ELRC813-23/24WC

SECTION 188A INQUIRY

Commissioner: Jacques Buitendag
Case No.: ELRC813-23/24WC
Date of Award: 15 May 2024

In the INQUIRY between:

MR. N MOUTON
(Employee)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
(Employer)

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This inquiry, in terms of section 188A of the Labour Relations Act, 66 of 1995 as amended (LRA), took place virtually via the Zoom platform under the auspices of the Education Labour Relations Council (ELRC) on 19 April 2024.

2. The proceedings were digitally recorded.

3. Mr. A van Willingh, a Fulltime Shop Steward of SADTU, represented the educator, Mr. N Mouton. The Department of Education – Western Cape (WCED) was represented by its Labour Relations Officer, Ms. L Diedericks. Ms. W Titus attended the proceedings as the intermediary.

4. At the conclusion of the proceedings it was agreed that the parties shall submit written closing arguments. I received the heads of arguments of the parties on 26 April 2024.

BACKGROUND
5. On 25 September 2018 the parties to the Education Labour Relations Council (ELRC) entered into Collective Agreement 3 of 2018 which provides for compulsory inquiries by arbitrators in cases of disciplinary action against educators charged with sexual misconduct in respect of learners.

6. Mr. Mouton is an Educator at Clanwilliam Secondary School and he has more than 38 years’ service as an Educator.

7. The WCED received allegations of misconduct of an alleged sexual nature against Mr. Mouton. On or about 6 March 2024 the WCED requested the ELRC to appoint an arbitrator for an inquiry into the alleged sexual misconduct allegations.

8. The WCED allege that Mr. Mouton is guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, no 76 of 1998 (hereinafter referred to as the Act), in that on or about 27 November 2023 he sexually assaulted a Grade 9 leaner by a) standing so close to her that his private parts touched the learners’ buttocks, b) placing his hands underneath her bra strap; c) touching her buttocks with his hand and d) touching her upper thigh and/or vagina with his hands. In the alternative the WCED allege that Mr. Mouton is guilty of contravening section 18(1)(q) of the Act.

9. Mr. Mouton acknowledged that he understands the allegation levelled against him and he pleaded not guilty to the allegation.

THE ISSUE IN DISPUTE
10. I must determine whether Mr. Mouton is guilty, on the balance of probabilities, of the allegation, and if so, I must determine the appropriate sanction.

SUMMARY OF EVIDENCE AND ARGUMENT

11. I have considered all the evidence and arguments presented, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence and argument that I regard as necessary to substantiate my findings in the determination of this matter.

The WCED’s evidence and argument
12. The WCED called the Principal of the school, two educators and two learners to testify . The identity of the leaners that testified during the Inquiry were disclosed but their identity is protected for the purposes of this award.

13. Leaner A is 17 years old and the alleged victim. She testified that she was in Mr. Munnik’s Afrikaans class when Mr. Mouton called her out of the class and informed her that he could not find her Geography paper and that she must accompany him to his classroom.

14. Leaner A explained that upon entering Mr. Mouton’s classroom, he closed the door behind them and told her to look for her paper amongst other papers that were lying on a desk. Whilst she was searching Mr. Mouton came behind her and stuck his hands under her clothes and under her bra strap. He then moved his hands inside her pants to her buttocks. She could feel his penis touching her. When she told him “no Sir don’t’ (nee Meneer moenie) Mr. Mouton responded that she knows about their business. Leaner A testified that she does not know what Mr. Mouton was referring to as they did not have a relationship. When she moved towards the door, Mr. Mouton lightly touched her vagina. Mr. Mouton then stood in front of the door and prevented her twice to open the door. She then proceeded to unlock the door and she walked out. Mr. Mouton followed her and asked if she is not going to give him a hug. She said no and continued to walk away.

15. Leaner A testified that she told her friend (Leaner B) during the lunch break what had happened to her and was advised by Learner B to call her mother. She contacted her aunt to relay the message because her mother did not have a cell phone. He mother later came to fetch her and they went to the Police Station to report the incident. Leaner A testified that she also told Ms. Swartbooi. The following day Mr. Mouton apologised to her and told her that he knows that she did not expect that from him.

