ELRC134 23/24GP

ARBITRATION AWARD

Panelist: Kuvonakala Chavalala
Case No.: ELRC134 23/24GP
Date of Award: 19 February 2024

In the ARBITRATION between:

Mosa Gavin Ramalefane
(Union / Employee)

and
Department of Education Gauteng
(Employer)

DETAILS OF HEARING AND REPRESENTATION

[1] This is an award between Mosa Gavin Ramalefane (hereinafter referred to as “the employee”) and Department of Education Gauteng (hereinafter referred to as “the employer”). The matter was set down as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (“the LRA”) and also in terms of clause 32 of the ELRC Constitution (as amended). The hearing sat on 16-17 November 2023 and on 30-31 January 2024.

[2] Clause 3 (3.1) Collective Agreement 3 of 2018 of the ELRC provides that in all matters in which an employer wants to take disciplinary action against an educator for alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the Education Labour Relations Council (“ELRC”), shall be mandatory. All the charges the employee faced were alleged sexual misconduct against learners.

[3] I informed the parties that the names of the learners will be omitted from the award since they are still minors.

[4] The employee was represented by Mr K Tumeli, an official from SADTU. Ms Tafane represented the employer.

[5] The employer submitted a Bundle of documents which we named Bundle R. The employee did not submit a bundle and bundle R was used as a common bundle.

[6] Parties had to submit written closing arguments on or before 07 February 2024 and both did so.

[7] The hearing was digitally and manually recorded.

ISSUES TO BE DECIDED

[8] I am required to decide whether the employee committed misconduct as per the allegations levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction.

BACKGROUND TO THE ISSUES TO BE DECIDED

[9] The employee is currently employed as an educator at Hoerskool Westonaria. The employee was notified of the allegations on 24 May 2023 and he was placed on precautionary transfer since the notification of the allegations.

[10] The allegations levelled against the employee are as follows:
• Allegation 1
It is alleged that on 15 February 2023 or any time incidental thereto, as an educator, you committed an act of sexual assault in that you grabbed and forcefully kissed a female learner, K T after she refused to go with you to the classroom, whilst you knew or ought to have known that it was wrong to do so. Your actions constitute misconduct.


In view of your actions, you are charged in terms of section 17(1)(b) of Employment of Educators Act 76 of 1998 as amended.

• Allegation 2
It it's alleged that during January and February 2023 or anytime incidental thereto, as an educator, you committed an act of sexual assault by making sexual comments to ZR that she should not advertise her private parts to gents but to you only, whilst you knew or ought to have known that it was wrong to do so. Your actions constitute misconduct.

In view of your actions, you are charged in terms of section 17(1)(b) of Employment of Educators Act 76 of 1998 as amended.

• Allegation 3
It is alleged that during December 2022 and February 2023 or anytime is incidental there too, as an educator, you committed an act of sexual assault in that you repeatedly told ZR that her buttocks have grown, whilst you knew or ought to have known that it was wrong to do so. Your actions constitute misconduct.

In view of your actions, you are charged in terms of section 17(1)(b) of Employment of Educators Act 76 of 1998 as amended.

• Allegation 4
It is alleged that during January and February 2023 or anytime incidental thereto, as an educator, you committed an act of sexual assault and that you told KT to kiss you, go somewhere with you and called her ‘baby or sweetheart’, whilst you knew or ought to have known that it was wrong to do so your actions constitute misconduct.

In view of your actions, you are charged in terms of section 17(1)(b) of Employment of Educators Act 76 of 1998 as amended.


[11] The employee pleaded not guilty to all charges.

[12] The parties held a pre-hearing and agreed that the following were common cause issues: -

a) The employee has been employed by the employer as a PL1 educator with PERSAL number 1846409, he was stationed at Hoerskool Westonaria.
b) Employee was given a notice to attend disciplinary hearing with clear charges and it informed him of his rights.
c) All offences under section 17 of Employment of Educators, Act 76 of 1998 (as amended) (hereinafter referred to as EE Act) prescribe a mandatory dismissal.
[13] The only issue in dispute is the commission of the misconduct


SUMMARY OF THE PARTIES’ EVIDENCE AND ARGUMENT

This section only records the summary of the evidence that was tendered and not the verbatim testimony of the witnesses. The case was digitally recorded, and such recordings can be provided to the parties upon request.

