ELRC495-22/23KZN

IN THE ELRC ARBITRATION
BETWEEN:
CEBEKHULU, NKANYISO “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the Respondent”

ARBITRATION AWARD
Case Number: ELRC495-22/23KZN
Last date of arbitration: 28 June 2024
Date of award: 08 July 2024
ELRC Arbitrator: Lindiwe Makhanya

DETAILS OF HEARING AND REPRESENTATION

1. This matter was scheduled for arbitration before me on 17 April 2023 and on various dates until it was finalised on 28 June 2024 at Respondent’s premises in Pietermaritzburg. It was held under the auspices of the Education Labour Relations Council (“the council”) ELRC in terms of section 191(5) (a) of the Labour Relations Act No.66 of 1995, as amended (“the Act”).
2. The Applicant, Mr. Nkanyiso Cebekhulu was represented by Mr. V.K. Soni, an Attorney from O’Dwyer Inc and the Respondent, on the other hand, was represented by Ms. J Dumisa from Labour Relations.

PRELIMINARY ISSUES, JURISDICTION and ISSUES TO BE DECIDED

3. No preliminary or jurisdictional issues were raised and ELRC has jurisdiction to hear the matter.
4. I am to decide whether Applicant’s dismissal was substantively fair. If found to be unfair, I am to decide on the appropriate remedy.

BACKGROUND TO THE DISPUTE

5. The Respondent is the Department of education which is one of Government’s executive departments assigned to education matters and located in Pietermaritzburg, KwaZulu Natal.
6. The Applicant commenced employment with the Respondent on 1 January 2012 and was appointed as a principal in June 2019. Subsequently, on 31 July 2022, he was dismissed based on allegations of misconduct, while earning a salary of R42,012.25 at the time of his termination.
7. An unfair dismissal dispute was referred by the Applicant to the Council
8. The Applicant sought retrospective reinstatement in the event that the award is made in his favour.

SURVERY OF EVIDENCE AND ARGUMENT

9. Both Parties submitted a bundle of documents. The Applicant’s bundle was marked “A” and the Respondent’s bundle was marked “B”. Both parties submitted the written closing arguments on 04 July 2024.
10. The Applicant was found guilty on two charges (Bundle A, page 3) as follows:
a. Charge 1: In that during the period July 2020 to May 2021 at or near Congco Secondary School, you raped Ms. Slindile Ngcobo, an educator in your school thereby contravening section 17 (1)( c) of the Act.
b. Charge 2: In that during the period July 2020 to May 2021 at or near Congco Secondary School you acted improperly by having sexual intercourse within the school premises with Ms. Ngcobo thereby contravening section 18(1) (q) of the Act.

SUMMARY OF EVIDENCE AND ARGUMENTS

THE RESPONDENT’S CASE

11. Ms. Slindile Ngcobo (Ms. Ngcobo) testified that she was employed as an educator at the school she did not disclose due to safety concerns. Prior to being employed she received a call from the Department of Education informing her that the principal of Congco Secondary School, the Applicant, would contact her for an interview of Agricultural post. She did not bring any documents to the interview as she had already sent her CV via WhatsApp as per the Applicant’s request.

12. During the interview, she found two other candidates present. Afterward, she received a message from the Applicant on WhatsApp, asking for her ID photo, which she sent. During their conversation, the Applicant asked about her living situation and requested various photos, including a full photo, which she provided. The Applicant proceeded to ask if she had a child and made inappropriate remarks, and said he wondered how she could have a baby without a job and that she had not used a condom.

14. The Applicant made a request for her to visit the Department of Education located in the Old Mutual building in Pietermaritzburg the following day to collect certain documents. Prior to this request, the Applicant informed her that she had been offered a job. However, she noted that the communication regarding her employment lacked a formal or professional tone, as the Applicant did not explicitly state that she had been appointed or was successful in her application.

15. She proceeded to collect the requested documents as per the Applicant's instructions accompanied by her friend, Wonder. The Applicant then contacted her while she was at the mall, prompting her to navigate to the location where the Applicant had parked, specifically an underground parking lot.

16. She recounted the details of her encounter with the Applicant in the mall parking lot. Upon entering the vehicle at the Applicant's instruction, she handed him the documents she had collected. The Applicant stated that he endorsed her to the interview panel due to his trust in her, despite her less-than-ideal performance, and provided a positive recommendation.

17. She further said that she was questioned about her familial relationships, including her mother's occupation as a domestic worker and her siblings. Subsequently, the Applicant made an inappropriate remark about her physical appearance and proceeded to touch her stomach without consent. She then responded by removing the Applicant's hand.

18. The Applicant said if she wanted to be fully employed, she needed to have sexual intercourse with him first to which she did not say yes or no because she was desperate for work. He asked about the kind of underwear she wore while placing his hands in her dress buttons insisting, he wanted to feel the kind of underwear she was wearing. He then lifted her underwear and inserted his finger in her vagina. He then Unzip his trouser and pulled out his penis requesting her to suck him fast, all this time, her body was stiff. Not many cars were in the underground parking lot, and it was getting dark because it was winter. At that time, Wonder was still at the mall and phoned her while she was busy sucking the Applicant’s penis. She then told the Applicant that her friend was calling, and she needed to leave. The Applicant said they would meet the next day so she could bring a printed copy of her CV, as he did not have one.

19. Following her departure, she briefed Wonder on the unfolding events. Wonder inquired about her plans, given her need for the job. The subsequent day, she prepared a copy of her CV and contacted the Applicant, who arranged to meet her at Battery Centre. Accompanied by Wonder, she initially convened at the designated location, but upon Wonder's departure, she proceeded to the Applicant's vehicle. The Applicant then informed her to proceed to his residence in Hillton to have sexual intercourse with him.

