ELRC53-22/23LP

Case Number: ELRC53-22/23LP
Commissioner: Leanne Alexander
Date of Award:19 February 2024

In the ARBITRATION between:
Khwinana, Rebeditswe Winny
(Applicant)
And
Department of Education Limpopo
(First Respondent)


Details of hearing and representation

1. The arbitration took place at Department of Education Limpopo (Corner Hospital and Hans van Rensburg Street Polokwane) on 30 October 2023 and 29 January 2024.

2. Mr Obed Matlaila, an Attorney, represented the Applicant. The Applicant, Ms Rebeditswe Winny Khwinana, was also present in the proceedings.

3. Mr MK Masindi, represented the Respondent.

4. The proceedings were conducted in English.

5. Ms Christinah Hlongwane, interpreted for the Applicant in Sesotho.

6. The Applicant referred a dismissal dispute in terms of Section 191(5)(a) of the Labour Relations Act, Act 66 of 1995 (“LRA”) on 25 April 2022. The matter was scheduled for conciliation proceedings on 20 May 2022, the matter subsequently remained unresolved and a certificate on non-resolution was issued.

7. The matter, thereafter, was set down for arbitration proceedings on the above said dates.

8. The matter was postponed on the following dates 28 October 2022, 30 November 2022, 16 February 2023 and 31 October 2023.

9. A legal representative ruling was issued on 27 June 2022.

10. A jurisdictional ruling issued on 29 September 2022.

11. A ruling was issued on 19 May 2023 with regards to the “admission of hearsay evidence”.

12. In terms of Section 138(7) of the “LRA” “within 14 days of the conclusion of the arbitration proceedings (a) the commissioner must issue an arbitration award with brief reasons”.

13. The matter followed an inquisitorial approach.

14. The hearing was digitally recorded, and manual notes were also taken.

15. I must place on record that both parties agreed to submit their closing arguments in writing by close of business on 8 February 2024. The submissions were duly received and considered.

The issue’s to be decided
27. I have to determine whether the Applicant’s was dismissed, if I found it to be so whether the Applicant’s dismissal was substantively and procedurally fair. If I found it to be so, I am to determine the appropriate relief.

The background to the dispute
28. It was common cause that the Applicant was employed as an Educator (Kopano Secondary School) since May 2008.

29. The Applicant worked a 5-day week, at an average of 8 hours per day.

30. The Applicant was dismissed on 22 April 2022.

31. The Applicant earned a monthly salary of R25, 778-00.

32. The Applicant sought retrospective reinstatement.

33. The substantive issues in dispute were that the Applicant disputed that she was not guilty of the transgressions levelled against her. The procedure was not in dispute.

34. The Applicant was charged as follows:
Count 1:
“You verbally insulted the late Khutjo Mitchel Mabiletja, by saying “ngwana ge ana le masepa o abetse batswadi” (“if a child has s**t it’s taken from the parents”).
Count 2:
You threatened the late Khutjo Mitchel Mabiletja, by saying that you are going to get her arrested.
Count 3:
You threatened the late Khutjo Mitchel Mabiletja, by saying that she is not going to pass the maths test.
Count 4:
You threatened the late Khutjo Mitchel Mabiletja, by saying you are going to make her life difficult.”
The Applicant pleaded not guilty to the above charges.
The Applicant was found guilty of the above charges.
Since dismissal was not in dispute, the Respondent bore the onus of proving the substantiveness fairness.

Summary of evidence and argument
The testimony led by the witnesses’ is fully captured on the recording of the proceedings. What follows is a summary of the material and relevant issues I must determine.

Respondent’s case
Mr Nara Godfrey Mafa
35. The witness testified under oath that he was the parent of the deceased learner, Ms Khutjo Mitchel Mabiletja.

36. The essence of the witness testimony inter alia was that on 12 September 2021, he was at home with his wife and 4 (four) children, Ms Khutjo, Ms Surprise, Master Musa and Ms Basetsana.

37. He said that on 12 September 2021, he was in his house, and he saw the Khwinana family arriving, his wife attended to them, and he heard noises.

38. His wife, Ms Khomotso, called him and said there was a problem, and he went outside.

39. He said that the problem was the post that was posted on Facebook, which related to teachers wearing these particular shoes, and he was surprised by that.

