ELRC317-23/24GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT SEBOKENG
CASE NO.: ELRC 317-23/24 GP
In the matter between :-

DEPARTMENT OF EDUCATION- GP EMPLOYER

AND

SETHABELA T. EMPLOYEE

ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
Heard: 23 October;10 & 13 November And 24 January 2024
Closing Arguments: 31 January 2024
Mitigating / Aggravating Factors: 16 February 2024
Date of Award: 01 March 2024
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A : Enquiry by Arbitrator.

AWARD


DETAILS OF HEARING AND REPRESENTATION

1. The enquiry was held virtually and at the employer’s Sebokeng West District
Offices on 23 October,10 & 13 November 2023 and 24 January.The employer
was represented by Ms K. Mosadi and the employee by Mr A.Thulo,SADTU union official. The proceedings were recorded digitally.

ISSUE TO BE DECIDED
2. I am required to determine if the Employee had committed sexual assault offences as proforred by the Employer. If I find the Employee guilty of the offences, I will determine the appropriate sanction.

ALLEGATIONS PROFFERED AGAINST THE EMPLOYEE
3 The Employer levelled against the employee Mr Teboho Blessing Sethabela, two
counts of misconduct in terms of Section17(1)(b) of the Employment of Educators
Act, Act 76 of 1998
(“Act”):-

Allegation 1:

Committing an act of sexual assault on or around the 13
September 2022 or anytime incidental thereto, as an educator,
in that he touched the breast, thighs and bums of a grade 9 female
learner, JM at the school, whilst he knew or ought to have known that
it was wrong to do so.

Count 2:
Committing an act of sexual assault on or around September 2022 or anytime incidental thereto, as an educator, in that he grabbed the left hip of a grade 10 female learner, JS, pressed her down and rubbed his penis on her bums at the school, whilst he knew or ought to have known that it was wrong to do so.



EVALUATION AND SUMMARY OF EVIDENCE

4. The following issues are common cause between the parties :

4.1 Mr Sethabela was employed as educator since 01 February 2015;
4.2 He knows JM who was in grade 9 in 2022. He did not teach JM
in 2022 and at any stage;
4.3 He was in the classroom with JM on the day of the alleged
incident;
4.4 He is aware of the rule and it has been applied consistently.
4.5 In 2022 JS was in grade 9. JS fought with another learner G in Ms
Mphotulo’s classroom. Mr Sethabela went into the class to separate the fighting learners.

5. JM testified that she was 16 years and in Grade 10 at the time of the incident in 2022. In 2023 ,she moved to another school as a result of the sexual assault Mr Sethabela inflicted on her.

6. On 13 September 2022, whilst she was with her friends during a lunch break, Mr Sethabela approached them and instructed her to walk with him to his classroom. He told her that he wanted to check her school shoes. She was wearing Nike shoes which were not appropriate for school.

7. When they got inside the classroom he ordered her to close the door. She did not feel comfortable. When she refused to close the door,he closed it. He pushed her against the wall, grabbed her bums, fondled her breasts and thighs. It was the two of them in the classroom. She was crying when she demonstrated the alleged ordeal. Mr Sethabela `s classroom is situated at the end of the second floor, close to the bathrooms. It is possible that someone might have seen them. She pushed him away and ran to the bathroom and washed her face to relieve the shock.

8. As she ran to the bathrooms,the bell rang for end of the break. Her friends saw her going to the classroom with him. She did not tell anyone about the incident. She was embarrassed and waited for after school.

9. On 24 of October Mr Sethabela sent him to Mr Dlamini to ask for a loose R100.00. Mr Dlamini asked her if Mr Sethebela wanted to entice the girls with the loose money as he was popular for that. He gave her the loose money. She informed her mom about the two incidents. Her mom told her to stay away from him.