20. When they arrived at the Applicant’s house, the Applicant asked her to suck his penis and also had sexual intercourse with her using a condom. When he was finished having sex with her, the Applicant went downstairs. He returned to the room at about 21:00 and they had sexual intercourse again. In the morning, they also had sex. She did not give consent to have sex with the Applicant. She admitted that she engaged in the described actions due to the promise of employment.

21. After a period of two weeks, she received a WhatsApp message from the Applicant containing her appointment letter, indicating her start date as 3 August 2020. Around September 2020, the Applicant summoned her to his office and asked her to suck his penis. Communication from the Applicant would occasionally be through WhatsApp or conveyed by a messenger during school hours, resulting in her being called to his office. Upon arrival, she would be made to wait and seat in a chair as the Applicant would delay. The Applicant would request her to position the chair adjacent to the door. Subsequently, he would exit the room, only to return later and proceed to close the windows and blinds while unzipping his pants and asked her to suck his penis. He would discreetly glance through the blinds to ascertain if anyone was approaching. He would ejaculate in her mouth and thereafter would hand over a tissue to her to remove his sperms.

22. After a few days, he summoned her once more to his office and repeated the same behaviour. The Applicant would summon her even when she was teaching in class, he would arrange for an Assistant teacher to look after the pupil while she was at his office sucking his penis. One day, upon leaving the Applicant's office, tears welled in her eyes. Spotting Ms. Thembeka Nxumalo (Ms. Nxumalo), she sought solace and confided in her about the distressing situation with the Applicant. Ms. Nxumalo Advised her to maintain composure in front of the children and directed her to proceed to her classroom. She and Ms. Nxumalo went to the toilets afterwards where she told her what the Applicant was doing to her.

23. She initiated a call with a teacher from another school, Ms. Vezi, who had served as her mentor during her practical teaching experience who recommended documenting any further interactions with the Applicant, including recording conversations. On 12 May 2021, during a meeting initiated by the Applicant, she covertly recorded a discussion concerning her salary. The Applicant asked her to suck his penis, thereafter, asked her to go to the storeroom and undress, she took off her jeans and he slept with her. She neither explicitly affirmed nor denied but complied with the instructions provided.

24. Following the recording of the incident, Ms. Vezi promptly contacted Mr. Zondi from NATU, who then accompanied her to Ms. Mjwara's office and she also initiated a criminal case against the Applicant.

26. During the time the Applicant had sex with her, she had a boyfriend. She did not have a love relationship with the Applicant. The Applicant had promised her permanent employment if she had sex with him. She continued to have sex with him because she was not yet employed permanently. The Applicant’s actions traumatized her as she felt worthless and saw herself as a sex slave.

27. Under cross-examination, during the interview, she said the Applicant indicated that the position was for a 5-month fixed contract with the possibility of becoming permanent. When questioned about the decision-making process for her employment, the witness stated that she was unaware, as she was not present when the decision was made.

28. When she was referred to the statement she had made for SACE where she indicated that she was aware after attending an interview that she was successful in an interview her response was that her friend typed the statement for her.

29. The witness denied any romantic involvement with the Applicant, both before and after the interview process. She could not recall if the Applicant had called her after the interview, but she remembered receiving an SMS from him advising her to check her WhatsApp messages. She mentioned that she no longer had the phone with her as it was confiscated by the police during their investigation.

30. After the interview process, the Applicant requested both the witness's ID photo and a full photo. She acknowledged that she had been appointed when the Applicant asked her to collect documents the following Monday, but the Applicant did not inform her in a professional manner. Additionally, the Applicant did not provide any explanation regarding the documents to her.

31. The witness refuted the assertion that the Applicant parked next to the Woolworths entrance at the mall when they met. She clarified that the Applicant had parked in an undercover parking area. This meeting took place during winter, at approximately 18:00, when it was nearly dark. She insisted that the Applicant asked her to suck his penis while she was inside the car and that the windows were not tinted. When questioned about whether the bystander could see what was happening inside the Applicant's car, she responded that the Applicant would be more familiar with his car's interior.

32. When she was asked why she did not refuse to suck the Applicant’s penis when she was inside his car, she said she agreed because she did not know if the Applicant was still going to change his mind since she needed the job.

33. She expressed a need to provide a home for her family. The witness believed that the Applicant's actions towards her would have been different if her mother had been an educator or a police officer, referencing the Applicant's prior inquiries about her family background.

34. She confided in her friend, Wonder about the situation she had encountered. At the Battery Centre, she denied having a bag with her clothes, stating that she only had a small bag with a cellphone and charger.

35. When asked about Bundle A” page 7, SACE, her statement stated that the Applicant had forced her to suck his penis. She said the document was typed by her friend and did not get a chance to read it.

36. The witness explained that she refrained from reporting the Applicant's actions while at his residence due to concerns about potential job loss. She agreed to have sexual intercourse with the Applicant at his house because she needed a job.

37. She informed Ms. Nxumalo that the Applicant was not messaging her on WhatsApp during the school closure, but he did send her a message in January 2021 where Ms. Nxumalo joked and said she needed to go and have sex with the Applicant to secure employment.