Employer’s case
The employer called six witnesses who testified as follows:

First witness: Learner KT, whose identity is withheld due to the fact that she is a leaner who was at the time of alleged incident and testimony, a minor. She understood what taking an oath is. She is 17 years old and testified under oath with the assistance of an intermediary, Ms Shibisi who also took an oath. She testified in camera. The summary of the evidence is as follows:
[14] She was in grade 11 in 2023. The employee was a new teacher at the school, and he taught her business studies for the first two weeks or so. She loves business studies and she always engaged in discussions in his class. The employee asked her what her name was, and she thought it was because she was an active learner. The timetable changed and she had a new teacher for business studies.

[15] She would at times go to the employee for extra notes during breaks or after school because she felt her class was a bit behind and she had not grasped the methodology of her new teacher. This went on for about two weeks. In some of those visits, the employee would call her baby or sweetheart and that made her feel uncomfortable and she refrained from going to him.

[16] On Valentine’s day, she did not go to school. On 15 February 2023 she heard that they would be writing a business studies test the following week and their class had not been given a scope. She heard that the employee’s learners had received a scope. She decided to go to the employee on the second last period that same day. He was in grade 8 class. When she arrived, he complained that she no longer comes to see him. She told him that she had been busy and has now grasped her business teacher’s methodology. He gave her the scope. He asked her how her Valentine was and whether she had received any gifts to which she answered in the negative. He then told her that she and him must go out for Valentine’s, away from many people, to relax together. She does not recall responding, she left. She decided that she will no longer speak to him again because what he was saying was wrong.

[17] Around mid-March 2023 he saw her and asked her why she does not come to him anymore and whether they had broken up. She decided to avoid him and ignored him as she felt she had no answers for his questions. She felt that she would not have evidence if she were to report him.

[18] Two to three weeks later it was on a Wednesday, she was dealing with some personal problems. It was after school, and she decided to go to the blue block stairs next to the rugby field and she sat down there. It was around 3:00 PM and most people had left school already; there were only people from sport. She sat at the middle of the staircase. The employee came from his class, and stood at the peak of the staircase, he called her and asked her why she was sitting there. She told him that she wants to be alone. He asked her to go with him to his class and she refused. He asked why and she told him she just does not feel like going to his class. She did not hear his footsteps as he was approaching, she just heard when he called her name that he was just next to her. When she turned, he held her face, and he kissed her on her mouth. She did not know what to do, whether to scream, whether he was going to harm her. He asked her what was wrong, and she kept quiet. He told her that he can see that she is shy, so he was going to leave her.

[19] He went past her down the stairs. He stopped somewhere, he looked up and said ‘this will be more fun if it stays between us. She kept quiet, and he left. She sat there for about 5 minutes until she's saw boys who were coming from sport, and she asked them to accompany her to the gate. She did not tell them what had happened.

[20] The following day, which was a Thursday, she did not go to school. She only went on Friday and confided in PN, one of RCL members. Her and PN reported the incident to Ms. Pistorius who was her register class. Ms. Pistorius advised that the matter be reported at the office. She went with them to the office of the Acting Principal, Mr. Jonker and they gave her an incident form and she wrote down the incidents.


[21] The following Monday other learners had come out complaining about similar incidents. On the Friday of that week, girl learners marched and disturbed classes. Ladies from the district office came to the school and she was asked to write the incident again.

[22] The actions of the employee made her feel irresponsible and gullible at first because she was blaming herself.


Cross examination

[23] She agreed that the stairs are next to Ms. Ntsuba’s class, but she was not aware Ms. Ntsuba was in the class that time.

[24] There was no grabbing, but she calls it a forceful kiss because she did not agree to it. She denies that he was trying to give her support because she had not told him what was bothering her, and he could not have known because whatever was bothering her had happened only that day. When he called her baby and sweetheart, learners would be in class but not hear what he was saying. She did not tell her guardians immediately because she did not know how they were going to take it or react.


[25] She only met the employee in 2023 and she loved business studies. She is fairly new at the school; she arrived in 2022. She knows what is wrong and right and knows her responsibilities as a minor and learner. She cannot risk Mr. Ramalefane’s job, her, and her fellow learner’s education by lying against the employee. She would have nothing to gain from the whole exercise.

[26] She moved to Westonaria to stay with her grandmother after her parents passed on. She did tell Mr. Ramalefane about her family matters but not confiding in him; she simply answered the questions he asked.


