ELRC302-22/23KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No ELRC 302-22/23 KZN

In the matter between

Department of Education KZN Employer
And
S. Jamile Employee

ARBITRATOR: R. Shanker

DELIVERED: 21 August 2024

AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995, as amended (LRA) , and was set down for an Inquiry by Arbitrator process.
2. The employee (respondent) in this matter, S. Jamile (“Jamile”), was represented by M.S. Hlophe, an official of SADTU. The employer (applicant), Department of Education KZN, was represented by M. Mtetwa.

3. The matter commenced on 27 September 2022 and was thereafter heard on 05 October 2022, 04 November 2022, 08 January 2023, 10 January 2023, 16 March 2023, 24 May 2023, 25 August 2023, 30 November 2023, 19 February 2024, 21 February 2024, 08 March 2024, 27 March 2024, 22 April 2024, 22 May 2024, 14 June 2024 and 28 June 2024. The matter did not proceed on some of those days due to applications for postponements being granted for various reasons.
4. When the matter was last heard on 28 June 2024, the parties agreed that the hearing be rescheduled for 26 July 2024 for continuation. The ELRC accordingly rescheduled the matter on 26 July 2024 and sent notices to the parties on 17 July 2024.

5. Neither Jamile nor his representative attended the hearing on 26 July 2024. I continued and concluded the process in the absence of Jamile for the following reasons:
5.1. I am satisfied that Jamile and his representative were aware of the hearing having agreed to the set down date of 26 July 2024 and thereafter being formally notified thereof by the ELRC.
5.2. The employer has objected to any further postponements in this matter. Jamile is currently on paid suspension.
5.3. The matter is set down for an Inquiry By Arbitrator process the purpose of which is to finalise matters speedily.
5.4. The matter commenced in September 2022 and had been set down on 18 days. There were various postponements granted during this time some of which were to accommodate Jamile and his representative. Jamile was warned that the matter will proceed in his absence should he or his representative fail to attend any of the hearings without a valid reason.
5.5. Jamile failed to make an application for postponement or advance any reasons for his non-attendance. There was, therefore, no valid reason to postpone the hearing.

6. The matter against Jamile relates to allegations of sexual assault of learners who are minors. In accordance with the protection of the rights of minors, the identity of the learners will not be disclosed. I will refer to the learner as Learner “A”, “B”, etc. The Learners’ evidence was led via an intermediary and an interpreter.

ISSUES TO BE DECIDED
7. The issue to be determined is whether Jamile had committed the misconduct for which he has been charged and, if so, to determine an appropriate disciplinary sanction.

BACKGROUND TO DISPUTE
8. Jamile is an educator at the same school as the learners. He is charged with contravening section 17 of the Employment of Educators Act 76 of 1998 (as amended) (ELRC). As a result of the serious nature of the allegations, he is currently on suspension.

9. In summary, Jamile was initially charged with the following counts of sexual misconduct.
9.1. He called Learner A, a Grade 10 learner, into his office and raped her and on another occasion, he called Learner A into his office and flashed his penis to her, fondled her breasts and kissed her.
9.2. He made sexual advances to Learner B, a Grade 11 learner and hit her on her head with his fists when she turned down his sexual advances. He also told Learner B that she had matured and that she must start having sex as sex is healthy. He further made comments about her body being hairy.
9.3. He called Learner C, a Grade 11 learner, into his office and forced himself on her by trying to kiss her and threatening to make her school life unbearable.
9.4. He called Learner D, a Grade 11 learner, into his office and made suggestive remarks about her body structure, offered to take care of her child, be the father figure and provide her with a decent/high quality of life.
9.5. Whilst in Learner E’s Grade 11 class, he instructed Learner E and her male classmate to stand up and hug and kiss. He made suggestive remarks about Learner E’s body structure and called her by an unsavoury word “iphara” (junkie).

10. For reasons mentioned later, I granted an application and allowed the employer to add the following charge of sexual misconduct against Jamile.
10.1. Jamile called Learner F into his office and raped her.

11. The employer led the evidence-in-chief of Learner A, but her evidence could not be relied upon as she did not attend the subsequent hearings and Jamile could not, therefore, test her evidence under cross-examination. Her evidence is therefore excluded from this award. Learner C did not testify at all. This award, therefore, will not deal with the allegations in the charges relating to Learner A and Learner C.

12. The employer led the evidence of Learners B, Learner D, Learner E and Learner F in support of its version that Jamile had committed sexual misconduct in terms of section 17(1)(b) of the EEA. As relief, the employer requested that the services of Jamile be terminated with immediate effect.