40. He said that the Applicant insulted and swore at his child in front of them.

41. He said that the Applicant informed his child, the late Ms Khutjo Mitchel Mabiletja, that “tomorrow the 13 September 2021, I will make sure you will not write, and I am going to call the Police, and by the time you write they will take you in front of the learners and I want to make your life difficult, and I will make sure you will not pass”.

42. He said that his child the late, Ms Khutjo Mitchel Mabiletja, heard those utterances and then she cried and the Applicant informed her that she must apologize on the social media platform.

43. He said that his child the late, Ms Khutjo Mitchel Mabiletja, took the phone and wrote the apology. However, before she posted it the Applicant wanted to see it and said that to her “what kind of s**t did you write here?”

44. He said that they were surprised and then his child, the late Ms Khutjo Mitchel Mabiletja, handed the Applicant the phone and the Applicant hit the child with the phone.

45. He said that he informed the Applicant that he could no longer handle this situation as a parent, and as they had promised that they would open a case they would take it from there.

46. He said that the Applicant’s husband, Mr Khwinana, and the Applicant got up and said that “if the child has no respect means it comes from the father”.

47. He said that his child, Ms Khutjo Mitchel Mabiletja, was crying helplessly and as her parents they were unable to protect their child when they were insulted in front of their child.

48. He submitted documentary evidence of the “Facebook post”.

49. He said that when the Applicant arrived at his home it was a personal attack, and she undermined his home.

50. He said that he enquired with the Applicant as to why the Facebook post was wrong and the Applicant informed him that the late Ms Khutjo Mitchel Mabiletja, disrespected her.

51. He said that his child, the late Ms Khutjo Mitchel Mabiletja, did not post the post she only commented about the Facebook post where she indicated “Kwinana” and Neo Hope Ledwabe, posted the post.

52. He said that the Applicant was so cross about the post and was very angry, and they insulted his child, the late Ms Khutjo Mitchel Mabiletja, in front of her parents.

53. He said that the Khwinana family came to his house to fight over this Facebook post.

54. He said that his child, the late Ms Khutjo Mitchel Mabiletja, closed herself in the back room and when he called her to come with him, she said “she is not going with him because it’s the same”.

55. He said that he informed his child, the late Ms Khutjo Mitchel Mabiletja that he would not go to work on the following day as he wanted to solve this problem.

56. He said that they left in order to do some laundry and his child, the late Ms Khutjo Mitchel Mabiletja, stayed behind in order to study for maths.

57. He said that whilst they were doing the laundry, he requested his son, Master Musa, to return home in order to prepare the relish.

58. He said that when his child, Master Musa, returned he was at the car wash at that stage and he heard his wife, Ms Khomotso, shouting “be quick, be quick”.

59. He said that he returned to the house and his son, Master Musa, was unable to speak as he saw that his sister hanged herself and they confirmed that their daughter, the Ms Khutjo Mitchel Mabiletja, was deceased.

60. He said that his daughter, the late Ms Khutjo Mitchel Mabiletja, was a very hard worker and had taken extra lessons from June, and she promised him that she would pass.

61. He said that his daughter, the late Ms Khutjo Mitchel Mabiletja, took her own life as she was informed by a professional teacher, the Applicant that she would never pass and she would humiliate her in front of other learners and the Police would collect her, that was the reason she had taken her own life.

62. He said that the charge on count 1 those words were uttered by the Applicant’s husband when they left his homestead.

63. He said that count 2, 3 and 4 words were uttered by the Applicant towards his daughter, the late Ms Khutjo Mitchel Mabiletja.

64. He submitted documentary evidence of the “conduct: the educator and the profession”.
Under cross-examination (only concessions or significant versions put are recorded
65. The witness explained that count 1 was uttered by the Applicant and her husband, Mr Khwinana.

66. It was put to the witness that he was now changing his version as in his evidence in chief he said that it was the husband that said those words.

67. The witness disputed this statement and submitted that the words were uttered by the husband, Mr Khwinana, who assisted the fight.

68. The witness explained that the Applicant did not teach her child.

69. It was put to the witness that how could the Applicant make her fail as they were talking about the September exam, and during the course of the year the scripts were marked at school, as such there was no way that the Applicant would mark the late, Ms Khutjo Mitchel Mabiletja scripts.

70. The witness disputed this statement and submitted that the Applicant mentioned that she would do that.

71. It was put to the witness that the Applicant denied threatening the Applicant in terms of charges 3 and 4.

72. The witness disputed this statement and submitted that if the Applicant did not say that why had she come to his house in the first place.