16. Learner B is 17 years old and is Leaner A’s friend. She testified that Leaner A told her during the interval that Mr. Mouton stuck his hands under her clothes and pants and tried to touch her. She said that Leaner A looked freightened when she told her what had happened. She advised Leaner A to call her mother.

17. Mr. Munnik confirmed that Mr. Mouton came to his class, pointed to Leaner A and that Leaner A accompanied Mr. Mouton.

18. Mr. Snygans is the Principal of the School. He testified that he and Mr. Mouton has an excellent work relationship for the past 33 years. He believes in the principal of “innocent until proven guilty” and still trust Mr. Mouton. Mr. Snygans confirmed that no allegations of a similar nature were reported against Mr. Mouton.

19. Ms. Swartbooi is an Educator at the school. She was supervising exams when Leaner A asked to speak to her after the exams. Ms. Swartbooi testified Leaner A told her that Mr. Mouton touched her. She was laughing and shaking / waiving her hands. Leaner A told her that Mr. Mouton called her out from Mr. Munnik’s class and said that he is looking for her paper and that they went to his class. In his class Mr. Mouton touched the back of her hips. Ms. Swartbooi explained that she did not report it because she was unsure whether Leaner A was serious or joking and she does not know Mr. Mouton as a person who would do such a thing.

20. The heads of arguments of Ms. Diedericks is on record. I have considered it. Ms. Diederick argued that the WCED has proven the allegations against Mr. Mouton and that dismissal is the appropriate sanction.

Mr. Mouton’s evidence and argument
21. Mr. Mouton testified that he called upon Leaner A because he could not find her paper. Mr. Mouton testified he had to close his classroom door to get to the papers. He then searched through a pack of papers for Leaner A’s paper whilst she stood behind him, looking over his shoulder. His elbow then accidently touched Leaner A’s breast and he apologised to her. Mr. Mouton testified he could not find her paper. Mr. Mouton testified that he playfully hit Leaner A on her upper thigh under her buttocks whilst she was walking out of his class. Leaner A responded with “no sir”, laughed and walked away.

22. Mouton testified that he and Leaner A had a good relationship and that she asked him in the past to rub her with ointment. Mr. Mouton denied that he stuck his hands under Learner A clothes.

23. With regard to the apology the following day, Mr. Mouton testified that he apologised to Learner A because he later found her paper.

24. Mr. Mouton testified that Leaner A was part of a group of girls who danced naked in front of boys. He was part of the investigation team. Mr. Mouton believes that Leaner A may hold this against him because the girls were issued with a final written warning and not action were taken against the boys.

25. Mr. Van Willingh argued that if Learner’s A version is to be believed she would have immediately reported the incident and not wait until the interval to tell Leaner B. He argued that Leaner B’s testimony was rehearsed and that her testimony contradicts Leaner A’s version. The version that Leaner A reported to Ms. Swartbooi was that Mr. Mouton placed his hand on her hip. Mr. Van Willingh argued that Leaner A version should not be preferred over Mr. Mouton’s version and that that the WCED did not prove the allegation again Mr. Mouton.

ANALYSIS OF EVIDENCE AND ARGUMENTS

26. The WCED bears the onus to proof the allegations levelled against Mr. Mouton on a balance of probability. In WESUSA & Others vs Jacobz 2000 8 BLLR 977 (LC), the Court remarked that “the onus will be discharged if the respondent can show credible evidence that its version is the more probable and acceptable version. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondents version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradictions is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that a the end of the day one can say with conviction that one version is false and be rejected with safety”. The onus will not be discharged by raising mere suspicions of misconduct.

27. The versions of Leaner A and Mr. Mouton are mutually destructive. The approach to be adopted by arbitrators when faced with two disputing versions was amplified in Sasol Mining (Pty) Ltd v Ngeleni NO and Others (2011) 32 ILJ 723 (LC) at 727C-F where it was held that the arbitrator must conduct an
‘. . . assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner. As Cele AJ (as he then was) observed in Lukhnaji Municipality v Nonxuba NO & others [2007] 2 BLLR 130 (LC), while the LRA requires a commissioner to conduct an arbitration hearing in a manner that the commissioner deems appropriate in order to determine the dispute fairly and quickly, this does not exempt the commissioner from properly resolving disputes of fact when they arise.’