10. The following day, she had a breakdown at school. The breakdown was triggered by him calling her baby girl and the smell of his colgne when he was passing by her. It reminded her of the intimate incident with her. She cried and reported the incident to Ms Swanepoel who escalated it to the Deputy Principal. She changed schools beginning of 2023 as she felt unsafe. R28 is the statement that the Deputy Principal. Mr Peterse requested her to depose.

11. During cross examination, she confirmed that Mr Sethabela was intimate with her. She was embarrassed to tell her friends. She cannot fabricate such an awful incident. He left the school because of the trauma she suffered at the hands of Mr Sethabela. She consulted social workers and her parents reported the incident to SAPS.

12. She did not scream because there was no one, her friends had moved downstairs. She was not shocked by Dlamini`s statement as it confirmed that she was not the only one being sexually assaulted. The way he looked at her when she instructed her to close the door made her uncomfortable. She reported it to Ms Swanepoel because she was comfortable with her.

13. JS testified that she was 17 years, in Grade 10 when the incident took place in 2022. Mr Sethabela did not teach her in 2022.In 2022 she had an argument and fought with GP in Ms Mphutolo’s classroom. At the time Mr Sethabela was passing by. He came in to stop the fight. He approached from her behind, pushed her against the desk and pressed and rubbed his manhood against her bums.

14. He instructed her to go to the office. When they got there, he smiled at her and told her that he is always on her side. He then instructed them to go. She had since made peace with GP and are now friends. They were not friends before the fight. There were other learners in the classroom watching, when Mr Sethabela stopped the fight.

15. She demonstrated that he pushed her to lean against GP who was sitting
on the chair. He grabbed her by the waist and hip from her back. He pressed
and brushed her penis on her bums. GP could not have noticed what
was happening. He did not come between them when he broke the fight. She
was confused and angry at the same time. It happened fast. She reported the
incident to Ms Swanepoel and later wrote a statement on R29.

16. During cross examination she said that Mr Sethabela did not discipline them for fighting. She felt his penis pressed against her bums as she was still holding GP. He pulled her by hands against him at the same time pushing himself against her bumps. She reported to Ms Swanepoel because she trusted her.

17. She denied that she was sent to lie about Mr Sethabela. She does not know if other learners saw what he did to her. She denied that she was lying but said she was telling the truth as it happened. She expected Mr Sethabela to report them to the office for disciplinary action to follow, but he did not. He did not report because he was covering up what he did to her. He knew she would expose him if he reported the fight. There was nothing to gain from fabricating the story.

18. Caroline Mauree Swanepoel testified that she wrote R13 statement. She wrote the statement when the learner came to her complaining. She taught JM for two years. JM confided in her that Mr Sethebela made her feel uncomfortable. He called her to the class room where she touched her inappropriately.

19. She told JM to write a statement of the incidents. She gave the statement to Pieterse because the principal was not there. Mr Sethabele was Head Of Department (HOD) for Life Orientation (LO). She taught LO. They did not have work related problems. She does not know him personally and has nothing against him.

20. During cross examination she said that she had a good professional relationship with Mr Sethabela. She denied that their relationship had gone sour. She denied that she had refused to take instructions from Mr Sethebela and that she shouted at him. She reported the incident to the Deputy Principal, Mr Petersen because
the principal did not take action on other complaints that she previously reported
to him.

21. It was a mistake on her part that she did not provide full details on what the
learners told her in her statement. She made the statement in a rush. She
denied threatening Mr Sethabela`s witness on 23 October 2023.

22. JDC testified that she is JM`s mother. JM complained to her that Mr Sethabela
was passing sexual remarks on her. She referred her to Ms Swanepoel. The
other day JM told her that he brushed his manhood against her and touched her
breast and thighs.She told her to report him. The following day,she had a breakdown when she saw him approaching her. She went to school with her husband, sister and friend She opened a case at SAPS.

23. During June, she received a call from Mr. Sethebela’s uncle who requested a private meeting with the family to apologise. They refused a private meeting but told him that the meeting should be convened at the District Office. He called again requesting a meeting and her husband talked with him. Her husband refused to have a meeting outside the District Office. JM struggled to sleep and eat. Her marks dropped as she was depressed.

