ELRC159-23/24FS

THE INQUIRY-BY-ARBITRATOR BETWEEN

THE SUPERINTENDENT-GENERAL
FREE STATE DEPARTMENT OF EDUCATION EMPLOYER

and

MR PHEELLO NICODIMUS SEHUBA EMPLOYEE

Case No: ELRC159-23/24FS
Dates: 03 Oct. 2023, 29 & 30 April 2024
Venue: DOE Provincial Office, Bloemfontein

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award, in the disciplinary matter (Inquiry-By-Arbitrator) between, the Superintendent-General: Free State Department of Education (hereinafter ‘the employer’), and Mr Pheello Nicodimus Sehuba, ‘the employee’.

2. The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) was first scheduled for, 03 October 2023, then 29 and 30 April 2024. Both parties attended the Inquiry. The employer was represented by, Ms Lindiwe Cweba, its Labour Relations Officer. The employee was represented by, Ms MM Mololo, a Full Time Shopsteward from the trade union South African Democratic Teachers Union (SADTU).

3. The Inquiry was held under the auspices of the Education Labour Relations Council (hereinafter the Council), following section 188A of the Labour Relations Act (the LRA), read together with Clause 32 of the Council’s Dispute Resolution Procedure, as well as the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued in accordance with section 138(7) of the LRA.

4. The proceedings were digitally recorded, and Ms Philani Nyezi was the Interpreter. Ms Thiti Mokgwamme was the Intermediary. The parties’ representatives requested at the end of the Inquiry to submit closing arguments in writing by, 08 May 2024.

ISSUE TO BE DECIDED

5. I am called upon to decide whether the employee misconducted himself, as per the allegations levelled against him. If I find that he did commit the misconduct, I must decide on an appropriate sanction.

BACKGROUND TO THE DISPUTE

6. It is common cause that the employee is employed by the employer as an Educator, and teaching Mathematics, Physical Sciences and Natural Sciences, since, 18 February 2021 to date, at Hanover Combined School in Hanover. Following alleged acts of sexual misconducts in, October 2022; on 13 December 2022, and 13 January 2023, the employee was then served with a charge sheet on, 24 May 2023.

7. The allegations levelled against the employee are as follows:

Charge 1
You have contravened Section 18 (1) (q) of the Employment of Educators Act, No 76 of 1998, in that during October 2022, you conducted yourself in an improper, disgraceful or unacceptable manner when you touched a waist and thighs of a grade 11 learner ……………….

Charge 2
You have contravened Section 18 (1) (q) of the Employment of Educators Act, No 76 of 1998, in that on 13/12/2022, you conducted yourself in an Improper, disgraceful or unacceptable manner when you touched the buttocks of a grade 11 learner……………………. [sic]

Charge 3
You have contravened Section 17 (1) (b) of the Employment of Educators Act, No 76 of 1998, in that on 13/01/2023, you committed an act of sexual assault on a grade 12 learner when you touched her vagina.

8. The employee pleaded not guilty to all the charges. The employee was properly served with a notice to appear at the Inquiry, and was provided with sufficient time to prepare for the case. His rights and obligations were also properly explained to him at the commencement of the Inquiry.

9. For purposes of this award, the name of the learner involved in this case, shall be kept confidential. The learner was still a child, aged 17 years, and in Grades 11 to 12 at the time when the alleged incidents took place. It appears that the alleged incidents took place in the employee’s classroom and in the school corridors.

SURVEY OF EVIDENCE AND ARGUMENT

10. This section constitutes a summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.
Documentary Evidence

11. The employer handed-in as evidence, a copy of the notice of the disciplinary hearing.

Employer’s Case

12. The learner, testified as the first witness for the employer. She testified that in October 2022, they (learners) were sitting for Mathematics examination in the employee’s classroom, with the employee as the invigilator. The learner testified that the employee approached her desk which was somewhere at the back of the class, checked on how she was writing, and then touched her waist and thigh, and went to the door and blinked his one eye at her. She stated that she told a friend of hers later that day at home, and that the friend was shocked to hear that about the employee.

13. The learner further testified that on, 13 December 2022, whilst still in Grade 11, she and her two friends (Lerato and Keabetswe) collected their reports at school. She stated that the three of them were then walking away from the classroom. The learner stated that she was walking behind her two friends and the employee behind her. The learner stated that whilst they were walking in that order, the employee touched her buttocks from behind, and that she removed the employee’s hand from her buttocks. She stated that she told a certain Neo about the incident later that day, of which Neo advised her to reprimand the employee or to report him to her father.