13. Jamile denied all the allegations mentioned in the charges, including the additional charge relating to Learner F. Jamile testified in general and in relation to allegations made by Learner B and Learner D. He did not attend the hearing of 26 July 2024 and, therefore, he did not deal with the allegations of Learner E and Learner F. He was also not cross-examined by the respondent.

14. The parties relied on bundles of documents marked Bundle A – D.

SURVEY OF EVIDENCE AND ARGUMENT
15. The evidence hereunder is not verbatim accounts of the proceedings but a summary of the evidence necessary to determine whether, on the balance of probabilities, Jamile had sexually assaulted Learner B, Learner D, Learner E and Learner F as per the charges. All evidence was considered prior to drafting this award.

16. Learner B testified that during 2021, whilst she was a Grade 10 learner, Jamile started drawing her closer to him and began asking her to do certain tasks. In December 2021, Jamile began calling her to his office for things that were meaningless, and he started complimenting her by saying she is sexy, she is hairy and she is now ready for sex. In 2022, when she was in Grade 11, Jamile continued to draw her closer until she realised that his behaviour was not that of a teacher.

17. In February 2022, after they finished writing tests, Jamile instructed her to collect and take the scripts to his office. He was in his office seated at his desk when she got there with the scripts. He asked her to put the scripts on the table whilst he stood up and closed the door. He then went back and sat on his chair. She remained standing. He asked her to come and sit on top of him on his thighs. She refused. He stood up and locked the door. As she moved backwards towards the door, he kept coming towards her. He tried to unzip the side of her skirt. As she was refusing, he frowned and punched her on her forehead with his fist. Her head went backwards and hit the wall. She started crying aloud and he put his hand across her mouth and pushed her against the wall. He then told her to keep quiet and go out.

18. As she began to quieten down, he told her that she should not tell anyone about what happened as all scripts go through him and, if she did, she was going to fail. He also told her that if she told anyone, nothing would be done, and it would disappear because everyone would believe him and not her. He thereafter opened the door, and she left. She did not report the matter at school because Jamile said that they would not believe her.

19. She never borrowed Jamile’s phone. She would see other people taking photos and would be part of the photo. Jamile knew her aunt who was her guardian parent. Before the incident, she went to Jamile’s house to deliver T-shirts that Jamile had bought from her aunt. On another occasion, Jamile asked her aunt to tell her to go to school for extra lessons during a weekend. She didn’t attend as this was after the incident. Jamile also asked her to come to his house alone, but she didn’t.

20. Under cross-examination, she indicated that the learners wrote their statements individually after an investigation officer came to school and was asking questions. She agreed that three of the statements were written on the same day.

21. She agreed that she attended the meeting where Grade 12 learners posed questions to Grade 11 learners as to why they chose the commerce stream. She told them that she wanted to be a businessperson. After the meeting she cried and felt bad because the Grade 12 learners thought she was dumb. She felt insulted and informed her aunt. Her aunt and other parents visited the school to find out what happened at the meeting.

22. After Jamile had complimented her, she did not report it to anyone because she believed Jamile when he said he can do as he pleases to anyone, and he doesn’t get arrested. Jamile used to select her to go and study with the Grade 12 learners when she was only in Grade 10. She initially thought that it was to educate her, but she realised Jamile’s intentions after the incident that took place in Jamile’s office. She agreed that she took photos using Jamile’s phone. Other learners requested the phone from Jamile, and she used it.

23. She disagreed with Jamile’s version that she went to his house on three occasions, ie, the 1st time to deliver T-shirts, the 2nd time to collect money but he was not there, and the 3rd time was when she collected the money. She disagreed that Jamile was not at home on 16 December 2021 when she delivered the T-shirts. She maintained that Jamile used to send money with her at school and on one occasion, he sent someone home to collect money. She agreed Jamile gave her R500.00 to give to her aunt but she only gave R470.00 to her aunt because she used the balance to buy Romany cream biscuits and coke for Jamile because she didn’t do her homework. She disagreed with Jamile’s version that he didn’t like sweet things. When they were late, Jamile would kick them out of class and demand biscuits or money.

24. She described Jamile’s office as not too big. It had a long table along the wall at the entrance and the table and another object prevented the door from opening fully. There are chairs along the other wall. Jamile sat at the table on the far end. On the day of the incident in his office, Jamile was wearing a pants with two pockets at the front. There were offices next to Jamile’s office. Jamile was seated when he entered, and she put the scripts on the table at the door. She was standing at the small table. Jamile stood up and went and closed the door (not locked) and then went back to his chair and sat down.