38. In January 2021, the Applicant contacted her, urging her to visit his residence. When questioned about specific WhatsApp messages, wherein the Applicant reminded her to purchase a "tool" and she responded with a smiling emoji, the witness explained that she interpreted the term "tool" to refer to condoms. She clarified that the term was used to maintain discretion in their communication. She complied with his request to purchase condoms and visited his residence because, at that point, she had not secured permanent employment. She said in these WhatsApp messages the Applicant had said “remember I would offer you a job” but it was deleted by the Applicant.

39. The witness refuted any suggestion of a romantic involvement with the Applicant. She admitted to disclosing aspects of the Applicant's behaviour to Ms. Nxumalo but withheld details due to a lack of trust in individuals at the school. Additionally, she confided in Ms. Vezi regarding the Applicant's actions. She said she was lured to have sexual intercourse with the Applicant because she was desperate for the job.

40. She said sexual intercourse happened at school and she had recorded the conversation using her cellphone. Despite the school's bustling environment, the educators would attend classes while the Applicant summoned her to his office. The Applicant's office was typically locked, as the air conditioner was frequently in operation. The photocopying machine was situated in a separate office adjacent to Mr. Ngwane's office.

41. The witness's contract ended in December 2020, after which she returned to the school as a volunteer from January to March 2021. She acknowledged receiving an amount of R3000.00 from the Applicant, which was requested by Ms. Khanyeza while she awaited the renewal of her contract. However, she did not return the money as instructed.

42. The witness was unaware of the reason for the non-renewal of her contract. However, she recalled the Applicant discussing the matter of Post Provisioning Norm (PPN) with her. She confirmed that from January 2021 to March 2021, the Applicant had been working towards renewing her contract.
43. She clarified that the Applicant had never expressed romantic feelings toward her. She perceived the Applicant's actions as rape due to her discomfort with his behaviour, yet she continued to comply out of desperation to secure employment.

44. She disclosed that she became pregnant in March 2021 but chose to terminate the pregnancy. While she did not dispute testing negative for pregnancy at the police station, she said that such tests were not always 100 percent accurate.

45. When asked why she only reported the Applicant in May 2021 after the contract had been renewed, she said whenever the Applicant had sexual intercourse with her, he would promise to secure her permanent employment.

46. She denied meeting Ms. Khanyeza and the Applicant at RJ’s. She met with Ms. Khanyeza in town, but Ms. Khanyeza did not tell her where they were going until she noticed the directions leading to the Applicant’s house. She denied that she went with Ms. Khanyeza to the Applicant’s house to apologise.

47. In re-examination, she insisted that whenever the Applicant called her at his office to have sexual intercourse with her, he would first arrange for someone to be in her classroom. She insisted that the photocopying machine was in a busy area which was not in the Applicant’s office.

48. She did not like what the Applicant was doing to her. She would not say yes or no, although she had sexual intercourse with the Applicant, she had never initiated it.

49. Ms. Prudence Nombeko Mjwara (Mjwara) testified that she was appointed as Deputy Director Human Resources in uMgungundlovu District. Her role involved managing recruitment and selection processes within HR provisioning. She referred to documents which referred to the recruitment procedure in her department. The approval of appointments rested with the Head of the Department, with her team requesting documentation from schools regarding the assumption of duty.

50. Ms. Ngcobo was appointed as a substitute teacher at Congco Secondary School, following the process outlined in HRM 3 of 2018 Circular, Page 43, “Bundle B”. The Applicant, as the principal, submitted the necessary documents for appointing a temporary educator on 10 July 2020. Of the five candidates nominated by the team in her office Ms. Ngcobo was recommended and subsequently signed by the principal and the SGB chairperson. Her appointment was within the PPN and received approval, with Ms. Ngcobo assuming duty on 3 August 2020 as a substitute educator, a position she held until 31 December 2020.

51. In 2021, the school's PPN decreased from 13 to 12, indicating an excess of one educator. There were two substitute educators at the school, Ms. Ngcobo and Mnyandu A.P but Mnyandu had been employed since 2019, and his contract was consistently renewed, predating Ms. Ngcobo's tenure. Mnyandu was nominated for retention due to his longer tenure. Despite Miss Ngcobo's satisfactory performance, the school's reduced PPN did not allow for her continued employment.

52. Due to a vacancy in the agriculture teaching position at the school, Nhlapho N, a permanent educator, was declared surplus and transferred to another School on 24 March 2021. This transfer allowed for the placement of Miss. Ngcobo. A letter from the Applicant requesting the renewal of Miss Ngcobo's contract was processed. Ms. Ngcobo was appointed as a substitute teacher from 7 April 2021 to 31 December 2021.

53. Mavuso from crime intelligence and Zondi from Natu contacted her, urging her to listen to Ms. Ngcobo's concerns. Ms. Ngcobo reported that her contract was not being renewed by the principal, alleging that the Applicant had made inappropriate advances and engaged in sexual activity with her. She contacted Mr. Daniso from Labour Relations to investigate the matter.

54. She stated that she had no personal issues with the Applicant, as they had previously worked together, and he regarded him as one of the best principals. She denied any involvement in influencing Ms. Ngcobo to fabricate evidence, as he had no prior acquaintance with her. She mentioned receiving a call from Mavuso to transfer Ms. Ngcobo to another school due to safety concerns. Ms. Ngcobo was converted to permanent status in January 2022.

55. She said the role of the principal in the interviews was to guide the SGB ensuring compliance with policies.

56. Under cross- examination, she said she had no knowledge of higher power having orchestrated the Applicant’s dismissal. According to her, the Applicant did not do anything wrong in terms of the appointment of the Applicant.