14. The learner also testified that January 2024, when in Grade 12, the school did not have any food, and that their hunger caused them to want to go to a nearby shop for food. She stated that the employee offered to give her meat. The learner testified that Neo then left to the shop, whilst she went to the employee’s classroom for the meat.

15. The learner stated that whilst the two of them were alone in the classroom, the employee asked her to touch her vagina. She stated that she refused to consent to that, and that the employee went ahead and touched her vagina without her permission. The learner stated that she informed Neo later the day about the incident, of which Neo advised her to report the matter to her parents, but that she was unsuccessful in doing so.

16. The learner testified that there was another incident on, 07 February 2023, where she was alone in a classroom, and where the employee saw her and entered the classroom. She stated that the employee then asked her for ‘two’, and she did not understand, and asked the employee ‘what two’? The learner stated that the employee asked her whether she is on contraceptives and she answered ‘no’. She stated that the employee responded by saying that “This means we will need two condoms”, and she asked ‘for what?’. She stated that the employee replied, “for two sexual rounds”.

17. The learner stated that the situation was saved when two other learners entered the classroom, which then necessitated the employee to move to his desk with books in his hand. She stated that the she then threatened to tell her father, and the employee described her as ‘rude’.

18. The learner stated that on, 28 March 2023, whilst in class, the employee removed her from the back desk and told her to sit in the front desk. She stated that the employee then caused her to become bored by asking him about a state and whether she was sick. The learner testified that out of anger, she decided to leave the classroom, and asked Neo to take care of her books. She stated that she went to sit in a nearby empty classroom, and that a certain Mr Modukanela called her in the following day and asked her what it is that she wants to talk about.

19. The learner stated that she told Mr Modukanela about the incidents, and that Mr Modukanela promised to convey the story to the principal. She stated that she was then summonsed to the principal’s office, whereafter she also conveyed everything to the principal. The learner stated that the principal then asked her to write down everything. She demonstrated how the employee touched her waist and thigh in October 2022, and explained that she and Neo boarded at the same boarding house, and that she could not report the incidents immediately to her parents who were staying at another town.

20. The learner stated that she could not explain why the employee picked on her for sharing his meat, and that she was wearing a trouser at the time of the vagina touching. She stated that she then decided to refrain from attending the employee’s class, until the principal told her some four days later to return to the employee’s class.

21. In cross-examination, the learner stated that the touching made her feel uncomfortable and that it did not cross her mind to scream in the class. She stated that her father was based in Theunissen, and her mother in Bultfontein. The learner stated that she decided to tell Mr Modukanela about the deeds of the employee because Mr Modukanela normally visited their boarding house. She clarified that the vagina was touched to the day when the employee invited her to get meat in his classroom.

22. Mr Masilo Leonard Matshai ‘Mr Matshai’, the Principal, testified as the second witness for the employer. He confirmed the version of the learner as far as the reporting of the matter to his deputy principal Mr Modukanela, and how he requested the learner to put the allegations in writing for him. Mr Matshai relayed what the learner reported to him about the incidents, and how the second incident of the buttocks touching took place in the corridors when learners went to fetch their reports.

23. Mr Matshai stated that the learner’s version of the incidents was consistent with what the learner told Mr Modukanela. He stated that after he brought the allegations to the employee’s attention, he then reported the matter formally to the employer’s labour relations. Mr Matshai testified that the learner was in tears when she reported the matter to him, and that the employee confirmed that the learner did not attend his class for a period of 4 to 5 days.

24. In cross-examination, Mr Matshai stood by his testimony and was asked about the employee’s character. He stated that the employee was friendly and has never received complaints in relation to the employee, except for absenteeism problems which the employee had. Mr Matshai stated that the employee also had to attend a Wellness Program of the employer, but of which reports indicated that the employee was also not in full attendance of that program. He stated that the employee’s behaviour impacted negatively on the performance of the school and learners, in that the school obtained a 0% passing rate in Mathematics, which necessitated the employer to procure the servces of other teachers on weekends to assist the leaners with Mathematics. Mr Matshai submitted that it was not strange that the learner only reported the employee after the third incident.