24. During cross examination she said Sethabela’s uncle called her and her husband requesting a private meeting to apologise.She did not have telephone records of the calls anymore. She could not report the incidents because she was under medical supervision.

25. AJM testified that she is the grandmother of JM. JM explained what happened to school. The following day she had a breakdown, she rushed to school. She met with her mother and friends at the school. It was Pieterse and Swanepoel in the Office. They called Sethabela to the office when he arrived he said he did not know any Grade 9 learner and that he did not teach Grade 9. It was strange because no one had mentioned Grade 9.

26. When she asked him if she touched JM sexually, he denied. During June JM’s mother received a call from Mr. Sethabela’s uncle seeking a financial settlement of the issue. He called the uncle on the number he used to call JM’s mom and spoke to him herself. He wanted to pay in order to get rid of the issue. During cross examination she said that she did not have the records of the calls anymore.

27. Charles Kenneth Phillips testified that he is the former principal of the school, JM and her family came to report to him that JM was sexually abused by Mr Sethabela and that they wanted the school to take action.

28. During cross examination he said that Swanepoel and Sethabela had a normal relationship. He was not aware of any conflict or quarrel between them at any stage and during the marking of the LO.

29. LMS testified that she is JM’s maternal aunt.JM’s mom had informed her that there was a an educator who was abusing her sexually. Later in the day her mother,JM’s grandmother called informing her that JM had a breakdown at school. They went to school.

30. When Mr Sethabela got to the office he said he did not teach grade 9 and that he did not know a Grade 9 learner. JM’s mom informed her that Mr. Sethabela’s uncle called seeking a meeting to resolve the issue. During cross examination she admitted that she was not present when the uncle called.

31. Teboho Blessing Sethabela testified that charge 1: during September 2022 he met JM and called her aside about 5 metres away from her friends. He asked her about the school shoes. He never went with him to the classroom.

32. Charge 2. He was passing the classroom when he saw the leaners fighting. He went into the classroom and got between the learners and separated them. They were standing when he separated them. He took them to Ms Mphotulo’s office. Mr Sethabela was Swanepoel `s HOD. Initially their relationship was good. Later it went sour, when she refused to carry out his instructions. She influenced other colleagues to be against him.

33. During cross examination he said it was not a contradiction when he admitted in the pre-arb minutes that he was with her in the classroom on the day in question changing that the version to that they were outside the classroom.

34. He denied that she fondled JM.When her family came to school,her uncle approached him first and introduced himself that he was JM’s uncle ,a grade 9 learner.Hence,when he went to the office he already knew it was about Grade 9 leaner. When asked why he did not put that version on the witnesses, he said there was no need. He knew nothing about the alleged uncle calling JM`s mother and father. He does not have an uncle.

35. He was also asking himself what was JM gaining from fabricating a case against him. His relationship with Swanepoel started souring in August 2022. He reported it to the principal. When asked why he did not put the version to the principal he said it was not relevant.

36. Charge 2: He said he took the learners to Ms Mphutolo`s office and reported the incident to Mphutolo because they fought in her classroom. He denied not reporting. He said he had put his version that GP and JS were standing when he separated them. When asked why he did not challenge Swanepoel’s version that as the Grade head she was responsible to receive reports of sexual nature. He said they must be escalated to the principal.

37. NB testified that she is 17 years. She was JM`s friend. She is still in touch with JM. Mr Sethabela called JM and stood a few metres away from them. She did not take long and returned to the group. JM told her that Mr Sethabela was asking about why she did not have the proper school shoes.

38. During cross examination she said that she did not know why JM did not mention her as her friend.She was not lying about their friendship. She did not come forth when the District was investigating the matter because she took a 2 year gap from school and returned in 2023. She took a gap year in the middle of 2022. However, she was at school in September 2022, when the incident took place .She could not remember if she left in June or July 2022. Perhaps she left in November 2022. She could not remember when the incident took place but it was upstairs next to Mr Sethabela `s class. JM told her that her parents came to school but she did not ask her for the reason. Mr Sethabela told him that in the hearing she must say that he did not go with JM to the classroom.She tried to retract the statement.