57. The renewal of Ms. Ngcobo’s contract was prompted by a decrease in the school's PPN.

59. In re- examination she said Nhlapho was declared as a surplus educator by the Applicant.

60. Mr. Bongani Dumisani Ronald Madlala, a Circuit Manager for uMgungundlovu District, testified that Congco was one of his schools and that the Applicant was one of his supervisees. He described having a positive professional relationship with the Applicant, appreciating his diligent work as a young principal. Mr. Madlala denied pressuring Ms. Ngcobo to lay charges against the Applicant, stating he had never met her before.

61. Under cross-examination, he refuted any suggestion of a personal vendetta against the Applicant.
62. There was no re- examination.

THE APPLICANT’S CASE

63. Mr. Nkanyiso Cebekhulu testified that he was appointed as the principal of Congco Secondary School in June 2019, a position he held until his dismissal, during which time the school had approximately 500 pupils. In 2020, she first met Ms. Ngcobo during the interview process, where he served as the resource person. Following the interview, the panel decided to inform successful candidates the same day. Ms. Ngcobo passed the interview, and he called her in the presence of the entire panel to notify her of her success. He also advised Ms. Ngcobo to update her CV, as the one they had was outdated.

64. The next morning, Ms. Ngcobo called to inform him that she was going to town to update her CV and inquired about transport to Richmond. He instructed her to submit her CV to the HR department on the second floor in Pietermaritzburg. Upon her arrival, he received a call from the clerk requesting that Ms. Ngcobo collect Grade 12 documents and other forms related to her appointment, which she agreed to do.

65. He met Ms. Ngcobo at the mall by Woolworths entrance around 17:00 to 17:30. The documents in a brown envelope were intended to assist in her appointment. He congratulated her briefly, with the meeting lasting only a few minutes, akin to a quick handoff. He did not pay for parking as he departed within the 15-minute free parking period.

66. The following day, Ms. Ngcobo inquired via WhatsApp about when she would resume work. He informed her that he was waiting for a response from the department, marking the end of their professional relationship. They then began interacting on a social level, exchanging WhatsApp messages and getting to know each other, eventually agreeing to an open relationship. Ms. Ngcobo indicated that there would be no strings attached as she had a boyfriend. They engaged in a consensual adult relationship, with Ms. Ngcobo visiting his house one afternoon before assuming her duties. He had picked her up from town, and she stayed overnight at his house, as per their arrangement.

67. There was no policy at the Respondent that prohibited colleagues from engaging in a romantic relationship. They had an affectionate relationship and behaved as lovers typically would. In the morning, Ms. Ngcobo expressed a desire for their relationship to remain confidential at school, indicating a concern about potential judgment from others. When Ms. Ngcobo resumed work, they were still romantically involved, and he did not disclose their relationship to anyone.

68. When Ms. Ngcobo visited his house, she had a cellphone with her, which could have been used to seek help if she felt unsafe. He dropped her off in town the next morning.

69. He admitted to calling Ms. Ngcobo at random times from his office because she was his priority, especially considering her occasional issues with payment, which necessitated her contacting the HR office.

70. He and Ms. Ngcobo were in a romantic relationship and communicated using their own terms of endearment. He referred to specific WhatsApp messages on page 26, “Bundle A”, where they discussed bringing condoms; she jokingly asked how many and mentioned buying a box of three. Ms. Ngcobo then remarked, "koze kushone ilanga," meaning it would take the whole day, referring to their planned intimacy. He further cited messages where he mentioned having a visitor and suggested she come the following day if she was in a hurry; her response was that she was going to wait. These exchanges indicate a consensual and mutually agreed-upon relationship, not one of coercion.

71. He described the layout of his office, which was connected to the classrooms for grades 11 and 12 and was at the entry point of the school. Visitors to the premises were escorted to his office by the Security Guard. Due to dust in the area, the office was often kept closed with the air conditioning on for cooling. He was accessible to anyone needing to speak with him and his office was a busy area, frequented by parents, teachers, security guards, and cleaners. He spent most of his time with the cleaner/clerk person.

72. He refuted the claim that he engaged in sexual intercourse with Ms. Ngcobo in his office. He explained that his office had a storeroom at the back with a shared door, and the printer was in the storeroom. Ms. Ngcobo alleged that he would lock the door and would take her to the storeroom for sexual intercourse, which he argued was implausible given the layout of the open office. He noted that staff often entered his office without receiving a response, as it was typically left unlocked.

73. Ms. Ngcobo allegedly accused him of rape after realizing her relationship with him did not lead to securing permanent employment, and this accusation was widely believed. He had never been accused of seeking sexual favours before.

74. He clarified that while he had been jailed, he was not prosecuted. After being released on bail, he met Ms. Ngcobo at the mall and later at his house, accompanied by Ms. Khanyeza, who had indicated that Ms. Ngcobo wanted closure. During their meeting, Ms. Ngcobo mentioned that Mjwara did not like the Applicant and was pleased that the Applicant was facing difficulties. She admitted to not realizing the seriousness of the situation initially and expressed regret that it had escalated to the point of him losing his job. He advised her to apologize to those she had lied to rather than to him.

75. During a second meeting at his house, Ms. Ngcobo provided feedback, mentioning that she had received a call from Mjwara stating that even if she withdrew the case with the police, the department would continue its actions. The next day, Ms. Khanyeza reported that Mr. Madlala had been at the school, indicating that anyone attempting to resolve the situation was interfering with the police case. Following this, Ms. Ngcobo ceased contact with Ms. Khanyeza and changed her contact number.