25. Mr Letsie Adam Modukanela ‘Mr Modukanela’, the Deputy Principal, testified as the third witness for the respondent. He testified on how the learner approached him with tears in her eyes and reported what the employee did to her. Mr Modukanela basically confirmed the versions of the learner, and that of Mr Matshai, as far the incidents and the reporting thereof are concerned. He stated that one of the incidents took place at Matimalenyora Primary School during extra classes. Mr Modukanela confirmed all the incidents, and also the fact that the learner did not attend the employee’s classes for some days.

26. In cross-examination, Mr Modukanela stated that he could not monitor the employee at all times as supervisor, and that he cannot remember the exact dates of the incidents. He confirmed the attendance of the employee at the Wellness Program, and that the employee was absent from work on the day when the learner reported the incidents to them.

27. In closing arguments, the employer’s representative submitted that the employee showed no remorse for his actions, whilst the SACE Professional Ethics prohibits acts of sexual misconduct. She stated that the employee has been in the education system for 23 years, and in a position of trust, but betrayed it when he (the employee) took advantage of a vulnerable child learner. The representative submitted that the employee did not act in good faith, and must be dismissed if found guilty of the allegations.

Employee’s Case

28. Mr Pheello Nicodimus Sehuba, the employee, testified as the first witness in his case. He gave an overview of his career, and stated that he has never misconducted himself, and only had a teacher/learner relationship with the learners. The employee confirmed the previous versions of how he was called-in to the principal’s office, and how Mr Matshai relayed the story to him. He stated that he just smiled at the allegations, and was not shown the four page letter of the learner. The employee stated that the School Management Team (SMT) then reported the matter to the employer’s labour relations.

29. The employee denied the allegations against him, and stated that he decided not to interfere with the witnesses of the employer. He stated that he also decided not to avail himself for extra classes anymore, because of the allegations against him. The employee stated that he decided to attend the Wellness Program all by himself, because he had many work problems which drove him to alcohol. He stated that he also made the Wellness Program staff aware of the charges against him.

30. In cross-examination, the employee confirmed that he taught the learner in different grades since 2021, but denied all the allegations. He stated that he does not know why the learner would make such allegations against him, and why the learner would pick him from five male educators to make such allegations. The employee also stated that he fails to understand why the learner would report the matter to two males persons (the principal and deputy principal).

31. In re-examination, the employee clarified that he was never alone with the learner and that the learner was always with Neo. He denied ever having offered learners food, and that the allegations are all lies.

32. Mr Majozi Tladi ‘Mr Tladi’, a fellow educator and Site Steward of SADTU, testified as the second witness in the employee’s case. He testified that he worked with the employee since 2001, and knows about the allegations against the employee as he was part of the meeting in the principal’s office. Mr Tladi stated that the employee had absenteeism and alcohol abuse problems in the past, and was shocked to learn about the allegations against the employee. He stated that he was also aware of the employee's Wellness Program attendance.

33. In cross-examination, Mr Tladi stated that he and the employee are not friends, but that he used to assist the employee with labour matters. He submitted that even though SADTU guarantees its members representation in disciplinary matters, SADTU prohibits representation of members who are involved in matters of sexual misconduct. Mr Tladi confirmed that the employee’s work quality and learners’ performances dropped as a result of the employee's absenteeism and alcoholism. He stated that he cannot tell with absolute certainty that the employee did not commit the acts alleged off because he was not with the employee all of the times. He stated that he handed over the employee’s case to his regional office because he did not possess the requisite skills to represent the employee in this case.

34. In closing arguments, the employee’s representative submitted amongst others, that the employer’s representative used this Inquiry to conduct their investigation for the first time. She submitted that the learner’s testimony cannot be relied on because the learner alleged that the employee touched her waist and buttocks in the presence of other learners, which is highly improbable. The representative submitted that Mr Matshai and Mr Modukanele gave hearsay evidence, and the multiple absence of the employee from school shows that it is unlikely that the incidents could have happened. She submitted that I must apply my mind and find the employee not guilty.

ANALYSIS OF EVIDENCE AND ARGUMENT

35. As stated previously, the employee pleaded not guilty to the charges levelled against him. The employer called three witnesses, and the employee two. The witnesses of the employer were consistent in their versions, and corroborated the versions of the learner well. I therefore find them credible and reliable. The employee only denied the allegations against him, without giving a version of what transpired during those days. Though his witness, Mr Tladi, was honest, it is unfortunate that I cannot say the same about the employee.

