as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act.

8. At the conclusion of the hearing it was agreed that the parties were going to submit their closing arguments by 15 January 2024. On that date both parties had submitted their arguments.

SURVEY OF EVIDENCE AND ARGUMENT

9. Each party submitted one bundle of documents and led oral evidence through two witnesses.

APPLICATIONS

10. After the two witnesses of the Applicants have testified the Respondent submitted an application for legal representation and subsequently submitted another application for the recall of the two witnesses of the Applicant. Both applications were granted in separate rulings.

APPLICANT’S EVIDENCE AND ARGUMENT

11. The first witness of the Applicant was a school child whose name is withheld, but for the purposes of this award she will be called the first Complainant. She testified in camera because she is the minor (16 years).

12. She testified that she was doing grade 8 in 2022 and knows the Respondent as an educator in the school, but was not teaching her.

13. She testified that sometime in February or March 2021(she was doing grade 7 then) she was sent by another lady called Luleka to take money to the Respondent. She said the money was for the debt Luleka owed the Respondent. After making the payment the Respondent asked the first complainant to come back to him.

14. The complainant went back to the Respondent who was then in the Computer Room. When the complainant got there the Respondent (who was alone) closed and locked the door and started to touch the first complainant in the breasts, private part and the buttocks. When asked she could not demonstrate how the touching was done and said she could not recall how the Respondent touched her. She said she had no other evidence except what she said at the arbitration.

15. The complainant said she did not say anything when the Respondent was touching her. When it was put to her that she did not say anything because nothing happened she said she was telling the truth. After the touching the Respondent opened the door and the complainant left without saying anything. When she left it she was feeling very bad about what had happened to her. When this happened she was fifteen (15) years old.

16. She confirmed that the statement on page 32 was her statement written by her even though she did not sign it herself. She said the purpose of writing the statement was to report the incident. She admitted that the statement was dated 01 June 2021 and was hence written just two or three months after the incident.

17. Referred to the statement by Mr Gunkel it was pointed out to her that in the statement there is no mention of Luleka and that she was fabricating the story, she said she was telling the truth. She also admitted that in the statement she did not say anything about the door being closed by the Respondent, but reiterated that she was honest in all what she said at the arbitration. She also admitted that in the statement she wrote all that happened to her, but that she may have left out some details as she wrote what she remembered at the time. She admitted that she forgot some of the things because it has been sometime but that did not make her unreliable.

18. When asked about the fact that in the statement there is no mention of buttocks she said when she referred to the body in the statement she meant everything.

19. She said she only told another school girl who is her friend about the incident. The friend suggested that she must report to the office but the complainant was afraid of doing that. The friend narrated the story to another male student and soon the story spread to all the students.

20. When the version of the Respondent was put to her that he was going to deny the incident the complainant said the Respondent would be lying if he denies it as she touched her.

21. The other witness of the Applicant was second complainant who is also learner and testified in camera.

22. She testified that that she knew the Respondent as one the educators at the school and was teaching CAT.

23. She said the other day, in June 2021 when she was twenty (20) years old, after she has taken off her uniform and was preparing to sleep she was called by the Respondent to go and sweep at the Library.

24. She said the Respondent followed her to the Library and when she was done with the cleaning the Respondent asked her to kiss him but she refused. Asked about the contradiction where at evidence-in chief she mentioned sweeping and during cross-examination she mentioned cleaning, she said she also cleaned the dishes.

25. Asked about the fact that in his statement Mr Gunkel does not mention anything about sweeping the library, she said Mr Gunkel may have misinterpreted what she said. Asked about the absence of sweeping in the statement she said she may have forgotten to state that. She also said she forgot to mention anything about the condom in her evidence whereas in the statement there is such a mention. When it was put to her that she was forgetting some of the things because she was lying she only said the Respondent representative must go ahead and believe the Respondent.

26. She said they then went to another room adjacent to the library with the Respondent holding her by the hand to the room. She said when they were inside the room the Respondent started to kiss her and she pushed him away. The Respondent told her not to tell anyone about the incident.