76. He refuted the accusation of raping Ms. Ngcobo and emphasized his clean disciplinary record until his dismissal. He stated that during the investigation, no one approached him to hear his side of the story.

77. Under cross-examination, he denied informing the Applicant and other candidates prior to the interviews that the successful candidate would be appointed on a permanent basis. He clarified that he had requested all candidates to bring their CVs because the HR department had only provided the names of the shortlisted candidates.

78. When it was put to him that Ms. Ngcobo was only asked to attend the interview and no request of ID, CV or qualification was made, his response was that he had all the evidence in his office.

79. During his testimony, he clarified his role as a resource person in the interview process, responsible for carrying the necessary documents for the panel, as the HR department had only provided the names of the candidates. After the interview, he informed Ms. Ngcobo that she had been successful and needed to update her CV and qualifications. He had previously mentioned to her that her CV was not up-to-date.

80. He denied requesting a half photo from Ms. Ngcobo and admitted he lacked the authority to appoint staff, emphasizing that notifying Ms. Ngcobo of her success was to help her prepare, based on the interview committee's agreement. He requested Ms. Ngcobo to drop her CV at the district office but denied asking her to collect documents on his behalf.

81. He maintained that his car did not have tinted windows, so it was going to be impossible for him to touch the Applicant’s private part. When it was put to him that he had refused to answer what he spoke about with Ms. Ngcobo in his car at the mall, it was therefore probably that he had forced her to suck his penis. He responded that he had already testified in his evidence in chief.

82. He stated that the Woolworths entrance, being the busiest at the mall and close to the taxi rank, would have allowed Ms. Ngcobo to shout, exit the car, or report him to the police if he had made any inappropriate requests. He never promised Ms. Ngcobo that she would secure permanent employment if she had sexual intercourse with him, if that was the case, she would not have taken long to report the matter.

83. He denied the allegation that he abused his power by meeting with Ms. Ngcobo at the mall and luring her into a sexual relationship to secure permanent employment for her. He said Ms.Ngcobo’s version of events was untrue, believing she was with him to secure permanent employment. After failing to secure a permanent position, she accused him of rape. Additionally, her friend, who she claimed knew what happened at the mall, did not testify.

84. He stated that he and Ms. Ngcobo had an open relationship, which he explained as a mutual understanding where both partners are allowed to have other partners and choose to cheat. When asked if they went to malls or restaurants as lovers, he replied that relationships vary. They had a love language, and she would call him when she needed money. WhatsApp messages confirmed their relationship, and Ms. Ngcobo knew he loved her. If he had raped Ms. Ngcobo, he was supposed to be in jail, but Ms. Ngcobo failed the interview in court.

85. He argued it was impossible to have had sexual intercourse with her at the office due to the frequent presence of a cleaner/clerk, a security guard, and unannounced visits from department officials. He also mentioned that he could not predict when a parent or the security guard might come to his office.
86. He acknowledged that the Epson printer was in his office, though it was pointed out that this detail was not mentioned in his initial testimony. He stated he had no reason to lie about it.

87. He confirmed having sexual intercourse with Ms. Ngcobo at his private residence, his house. When confronted with Ms. Ngcobo's statement that she had only been to his house twice and was not always there, he responded that he did not keep count of their encounters but asserted that all their sexual encounters took place at his house. When asked to specify the private locations where he allegedly had sexual intercourse with Ms. Ngcobo, he did not provide a response.

88. He disputed that he had told Ms. Ngcobo to withdraw the case but came to his house as she wanted closure. Ms. Ngcobo claimed that she was put under pressure by Mjwara and Madlala and she wanted to offer an apology to him. When Ms. Ngcobo pressed the charges with the police, she had said she feared him, yet she offered to come to his house to apologise. Ms. Ngcobo later informed him that she attempted to drop the case, but she was stopped.

89. He disputed that Ms. Ngcobo reported the matter to the Respondent after her contract was renewed. He claimed that after her contract was not renewed in February 2021, she reported being raped, suggesting it was an attempt to secure permanent employment. He stated that despite his efforts in 2021 to renew her contract, they were unsuccessful due to the school's PPN. However, he noted that the Respondent sympathized with her, leading to her eventual permanent employment.

90. He denied that he raped Ms. Ngcobo and insisted that the Respondent did not have evidence to prove its case.

91. In re-examination, he recalled meeting Ms. Ngcobo at the Battery Centre, noting she had a bag with her. He mentioned she changed clothes the day after taking a shower but could not specify the exact date of their first sexual encounter. He acknowledged giving Ms. Ngcobo R3000.00 at one point when she did not receive her payment, during their relationship.

92. Ms. Maureen Thobile Nsindane (Thobile) testified that she worked at Congco high School as a cleaner and would assist by making copies and filing for the educators in the Applicant’s office. The Applicant’s office was very busy as there would be parents of the pupil coming by. She was at the Applicant’s office most of the time unless the educator came and asked for privacy.

93. Ms. Ngcobo has never come to the Applicant’s office alone as she would be accompanied by the HOD.

94. In cross- examination she said the Minolta photocopying machine was stationed at the corner in the Applicant’s office and the papers were placed at the storeroom at the back of the office.

95. She asserted that Ms. Ngcobo never visited the Applicant's office alone. She usually cleaned classrooms and toilets after school hours. Ms. Ngcobo would visit with Mr. Mnyandu to sign employment contracts. She spent much time with the Applicant, and also stored her bag in his office.