36. I shall now proceed to determine the charges levelled against the employee, in light of the evidence led by the parties:

Charge 1
You have contravened Section 18 (1) (q) of the Employment of Educators Act, No 76 of 1998, in that during October 2022, you conducted yourself in an improper, disgraceful or unacceptable manner when you touched a waist and thighs of a grade 11 learner ……………….

37. The learner gave a proper account of what happened, and I could not pick up anything in the evidence which could suggest that the learner fabricated her version. The employee himself could also not explain why the learner would make such allegations against him, and why the learner would pick him from all the male teachers as the one who sexually abused her.

38. In dealing with charge 1, the learner clarified under re-examination that her desk was at the back row of the class, and that all the other learners were sitting and writing their exams, and facing towards the front. She explained that it was impossible for the other learners to see what as going on behind them, when the employee touched her waist and thigh. The learner stated that the employee then walked to the door, and turned around and blinker an eye to her.

39. The employee did not rebut or disprove the allegation of the learner. His representative asked the learner why she did not scream so that the rest of the class could hear her. I tend to disagree with the representative in that it is not a requirement in law that victims of sexual harassment must scream whenever they are being attacked.

40. The employee only denied the allegation under charge 1, without putting his version of what transpired during that Mathematics examination in his classroom. For those reasons, it is my finding that the employer has proven on a balance of probabilities, that the learner’s version in relation to the touching of her waist and thigh per charge 1 is more probable than that of the employee, and that the employee conducted himself in an improper, disgraceful, and unacceptable manner.

Charge 2
You have contravened Section 18 (1) (q) of the Employment of Educators Act, No 76 of 1998, in that on 13/12/2022, you conducted yourself in an Improper, disgraceful or unacceptable manner when you touched the buttocks of a grade 11 learner……………………. [sic]

41. Evidence was led by the employer, through the learner, that on, 13 December 2022, in a corridor, that the employee was walking behind the learner and touched the learner’s buttocks. She stated that she even had to remove the employee’s hand from her buttocks. The employee’s representative once again expected of the learner to scream and to make a scene, which in my view is unreasonable.

42. The problem is that the employee only denied the allegation without telling me what happened in that corridor. The employee does not deny that he walked behind the learner in the corridor. He only denies having touched the buttocks of the learner. Respectfully, this is not enough to acquit the employee from the allegation. The learner stated that she reported this incident as well to Mr Modukanela and Mr Matshai, and both of them confirmed same.

43. It is my finding that the learner’s version is more probable than that of the employee, in light of the fact that the employee could not tell hat transpired in the corridor, and why he only denies the touching of the buttocks part of the allegation, and not the other parts of the allegation. For these reasons it is my finding that the employer has proven on a balance of probabilities, that the employee has touched the buttocks (sexual organs) of the learner, and that he conducted himself in an improper, disgraceful, and unacceptable manner.

Charge 3
You have contravened Section 17 (1) (b) of the Employment of Educators Act, No 76 of 1998, in that on 13/01/2023, you committed an act of sexual assault on a grade 12 learner ……………..when you touched her vagina.

44. Evidence was led by the employer, through the learner who was 17 years old in January 2023, that the employee invited the learner to his classroom, under the disguise of offering to give the learner food (meat), and that the employee touched the learner’s vagina. The learner described the incident, and testified that she was wearing a trouser, and that the employee grabbed her vagina through the trouser.

45. The employee did not focus on the crux of the allegation during cross-examination, and during his own testimony. Instead, the employee capitalised on his own circumstances and challenges, and why it took the learner more than three months to report the ‘incidents’. The version which the learner placed before me is consistent with the versions which she gave to Mr Modukanela, and later Mr Matshai. I have nothing in front of me to doubt or question the version of the learner.

46. Charge 3 accuses the employee of having sexually assaulted the learner, through his action. Assault is commonly known as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires in another person a believe that such impairment of his bodily integrity is immediately to take place.

47. The learner, who was 17 years old at the time, indicated that not only did she not consent to the act committed by the employee, but that it made her uncomfortable too. She stated that notwithstanding this incident, the employee went ahead in February and asked her for two sexual rounds of sex, and that she blatantly refused. The employee also only just denied this.