27. She said she wanted to report the incident to the HOD, Ms Mazwi, but she ended up not reporting it because she was afraid. She said she reported to her friends who in turn reported to Mrs Mazwi.

28. She said that when the incident occurred the other learners and educators had left. She said there were security guards at the school but their room was very far.


29. In cross-examination she said she was forced to kiss the Respondent but she did not report as she was afraid that if nothing was done on the Respondent other learners were going to laugh at her. She only reported to her friend. She said she reported to her parents and they advised that if something like that happened again she must report to the office and the police.

30. She said the friend she reported to her friend who is the first complainant in this case. Asked about the similarities between her evidence and that of the first complainant and that this showed that they discussed and planned the evidence and that they were fabricating, she said they did not plan anything.

31. When the version of the Respondent was put to her that he could not instruct her to clean the library as he was not responsible for the cleaning, she responded that she also was confused when he asked her.

32. She said before the incident she had known the Respondent since 2016 and that before the incident there was no problem between her and the Respondent.

33. She confirmed that she wrote the statement on page thirty-three (33) of the bundle. She said she signed the statement herself.

34. When it was put to her that the respondent will say she(witness) was influenced by other people who want to get rid of the Respondent she said she did not know about that.


RESPONDENT’S EVIDENCE AND ARGUMENT


35. The Respondent, Mr Njabulo Siphesihle Mbeje, testified that he was an educator at Sive Special School since August 2018 and was teaching Computer Application Technology (CAT) in grades 10 to 12.

36. With regards to the charges proffered by the Applicant he denied the allegations against him. He said only two learners testified out of the seven mentioned in the charges.

37. He said other learners did not testify even though they are still available at the school. He said some learners were not called as witnesses because they(Applicant) could see that their evidence was not corroborating or will not favour them. He also said other learners were not called as witnesses because the Applicants regarded their evidence as lies. When asked he said he did not know that it was within the litigant to call witnesses. He admitted that no objective litigant would call a witness who would not support its case.

38. He disputed the evidence of the second complainant and said he did not remember sending the learner to fetch money from him and also did not know what the money was for.

39. He said that in 2021 there was a shortage of classrooms at the school and the computer room was therefore used as a classroom. He said there is no time when there are no learners in the room. When it was put to him that this version was not put to the learners when they testified he said he could not remember. He denied ever touching her (second complainant). He also said there was a contradiction as the investigation report said she was touched in the tuck shop and in the computer room and that she was touched several times. The second complainant was forgetting because the whole story was made up.

40. He said at arbitration the second complainant testified that the Respondent touched her once but in the statement she said she was touched several times. He said this contradiction shows that she was lying and that the whole thing was a plot. He denied that he ever touched her.

41. With regards to the evidence of the first complainant he said there was also a contradiction as in the statement she said she was called to clean the cutlery but at arbitration she testified that she was called to sweep. He also said this contradiction shows that the story is made up.

42. Referring to the statement he testified that in the report there is a mention of condoms but in the statement of Mr Gunkel(Circuit Manager) there is none .

43. He said the learners who testified were being used by some other people who wanted them (him together with his friend) to be dismissed. He said the people who were using the children were people at the school who were jealous of his work. He however could not name them.

44. He said there were people in the school who were jealous of him because he was driving different vehicles and that he bought himself a house. The colleagues said he was coming from a rich home. They also became jealous of him because he was benefiting by always being included in the overtime work of being the hostel supervisor and working in the marking centre. Asked to name the people he mentioned someone called Silindile(who was an administration support staff member) who he said once remarked how the Respondent was working whereas he was rich.

45. He said there were people who could testify about the plot against them but it was difficult to call people as witnesses. He further said one person, Mr Maqhubu, who was the Departmental Head was threatened in front of the staff and forced to withdraw the statement when he said the investigation report by Mr Gunkel was shallow. Other people then became scarred to speak about the incidents.

