ELRC280-23/24KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT PIETERMARITZBURG, KWAZULU-NATAL
CASE NO: ELRC 280 – 23/24KZN
In the arbitration between:

DEPARTMENT OF EDUCATION KWAZULU - NATAL APPLICANT
(Employer)

and

T MCHUNU RESPONDENT
(Employee)


AWARD

Details of hearing and representation

1. This Inquiry by Arbitrator (IBA) was held in terms of Clause 32 of the ELRC Constitution read with Section 188A of the Labour Relations Act 66 of 1995 (the LRA). The hearing was finalized on 23 April 2024.

2. Mrs. N. Magoso, from the department’s employee relations office, represented the applicant. Mr KC Gasa, an official from the union NATU, represented the respondent.

3. The hearing was digitally recorded.

4. The representatives made an application to submit closing arguments in writing, which I granted. The respondent’s closing arguments were forwarded to me on 29 April 2024 and the applicant’s, on 30 April 2024, which date I regard as the final day of the hearing.

5. The parties relied upon a common bundle of documents, which I marked Bundle “A”.


Issue in dispute

6. I am required to determine whether the respondent had a sexual relationship with a learner at the school; thereby contravening section 17(1)(c) of the Employment of Educators Act 76 of 1998 (the Act), as amended.


Background to the dispute

7. The respondent was employed by the applicant as an educator based at the Busana High School, Umzinyathi District, KwaZulu-Natal.

8. The applicant charged the respondent with misconduct alleging that he contravened Section 17(1) (c) of the Act in that he engaged in a sexual relationship with a learner at the school.

9. The applicant filed a request for an inquiry by an arbitrator with the Council in terms of Clause 32 of the ELRC Constitution. An IBA was set down before me in terms of Collective Agreement 3 of 2018. That agreement makes it compulsory to hold such inquiries, in the form of arbitration, in all instances in which an educator is charged for sexual misconduct committed against a learner or learners at the school.

10. The learner in this matter was under the age of 18 at the time of the respondent’s alleged misconduct. She remains a learner at another tertiary institution at the time of my issuing this award. I accordingly refrain from disclosing her name or surname. I will therefore hereinafter refer to the learner as the complainant.


Survey of evidence


11. I have considered the totality of the evidence before me. I am required by Section 138 (7) of the LRA to provide brief reasons for my award. I accordingly survey below those aspects of the evidence that I determine to be material and relevant to the charge and upon which I rely to make my determination.

12. The applicant led the evidence of two witnesses, namely; the complainant and Ms Nompumelelo B Griffiths (Griffiths), a South African Management Systems Administrator. The respondent testified and did not call any witnesses.


The Applicant’s Case


13. The complainant testified that the respondent and herself engaged in an (intimate), “ love relationship and that they were dating”. The respondent first approached her in 2021. She was in Grade 11 and 16 years old at the time. The respondent would complement her by saying that she was beautiful, that he was attracted to her, and that he liked her, “body shape”.

14. He pursued her until January 2022 when she finally acceded and agreed to start a relationship with him. It was the commencement of her matric year. They communicated through WhatsApp messages and phone calls.

15. The respondent requested her not to disclose the relationship to anyone. She, however, informed her close friend, Bongiwe Kwababa, and eventually the school counsellor, Mrs. Sibiya, about the relationship. The relationship endured for more than a year.

16. She had sexual intercourse with the respondent on three or four occasions. The first incident happened after her birthday on the 23 February 2022. The complainant gave her birthday gifts. On some date between her birthday and March 2022, the respondent forced her to have sexual intercourse with him. There was blood on the bed thereafter and the respondent gave her a blanket to place over it.

17. He woke her up the next morning and asked her to have a bath whereafter she went home. Later that day he messaged her to say that she was no longer a virgin and that she should not tell anyone what happened between them. The complainant was confused and fainted at school.

18. The second instance of sexual intercourse took place during Term 3 in 2022 and the third in December 2022. The fourth instance took place during May or June 2023. These instances took place in the words of the complainant, “any and everywhere including his car”.

19. During the first half of 2023, the complainant experienced pregnancy symptoms. She started to produce breast milk and developed a belly line (extended stomach). The respondent refused at the time to take her calls or to respond to her messages. She needed to go to the clinic to undergo a pregnancy test and required a school pass-out to do so. She was forced to tell the school counsellor about the relationship and her pregnancy symptoms.

20. The counsellor advised the respondent to give the complainant money to have the pregnancy test. The respondent deposited an amount of R500.00 into her bank account. The pregnancy test was negative. The respondent advised her to get medication to stop her milk production and to forget about the pregnancy.

21. The complainant attempted to commit suicide. She consumed poison in the form of weed killer and was consequently admitted to hospital. She also suffered from depression. Upon her discharge, her family demanded that she stay home until she disclosed the truth to them. She eventually did. They advised her to open a (criminal) case of sexual assault/abuse against the respondent, which she did. She did not immediately return to school and for the reasons listed was absent from school for length periods.