Second Witness: Learner PN, whose identity is withheld due to the fact that she is a leaner who was at the time of incident and testimony a minor. She understood what taking an oath is. She was 17 years old and testified under oath with the assistance of an intermediary, Ms Shibisi who also took an oath. She testified in camera. The summary of the evidence is as follows:
[27] She is part of RCL and a lot of girls confide in her. 2023 was her fourth year as the school. KT confided in her and told her that the employee had kissed her at the stairs of the blue block. She encouraged K T to report the matter.

Third Witness: Ms Riana Petronella Pistorius gave evidence under oath as follows:

[28] She is a PL1 educator at Westonaria and has been there for 5 years. She is an Afrikaans teacher.

[29] KT and PN reported to her that Mr Ramalefane had kissed KT at the blue stairs. She guided the learners on the process to follow in having this matter reported.

[30] She recalls an incident where the girls caused a riot at school due to harassment by male teachers including Mr Ramalefane. She was part of the people that helped calm the riot.

[31] Her working relationship with Mr Ramalefane was cordial, they had no problems. Mr Ramalefane was part of the Disciplinary Committee and he had a good impact on the discipline. She has never had any altercations with Mr Ramalefane.

[32] She is not aware on any WhatsApp group formed by girl learners and was never part of it. She is aware that about 16 white educators had left the school in 2022. Most were replaced by black educators. She denied that she wanted the employee out of the school because she was unhappy about transformation. She only also got appointed by GDE in March 2022 which was immediately after she qualified. She was an SGB appointee prior to that because she was still a student. It is thus not correct that she was jealous that the employee quickly got appointed while she had to wait for 4 years.

[33] It was put to the witness that the employee was simply addressing learner Z about her dress code. She stated that the practice of the school is that female teachers address female.

[34] She is aware that at the Flenchling Sleepover function that was there, some learners and some educators got drunk. Some learners had stated that they would not go down alone for that ordeal but she was not involved in that and would not know what they meant. She denied that she had offered positions of RCL to those learners in return for them to lie about the employee. She stated that the RCL members had been elected already when Flenchling Sleepover was held.

Fourth Witness: George Deidrick Jonker testified under oath and the summary is as follows:

[35] He is an educator at Hoerskool Westonaria. He is one of the two Deputy principals and he was an acting principal at some stage after Mr Fischer left. He has been at the school since 01 January 2011.

[36] He met the employee first as a parent of the learners at school. The employee told him he was a qualified teacher. The employee can attest to the efforts of the witness in getting the employee appointed. He was genuinely impressed with how the employee assisted with discipline at the school. It is thus not correct that he wanted the employee out of employment.

[37] He wants transformation at the school, he believes that apartheid is a sin so he vehemently denies that he did not want transformation. He does not know anyone who wanted to get rid of the employee.

[38] There were reports from female learners regarding alleged harassment by male educators. After they reported, the learners felt that nothing was being done. They made videos interviewing the learners on what had happened and escalated those videos to the MEC’s office. MEC’s delegation visited the school. He explained to the MEC’s delegation that the matters were already reported. The learners caused a riot at the school because they felt that the department was not acting fast enough.

[39] He was acting principal until August 2023. The allegations were reported to him and he escalated. He does not remember the exact details of the incidents but they involved looking, comments and kissing.

Fifth witness: ZR , whose identity is withheld due to the fact that she is a leaner who was at the time of alleged incident and testimony a minor. She understood what taking an oath is. She was 16 years old and testified under oath with the assistance of an intermediary, Ms Shibisi who also took an oath. She testified in camera. The summary of the evidence is as follows:

[40] Regarding allegation 2, she was from class during break and was with one boy Samkelo, at the Blue Block side. The employee saw her and called her. She went to him and he asked her why she was advertising his “dishebo” to boys, she is supposed to only advertise to him. She did not answer him, she did not know what to say. He told her to go to class. She told Samkelo what the employee had just said to her. She was scared and not comfortable after what he had said. The employee was her register teacher and was teaching her Technology.

[41] She understood “dishebo’ to mean bums because he used to say her bums are grown. She never wore a school skirt in 2023, she always wore school pants. She denies that the employee was disciplining her for inappropriate dressing.

[42] Regarding allegation 3, she was in town during festive seasons and she met the employee. He said to her that her bums had grown meaning that festive season was treating her well. She was shocked and she said ‘bathong, sir’, meaning goodness sir! She met him again by the butchery and he winked at her.