73. It was put to the witness that the Applicant’s charges were fabricated in order to blame the Applicant, as he was sad, and no intimidation occurred.

74. The witness disputed this statement and submitted that his family had suffered, and the Applicant was the reason why his daughter, the late Ms Khutjo Mitchel Mabiletja, committed suicide.
Re-examination
75. The witness explained that he was intimidated on 12 September 2021.

Mr Lephodise Stephen Molepo
76. The witness testified under oath that he was a Clinical Psychologist.

77. The essence of the witness testimony inter alia was that he was in private practice, and he had been practicing since 2003, for the past approximately 15 (fifteen) years.

78. He said that he met with the mother, Ms Khomotso, of the late, Ms Khutjo Mitchel Mabiletja, on 16 October 2023, which was a request from the Respondent due to Ms Khomoto’s, emotional state.

79. The expert witness, Ms Lephodise Stephen Molepo, said that the mother of the deceased, Ms Khomotso, informed him of the following during their meeting:
- The Khwinana family arrived at their home on 12 September 2021, and they did not greet her and enquired where the late, Ms Khutjo Mitchel Mabiletja was.
- Furthermore, that Mr Khwinana, sat on top of the table and informed her that “his wife would not be disrespected by a child”.
- Her daughter commented about a Facebook post regarding a particular pair of shoes and commented “Kwinana” on the post.
- The Applicant did not teach the late Ms Khutjo Mitchel Mabiletja, however she taught at the same school where the deceased attended school.
- The Applicant was furious, and they shouted at her daughter, the late Ms Khutjo Mitchel Mabiletja.
- The Applicant insisted that the late Ms Khutjo Mitchel Mabiletja, apologise for what was she said on social media, and she took the phone and said “sorry”.
- The Applicant said that she was “going to deal with her”, “she was going to get arrested” and “she was going to walk from one class to another”. Furthermore, “when she wrote on Monday, she will call the Police, so that she would be taken in front of the other learners” and “she will not pass grade 12”.
- The matter could not be resolved as the Applicant indicated that they were going to the Police Station.
- Her daughter, the late Ms Khutjo Mitchel Mabiletja, was left crying and scared and she was furthermore unwillingly to go to school, as she was going to be arrested.
- The Applicant informed the late Ms Khutjo Mitchel Mabiletja, that “she would make her life difficult”, “would get her arrested”, “s**t was learnt from her parents” and “she would walk class by class to say how sorry she was”.
- After the Khwinana family had left her home, she went to do the laundry and her daughter the late Ms Khutjo Mitchel Mabiletja, stayed at home.
- Whilst she was doing the laundry, she asked one of her younger children to return home in order to remove some meat from the fridge.
- Her young son returned running and crying and informed her “that his sister was hanging from the roof in the back room”.
- When she returned to the house they found the late Ms Khutjo Mitchel Mabiletja, had already passed away.
- Thereafter, the Principal South African Police Service, and Forensics came to their home.

80. He said that the reason which may have caused the late Ms Khutjo Mitchel Mabiletja, to commit suicide as she may have panicked and felt threatened, therefore she could not have thought beyond that point. As such, there was no point for her to return to school as she felt terrified.
Under cross-examination (only concessions or significant versions put are recorded.

81. It was put to the witness that it was the Applicant’s version that the late, Ms Khutjo Mitchel Mabiletja, committed suicide as her boyfriend got married a week prior.

82. The witness submitted that he could not comment about that.

83. It was put to the witness that the late Ms Khutjo Mitchel Mabiletja, when she attended Darokeng school was hospitalised due to an attempted suicide.

84. The witness disputed this statement and submitted that the late Ms Khutjo Mitchel Mabiletja, was subjected to bullying and it was due to the Applicant’s daughter. Furthermore, there was a whole history there and the late Ms Khutjo Mitchel Mabiletja, was then removed from that school.

85. It was put to the witness that there was no intimidation on the day of the alleged incident, as the Applicant was allowed to beat the late Ms Khutjo Mitchel Mabiletja, as her parents informed her to do so.

86. The witness disputed this statement and submitted that was not explained to him and the father of the deceased requested that the matter gets resolved, however the Applicant wanted to go to the Police.

Applicant’s case
Ms Sethakgale Khwinana
87. The witness testified under oath that she is the daughter of the Applicant.