96. There was no re- examination.

97. Mr. Andile Peterson Mnyandu testified as an educator at Congco Secondary School, initially appointed in 2019 as a substitute. He and Ms. Ngcobo were the only substitutes, with contracts renewed annually. They rented the same house a month after her employment and maintained a friendly relationship, occasionally visiting Ms. Khanyeza nearby. He was unaware why Ms. Ngcobo did not disclose her relationship with the Applicant, given that he knew about her previous boyfriends and Mr. Ngcobo knew about her girlfriend.

98. During cross-examination, he mentioned Madlala informed them of Ms. Ngcobo's charges against the Applicant, but insisted Ms. Ngcobo never disclosed their sexual relationship to him.

99. There was no re-examination.

100. Ms. Snikokuhle Petunia Khanyeza testified under oath about her employment at Congco Secondary School and her current position at I Mpumelelo in Estcourt. She reported a good working relationship with the Applicant. Ms. Khanyeza had a close relationship with Ms. Ngcobo, helping her with administrative tasks and finances. They also shared personal matters. She first learned about the allegations against the Applicant from Mr. Madlala at the school, not from Ms. Ngcobo, which made her question Ms. Ngcobo’s trustworthiness.

101. Upon learning of the allegations, Ms. Khanyeza contacted Ms. Ngcobo, who initially confirmed the allegations but later changed her story. Ms. Ngcobo inconsistently reported whether she had informed anyone at school about the matter, naming Ms. Nxumalo at first but later stating she had not told anyone due to a lack of trust.

102. Ms. Ngcobo requested a meeting with Ms. Khanyeza, initially stating her family’s opposition but later insisting on the urgency of the meeting. They eventually met in June 2021 at a McDonald’s, where Ms. Ngcobo requested a meeting with the Applicant to discuss her concerns. Subsequent meetings occurred at RJ’s at Liberty Mall and at the Applicant’s house.

103. At RJ’s, Ms. Ngcobo revealed she had fabricated the rape allegations against the Applicant and wished to rectify the situation. She mentioned promises from Mr. Madlala regarding a post at Huba and Ndala schools, which she declined, and discussed other colleagues, including Mr. Bhengu, the investigator. She admitted to lying about the charges and expressed a desire to drop them, seeking advice from her father's friend on how to proceed.

104. During the final meeting at the Applicant’s house, Ms. Ngcobo explained her attempts to drop the charges, facing opposition from Ms. Mjwara, who warned about potential repercussions from the Applicant. The Applicant advised Ms. Ngcobo to confess the truth to all parties she had lied to. The following day, Mr. Madlala visited the school, warning that a teacher was interfering with the case and needed to be cautioned.

105. During cross-examination, Ms. Khanyeza maintained that she was close friends with Ms. Ngcobo, sharing various personal and professional matters. She helped Ms. Ngcobo with subjects, lent her money, and even bought her eyeglasses. Their children played together, and they lived in the same neighbourhood.

106. Ms. Khanyeza was unaware of some aspects of Ms. Ngcobo’s life, such as different boyfriends who visited her, information she partly learned from Mr. Mnyandu. She only knew of a boyfriend in Richmond and another who was a Nurse.

107. She insisted that Mr. Madlala addressed the school staff about the incident involving the Applicant before she and Ms. Ngcobo visited the Applicant's house. She called Ms. Ngcobo out of sympathy. Ms. Ngcobo’s inconsistent stories about reporting the incident to Ms. Nxumalo further convinced her that Ms. Ngcobo was untrustworthy.

108. Initially, she met Ms. Ngcobo at McDonald's for a meal; later that same day, they met at RJ's, where the Applicant was also present. They subsequently met at the Applicant's house, where Ms. Ngcobo provided feedback regarding the letters she had written to drop the charges. Ms. Khanyeza emphasized that she did not organize the meetings with the Applicant but merely responded to Ms. Ngcobo’s requests. She denied forcing Ms. Ngcobo to visit the Applicant’s house and to withdraw the charges, stating that Ms. Ngcobo voluntarily sought to drop them after researching the process.

109. She reiterated that her involvement stemmed from Ms. Ngcobo’s desire to meet the Applicant and rectify her false accusations. She emphasized that she later realized Ms. Ngcobo was dishonest and after she stopped communicating with her but declined to specify how Ms. Ngcobo had lied about her when questioned.

110. When questioned about the inconsistency of Ms. Ngcobo wanting to withdraw the charges despite testifying against the Applicant at the disciplinary hearing, SACE hearing, and this arbitration while highly pregnant, Ms. Khanyeza responded that she was unsure how Ms. Ngcobo changed her mind. Ms. Ngcobo was supposed to inform her about dropping the charges but instead blocked her on her cellphone and ceased communication.

111. Under re-examination, Ms. Khanyeza explained that Ms. Ngcobo ceased discussing her boyfriends after she advised her to see them in private. Despite family opposition, Ms. Ngcobo sought her out for support, knowing she was a friend who would not harm her. Ms. Ngcobo met the Applicant despite having a protection order against him because she wanted to confess the falsehood of her allegations. Ms. Khanyeza clarified there was no rule preventing her from meeting both the Applicant and Ms. Ngcobo.

ANALYSIS OF EVIDENCE AND ARGUMENT

112. I have taken note of section 185 of the LRA, which states that "every employee has the right not to be unfairly dismissed." I read this section with section 192(2) of the Act, in which the employer bears the onus to prove on a balance of probabilities that the employee's dismissal was fair.

113. The Applicant challenged his dismissal as substantively unfair. The procedure was not challenged.

114. It is common cause that Ms. Ngcobo met the Applicant at the mall and at Battery Centre before she resumed duty. It is also common cause that Ms. Ngcobo visited the Applicant at his house before she resumed duty and that they had sexual intercourse.