Cross-examination
[43] The employee has never reprimanded her on her dress code. On the day he called her, she was dressed well and he pants were not very tight. She denied that her shirt was not tucked in and zip wide open. She repeated what the employee said to her in Setswana. At the township the boys refer to a lady’s private body parts as “dishebo”. She is friends with boys and she knows this for a fact.

[44] When she met Mr Ramalefane in town, he was alone in his car and talked to her through the window.

Sixth Witness: Samkelo Sithuli, had just turned 18 in January 2024 when the matter sat before me. He testified under oath with the assistance of an intermediary, Ms Shibisi who also took an oath. I allowed testimony with intermediary’s assistance because the learner had just turned 18 and had always been under the impression he would testify in camera from 2023 when the matter first sat before me. The summary of the evidence is as follows:

[45] He is a learner at Westonaria but currently suspended.

[46] He has been friends with ZR since Grade 8 and they normally sit together during breaks. Around beginning of the year in 2023, he was with ZR when he saw the employee approaching, then passing them. While the employee was at a distance, he called ZR and she went to him. He could not hear the conversation and he avoided focusing on them because he knew the employee would tell him to go to class.

[47] When ZR came back to him, she looked sad. She told him that the employee had said she must not advertise his dishebo to a boy. He understands dishebo to mean bums, boobs and women’s private parts, it is slang that they use. He told her to report him.

[48] ZR was dressed in pants, and her shirt was tucked in and zip was closed. She is always looking neat in her uniform.


THE EMPLOYEE’S CASE

Mosa Gavin Ramalefane, the employee testified under oath and the summary is as follows:-
[49] He started working at Westonaria a week after term 4 in 2022. He was contacted by Mr Jonker because he had indicated to MR Jonker in an SBG meeting that he is a qualified educator and currently unemployed. He was an active parent in SGB.

[50] Before he was appointed in 2022, third term, he complained at the school about a certain Mr Nel who was teaching his son Technology at the school. His son had failed and Mr Nel had written a sarcastic comment saying “congratulations for failing”. Mr Nel never went back to the school and the employee ended up replacing the very same teacher in Term 4, 2022. He was not received well by some white staff members, he could feel the tension. Word went out that he had made a white person lose their job.

[51] Mr Ramalefane detailed his employment history, the changes he brought about at the school, including improving discipline of learners at the school.

[52] He knows KT he indeed saw her sitting on the Blue Block stairs afterschool one afternoon. She was not looking well. He does not remember touching her, he asked her why she was sitting at the stairs and she said she was not ok. He invited her to a comfortable place. The nearest class was Ms Ntsuba’s class and he was thinking they would go in there since he had already locked his class. TK refused to go with him. He never touched nor kissed her. He told her that he knows the devasting news and would keep it to himself. Prior to that he had met her several times at the school because he was teaching her. She was active and talkative in class and showed leadership skills. One time, KT had remained in his class and she told him about her sensitive family background regarding the death of her parents. He has never called her baby or sweetheart.

[53] He knows ZR and he has never uttered those ugly words to her that she should not advertise her private parts to boys but to himself. As a parent with a daughter and nieces, he would never utter such words. He did call her and asked her why she was not in class and not dressed properly. She was seated in a shameful manner amongst boys with her legs in between the legs of boy learners. He briefly reprimanded her and told her to go to class. He thinks she is making things up because she did not like the reprimand.

[54] He never met ZR in town in December 2022. He only met her around January 2023 in town and she was screaming with excitement towards him and she asked for KFC. He told her that his money does not get eaten by kids.

Cross examination
[55] He conceded that he never put most of his versions to KT and indicated that maybe it was because he did not fully understand the process. He conceded that KT had testified that the employee was not aware of what was bothering her because she never told anyone. He never denied that version when KT was on the stand. He conceded that he only assumed that the family issue is what was bothering KT. While she was on the stairs, he even thought of referring her to a social worker.

[56] When asked how he saw untucked shirt and an open zip on ZR while she was sitting with her legs between boys’ legs, he stated that he actually called her to address her about the shameful manner she was sitting. As she was approaching, then he saw the inappropriate dressing. He conceded that this version was never put to ZR. He never put it to ZR that he actually met her in town after schools had opened and that she asked him for KFC.

[57] He never put to Mr Jonker about the complaint he had lodged against Mr Nel.

[58] The teachers that wanted him out are Mr Vander Westhuizen and Ms Dickenson. He could not outline how these teachers were involved even remotely with this case.