88. The essence of the witness testimony inter alia was that on the night of 11 September 2021, she was preparing for a math’s test and in the outside room at her home with the Applicant.

89. She said that at approximately 22:00 she was tagged on a Facebook post, which was posted by “Michelle Meps”.

90. She submitted documentary evidence of the “Facebook post” where she submitted that “every school has a teacher who has these shoes” and saw that it mentioned “Kwinana” followed by emojis that was shared with the whole class.

91. She said that she showed the Applicant the post together with the comments that had been posted.

92. She said that on Sunday, 21 September 2021, her parents enquired with her if she knew where late Ms Khutjo Mitchel Mabiletja, was staying, and as far as she was aware she was staying with her grandmother.

93. She said that she attended primary school with the deceased.

94. She said that when they arrived at the late Ms Khutjo Mitchel Mabiletja, grandmother’s home she informed her parents and herself that that the late Ms Khutjo Mitchel Mabiletja, had moved down the road.

95. She said that they arrived at the home of the late Ms Khutjo Mitchel Mabiletja, they entered via the gate and were directed by Ms Khomotso to sit on the chairs outside.

96. She said that Ms Khomotso, informed the Applicant that “why not beat the late Ms Khutjo Mitchel Mabiletja, whilst she was standing”, and the Applicant laughed at that comment.

97. She said that when the late Ms Khutjo Mitchel Mabiletja, father arrived, Mr Mafa, he sat on the table outside and her parents explained the matter to him.

98. She said that the late Ms Khutjo Mitchel Mabiletja, father, Mr Mafa, informed them that perhaps the Facebook post was posted as his daughter “was trying to entertain her friends”.

99. She said that she was asked by her parents to wait in the car and therefore she was not aware if there were any threats made towards the late Ms Khutjo Mitchel Mabiletja.

100. She said that when she was standing at the car with her brother, she heard what they were saying and she saw Ms Khomotso, beating the late Ms Khutjo Mitchel Mabiletja.
Under cross-examination (only concessions or significant versions put are recorded
101. It was put to the witness that her Mother’s act of addressing the deceased at her house on a Sunday had affected the good name and reputation of the Respondent.

102. The witness disputed this statement.

103. The witness explained that the shoe’s that was posted on the Facebook post, the Applicant did not own a pair as she had not seen them at their home.

104. The witness explained that the deceased posted the comment as a joke.

105. It was put to the witness that the matter ought to have been resolved at school and not at the deceased home.

106. The witness conceded to this statement.

107. The witness explained that the cause of the deceased’s suicide was not due to the Applicant, but the deceased had attempted suicide on a previous occasion.

108. The witness explained that she did not know comment on count 1 to 4 as she was not there.

Ms Rebeditswe Winny Khwinana
109. The Applicant testified under oath that she was an Educator.

110. The essence of the Applicant’s testimony inter alia was that on 11 September 2021, she was marking scripts whilst her daughter, Ms Sethakgale Khwinana, was studying for math’s.
111. She said that her daughter, Ms Sethakgale Khwinana, showed her a Facebook message where it was submitted “every school has someone who wears them”, and she informed her that it was the late Ms Khutjo Mitchel Mabiletja, who had posted it.

112. She said that she showed her husband, Mr Khwinana, the Facebook message and informed him that she was thinking that they should go the Police station, however her husband suggested that they should rather go to the deceased home.

113. She said that they went to the late Ms Khutjo Mitchel Mabiletja, grandmother’s home and she informed her that the deceased was staying with her mother, and they explained the situation to her.

114. She said that they went to the home of the Ms Khutjo Mitchel Mabiletja, and her mother, Ms Khomotso, welcomed them and they sat down on the chairs and table outside.

115. She said that when the late Ms Khutjo Mitchel Mabiletja, arrived her mother, Ms Khomotso, informed her that she “must start beating her” and she subsequently laughed as she did not even know her.

116. She said that she shared the message with the deceased mother, Ms Khomotso, and the late Ms Khutjo Mitchel Mabiletja, agreed that she had posted it on Facebook.

117. She said that the deceased father, Mr Mafa, arrived and proceeded to sit on the table, even though she offered him her chair.

118. She said that the father, Mr Mafa, said that his daughter was “entertaining her friends on Facebook” and he understood that his daughter was wrong, and they could “beat his daughter”.