39. She left the school to attend to a spiritual calling and was also admitted in hospital. She left school end of September 2022. When she returned to school in 2023, JM had left the school. Their friendship ended because JM was not supportive when she was in hospital and did not bother to check on her.

40. She witnessed JS and GP fight. It was during Ms Mphotulo`s period who was not in class when the fight took place. Mr Sethabela took both of them to the office. It is not possible that Mr Sethabela could not have reported the incident because it was his responsibility to report.

41. GP testified that she is 16 years. JS had attacked and strangeled her against the wall. Mr Sethabela rushed to class and came in between them. He separated them by pulling away JS`s hand which was strangling her.He took them to the office.

42. During cross examination she said JS started the fight. She was sitting on her desk near the widow when JS attacked and strangeled her against the wall. When Mr Sethabela came standing near her desk.She denied that during the fight she fell between the chair and table.


CLOSING ARGUMENTS


43. The Employer argued that Count 1: Mr Sethabela gave two contradicted himself that he spoke to JM 5 meters away from her.NB averred that Sethabela approached JM and he asked her why she was wearing the wrong shoes and nothing happened.JM’s version is that he instructed her to follow him to the classroom. NB was caught up in her lie, when she said Mr Sethabela told her what to say in the hearing.

44. She lied that she had taken gap year from the middle of 2022. She explained that she fell sick due to spiritual calling and returned the beginning of 2023.Upon realizing that her statement was questionable she became evasive and changed her version. She did not witness what happened to JM. She claimed to know JM and her encounter with Mr Sethabela.JM explained that she felt embarrassed such that she could not tell her friends as she was afraid to be judged.She ran to the bathroom to pour water on her face.

45. Mr Sethabela triggered her anger by calling her “baby girl” which her to breakdown.He did not challenge JM when she mentioned a comment made by Mr Dlamini “Is Mr Sethabela giving you money like he does to other girls”.

46. Ms Swanepoel was consistent in her evidence in that she was the grade head of grade 9 and confirmed that JM reported that Mr Sethabela touched her inappropriately.

47. Allegation 2 : JS’s version is that Mr Sethabela did not come between them but came from her behind. He made her bend pressing his penis against her and grabbed her hip. He took them to the office, and left them outside.He assured her that he has her back hence he did not report them. He was afraid of being exposed.GP was not a reliable witness to tell whether there was no chance for Sethabela to have misbehaved behind JS.Witnesses confirmed that there was a commotion, which could blind people’s attention.

48. The employer has proved that the Mr Sethabela has committed the two counts of sexual offences and he must be found guilty as charged.

49. The employee argued that Allegation 1: NB rebutted JM’s version that Mr Sethabela put his arm around her during break time and her friends were aware. NB was present at the scene. NB’s version is that JM and Mr Sethabela were standing few metres away from them , after they spoke she returned to them. She told them that Mr Sethabela was asking about school shoes.NB made it clear that they did not go to Mr Sethabela`s class.

50. JM failed to produce evidence that that she left the school because of trauma. She could not prove that she consulted the psychologist because she made up the stories influenced by Ms Swanepoel.

51. The only time Mr Sethabela and JM met was when JM came to him with R100 note to ask for a small change for Mr Dlamini.This took place another day not on the alleged incident.

52. Swanepoel indicated that she was not sure how much of the alleged incident is true and did not recall all the details .It is clear that she fabricated the stories about Mr Sethabela . She was aggrieved that Mr Sethabela got HOD promotional post and he was coming from another school.She used to undermine Mr Sethabela as her department head. She used leaners to fight her battles and to destroy him. Hence, their stories do not link.