48. Be that as it may, I am satisfied that the the employer has proven on a balance of probabilities that the employee has committed an act of sexual assault towards the learner on, 13 January 2023.

VERDICT

34. Charge 1: The employee is found guilty of having contravened paragraph 18(1)(q) of the
Employment of Educators Act 76 of 1998 as amended, in relation to having touched the learner’s waist and thigh.

35. Charge 2: The employee is found guilty of having contravened paragraph 18(1)(q) of the
Employment of Educators Act 76 of 1998 as amended, in relation to having touched the learner’s buttocks.

36. Charge 3: The employee is found guilty of having contravened paragraph 17(1)(b) of the
Employment of Educators Act 76 of 1998 as amended, in relation to having touched the 17-year-old learner’s vagina.

SANCTION

37. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the Employment of Educators Act (the EEA), provides for the dealing with incapacity, misconduct and appeals, and provides the following:

Substitution of section 17 of Act 76 of 1998
10. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 17 of the
following section:
“Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of—
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner. student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or
other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e). (2) If it is alleged that an educator committed a serious misconduct I contemplated in subsection
(1), the employer must institute disciplinary proceedings in accordance with the disciplinary code
and procedures 35 provided for in Schedule 2.” [my emphasis added]

38. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having sexually assaulted a learner in accordance with section 10 of the ELAA. A dismissal therefore automatically follows a guilty finding. If put differently, one may also say that the employee is dismissed by operation of law, after being found guilty of having sexually assaulted a learner of the school where he was employed at.

39. It follows that based on the provisions of the law (the ELAA), the sanction of dismissal is mandatory, and must be handed down on the employee. No further mitigating or aggravating circumstances can overrule this provision of the ELAA. The employee in my view abused his authority as a teacher and betrayed the trust placed in him whilst standing in loco parentis towards the learner.

40. Having found the employee guilty of all three counts, more so count 3, which is based on paragraph 17(1)(b) of the EEA and section 10 of the ELAA, which provides for a mandatory sanction of dismissal, upon a guilty finding, it is my conclusion that by operation of law, the employee must be dismissed.

CHILD PROTECTION REGISTER

41. The parties did not address me on whether the employee’s name must be recorded in the Child Protection Register if found guilty. Of cardinal importance is whether the Children’s Act 38 of 2005 (hereinafter ‘the CA’) is of relevance to the instance of the Learner. Section 1 of the CA provides the following:

1 Interpretation
(1) In this Act, unless the context indicates otherwise-
‘child’ means a person under the age of 18 years;

42. It is common cause that the learner was 17 years old at the time when the employee committed all those acts of misconduct against her, which by their very nature, are serious.

43. Section 1 of the SOA also defines a child as follows:

1. Definitions and interpretation of Act
(1) In this Act, unless the context indicated otherwise-
‘child’ means a person under the age of 18 years and ‘children’ has a corresponding meaning

44. Section 122(1) of the CA provides the following:

122 Finding to be reported to the Director-General
(1) The registrar of the relevant court, or the relevant administrative forum, or if the finding was made
on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing-
(a) of any findings in terms of section 120 that a person is unsuitable to work with children; and
(b) of any appeal or review lodged by the affected person.

(2) The Director-General must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.

45. It follows that the finding which I have made in paragraph 36 supra necessitates that it be forwarded in writing to the Director-General of the Department of Social Development. This is for purposes of entering the employee’s name in Part B of the Register.

46. Based on this evidence, I shall make an order that the employee’s name be reported to the Director-General of the Department of Social Development, for listing in the Child Protection Register.

47. In the premise, I make the following award:

AWARD

48. Mr Pheello Nicodimus Sehuba, is found guilty of all three charges levelled against him, by the Superintendent-General: Free State Department of Education.

49. The mandatory sanction of dismissal is imposed with immediate effect on Mr Pheello Nicodimus Sehuba.

50. The General Secretary of the Education Labour Relations Council is directed to serve this award on the South African Council of Educators.

51. The General Secretary of the Education Labour Relations Council must also, in terms of section 122(1) of the CA, notify the Director General of the Department of Social Development in writing of the findings of this forum, made in terms of section 120(4) of the Children’s Act 38 of 2005, that Mr Pheello Nicodimus Sehuba is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.

This is done and dated on, 21 May 2024, at Kimberley.


Adv. David Pietersen
ELRC COMMISSIONER

Inquiry-By-Arbitrator