119. She said that she informed her daughter, Ms Sethakgale Khwinana, to wait at the car.

120. She said that Ms Khomotso, then informed the late Ms Khutjo Mitchel Mabiletja, to apologise to her and kneel down when doing so and then Ms Khomotso, proceeded to pull her daughter and clipped her on her face.

121. She said that the late Ms Khutjo Mitchel Mabiletja, typed the message indicating that “she was sorry” and the matter ended peacefully, and they concluded by saying that the late Ms Khutjo Mitchel Mabiletja, must apologise via Facebook. Furthermore, they would apologise at her home and Ms Khomotso, pleaded with her not to go to the Police and she assured her that she would not do so.

122. She said that they went home, and she received a call from work enquiring what she knew of the late Ms Khutjo Mitchel Mabiletja.

123. She said that she was informed that the Ms Khutjo Mitchel Mabiletja, committed suicide and she was surprised.

124. She said that she never insulted the late Ms Khutjo Mitchel Mabiletja, nor did she say that “she would be arrested”, “she was not going to pass the maths test” and “would make her life difficult”.

125. She said that the utterances of “arrest” was said by her husband, Mr Khwinana, they were thinking about going to the Police station, however they opted to go the house instead. No person mentioned “arrest”.

126. She said that the reason why she confronted the family on a Sunday, as it did not form part of the curriculum and she was not only an Educator, but she was also a parent and community member. Therefore, it was better if she went to the parents of the deceased so that the late Ms Khutjo Mitchel Mabiletja, could be disciplined.

127. She said that the Facebook post made her feel embarrassed, belittled, disrespected and her name was being dragged into the mud. Furthermore, the shoes that were commented about were old fashioned, and she did not even own a pair. She was the only Khwinana, therefore the deceased was referring to her.

Under cross-examination (only concessions or significant versions put are recorded
128. It was put to the Applicant that the late Ms Khutjo Mitchel Mabiletja, in her Facebook comment was not referring to her, but it was in reference to someone else.

129. The Applicant disputed this statement and submitted that she was referring to herself as she tagged other learners in the same school on the post.

130. It was put to the Applicant that she was not telling the truth as the deceased had apologized.

131. The Applicant disputed this statement and submitted that the deceased wrote “sorry”, however she expected her to apologize.

132. It was put to the Applicant that she uttered the words “what type of s**t did you write here” and then she proceeded to hit her with the phone.

133. The Applicant disputed this statement and submitted that she did not even come close to the deceased, and she had an opportunity to beat the child, but she did not do so.

134. It was put to the Applicant that she had not challenged the Respondent’s evidence that she hit the deceased with the phone.

135. The Applicant disputed this statement.

136. It was put to the Applicant that when they arrived at the deceased’s home, there was a lot of noise that was caused by her husband, Mr Khwinana, and herself, yet this was not challenged with their witness.

137. The Applicant disputed this statement and submitted that there was no noise.

138. It was put to the witness that the words mentioned in “count 1” were uttered by herself.

139. The Applicant disputed this statement and said that those words never existed.

140. It was put to the Applicant that the words mentioned in “count 2” that “she would be arrested” were uttered by herself.

141. The Applicant disputed this statement and submitted that her husband, Mr Khwinana, said that “his wife would go to the Police station”.

142. It was put to the witness that the Clinical Psychologist, Mr Molepe, testified that when she visited the family, she was furious, and this version was not challenged.

143. The Applicant disputed this statement and submitted that her representative said it was peaceful.

144. It was put to the witness that the Clinical Psychologist, Mr Molepe, testified that the reason why the late Ms Khutjo Mitchel Mabiletja, committed suicide was due to her husband, Mr Khwinana, and herself intimidating the deceased and this version was not challenged.

145. The Applicant disputed this statement and submitted that this was challenged, and they did not threaten anyone.

146. It was put to the Applicant that her conduct of going to the deceased home had bought the good name and reputation of the Respondent into disrepute.
147. The Applicant disputed this statement and submitted that she went there in her capacity as a public member.

Mr Masengare Khwinana
148. The witness testified under oath that he was the husband of the Applicant.

149. The essence of the witness testimony inter alia was that on 12 September 2021, they went to the late Ms Khutjo Mitchel Mabiletja, grandmother’s home and they were informed that she had moved.

150. He said that when they arrived at the house, they saw Ms Khomotso and she informed them where to sit and she told them “why not beat her”.