22. During this time, the respondent continued to call her whenever he felt like it and would insist on seeing her. It was, she felt, difficult to extract herself from the relationship. She would eventually give in to the respondent’s requests to meet with him.

23. In a WhatsApp message, sent to her after their breakup the respondent states the following in isiZulu

“Yes, I am not disputing but you promised you would protect me. I have never disputed that it was me, but we enjoyed what we were doing – now you are making it seem like I forced you or something. I have never done that.”


24. The applicant’s second witness Griffth testified that she was a Systems Administrator, employed by the South African Management Systems in the department. Her duties include the keeping of learner records at schools. The records for Busana High School confirm that the complainant only dropped out of school on 14 April 2023.


The Respondent’s Case


25. The respondent Mchunu admitted that he engaged in an (intimate) love relationship with the complainant. The relationship started in 2021 when the complainant was in Grade 11. The sexual relationship, however, started in May or June 2022 when the complainant was no longer a learner at the school. She had left school by then and later moved away to Johannesburg.


26. The relationship was not serious because the complainant was aware that he had a partner at the time. He was under the impression that the complainant also had a partner; until she fell in love with him. He met the complainant mostly at night along the way from her house.

27. In early 2023 the complainant came to his house to inform him that she was returning to school. He advised her that they could no longer continue the relationship. He is aware that it constitutes serious misconduct for him to have a sexual relationship with a learner at the school. The complainant thereafter laid a criminal charge of rape against him but subsequently withdrew same. She did so because she was vengeful and wanted him to lose his job.

28. He did not force the complainant to have a relationship with him. Everything they did was by consent. The relationship was a “sneaky link relationship”. They were neither serious nor close to one another. The respondent admitted that the complainant’s aunt had communicated with him and demanded that he pay damages. The aunt sent him a voice note after the relationship had ended.

29. On my further inquiry, the respondent admitted that he had sexual relations with the complainant on two occasions in 2022 and once in 2023. He was aware that having a sexual relationship with a learner constituted serious misconduct. He concedes that during May 2022 the complainant was still 17 years old.


Analysis of evidence and argument


30. The charge against the respondent is set out in the Notice of Disciplinary Hearing . The charge alleges that the respondent had a sexual relationship with a learner in his school thereby contravening Section 17 (1) (c) of the Employment of Education Act 76 of 1998, as amended.



31. Section 17(1) (c) of the act reads as follows:

“Serious misconduct – (1) an educator must be dismissed if he or she is found guilty of –
(a) theft, . . . .
(b)
(c) having a sexual relationship with a learner of the school where he or she is employed”
( my emphasis)



Whether the respondent committed the misconduct alleged?

32. I am required, in terms of the charge, to determine whether the respondent had a sexual relationship with the complainant.

33. It is common cause that the respondent was employed as an educator at Busana High School at the material time. It is also common cause that the respondent was the complainant’s teacher and that he taught her mathematics, amongst other subjects.

34. It is finally common cause that the respondent had a sexual relationship with the complainant. The respondent admits to having had sexual intercourse with the complainant on three occasions. What is in dispute are the dates on which these instances of sexual intercourse took place.

35. The complainant alleges that the first instance took place on a date after her birthday on 23 February 2022, during the period 24 February 2022 to March 2022. The second instance during Term 3 of 2022, and the third instance in December 2022. The fourth instance took place during May or June 2023.

36. The respondent admits that he had sexual intercourse with the complainant on three occasions. The first and second instances took place during May to June 2022 instead of the date that the complainant alleges. The third instance took place in 2023. This date dispute challenges the applicant’s version that the complainant was a learner at Busana High School when the respondent had sexual intercourse with her. The respondent alleges that she was not and consequently he is not guilty of having sexual intercourse with a learner at the school.

37. Section 17(1)(c) specifies that the learner be a learner of the school at the time of the alleged sexual misconduct. The respondent’s primary defence therefore is that the complainant was not. In the circumstances, the crisp factual dispute is whether or not the complainant was a learner at Busana High School when the respondent had sexual intercourse with her.

38. I must accordingly determine whether the instances of sexual intercourse took place on the dates specified by the complainant whilst she was a learner at the school or on the dates admitted to by the respondent when he alleges that she was not.

39. The complainant testified that the relationship endured from February 2022 to May or June 2023. The respondent gave her gifts for her birthday on 23 February 2022. They had sexual intercourse for the first time during the period 24 February 2022 to March 2022.

40. The complainant testified in explicit detail that the respondent forced her to have sexual intercourse with him, that there was blood on the bed thereafter and the respondent gave her a blanket to place over it, and finally asked her to have a bath the next morning, before going home. Later that day he messaged her to inform her that she was no longer a virgin and that she should not tell anyone about what happened between them. She upon receiving this message fainted at school.