115. The Applicant disputed that he committed the misconduct as per charge one and two.

116. The Applicant asserted that he was engaged in a romantic relationship with Ms. Ngcobo. Contrarily, Ms. Ngcobo vehemently denied any romantic involvement with the Applicant. She testified that she never had a romantic relationship with the Applicant. According to her, she complied with the Applicant's demands solely because she was promised permanent employment, which created a coercive environment rather than a consensual relationship.

117. Ms. Ngcobo alleged that the Applicant would check the surroundings before engaging in sexual activities with her in his office. In response, the Applicant vehemently disputed this claim, asserting that a thorough investigation would demonstrate the impracticality of such actions occurring on school premises.

118. It was common cause that the Applicant and Ms. Ngcobo had sexual intercourse multiple times, including once at his house. However, during cross-examination, when asked to specify other locations where they engaged in sexual activity, the Applicant responded only with 'a private place' but did not provide further details. Ms. Ngcobo alleged that the Applicant would call her to his office for sexual intercourse. The Applicant's inability to identify any locations other than his house suggests the possibility of sexual activity occurring in his office as well.

119. Although the Applicant asserted that his office was busy, Ms. Ngcobo described how the Applicant would check for approaching individuals before closing the window blinds and door to engage in sexual activity with her. Thobile's testimony, claiming she was always in the Applicant's office, is rejected as she was employed as a cleaner and her claim of cleaning after hours is implausible. Additionally, her version was not presented to Ms. Ngcobo for confirmation. Therefore, it is concluded that the other location where the Applicant and Ms. Ngcobo had sexual intercourse was his office.

120. Ms. Ngcobo recounted being called by the Applicant while she was teaching to have sex with him in his office. She did not consent to these encounters but participated due to the Applicant's promise of permanent employment. Ms. Ngcobo emphasized that she had no romantic relationship with the Applicant and continued to engage in sexual intercourse with him solely because she had not yet received the promised permanent employment.

121. Ms. Ngcobo remained consistent and unwavering in her testimony, even under two days of cross-examination. Her account did not change; she consistently stated that she was called to the Applicant's office during school hours and the Applicant would have sex with her without her consent. Based on her credible and steadfast testimony, I find that the Applicant violated workplace rules by engaging in sexual intercourse with Ms. Ngcobo in his office without her consent. This behaviour is tantamount to rape.

122. Ms. Ngcobo insisted that the Applicant touched her private parts, inserted his finger in her vagina, and asked her to suck his penis while they were inside his car at the mall. The Applicant denied these allegations, claiming that he had parked next to the busy Woolworth’s entrance and that his car windows were not tinted. However, during cross-examination, when asked about what transpired in the car at the mall with Ms. Ngcobo, the Applicant refused to answer, stating he had already addressed the issue in his evidence-in-chief. The Applicant’s refusal to answer this question suggests that he had sexual intercourse with Ms. Ngcobo inside his car. Ms. Ngcobo's testimony that the Applicant had parked far from the busy entrance and that it was getting dark further supports her account. She detailed how the Applicant asked her to quickly perform oral sex on him, which she reluctantly did because she was desperate for employment. Her consistent and credible testimony leads to the conclusion that the Applicant had raped her in the car.

123. This incident of rape and sexual intercourse at the mall and the Applicant’s house occurred while Ms. Ngcobo was seeking employment, making her particularly vulnerable to the Applicant's abuse. At the time, Ms. Ngcobo had not received any formal confirmation of employment, which placed her in a precarious position, dependent on the Applicant’s promises and susceptible to his manipulation. The Applicant exploited this vulnerability by involving her in tasks outside her professional obligations, such as asking her to fetch documents from the district office despite her not yet being employed by the Respondent. This task, which the Applicant could have easily handled himself, was a pretext to create opportunities for further inappropriate interactions with Ms. Ngcobo. By orchestrating these situations, the Applicant intentionally used his position of power to manipulate and abuse Ms. Ngcobo.

124. The Respondent argued that the Applicant's actions in communicating the outcome of Ms. Ngcobo's interview before the Head of Department (HOD) had approved the appointment, and subsequently meeting with her at the mall prior to her starting her duties, indicate an abuse of power. The Applicant did not dispute that the HOD had the final authority to approve educator appointments, and that his role was limited to making recommendations. This raises the critical question: why did the Applicant inform Ms. Ngcobo of her successful interview outcome when the HOD had not yet given approval?

125. The day after notifying Ms. Ngcobo, the Applicant met her at the mall, allowed her to get inside his car, and took documents from her. These actions suggest that the Applicant was intentionally creating situations to be alone with Ms. Ngcobo, indicating a clear intent to lure and manipulate her. This is further supported by the Applicant's refusal to answer questions during cross-examination about what transpired inside his car at the mall. Given these circumstances, it is reasonable to infer that Ms. Ngcobo's testimony, stating that the Applicant had sexual intercourse with her in his car at the mall, is credible. The sequence of events and the Applicant's behaviour point to a deliberate abuse of his position to exploit Ms. Ngcobo, reinforcing the plausibility of her allegations.

126. The following day, Ms. Ngcobo allegedly that she went to the Applicant’s house and slept there, although the Applicant denied that it was the following day, he admitted that Ms. Ngcobo visited him before she resumed duty. Ms. Ngcobo said she engaged in a sexual intercourse with the Applicant because she was desparate for the job and by this time she had not received a letter of employment, she feared losing a job. This suggests that the relationship was not consensual the relationship occurred within a context of unequal power dynamics, where the Applicant’s authority over Ms. Ngcobo’s employment prospects could have influenced her decisions and actions. Ms. Ngcobo was not in position to disagree with the Applicant’s request at this stage, she was desparate for employment which was the reason she did not report a case of rape.