151. He said that the message was shown to the parents of the Ms Khutjo Mitchel Mabiletja, and the deceased initially denied sending the message, however she later accepted that she had sent the message.

152. He said that when the deceased father, Mr Mafa, arrived they told their daughter, Ms Sethakgale Khwinana, to wait at the car.

153. He said that the late Ms Khutjo Mitchel Mabiletja, wrote “sorry” on a message, and then her mother, Ms Khomostso, proceeded to beat her on her face.

154. He said that his wife, the Applicant, intended to go to the Police station regarding this matter, however he informed her to rather go to the home of the late Ms Khutjo Mitchel Mabiletja, so that her parents could talk to their child regarding the matter.

155. He said that they proceeded to leave the home of the deceased and Mr Mafo, waved his hands and said to them “go to the Police station”, and he responded by saying to him that they were there to bring to his attention regarding the mistake of his child, yet he treated them in this manner.

156. He said that the visit was peaceful.

157. He said that he did not utter the words on “count 1”.

158. He said that he uttered the words “arrested”.

159. He said that the Applicant did not utter the words that the late Ms Khutjo Mitchel Mabiletja, “would fail maths” and “make her life difficult”, it was just a fabrication.

Under cross-examination (only concessions or significant versions put are recorded
160. It was put to the witness when Mr Mafa waved his hand and said “go to the Police” that is when the words of “count 1” were uttered.

161. The witness disputed this statement and submitted that he could not say that, as he was a community member and a Politician therefore, he respected all persons.

162. It was put to the witness that the reason why the late Ms Khutjo Mitchel Mabiletja, committed suicide was on the basis of the intimidation and threats that she received from himself and his family during their visit on 12 September 2021.

163. The witness disputed this statement and submitted that the deceased was never threatened, furthermore the Respondent was unable to charge the Applicant with murder.

164. It was put to the witness that a trivial Facebook message was made into such a big thing.

165. The witness disputed this statement and submitted that he was not certain how he measured it, however the deceased had written about his wife.

166. It was put to the witness that children behave differently and are playful.

167. The witness conceded to this statement.

168. The witness explained that his wife, the Applicant, did not threaten, insult, or use any vulgar words towards the late Ms Khutjo Mitchel Mabiletja. Furthermore, he had been married to her for 26 (twenty-six) years and she never used vulgar words.

169. It was put to the witness that he would argue that he was using privilege evidence because of his marriage bond with the Applicant.

170. The witness disputed this statement and submitted that he thanked her for allowing him to accompany her to the deceased’s home.

171. It was put to the witness that the Applicant’s act of going to the deceased’s home outside of the workplace was an act of misconduct.

172. The witness disputed this statement and submitted that if that was the case, why had the Applicant been charged when it occurred outside of school. Furthermore, the matter was politically motivated as the Minister of Education (“MEC”) presented a speech outside of the deceased’s home and he said that he was there to dismiss the Applicant on the spot.

Analysis of evidence and argument
173. In section 185 of the Act, every employee has the right not to be unfairly dismissed. Since dismissal was not in dispute, the onus shifted to the Respondent to prove that it was fair.

174. In the case of Fidelity Cash Management Services v CCMA and others (DA10/05) [2007] ZALAC 12; [2008] 3 BLLR 197 (LAC); 29 ILJ 964 (LAC) the Court held that “fairness is determined mostly on the basis of the reason for the dismissal which the Employer had given at the time of the dismissal”. (Refer to count 1 – 4 see paragraph 35).

175. I felt it prudent to indicate that whilst this matter involved the passing of the late Ms Khutjo Mitchel Mabiletja, which is indeed very tragic for the parents, family and friends of the deceased. I must furthermore indicate that I am bound to deal with the reason(s) for the Applicant’s dismissal at the time of her dismissal.

176. I must place on record that evidence was led insofar as the home of deceased involved a missing person who was subsequently found to have passed on and the husband of the Applicant, Mr Khwinana, assisted the deceased’s family in this matter – again I emphasize this was not the dispute before me.

177. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered the arguments, principles of law, Codes of Good Practice together with the other evidence, oral and documentary, presented by the parties during the arbitration, as reflected in the record of the hearing.

178. The Applicant claimed that her dismissal was substantively unfair, and she never transgressed as per the charge(s) levelled against her.