46. He said that in staff meetings he and other colleagues were always vocal about things and were labelled as Blue House because they were using a blue container as their staff room. He said the people staying in the blue container were labelled by other staff members and the school management team as bad influence.

47. He also said the security guard mentioned in the report was working under the Expanded Public Works Programme(EPWP) and was dismissed soon after the incidents. He said he did not know the financial status of the security guard and also did not know if the reasons for false accusations applied to him as well.

48. He confirmed that one of the learners who testified said she did not confirm what was in the report by Mr Gunkel.

49. He said his other colleague, Mr Faku, who is mentioned in the report, was charged like him but he(Faku) informed him(Respondent) that the witnesses from the employer were not available as they were reportedly no longer interested to be witnesses. He said it was clear that the children could see that they were being used and that was why they were no longer interested.

50. He testified that the allegations emanated from a strike at the school which was in 2021 when Mr Gunkel (from the employer) was served with a memorandum which contained issues that were beyond the comprehension of learners. Such concerns were that the Department was failing the needs of the support staff as they were not paid their overtime, others were about the appointment of the principal and that the school Departmental Head was controlling the principal. He said these issues were beyond the comprehension of children unless some adult influenced them.

51. Asked if the learners would not know about the outstanding overtime payment as they are members of the SGB, he said he only got to know about the participation of leaners in the SGB when Mr Gunkel came to the school.

52. When accepting the memorandum Mr Gunkel said he was going to investigate the issue of educators who were using the children and the allegations of educators abusing the children. No report about those investigations ever came.

53. He said that when there was a meeting of male educators in Matatiele the managers of the Department warned educators about the misconduct involving the learners. One of them even went to the extent of threatening to dismiss two educators for the breach of section 17 of the Employment of Educators Act. He said he believed the managers had predetermined the decision to dismiss him. Asked what made him think that by the “two educators” the managers were referring to him he said this came to his mind when he was suspended within a week after the meeting. He believed the official who threatened dismissal because he was the one dismissing people in the district.

54. He said there were fingers pointed at Mrs Mazwi who all the children reported to but did not take action. He said he though she also should have been disciplined.

55. The other witness of the Respondent was Mr Mkhuseli Faku who is a colleague and friend of the Respondent.

56. He said he was aware of the charges proffered against the Respondent and he was also charged with regards to the allegations.

57. He said his case was still underway but the witnesses have said they were no longer prepared to continue with the case and no longer remembered. He named the learners as first and second complainant. He said he thought they were withdrawing because the allegations were part of a plot from certain individuals within the school. He said even the letter from the students during the strike was well structured to have been written by learners and the items in the memorandum beyond the comprehension of the learners.

58. Asked if the learners of the school would not be familiar with problems at the school seeing that they had representatives in the School Governing Body(SGB), he agreed that the learners had representatives in the SGB but they were not attending the meetings. He said that even though he was not a member of the SGB but he was always invited in the meetings as someone who was involved in the finances of the school. He however admitted that there was nothing preventing the learner to ask for the minutes of the SGB after a meeting or ask questions.

59. He said that there was once a staff meeting where people sharing the staff room with him were vocal to the extent that they were labelled as staff from Blue House as misbehaving and also accused of abusing children. This led to divisions in the staff to the extent that they were not even greeting each other. He said the Respondent was part of the Blue House staff room.

60. He believed that the allegations were brought about because some staff members hated the Respondent, accused him of being rich and of being too much of himself. He also said the other staff members were jealous and complained that he was given preferential treatment when the Respondent was appointed for overtime activities for three executive years and was always used by the principal due to his IT skills. The colleagues then conspired against him(Respondent).

61. Asked if there was any reason why only two male educators of out six who were staying at the blue house were implicated if there was bias against the educators in the blue house he said he knew no reason.

62. He said he did not have the evidence of the conspiracy but the events which included the arrest of the Respondent, his suspension and the subsequent lifting of that suspension all point to the fact that there was conspiracy.