53. Ms Swanepoel threatened the GP and NB who are Mr Sethabela’s witnesses when they came to testify in October 2023. Swanepoel’s hatred towards Mr Sethabela started when he gave her a lawful instruction to mark Life orientation exam together with other colleagues in department of L.O. She told him about the old ways of doing that. Mr Sethabela invited L.O.facilitator to mediate and issue a circular that speaks on how marking should be done.

54. JM’s mother reported the alleged incident only after she has been in contact with Ms. Swanepoel. Ms. Swanepoel used the parent to destroy Mr. Sethabela.She did not report the matter When JM allegedly told her because these are all lies.

55. She failed to produce evidence that she got a call from Mr. Sethabela’s uncle on 15 June 2023. The uncle did not call them its a fabricated story. The hearsay evidence of JM’s grand mother and aunt must be disregarded.JM and JS are friends hence it was easier for Ms. Swanepoel to use them.

56. Allegation 2 : Both GP and NB demonstrated that Mr Sethabela came in between them in trying to separate them and it was not difficult to separate them. They were both standing and nobody fell.JS lied that GP was on the floor . This shows that she was influenced by Ms. Swanepoel.

57. JS said Mr. Sethabela took them to the office and left them unattended. GP made it clear that they were both taken to the office he handed them over to Ms. Mpothulo because it was her period.JS is a liar, she lied about being a friend of GP and about how the incident unfolded.

ANALYSIS OF EVIDENCE AND ARGUMENTS

58. In determining whether Mr Sethabela is guilty of the offences proferred against him must consider the following elements:-
• if the his conduct was of a sexual nature;
• if his actions resulted in the victims’ sexual integrity being impaired or inspiring the belief that it will be impaired.
• If actions were intentional
• If there are no justifiable grounds for the actions.

Allegation 1
59. It is a common cause issue that Mr Sethabela was in the classroom with JM on the day of the alleged incident. JM’s version is that on 13 September 2022, whilst she was with her friends during a lunch break,Mr Sethabela approached them and instructed her to walk with him to his classroom as he wanted to check her school shoes. Her shoes were not appropriate for school.

60. When they got in the classroom he ordered her to close the door. She felt uncomfortable and she refused to close the door.He closed the door. He pushed her against the wall, grabbed her bumbs and fondled her thighs and breasts. It was only the two of them in the classroom.

61. She demonstrated the ordeal crying. It is not in dispute that Mr Sethabela`s classroom was at the end of the second floor, close to the bathrooms. She managed to push him away and ran to the bathroom and washed her face. Her friends saw her going to the classroom with him. She did not tell anyone about the incident. She was embarrassed and waited for after school.

62. Mr Sethabela denies going with the JM to the classroom.His version during examination in chief is that he called her aside and stood few metres away from her friends to reprimand her about the inappropriate shoes. Mr Sethabela is not honest in that he contradicted himself as he had admitted in the pre-arb minutes that he was with JM in his class on the day of the alleged incident.

63. JM testified confidently and without contradiction that she went with Sethabela to his classroom. A version that NB was JM’s friend and that she was part of the girls who were with JM’s group when Sethabela approached them was not put to JM for test. Therefore, I am persuaded that she was JM’s friend. Therefore, it is not probable that she was present when Sethabela walked with JM to the classroom. Furthermore, she revealed during cross examination that Mr Sethabela coached her what to say in the hearing.

64. According to NB she returned to school in 2023, but found that JM had left the school. Their friendship ended because JM was not supportive when she was in hospital and did not bother to check on her. She pushed unsuccessfully for her close proximity with JM .

65. I find NB not to be a credible and reliable witness. Her testimony was not only full of contradictions but was also incoherent. When asked why she did not come forth when the District was investigating the matter, her reason was that it was because she took a 2 year gap in 2022 from school and returned in 2023.

66. If she took a 2 year gap in 2022,it is not probable that she returned to school in 2023. It is not probable that she could make a mistake that it was 2 years instead of few months. This is because the longest period that she could have taken a gap,would be 6months from mid to end of 2022.