179. Much evidence was led that it was unfair to charge the Applicant as the alleged act of misconduct occurred outside of the Respondent’s premises.

180. In the case of Hoechst (Pty) Ltd v Chemical Workers Industrial Union & Another, the Court held that “the misconduct complained of occurred away from the workplace and outside working hours does not necessarily preclude the employer from disciplining its employees, provided that there is a link between the employee’s conduct and the employer’s business.”

181. The test for determining whether there was such a link was described as follows in the Hoechst decision:
“[a]t the end of the enquiry what would have to be determined is if the employee’s misconduct had the effect of destroying or seriously damaging the relationship of employer and employee between the parties.”

182. In line with the above-mentioned authorities, it was clear that there “was a link between the Applicant’s conduct and the Respondent’s business” (school).

183. The following facts were common cause:
 The Applicant was employed as an Educator at the same school where the deceased, the late Ms Khutjo Mitchel Mabiletja, attended as a learner.
 A Facebook post was posted where it indicated “every school has someone who wears them” wherein the late Ms Khutjo Mitchel Mabiletja, commented on the post and posted “Kwinana”.
 The Khwinana family including the Applicant, her husband, Mr Khwinana, her daughter Ms Sethakgale Khwinana, and son, visited the home of the late Ms Khutjo Mitchel Mabiletja, on 12 September 2021 (Sunday).
 The deceased the late Ms Khutjo Mitchel Mabiletja, committed suicide on 12 September 2021, and therefore could not testify at the proceedings.

184. The Applicant unequivocally denied all of the charges levelled against her.

185. With the evidence before me, the Respondent’s witness, Mr Nara Godfrey Mafa, submitted in his evidence in chief that the “Applicant informed his child, the late Ms Khutjo Mitchel Mabiletja, that “tomorrow the 13 September 2021, I will make sure you will not write, and I am going to call the Police, and by the time you write they will take you in front of the learners and I want to make your life difficult, and I will make sure you will not pass”. This version was corroborated by Respondent’s other witness, Mr Lephodise Stephen Molepo.

186. With the evidence before me insofar as count 1 Mr Nara Godfrey Mafa, testified in his evidence in chief that on “count 1 those words were uttered by the Applicant’s husband when they left his homestead.” The Respondent’s other witness Mr Lephodise Stephen Molepo, testified that Ms Khomotso, informed him the Applicant informed the deceased that “s**t was learnt from her parents”. However, during cross-examination, Mr Nara Godfrey Mafa, conceded that the “words were uttered by the husband, Mr Khwinana, who assisted the fight” and the Applicant.

187. The Respondent’s witnesses, Mr Nara Godfrey Mafa and Mr Lephodise Stephen Molepo, were found to be reliable and credible witnesses.

188. Whilst the Applicant unequivocally denied all the charges levelled against her, her version was corroborated by her husband, Mr Masengare Khwinana. I cannot rely on her daughter’s evidence, Ms Sethakgale Khwinana, as she testified that she was not present when the alleged threats occurred.

189. In the case of Stellenbosch Farmers’ Winery Group Limited and Another v Martell Et Cie and Others 2003 (1) SA 11 (SCA) at page 13 paragraph 5, the Court held that the test is formulated as one in which “The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the dispute issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects on his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.”

190. In the case of Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC) it was stated that “the credibility of the witnesses and the probability and improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondent’s version”.

191. In the case of Sasol Mining (Pty) Ltd v Ngqeleni NO and Others (2011) 32 ILJ 723 (LC), the Court held that “the commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version. The commissioner manifestly failed to resolve the factual dispute before him on this basis” and that “the arbitrator failed to have any regard to the credibility and reliability of any of the witnesses, nor did he have regard to the inherent probabilities of the competing versions before him. That failure, and the fact that the award clearly may have been different had the commissioner properly acquitted himself, renders the award reviewable on account of a gross irregularity committed by the commissioner in the conduct of the arbitration proceedings”.

192. In line with above mentioned authorities, the Applicant’s husband, Mr Masengare Khwinana, testified and corroborated with the Applicant’s versions. In these circumstances, the witness evidence was found to be unreliable and bias towards the Applicant. Furthermore, the witness was found to be evasive at times having also considered his demeanour and candour.