63. He said what was common between him and the Respondent was that they liked cars and at their homes there were different types of cars. This led to some colleagues remarking that they were rich as their parents have worked for them. He said the people became even more jealous when the Respondent bought a house and he(witness) assisted his brother to establish a driving school.

64. When asked to give the names of staff members who conspired against them he mentioned Lifa Tlali whom he said was the teacher assistant who once remarked that the witness had ‘tricks’ to do things and also said the witness was working at the district and getting paid at the school. He could not say this statement showed the conspiracy but said this was all he knew.

65. When it was stated that what he was saying was speculation which cannot be relied upon he said he did not know.

66. He said he could not comment about the allegations against the security guard as he had no connection with him. He was however shocked that the person who replaced the security guard was related to a support staff member. He said the staff member was called Mabuyi and was always with the learners. He said this showed that there were people behind the allegations so that they (witness and Respondent) can be dismissed and other people be employed. He said he regarded the dismissal of the security guard as also due to fabrications.



ANALYSIS OF EVIDENCE AND ARGUMENT


67. The Applicants, Eastern Cape Department of Education proffered the following charges on the Respondent, Mr Mbeje, (1) contravention of section 17(1)(b) of the Employment of Educators Act in that he sexually assaulted seven learners of Sive Special School(the school) by forcefully kissing them and touching their bodies(buttocks, thighs, rib cages) without their consent, (2) contravention of section 18(1)(q) of the Employment of Educators Act in that he forcefully kissed and fondled the bodies of seven learners, and (3) contravention of section 18(1)(f) of Employment of Educators Act by intentionally in that he sexually harassed and made sexual advances toward seven learners of the school without their consent.

68. The main allegation against the Respondent is that he sexually assaulted, forcefully kissed, touched the buttocks, thighs and rib cages of seven learners of the school. Of the seven learners mentioned in the charges only two learners testified and to protect their identities in this award they are referred to as the first and second complainant.

69. That only two learners testified out of the seven cited in the charges was an issue with the Respondent party arguing that the five learners were not invited to testify as part of the conspiracy because Applicants know that the five learners were going to expose unfavourable facts which would damage the case of the Applicants. The Respondent then called for negative inferences to be drawn from the failure of the Applicants to call these witnesses. To drive home their arguments the Respondent cited the Labour Court in Tshishonga v Minister of Justice and Constitutional Development and Another (2007) 28 ILJ 196 (LC) and the Labour Appeal Court in Bargaining Council for the Furniture Manufacturing Industry, KwaZulu-Natal v UKD Marketing CC and Others (2013) 34 ILJ 96 (LAC).

70. The Labour Court cited above was of no assistance as it does not deal with the issues raised in this dispute. In the case of the LAC the Respondent there did not call any witness despite several witnesses of the appellant. The appellant called on the court to draw negative inferences from the fact that the Respondent did not call witnesses. In response the court held ;
It is a prerequisite to the application of this principle that appellant’s evidence must have been of such a nature that, when it closed its case, there was sufficient evidence to enable the court to say, having regard to the absence of an explanation, that the appellant’s version was more probable than not.

71. The court refused to draw negative inferences because the appellant was equivocal in its own case .

72. In their response the Applicants argued that the negative inferences must not be drawn because the charges were not split according to the individual learner. They further argued that it is the prerogative of the initiator to decide which witness to call.

73. The process of calling witnesses in civil proceedings (which arbitration falls under) is governed by the principle of party control. According to this principle it is for the legal representatives of the party to decide which witnesses to call.

74. In this dispute the Applicants’ witnesses testified about their own experience of being abused and assaulted and I will base my findings on the evidence before me which the Respondent had an opportunity to cross-examine two times. Since my findings will be based on the evidence presented at the arbitration, the absence of the evidence from the learners who did not testify would not have made the Applicant’s version more probable that it was. I hence am not convinced to draw negative inferences from their failure to testify.