67. NB struggled to know when she stopped going to school in 2022. She changed from the middle of 2022 to September and November 2022. Her efforts of changing the versions were in attempt to prove that she was present when JM incident took place in relation to whether Sethabela went to the classroom with JM.

68. I find it probable that NB was not present when Mr Sethabela called JM to go with him to the classroom.She was coached to fabricate the story that Sethabela discussed the shoes with JM a few metres from the other girls.

69. It is common cause that the shoe discussion took place during a lunch break. Mr Sethabela was aware that learners were outside the classroom which was a convenient opportunity to be intimate with JM. It was not necessary for Mr Sethabela to have taken JM to the classroom to reprimand her about the shoes. It is strange that he did not reprimand her when she was with the girls , which was not the case as he had admitted to being with JM in the classroom.

70. The only inference I could draw from Sethabela wanting to have a private moment in his classroom with JM during lunchbreak was motivated by lust. JM was not in Mr Sethabela’s class. I do not find any other reason why Sethabela
instructed JM to his classroom.

71. JM’s version on what took place in the classroom was rebutted by bare denial. JM demonstrated how she grabbed her by bums, fondled her breasts and thighs after he closed the door. She was crying when she demonstrated. This is corroborated by the unchallenged version that she had a breakdown the few days later at school when he passed by her and called baby girl and smelled his colgne. He did not challenge the version that this took place.

72. JM admitted that she did not scream during the ordeal and that she did not tell her friends because she was embarrassed. The act of sexual assault violates the victim’s dignity. The victims react differently on who,when and how to share and confide about these kind of incidents. She reported the incidents within few days ,which I find the explanation justifiable.

73. Her family, Swanepoel and principal are not eye witnesses. The relevance of their testimony is to corroborate JM’s version that she reported the incident to at different times. She reported to her mother and grandmother same day. Their version is consistent. It is not peculiar that she preferred to report to her Grade educator, Swanepoel as she felt comfortable with her as a woman instead of the male principal.

74. JM’s mother, grandmother and aunt ‘s version is that when he was called to the office,his utterance was that he did not know Grade 9 learner and that he did not teach Grade 9. This was despite none of them having prior contact with him on why they came to school. Mr Sethabela did not challenge this version.However during cross examination he said that he had met LM’s uncle outside, who informed him that they were at school because of Grade9 learner,JM. This version was not put the witnesses for test. According to Sethabela, it was not necessary to challenge this part of evidence.Therefore, I am persuaded that they had come to complain about what he did to JM as he knew he had violated a grade 9 learner.

75. Whether JM asked R100 lose money from Dlamini for Sethabela or the other way round and the conversation Dlamini had with her about Sethabela is not relevant to my determination on whether Sethabela committed the offence. This is because it is common cause that it took place another day.Therefore, it is disregarded.

76. The applicant’s defence is that JM was influenced by Swanepoel to fabricate lies about him because Swanepoel was bitter that she lost the HOD position for LO subject to him ,who was an outsider. Swanepoel was defiant in taking lawful instructions from him about how to mark LO exam. He had to seek a mediator. This sagga exacerbated the fall out between them.

77. Swanepoel denies the incident and that their professional relationship had soured.This was corroborated by the Principal who said that Swanepoel and Sethabela had a good relationship and that he was not aware of their fall out and the LO exam incident.

78. Mr Sethabela’s version during cross examination is that it was not relevant to have put a version on the principal that he reported the LO sagga to him (Principal). It is probable that the reason he did not challenge the principal is that the incident did not happen. I find the employer’s version to be more probable than that of Sethabela that there was no personal vendetta on the part of Swanepoel.

79. JM’s mother and grandmother’s version is that Sethabela’s uncle called more than once seeking financial resolve to end the charges against him.Sethabela denies any knowledge all the calls.According to him he does not have an uncle. It is not probable that a stranger from with no information could call impersonating as Sethabela’s uncle. However, I will attach little probative value to the emplyer’s evidence because they did not provide the call records.