28. Leaner A’s testimony in chief that Mr. Mouton told her to look for her paper amongst other papers that were lying on a desk were not denied under cross examination and Mr. Mouton’s version that it was him who looked through the papers on the desk was not put Leaner A. Leaner A’s testimony in chief that whilst she was searching for her paper Mr. Mouton came behind her and stuck his hands under her clothes and under her bra strap and lightly touched her vagina was not denied under cross-examination. Leaner A was only asked it could have been an accident, which she explained that it could not have been an accident. Mr Mouton’s version that he accidently touched Leaner A’s breast with his elbow and playfully hit her on her upper thigh when she walked out of the classroom was also not put to Leaner A under cross-examination. Furthermore, Mr. Mouton’s version that he apologised only for finding her paper was also not put to Leaner A. Moreover, Leaner A was not questioned about the possible motive relating to the investigation where she was issued with a final written warning.

29. I have explained to the parties at the start of the Inquiry the importance of placing another version to a witness if he or she disagreed with the testimony. The importance that a party who leads evidence second to put its version to the witnesses cannot be overstated. In Num and another v CCMA and Others [2022] ZALCJHB 238 the Court reaffirmed the necessity of putting a version to witness. The Court held that “It is trite that evidence that was not put to an opponent under cross-examination cannot be relied upon.” In Maisikela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC) the Court held that “[28] It is trite that if a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine him upon the facts that he intends to prove in contradiction, to give the witness an opportunity for explanation. Similarly if a Court is asked to disbelieve a witness, he should be cross-examined upon matters that it will be alleged make his evidence unworthy of credit.” And in Numsa and Another v Tokiso Dispute Settlement and Others (2014) ZALCJHB 237 the Court emphasised that “the ordinary principal is that the party which leads evidence second, has a duty to put its version to the witnesses for the first party if the subsequent evidence would contradict theirs.” As stated in paragraph 28 the version of Mr Mouton was not put to Leaner A to put a different complexion on the evidence or to demonstrate that her testimony was untruthful and material evidence presented by Learner A went unchallenged. The leaves a question mark on Mr. Mouton’s version and I find that his version must be treated with caution.

30. The imaginativeness and suggestibility of children, their memory, understanding of the importance of telling the truth, their capacity of observation, recollection and narrative ability, their age, mental ability and development is just some of the factors that our Courts have held to be taken into account when scrutinising the testimony of a child. I must hasten to add that this does not mean that the evidence of children should be approached on the basis of assuming that all children make false allegations, have poor memories or is highly suggestible.

31. Learner A has in detail testified what had happened in Mr. Mouton’s classroom. She explained that he closed the door behind them, that he came behind her and stuck his hands her bra strap and then moved his hands inside her pants to her buttocks and that she could feel his penis touching her. It was clear that Leaner A was uncomfortable when she explained that Mr. Mouton’s penis has touched her and that he lightly touched her vagina. But I did not get the impression that Leaner A has imagined this or has overstated what had happened. In my determination the fact that Leaner A did not re-laid to Ms. Swartbooi and to Leaner B everything that Mr. Mouton has done to her in the classroom does not detract from the overall believability of Leaner A’s version.

32. I find Leaner A to have been a credible witness and I prefer her version over that of Mr. Mouton which, for the major part was not put Leaner A. It must be added, on Mr. Mouton’s own version that he playfully hit Leaner A on her thigh on her way, that his conduct was unacceptable and unprofessional.

33. Mr. Mouton is charged in terms of section 17(1)(b) of the Act with an act of sexual assault on Learner A. Assault is defined as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires on another person a belief that such impairment of his/her body is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. Assault by means of menacing threats of a sexual nature may occur without any touching.

34. The elements of sexual assault are a) conduct of a sexual nature; b) which results in the victim’s integrity being impaired (or inspired the believe that it will be impaired); c) unlawfulness – meaning that there must not be a justification ground for the action, such as for example consent; d) intention to commit the misconduct - in other words accidental unintentional bodily contact is excluded from the definition.

35. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in light of all the circumstances. The part of the body touched, the nature of the contact, the situation in which it occurred, the words or gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force will be relevant. The intent or purpose of the person committing the act, to the extent that it may appear from the evidence, may also be a factor in considering whether the conduct is of a sexual nature.