75. If the Respondent feels, as they argued, that the five learners who were not called by the Applicants were going to come with facts to discredit the case of the Applicants, in the same principle of party control it was within their rights to call these five learners to be their witnesses, even to the extent of issuing a subpoena in terms of Rule 51

76. During the arbitration the Respondent intimated that they were going to subpoena the official of the Department who investigated the allegations and whose statement is part of the bundle, Mr Gunkel. The contents of the statement by Mr Gunkel were provisionally accepted (with parties allowed to refer and testify on it) with the understanding that Mr Gunkel was going to testify. The Respondent party later indicated that they were abandoning the idea to subpoena Mr Gunkel. This effectively meant therefore the hearsay of evidence of Mr Gunkel that was provisionally accepted stood not to be accepted because it does not meet the requirements of section 3(3) of law of Evidence Amendment Act .

77. Typical of other disputes that relate to sexual harassment in this dispute there are only two versions; that of the alleged perpetrator, that of the complainants and the facts.

78. When faced with the mutually destructive versions, like in this case, the Supreme Court of Appeal in Stellenbosch Farmers Winery Group Ltd & Another v Martel et Cie & Others provided a technique where it said the court must make findings on the (i) credibility of the various factual witnesses, (ii) their reliability and (iii) probabilities.

79. In rebutting the evidence of the two complainants that he fondled the breasts, private part and buttocks of the first complainant and that he forcefully kissed the second complainant the Respondent relied on bare denial, theory that there was conspiracy hatched by colleagues who are jealous of him and want him dismissed from his post and contradictions on the evidence of the witnesses of the Applicants.

80. Despite the denial and allegations that the complainants were used by his enemies the witnesses of the Applicants were not shaken in their evidence that what they said at the arbitration is what really happened.

81. The cross-examination of the witnesses of the Applicant focused on the contradiction between their evidence at arbitration and what Mr Gunkel wrote in his statement and also what they(witnesses) wrote in their statements. As argued above the statement written by Mr Gunkel was not accepted as evidence and any reference to it is therefore disregarded.

82. The contradictions identified between what the witnesses wrote in their statements and their evidence were issues that were not fundamental to the case but were details that were either left out in the statements or in the evidence at arbitration. As an example the first complainant was questioned about the fact that in the statement she did not mention that she was taking money to Luleka whereas at arbitration she did. To me this is not a contradiction per se but this is just a matter of some details being left out.

83. The other contradiction identified by the Respondent in the cross examination of the first complainant was the fact in the statement the witness did not mention anything about the door being closed whereas at arbitration she did. The allegation relates to what happened in the computer room, whether the door was closed or not is immaterial.

84. The other contradiction identified by the Respondent regards the number of times the touching took place wherein the first complainant testified at arbitration that there was one incident of touching whereas in the statements she said she was touched two times on the day. As previously ruled the statement made by Mr Gunkel cannot be relied upon by any party. Indeed, there is some contradiction with regards to the number of incidents. However, I do not believe that this contradiction warrants a credibility finding against the witness.

85. With regards to the second complainant the Respondent questioned the fact that she mentioned a condom and boyfriend in her statement but she did not mention them in her evidence at arbitration. Again the two issues do not matter in the allegations as the allegations are not based on them.

86. Another contradiction identified by the Respondent was when the second complainant testified that she was touched in the breasts, private part and buttocks whereas in the statement she said she was touched in the private part and body. When this was put to the witness she explained that to her the body referred to all other parts including the buttocks. The witness then explained whatever was supposed to be a contradiction and her explanation was not challenged and was satisfactory.

87. I noted and accepted the arguments, with authority , of the Applicants that the witness statements are not the precursor to the evidence of the witness at the disciplinary enquiry. Furthermore, I have taken into consideration the passage of time from when the incident occurred to the time the witnesses testified and the fact that the witnesses were called to the witness stand two times. The witnesses were bound to leave out some of the details between what they wrote in the statement and their evidence at the arbitration(enquiry). This cannot warrant a negative credibility finding against the witnesses of the Applicants.

88. The other issue raised by the Respondent was that it was improbable that the complainant would not say anything when she was inappropriately touched by the Respondent.