80. There is a causal link between the the incident and JM moving to another school,which corroborate the version that the breakdown was also linked to the incident.

81. The alleged threatening of Mr Sethabela’s witnesses by Swanepoel did not impact the prodeedings which were held in camera. The incident which Swanepoel denied took place four months before the witnesses testified.At the time of they were comfortable and assisted by the intermediary.They neither displayed fear nor indicated that they received further “threats “.

82. I am satisfied that Mr Sethabela ‘s action as demonstrated by the victim is of a sexual nature. JM’s integrity was inpaired as a result of his action.He had the intention to touch and fondle JM’s private parts. The body contact between him and the JM was not accidental.He committed the act in private by creating an opportunity that it was only the two of them in the classroom. There is no justifiable ground for his actions.

83. All elements of sexual assault were proven on the balance of probabilities.I am persuaded that the employer had proved that Mr Sethabela’s action constitutes sexual assault on JM. Therefore, the Employer has discharged its onus in proving on the balance of probabilities that Mr Sethabela had committed offence1. I find him guilty for contravening Section 17. (1) (b) of the Act.







Allegation 2

84. JS’s version and demonstration is that Mr Sethabela approached from her behind, pushed her against the GP who had fallen on desk and pressed and rubbed his manhood against her bums. He instructed them to go to the office. At the office, he smiled at her telling her that he was always on her side and instructed them to go. There were other learners in the classroom during the fight and when Mr Sethabela separated them.

85. GP could not have noticed what was happening. He did not come between them
when he broke the fight but pulled her to his private parts. She was confused
and angry at the same time. It happened fast. She reported the incident to Ms
Swanepoel and later reduced them in her statement on R29.

86. Mr Sethabela did not discipline them for fighting. She expected Mr Sethabela to report them to the office for disciplinary action to follow. He did not report the fight because he was covering up his actions.He knew she would expose him. She reported to Ms Swanepoel because she trusted her.She denied that she fabricated the story to destroy Mr Sethabela. She had nothing to gain from fabricating the story.

87. His version which is corroborated by GP is that he stopped the fight by getting in between and separated them. They were standing when he separated them. It is common cause that there were learners in the classroom who witnessed the fight.When he separated them he was not between JM and the wall, which would obscure his alleged actions against JM.

88. It is not in dispute that GP was the one who was on the side of the wall. Therefore, I find it improbable that when he separated them whether by pulling JS or coming in between them he was out of view of the learners. I do not believe that even the worst pervert would behave in such a despicablle when people are watching.

89. The learners were watching the fight. It is probable that he pulled JS from GP and got in between them to end the fight. He could have pulled her on waist and that would be justified. When separating fighting people you pull any part of the body that is convenient. If JS felt his manwood, it could not have been intentional contact from his part.However, the probability is that it was accidental and arose in the cause of the commotion in his pursuit to end the fight.

90. It is common cause that he took them to the office. JM denies that he reported them. According to the Sethabela he reported them to Mphotulo because they fought in her class. She was responsible to discipline them not him.NB’s version is pure speculation because she did not go with them to office. It is not in dispute that they were never disciplined. It is not true that Sethabela reported the fight. However, I find the link between the allegation and failure to report to be very slim, i.e it does not carry much probative value to prove the allegation.

91. In the absence of intention on the part of Mr sethabela , I find that the employer has failed to prove on the balance of probabilities that Mr Sethabela sexually assaulted JS.Therefore, he is exonarated.

Aggravating Factors

92. The employer submitted that Mr Sethabela has been employed as an educator since 01 February 2015. He became part of the School Management Team as the Departmental Head and is currently a Head of Department.

93. He is is prohibited from having any form of sexual relations with the learners and groom young girls (and boys).The Constitution of South Africa protects children from any form of violence, maltreatment and degradation.Section 17 (1) (b) of the Employment of Educators Act as amended stipulates that “An educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employee”. Mr Sethabela’s misconduct is based on this piece of legislation.