ANALYSIS OF THE PARTIES’ EVIDENCE AND ARGUMENT

[59] The employee was charged under sections 17 (1) (b) of the Employment of Educators Act which provide as follows:
17(1) An educator must be dismissed if he or she is found guilty of -
b) committing an act of sexual assault on a learner, student, or other employee.

[60] The allegation against the employee is that he committed an acts of sexual assault on two learners in the manner he spoke to them and also by kissing KT. Allegation 1 and 4 relate to KT and allegation 3 and 4 relate to ZR.The employee denied that these incidents as alleged took place. The employer relied on the evidence of the learners who gave version of events regarding the incidents; the evidence of Ms Pistorius, whom the incidents were reported to and also that of Mr Jonker who reported the matter.

[61] The employee relied on his own testimony and did not call any witnesses in support of his case. Of note, the employee detailed his employment history, his social standing and his character.

[62] It is noteworthy to state that the employee admitted having been on the scene of the alleged incidents as regards allegation 1, 2 and 3. To an extent, the versions of the employee and that of the learners start out similar but only differ at a point where the learner allege an act of sexual assault happened.

[63] Both employee and KT testified that KT did in fact go to the blue block and sat on the stairs. They both testified that the employee spoke to her while at the peak of the stairs and even asked her to go elsewhere with him which she refused. The events start differing after the employee approaches the learner. The events that transpired as testified by the of the learner is encapsulated in the summary of the evidence and is well detailed. The version of the employee on the other hand is scanty. He spoke more of what he was thinking than the actual discussions or events that took place between him and the learner. His version is also not coherent. He says that he only assumed she was bothered by her family issues. He also thought of referring her to a social worker, but he never told her that. The employee’s version is practically that after he approached her, he only told her that the devastating news would stay with him. How would KT know what he was talking about. KT ‘s version was that he could not have known what was bothering her because she had not told him, the issue had transpired that day. The employee never rebutted this.

[64] KT confirmed that there was no grabbing, but the employee held her face not in an aggressive manner. Allegation 1 reads that the employee grabbed the learner. This does not render the charges null and void. The act which constitutes sexual assault of kissing the learner remains, whether there was grabbing or not.

[65] Again, both employee and ZR testified that the employee did in fact call ZR during break. The employee’s reasons on why he had called ZR was just a moving target. He initially stated it was because she was inappropriately dressed. When it was put to him that he could not have seen the zip and untucked shirt if she really was sitting with her legs in between boys’ legs, he changed and said that he actually called her for the shameful sitting and as she was approaching, he realised the inappropriate dressing. This was never put to ZR when she was on the stand. While he first denied having met ZR in town, he later agreed that he met her, but its must-have been January 2023 and not December 2022. He never at once put it to ZR that she asked for KFC and was screaming with excitement to see him. His version was that he is normally in town with family and could not have talked to her. The swift change in the employee’s version is indicative of recent fabrications that are only thought of at the spur of the questions. ZR’s version was even corroborated by Samkelo who indicated that ZR’s uniform was proper and neat and that she told him immediately what the employee had said to her. It is noteworthy to state that there was no dispute with regard to the meaning ascribed to the words “dishebo” in the context it was used. The learners understood this to mean ‘private parts”. The employee denied he uttered the words, he did not deny the meaning ascribed to it.

[66] The applicant detailed his employment history, his roles, and his standing in society. He testified that he is a father, an uncle and he would never utter such ugly words to girl learners. The employee wanted to testify on the character of the learners, and I prohibited him from doing so. As a rule, evidence pertaining to the character of an accused employee against or in connection with whom any offence of an indecent nature of a sexual is alleged to have been committed, shall not be adduced, and such person shall not be questioned regarding same, except where the commissioner is satisfied that such evidence or questioning is relevant. One of the enduring sexual offences myths is that the perpetrators of such offences are often strangers who look and behave like monsters who are abusive all the time. The reality is that perpetrators of sexual offences can be gentle, loving, and friendly people who are esteemed in the society. The perpetrators are often known to the victim. This is part of the reasons why character evidence in this case is not admissible. Character evidence, if it were allowed would do nothing but to perpetuate a myth about who and how a sexual offender looks like. The character evidence is thus inadmissible and rejected.

[67] The learners’ evidence was congruent and free from contradictions. They both were able to recollect and/or narrate in respect of each incident and answered all questions to satisfaction. It must be noted that no evidence was given regarding what the learners’ motive for telling lies would have been, it seemed that the employee and the learners enjoyed a normal teacher and learner relationship. KT testified that she had a cordial relationship with the educator and had no reason to lie.