89. I do not agree with the argument of the Respondent. It is a well-established truth that there is no formula in the way the victims of sexual related crimes react to their ordeal.

90. Quoting its own dictum in Rustenburg Platinum Mines the Labour Court in Old Mutual Assurance SA Pty)Ltd v Makanda & Others held that ‘victims of sexual harassment react to their own ordeals and circumstances differently, and in most circumstances, long after the fact.’

91. The court further held that,
“Fear of the consequences of complaining to higher authority whether the complaint is made by the victim or a friend, often compels the victim to suffer in silence. That sexual harassment of an employee in an inferior position is despicable is only fully realized when one has to comfort a young girl crying her heart out in a quiet corner.”

92. There was therefore nothing untoward and improbable with the reaction of the complainant and hence the argument of the Respondent falls to be dismissed.

93. At the arbitration the Respondent witnesses spent a considerable amount of time testifying about conspiracy of jealous colleagues to have him expelled from employment.

94. In their argument the Respondent conceded that the witnesses of the Respondent failed to identify the people behind the conspiracy and that the absence of proof should not be used to determine credibility and reliability because this will overlook where the onus laid.

95. In this dispute the Respondent and his witness stated that there was conspiracy but failed to qualify it. At least they should have made a qualified and substantiated claim of conspiracy after which the onus would have then shifted to the Applicant.

96. As part of the claim of conspiracy the Respondent testified that he and his friend (who was his witness) were staying at the Blue House staff room and the staff staying there was targeted by other educators. The Respondent could not explain how come that out of twelve (12) educators staying at the staff room they were the only one facing the allegations of sexual assault.

97. When the issue of conspiracy was put to the complainants they insisted that what they said was true and not based on any form of influence. The complainants were consistent in their version even in the face of them having faced cross-examination two times from different representatives of the Respondent. The conspiracy theory as advanced by the Respondent in his defence is dismissed as mere speculation due to its lack of substance.

98. Sexual assault is described as the intentional and unlawful violation of another(victim)’s sexual integrity without consent and when a belief is inspired on the victim that he or she will be sexually violated. Sexual assault is so wide that it encompasses other forms of intentional conduct of a sexual nature like touching, kissing on the lips, fondling the breasts and buttocks of the victim.

99. The act for which the Respondent has been found guilty involved the touching of the genital organs and the breasts of the complainant as well as the forcefull kissing of the other complainant by the Respondent. What the Respondent did therefore meets the requirements of the definition of the sexual assault. The Respondent is found guilty of having sexually assaulted the two learners of Sive Special School; first and second complainant, which effectively means he is guilty of having contravened section 17(1)(b) of the Employment of Educators Act.

100. Through the sexual assault of the two learners the Respondent conducted himself in an improper, disgraceful and unacceptable manner thus contravening section 18(1)(q) of the Employment of Educators Act.

101. The sexual offence of the Respondent was heinous act which was abusive on the part of the Respondent and directed at vulnerable children. The complainants were vulnerable on several fronts; they were young females (first complainant was 15 years and second complainant was 20 years), they were taught by the Respondent (thus Respondent had authority over them) and they are living with the disability of being deaf.

102. Even though it is difficult to comprehend what is written in the statements of the two complainants because of the level of English used but piecing together what they have written shows how the Respondent would touch the private part of the first complainant and had sex with her (using condom) every day to the extent that the private part of the complainant became painful and it was hard for her to walk. In the statement of the second complainant she stated how the Respondent would always grab her and kiss her whilst showing her a condom and inviting her to his room. From the statements it is clear that the complainants were not willing participants as their statements are littered with ‘no’, ‘grabbing’ and ‘scarred’.

103. Surely the complainants(victims) looked upon and trusted the Respondent to help them navigate school life so that they can be successful adults, but the Respondent betrayed that trust. The Respondent not only betrayed the trust of the complainants but the trust of the parents who send their children to the school from all corners of the province so that they can get education which would ensure that their disability does not become a handicap in their future life. The Respondent also betrayed the trust of the entire teaching profession and also the employer(Applicants).