193. The Intimidation Act of 72 of 1982 is committed when:
(1) “Any person who –
1. Without lawful reason and within to compel or induce any person or person of a particular nature, class or kind, or persons in general to do or to abstain from doing any act or to assume or to abandon a particular standpoint.
2. Assaults, injure, or cause damage to any person or;
3. In any manner threatens to kill, assault, injure or to cause damage to any person or persons of a particular nature, class, or kind, or
- Acts of conducts himself in such a manner or utters or publishes such words that it has, or they have the effect or that it might reasonably be expected that the natural and probable consequences therefore would be that the person perceiving the act, conduct, utterances, publication;
- Fears that his own safety or the safety of his property or the security of his livelihood or the safety of any other person, or the safety of the property of any other person, or the security of the livelihood of any other person.”

194. In the case of Kabeya v CCMA and others (C 905/2015) [2016] ZALCCT 44 the Court held that “an employee who made himself guilty of making threats to others, is guilty of intimidation, which is viewed in serious regard, worthy of a sanction of dismissal”.

195. In the case of Matemane v Driscoll NO and others (JR1690/13); [2013] ZALCJHB 199 the Court held that “the dismissal of the Warrant Officer for implicit threats against a senior officer to be substantively fair”.

196. In the case of Adcock Ingram Critical Care v CCMA and others (JA41/00); N [2001] ZALAC 10 the Court held that “in this instance that not only was the employee aware or reasonably aware of the meaning attached to his words but also the context upon it was used.” Furthermore, “it does not need to be directed to any specific person to constitute a threat”.

197. In the case of NUMSA obo R. Ngobeni v Disa Motors (MIBD 13350) it was held that “the Applicant’s voice was “getting very loud and his body language was very aggressive” and that the “Applicant became angrier and pointed a finger at him and said next time you won’t be so lucky”. The Commissioner found that “intimidation is an extremely serious offence like assault as it carries with it the implicit threat of assault and rules that the dismissal was substantively fair”.
198. In these circumstances a nexus can be drawn wherein the Applicant was employed as an Educator (in the Respondent’s workplace) where the late Ms Khutjo Mitchel Mabiletja was a learner. Therefore, the acts of misconduct were related directly to the workplace.

199. With the evidence before me it is vitally important to consider the circumstances wherein the event unfolded on Sunday, 12 September 2021. For the Applicant to visit the learner, the late Ms Khutjo Mitchel Mabiletja, on a Sunday is indeed very peculiar, strange and unbecoming.

200. With the evidence before me, a reasonable inference can be drawn that the “meeting” between the parties could not have been peaceful as the Applicant had an urgency to address the late Ms Khutjo Mitchel Mabiletja, on a Sunday. The Applicant, furthermore, proceeded to take her family as an enforcement with her including her husband, Mr Khwinana, who was well respected in the community, and it was probable that the Applicant had done so with the intention to “intimidate” the learner, the late Ms Khutjo Mitchel Mabiletja.

201. With the evidence before me, when considering the circumstantial evidence regarding this matter. The Applicant proceeded to visit the home of the late Ms Khutjo Mitchel Mabiletja, on Sunday, 12 September 2021. A “meeting” between the parties unfolded which under the circumstances could not have been “peaceful”, thereafter the learner, the late Ms Khutjo Mitchel Mabiletja, committed suicide.

202. As a reasonable and responsible person, the Applicant could have waited and addressed the matter at school following the necessary protocols on Monday, 13 September 2021, yet she chose not to do so.

203. Section 28(2) of the Constitution of the Republic of South African, 1996 (“The Constitution”) provides that “the best interests of the child are paramount importance in every matter concerning the child”. Every child has the “right to education”.

204. The Educators “Code of professional ethics” provides that an Educator:
3.4. “exercises authority with compassion;
3.5 avoids any form of humiliation, and refrains from any form of abuse, physical or psychological and
3.12 uses appropriate language and behaviour in her or her interaction with the learners, and acts in a way as to elicit respect from the learners”.

205. Therefore, on a balance of probabilities in these circumstances it cannot be improbable that the Applicant uttered the “threats” on the day in question.

206. It is common law that an employee is obliged to carry out their duties in good faith and further the Respondent’s best interests. In these circumstances, the Applicant failed to act in good faith.

207. I accordingly make the following Award:

Award

208. The Applicant’s dismissal was substantively fair.

209. The matter is dismissed.

Thus, signed and dated on the 19 February 2024.

Leanne Alexander
ELRC Panelist