[68] On the other hand, the evidence of the employee leaved much to be desired. Basically, he submitted that some white educators wanted him out of the school. It became difficult for the employee to state who would have wanted him out and for what good reason. It was not disputed that the 16 White educators that left were replaced by Black educators. Why would the employee be the only target in the White educators’ defiance against transformation. Both Ms Pistorius and Mr Jonker noted and appreciated the employee’s efforts on discipline.

[69] The version that the employee had complained against Mr Nel was never tested because no documentation was brought by the employee and the employee waited until the respondent had closed its case to state this version. The purpose of a proper cross-examination is to place a one-sided version, into proper perspective by eliciting facts which place a different complexion on the matter, or by demonstrating that the witness is untruthful. Failure to cross examine a witness of material aspects renders the evidence of that witness to be accepted as unchallenged. The applicant made an assertion that he did not put some versions to the witnesses of the employer during cross examination because he did not fully understand the inquiry process. I explained the entire process to the employee and requested his active involvement in jotting down notes so he can better instruct his representative before cross examination. The adjournment opportunity to consult prior cross-examination was utilised with all the witnesses. The applicant’s assertion that failed to put versions because he did not fully understand the process cannot be true. If that were the case, he would not have put versions at all.

[70] The learners had no reason to lie. The employee dismally failed to prove his allegation of vendetta against him by the principal or other colleagues. It was incumbent on the employee to provide the some evidence regarding his allegation of vendetta against him. During arbitration, while the overall onus never shifts from the employer, the need to present or counter evidence may rest on different parties. In a case involving misconduct, once the employer has assembled out its allegations with evidence to a degree that its version requires an answer or rebuttal lest it be believed, the evidentiary burden shifts onto the accused employee to prove otherwise. This simply means that the employee may not sit and fold his arms because the overall onus is not on him.

[71] I am guided in this regard by the case of Woolworths (Pty) Ltd v CCMA and Others (2011) 32 ILJ 2455(LAC) at Para 34 where the Labour Appeal Court held that video footage capturing an employee concealing merchandise on his person while working in a retail store constitutes a prima facie case of dishonesty against the employee. This then shifts the evidentiary burden to the employee. In the absence of a credible and probable explanation from the employee, the inference that the arbitrator can most reasonably draw is that the employee acted dishonestly and that the employer has discharged its onus.

[72] It is my finding that version of the employee was not coherent and lacks credibility.

[73] Looking at the totality of the evidence, its quality and cogent, it is my finding that the probabilities favour the version of the employer that the employee is guilty of allegation 1,2,3 and 4. His conduct is improper, disgraceful, and unacceptable and amounts to sexual assault. Legislation prohibits such conduct. I have particularly considered the EE Act as well as the SACE Code of Professional Ethics for educators (South African Council for Educators, as intended in the South African Council for Educators Act, 31 of 2000). Offences in section 17 of the EE Act are dismissible offences and no further discretion is required from the commissioner once a finding of guilt is made in that section. There can also be no gain-saying that the nature of the offence of sexual assault on a minor child automatically breaks the trust relationship between the educator and the employer.

[74] In these circumstances based on the evidence and my conclusions above, the employee must be dismissed with immediate effect.
[75] Section 120 (1) (c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 121 provides that where such a finding is made, the person against whom such a finding was made, may have the finding reviewed by a court of law. Section 120 (2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a 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. The arbitrator may also make the finding on his/her own accord.

[76] In view of my finding of the serious nature of the employee’s conduct and the priority to protect the rights of children, I find that the employee is unsuitable to work with children. The employer would not be able to guarantee a safe education environment in the care of Mr Ramalefane. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children and in particular, vulnerable young girls.


AWARD

[1] The employee is found guilty all allegations.
[2] The employee must be dismissed with immediate effect.
[3] Mr Mosa Gavin Ramalefane is found unsuitable to work with children in terms of section 120 (4) of the Children’s Act 38 of 2005 (“the Act”).
[4] The General Secretary of the ELRC must, in terms of section 122 (1) of the Act, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120 (4) of the Children’s Act 38 of 2005, that Mosa Gavin Ramalefane is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.

[5] I make no order as to costs

Dated on the 19 day of February 2024


Kuvonakala Chavalala
ELRC Panellist