104. During the course of the arbitration there were no signs of the Respondent being alive to the extent of his misconduct and being remorseful to the damage he has done.
105. In terms of section 17(1) of the Employment of Educators Act an educator must be dismissed if found guilty of committing an act of sexual assault on a learner. As I have found the Respondent guilty of sexual assault it is prescriptive that I impose a sanction of dismissal.

106. Section 120(1) of the Children’s Act provides that a children’s court, any court in civil or criminal proceedings or any platform recognized by law in disciplinary proceedings may make a finding that the person is not suitable to work with children. The finding may be made the court or platform on its own volition or on application by the relevant official of the state involved in the protection of children .

107. In this arbitration no evidence was led by parties on the suitability or not of the Respondent to work with children. However, the Children’s Act allows that the arbitrator can make the finding on his or her own volition. I have therefore decided that I am making the finding that the Respondent is, in terms of the Children’s Act, not suitable to work with children.

Costs

108. On the 22 August 2023 the Respondent applied for the award of costs for the wasted day of the 21 August 2023. Parties addressed me on the issue and I reserved the ruling.

109. The Respondent submitted that on the day the arbitration could not proceed due to the fault of the Applicants. The submitted that conflicting information was provided; initially it was said the witnesses were not aware of the set down and another information was that there was no sign language interpreter as he booked off sick as the school was also not aware of the set down. They submitted that the interpreter who was said to be sick was at school and the previous interpreter was also at school. They submitted that the issue of the interpreter was the lame excuse to cover up for the unpreparedness of the Applicants.

110. The Respondents then submitted that ELRC Rule 54 must be invoked and as the arbitrator I must order costs for the wasted day.

111. The Applicants submitted that the Respondent representative testified from the bar, something that is not allowed and will be against fairness. He said there was no sick note for the sickness of the interpreter the previous day but he was available and an enquiry could be made to him.

112. They argued that the information that was provided at the hearing was believed to be true unless proved otherwise. They said everything was ready to proceed but the interpreter was not available. They could not approach the previous interpreter because they were told that he was no longer an interpreter.

113. Having listened to the submissions by the parties and having regard to rule 54 which states that I must order costs according to the requirements of law and fairness having regards to, among others, the measure of success, fairness, prejudice, whether the party acted in a frivolous and vexatious manner, effect of costs order in continued employment relationship and any agreement between parties on the award of costs.

114. On the day (21 August 2023) it was reported that the interpreter was not available because he was off sick. It needs to be stated that the enquiry(arbitration) was held under the auspices of the ELRC and it was the ELRC that was supposed to provide all the facilities including the sign language interpreter.

115. The ELRC did not provide the sign language interpreter and the school (working together with the Applicants) willfully provided the interpreter using one of the school staff members who was doing the work on voluntary basis.

116. It was therefore not the responsibility of the Applicants to provide the interpreter and they can therefore not be at fault if the service they were providing voluntarily was not available. It was the ELRC which was at fault for the absence of the interpreter and the situation was also beyond the control of the ELRC.

117. It would not be fair to award costs against the Applicants for a wasted day they are not responsible for.

In the circumstances I make the following award;

AWARD


118. The Respondent, Njabulo Siphesihle Mbeje, is found guilty of the charges he faced at this enquiry.

119. The appropriate sanction being imposed is DISMISSAL which must be effected within seven (07) days from the date of receipt of this award.

120. The Respondent, Mr Njabulo Siphesihle Mbeje, is hereby found unsuitable to work with children in terms of section 120(4) of the Children’s Act . The General Secretary of the ELRC is, in terms of section 122(1) of the Children’s Act is hereby directed to notify the Director-General: Department of Social Development of the findings of this forum so that the Director-General can, in terms of section 122(2) of the Children’s Act enter his name as contemplated in section 120 in part B of the register.

121. There is no order as to costs.

Mbulelo Safa: ELRC Panelist