36. Given the wide meaning of sexual assault, it involves not only rape, sodomy, oral sex or other forms of sexual activity without the consent of the victim but also includes other forms of intentional conduct of a sexual /erotic nature such as kissing on the lips and touching or caressing buttocks or breasts of a victim etcetera.

37. I find on a balance of probability that Mr. Mouton has indeed placed his hands under Leaner’s A clothes and touched her buttocks and her vagina during their interaction in the classroom. There is no evidence that it was accidental. His conduct was of a sexual nature, deliberate, intentional and it was without consent. Mr. Mouton’s conduct has impaired the integrity and dignity of Learner A and I find on a balance of probability that Mr. Mouton has indeed sexually assaulted Learner A. I accordingly find Mr. Mouton guilty as charged.

38. I must now consider the appropriate sanction.

39. It is trite that mitigating factors such as the personal circumstances of an employee should normally be considered before deciding the appropriate sanction. Mr. Mouton has 38 years of service and based on the testimony of Ms. Swartbooi and Mr. Snygans, he is an excellent educator. I considered there factors and the fact that there is no evidence the Mr. Mouton committed similar misconduct in the past. I also considered that Mr. Mouton will probably find it difficult to secure employment in the education sector if he is dismissed.

40. I must take into account that the South African Constitution stipulates that every person has the right to human dignity (section 10) as well as freedom and security, including the right to bodily and psychological integrity (section 12). And that a child has the right to be protected from maltreatment, neglect, abuse, or degradation (section 28(1)(d)) and should not be required to commit acts that i) are inappropriate for a person of that child’s age; or ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral, or social development (section 28(1)). The Constitution also states that the best interest of the child shall be paramount in any matters affecting the child (section 28(2)). In this regard the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC, held that section 28 of the Constitution impresses an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance. Courts and administrative authorities are constitutionally bound to consider the effect their decision will have on children’s lives.

41. I considered the Code of Professional Ethics contained in section 3 of the South African Council for Educators (SACE), Act 31 of 2000, which provides that an educator must inter alia: respects the dignity and constitutional rights of learners; avoid any form of humiliation, and refrains from any form of abuse, physical or psychological; refrain from any form of sexual harassment (physical or otherwise) of learners; refrains from any form of sexual relationship with learners from any school; take steps to ensure the safety of the learner; and not abuse the position he or she holds for inter alia personal gain.

42. Educators are entrusted with the care of children and they must act with utmost good faith in the conduct towards learners because society must be able to trust educators unconditionally with their children. Mr. Mouton’s conduct toward Learner A in the classroom was inappropriate, unacceptable and he did not act in her interest. Mr. Mouton has failed in his obligations as an educator and a protector of children on that faithful day. Because his conduct falls within the ambit of section 17 of the Act an educator must be dismissed. So, even if I could have considered alternatives to dismissal, the seriousness of the offence is such that an employment relationship cannot possibly continue especially in light of our duty in terms of the Constitution to consider the interest of children as paramount.

43. In terms of section 18(1)(q) of the Employment of Educators Act, it constitutes misconduct if an educator “while on du
43. Section 120(1) of the Children’s Act, No 38 of 2005 provides that a finding that a person is unsuitable to
work with children may be made by “any forum established or recognised by law in any disciplinary
proceedings concerning the conduct of that person relating to a child.” Section 120(2) of the act provides
that a finding that a person is unsuitable to work with children may be made by such forum on its own volition
or on application by an organ of state or any other person having sufficient interest in the protection of
children. Having regard to the seriousness of Mr. Mouton’s conduct, I find him unsuitable to work with
children.

AWARD
1. I find Mr. Mouton guilty as charged.
2. The sanction is summary dismissal.
3. The WCED must inform Mr. Mouton of the date of his summary dismissal.
4. I find Mr. Mouton unsuitable to work with children in terms of Section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the Children’s Act 38 of 2005, notify the Director-General: Department of Social Development in writing of the findings of this forum for the Director-General to enter his name as contemplated in section 120 in Part B of the register.
5. The ELRC must send a copy of this award to the South African Council for Educators (SACE) to consider revoking Mr. Mouton’s SACE certificate.

ELRC Commissioner: Jacques Buitendag