94. Mr Sethabela has failed to uphold the values of teaching and the SACE code of professional ethics and as such, trust relationship is therefore irreparably broken.

95. In Diholo v Gauteng Department of Education and Others (JR 1775/19) [2023] ZALCJHB 117 (LC)(2 May 2023), the court held educators and management of our schools have a legal duty to take care of the children entrusted to them. Learners being vulnerable, and since the teachers are the closest adults to them during their school lives, teachers ordinarily have a positive duty to provide a safe educational environment to them, free from any form of fear, abuse, intimidation, coercion or physical and/or emotional harm. This is so in that in the education sector in particular, the in loco parentis principle ought to be supreme, as it is meant to protect learners, and accordingly, teachers are at all material times, in a position of diligens paterfamilias. (Of course the gender of the educator is not an issue, as the position of protector and care-giver equally applies to female educators)).

96. The court emphasized the role of the educator and maintained the Constitutional rights of learners. Therefore, the employer prays for dismissal of Mr Sethabela.

Mitigating Factors

97. Mr Sethabela has 9 years’ experience as educator. He was promoted to HOD position in August 2021. He is the first offender Since the inception of these allegations he suffered hypertension, heart disease and Diabetes. He is under chronic medication.

98. He is 32 years old and a young educator. He is a breadwinner taking care of his child’s educational needs and the family.He is responsible for bond payments and for her mother’s medical bills.He pays for funeral policies covering his entire immediate and extended family.

99. During the course of this case he lost his father and the condition of his mother is deteriorating. He relies on this job as he has nowhere else to go should he lose his job. He is studying Honours degree in education. He prays for a final written warning or fine paid in months due to health condition and monthly expenses.
FINDING

100. He committed the offence against a young adolescent girl. JM’s parents and the
Community at large had entrusted him as the educator to care and
protect learners. However, he destroyed that trust relationship. JM expected
care and protection from her educator but the outcome was the opposite as
instead she became a predator. He abused his position as an educator and loco
parentis. His conduct,violated human dignity of the victim.

101. In Le Roux v S (A & R 25/2018) [2021] ZAECGHC 57 (13 May 2021) the court
held that “The interests of the community cannot be ignored in determining an
appropriate sentence. Some of the components of the offences occurred on the
premises of a primary school. It is also necessary to continue to impress upon
people in positions of responsibility that they cannot leverage their power, and
the esteem with which they may be regarded, in order to satisfy their sexual
lust.

102. His action was serious, harmful and destructive that his long service ,clean record
and his managerial position are unable to save him. His position HOD
position aggravate his situation,more responsibility was expected from him.

103. I agree with the employer that a strong message to deter potential transgressors
from committing this horrendous act. Section 17 (1) (b) of the Act carries
a mandatory sanction of dismissal for a sexual assault of a learner.I have found
Mr Sethabela guilty of one count of sexual assault on JM.

104. In light of the seriousness of the offences and the mandatory
sanction it carries, I have no discretion to impose any other sanction,
regardless of Mr Sethabela’s mitigating factors.Therefore,he must be dismissed
in accordance with Section 17 (1)(b).

105. I find, Mr Sethabela unsuitable to work with children. I invoke Section
120(4) of the Children’s Act No 38 of 2005 to declare him on my own
accord, unsuitable to work with children.

106. The General Secretary of the ELRC must ,in terms of Section 122(1) of
the Children’s Act No 38 of 2005 ,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 No 38 of 2005 , that Mr
Sethabela is unsuitable to work with children, for the director General to
enter his name in Part B of the National Child Protection Register.
107. The ELRC is directed to forward a copy of this award to SACE.The attention of
SACE is drawn to the fact that Mr Sethabela has sexually
harassed a learner.

SANCTION

108. The Employee, Teboho Blessing Sethabela is dismissed for one
count of Sexual assault of a learner in terms of Section 17 (1) (b)
of the Act .

Signed and dated at Pretoria on this 01 March 2024.


MG Rabyanyana
ELRC Panellist