41. None of these details were challenged by the respondent’s representative in cross-examination. Most significantly the respondent’s version about when he alleges the sexual intercourse took place, was never put to the complainant when she testified. On my inquiry, the respondent alleged that he did not know that he could challenge the complainant’s evidence, despite him being represented in the arbitration. The probabilities suggest that no cogent challenge was possible.

42. I find that the complainant’s version has the ring of truth to it. Her demeanor and apparent anguish whilst she testified gave credence to her version. An instructive piece of corroboratory evidence confirming time frames , is the proof of payment made by the respondent to the complainant for the cost of her pregnancy test . The proof of payment is dated 10 February. It is a common cause that the pregnancy issue arose in early 2023. I find that the respondent would not have paid for a pregnancy test on 10 February 2023 if he did not have sexual intercourse with the complainant before that date. The complainant testified that the third instance of sexual intercourse took place in December 2022.

43. I therefore accept the complainant’s explanation that she remained a learner at Busana High School although she was absent from school for lengthy periods of time. These absences were due to her attempted suicide, her consequent hospitalization, the fact that she suffered from depression, her parents’ instruction to stay at home, her short stay in Johannesburg and the school’s request that she stay at home which the complainant referred to as her suspension. The SAMS records for the complainant confirm that she only dropped out of the school on 14 April 2023 .


44. The applicant further relied on a trail of WhatsApp messages exchanged between the respondent and complainant, to corroborate its case. Neither the authenticity of the messages nor its contents were disputed. It is not necessary to burden this award with the details of each message. Suffice it to say a conspectus of all the messages establishes that the respondent purported to have a love relationship with the complainant whilst she was a learner at the respondent’s school. That love relationship resulted in them having sexual intercourse on at least three occasions.

45. Certain messages reveal that the respondent was concerned that the complainant had informed the school counsellor about the relationship and that he was at risk of losing his job as an educator. The respondent was aware, on his version, that an educator who has a sexual relationship with a learner risks dismissal. The respondent in my view ought to have had no such concern if the complainant was no longer a learner at the school (as he alleges) when he had sexual intercourse with her.


46. I reiterate that none of the allegations raised by the respondent in his defence were put to the complainant in cross-examination. The complainant was consequently not allowed an opportunity to respond thereto. Of particular significance is the respondent’s main defence that the complainant was not a learner at the school when he had sexual intercourse with her.

47. The respondent, on his version, admits that he had sexual intercourse with the complainant on two occasions in 2022. I reiterate that the school records confirm that the complainant only dropped out of school on 14 April 2023. The respondent confirmed that the complainant raised the pregnancy issue in early 2023.


48. I accordingly find that the respondent had sexual relations with the complainant once during the period 24 February 2022 to March 2022 as testified to by the complainant. He further had sexual relations with the complainant, on his version, on at least one other occasion in 2022. The probabilities indicate that was in December 2022. I accordingly find the respondent guilty of contravening Section 17(1)(c) of Act 76 of 1998.


Sanction

49. Section 17 (1) of the Employment of Education Act is prescriptive. That section makes it mandatory for an arbitrator to dismiss an educator whom he or she finds guilty of having a sexual relationship with a learner. In the premises, I impose on the respondent the prescribed sanction of dismissal.

50. The applicant’s representative did not make an application in terms of Section 120(1)(c) of the Children's Act that I declare the respondent unfit to work with children. That section however provides for such finding by any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person; relating to a child.

51. Section 120(2)(a) provides that a finding in terms of Subsection 120(1)(c) may be made by a court or a forum contemplated in Subsection 120(1)(c) above, of its own volition or on application by an organ of state involved in the implementation of this act

52. Section 28(2) of the Constitution provides that a child's best interests are of paramount importance in every matter concerning the child.

53. What is of serious concern in this matter is the respondent’s admission that he was aware of the consequences of his misconduct. Despite that, he pursued the vulnerable complainant until she relented. He groomed her from the age of 16 with compliments and subsequently, birthday gifts. He falsely, on his version, convinced her that he was in love with her and built up her expectation of a long-term relationship. Throughout this period, he already had a partner with whom he was raising children of his own.

54. The number of matters that this council has to deal with involving male educators who commit sexual misconduct against female learners is on the increase. That suggests that educators of similar ilk have not as yet appreciated the seriousness and the intolerability of such deviant conduct. I am duty-bound to emphasize that message by making that finding and to publicize it once again.

55. I am further under a constitutional imperative to do so.



AWARD


I accordingly make the following award:


(a) The respondent is found guilty of contravening Section 17 (1) (c) of the Employment of Educators Act 76 of 1998, as amended.

(b) The respondent is dismissed in terms of Section 17(1) of the Act.


(c) The respondent is declared, in terms of Section 120(1)(c) of the Children’s Act 38 of 2005, to be unfit to work with children.


16 May 2024

ELRC DATE
Senior Panelist
Adv. Anashrin Pillay