127. The power imbalance between the Applicant and Ms. Ngcobo cannot be overlooked. Although the Applicant claimed that he did not have authority to employ. Ms. Ngcobo said she did not know the Respondent’s recrtuitment policy, in her understanding the Applicant had significant influence over her employment prospects. The relationship took place in a context where Ms. Ngcobo was vulnerable and dependent on the outcome of the appointment process. In this case, the Applicant’s actions could be seen as having exploited his position of authority over Ms. Ngcobo, who was dependent on his decision for her employment.

128. In McGregor v Public Health and Social Development Sectoral Bargaining Council and Others 2021 (5) SA 425 (CC) the court highlighted the fact that sexual harassment is often about a display of power. Khampepe J said, ‘at its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exist both in society generally and specifically within a particular workplace’. This sentiment is backed by extensive research which shows that sexual harassment has less to do with sex than it does power and fear. It is a way to keep women “in their place”’. At paragraph 43, the court further states that, we know that “[a]t its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exist both in society generally and specifically within a particular workplace.

129. Rape is defined as a form of sexual assault involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. Ms. Ngcobo testified that she had sexual intercourse with the Applicant but never consented to these acts. Her vulnerable position, seeking employment without having signed a contract, left her unable to refuse the Applicant's advances. The threat of losing a potential job if she did not comply further compounded her inability to provide genuine consent.

130. Given the power dynamics and the Applicant's manipulation, it is evident that Ms. Ngcobo was coerced into these sexual acts. I find her testimony credible and consistent, and I accept her version that she did not consent to sex. The Applicant's conduct, taking advantage of Ms. Ngcobo's precarious situation and forcing her into non-consensual sexual acts, unequivocally constitutes rape as it was done against her will. The Applicant's actions represent a gross abuse of power.

131. By leveraging his position of authority, the Applicant exploited Ms. Ngcobo’s precarious situation, knowing that her future employment prospects depended on his influence. This behaviour represents a severe abuse of power, taking advantage of Ms. Ngcobo's desperation and uncertainty about her job status to coerce her into unwanted sexual activities. The Applicant acted improperly by having sexual intercourse with Ms. Ngcobo within the school premises, at the mall, and at his house.

132. The Applicant claimed that the WhatsApp messages exchanged between the Applicant and Ms. Ngcobo suggest a consensual relationship, evidenced by their use of affectionate language. Ms. Ngcobo's willingness to purchase condoms and her response with a smiling emoji after the Applicant's suggestion to buy three packets indicate mutual agreement. Although there were messages that they both exchanged it did not change that the Applicant did not consent to sex and viewed the conduct of the Applicant as rape but continued because she was promised that she would secure a permanent job.

133. Ms. Khanyeza’s evidence was that Ms. Ngcobo wanted to apologize to the Applicant when they went to his house. This version was disputed by Ms. Ngcobo, who claimed that she did not know where Ms. Khanyeza was driving until she recognized the route leading to the Applicant’s house. While Ms. Khanyeza’s evidence corroborated the Applicant’s claim that Ms. Ngcobo came to his house to apologize, it does not prove that the Applicant did not rape or act improperly by having sexual intercourse with Ms. Ngcobo within the school premises and outside the school, including his house and the mall.

134. I accept the Respondent’s version that the Applicant raped Ms. Ngcobo as she did not consent to sex. Ms. Ngcobo clearly articulated how she felt traumatized by the Applicant’s actions but remained silent out of fear of losing her job. She described feeling like a sex slave, coerced into a relationship against her will. The Applicant’s actions of engaging in a sexual relationship with a prospective employee, including taking her to his house, were highly improper and indicative of his intent to secure sexual favours through an abuse of power. Ms. Ngcobo had no choice but to comply, hoping to secure permanent employment.

135. Ms. Ngcobo continued to have sex with the Applicant because she had not yet been granted permanent employment. This is corroborated by evidence that even after her contract was renewed in May 2021, she reported the rape to both the police and the Respondent. This suggests that she was not in a consensual relationship with the Applicant, but rather felt compelled to maintain the sexual relationship under the duress of securing her employment status. The ongoing sexual encounters, therefore, were a result of the Applicant's manipulation and abuse of his authoritative position, further demonstrating the lack of genuine consent from Ms. Ngcobo.

136. I find the Applicant guilty of raping Ms. Ngcobo and acted improperly by having sexual intercourse with her as per charges one and two. Ms. Ngcobo’s corroborated by consistent evidence, demonstrates that she did not consent to the sexual acts and felt coerced due to the Applicant's abuse of power. The Applicant's actions, leveraging his position to exploit Ms. Ngcobo's vulnerable employment status, constitute a severe abuse of authority and a violation of her rights. Therefore, the Applicant's behaviour is deemed as a serious misconduct, and the dismissal was appropriate.

137. It is my view that the Respondent has succeeded in carrying out the onus that rested upon it. Therefore, I find that the Applicant's dismissal was an appropriate sanction. I am satisfied, having regard to the evidence and the arguments presented, that the dismissal was both procedurally and substantively fair.

AWARD

I make the following award;

1. The dismissal of the Applicant, Nkanyiso Cebekhulu was procedurally and substantively fair.
2. The application is dismissed.


LINDIWE MAKHANYA