25. She was shocked when Jamile asked her to sit on his lap. She was scared and started crying when Jamile pushed her aside and locked the door. She continued to cry when Jamile wanted to unzip her skirt. Jamile was angry when he punched her on her head, and she screamed because she felt the pain at the back of her head as her head hit the wall. Jamile put his hand on her mouth when she screamed. There were no bruises on her head. After the incident, she pretended that everything was fine because Jamile threatened her. She could not remember the date and time but disagreed that the incident didn’t take place merely because of this. She agreed that Learner B, Learner D and Learner E were her friends.

26. Learner D testified that Jamile was her business studies teacher. In March 2022, she was in her maths class when Jamile called her to his office and ask her why she failed business studies. She told him that she didn’t fail but did not pass according to his expectations. Jamile then told her that that was not the reason he called her to his office. He called her to his office because he wanted to tell her that she is beautiful, he likes her, she has a beautiful body and that she is sexy. He then asked her if she is dating someone, and she said she is dating the father of her child. He told her that he could take care of her, her child and they could lead a high standard of life. He then told her to come back and sit with him during the break. She did not go back to him during the break.

27. Under cross-examination, she maintained that Jamile taught her business studies. She agreed that Jamile did not touch her. Jamile only spoke to her and asked her to come closer to him. The discussion lasted about 30 minutes. She could not remember the exact date of the incident. She did not attend any of Jamile’s extra classes and she did not ask Jamile for any favours. Her phone was confiscated by Jamile whilst her friend had it. She and her friend went to Jamile’s house to collect the phone. Jamile was not present when she collected the phone. She denied that the relationship between her and Jamile was bad thereafter. She denied that she was working with other learners to fabricate a case against Jamile. She denied that she fabricated her version because of the cell phone issue or because of marks. She denied that she felt hurt when Jamile discussed her marks with her.

28. She agreed that she and the other learners all signed their statements on the same day, 26 June 2022 but indicated that she did not know at that time that they all wrote statements on the same day. She indicated that no one else was with her when she wrote her statement. She agreed that Jamile was arrested in March 2022, and she gave her statement in June 2022. She decided to give her statement after she heard other learners talking about what Jamile had done to them. She denied that someone from outside school had addressed her before she wrote her statement.

29. Learner E testified that Jamile was her economics teacher. One day in class, Jamile pointed to her and instructed her to kiss a male classmate. She refused and Jamile asked her to leave the classroom and go outside. He told her that she could only go back into the classroom if she obeyed his instruction. He told her that she should date the male learner because he was a good boy, and she does not do her work properly and is an “iphara”.

30. On another day, Jamile asked her to stand up and he questioned her as to whether she loved the male learner in the class. She told him that she didn’t, and he asked her why not. He then asked both of them to leave the classroom and return only after they confirmed that they were dating. When they were outside, he again approached her and asked why she didn’t love the male learner. When she indicated that she just didn’t, he asked her to date the male learner and not to be selfish and think only about herself. They pleaded with Jamile to let them back in because teaching continued whilst they were out. Jamile told them that he would let them back in if they purchased a 2 Litre Coke and Romany cream biscuits.

31. On another occasion, Jamile told her that she was beautiful, has a beautiful body structure and the boys were fools because if it was him, he would have taken her as his own person, but she is too young. After writing tests, he would call her “dumb” who only knew how to talk all the time and thinks she knows everything. She reported the incidents to her mother at home. Her mother asked her to be patient because she was unable to change school. She felt hurt and it affected her schoolwork. She was not the only one that Jamile had did this to.

32. Under cross-examination, she maintained that she wrote her own statement. She wrote the statement after Jamile was arrested. After Jamile was arrested, a person (who did not work at the school) requested learners that were affected to come forward. She told the principal what happened to her and the principal told her to write a statement.

33. Her mother and Jamile used to have conversations about her schoolwork. The incident occurred in Feb/March 2022, but she didn’t immediately report it because she and other learners was afraid of Jamile. She did Life Orientation where abuse is discussed but she did not report the incident to her Life Orientation teacher. She was friends with Learners B, C, and D. Jamile told her that many teachers did not want her to get to Grade 11 but he (Jamile) was the one that made it possible.

34. She agreed that Jamile confiscated her phone. The phone was with Learner C and Jamile took the phone from Learner C. Jamile had the phone for a few days and returned it after she pleaded with him for it. She agreed that Jamile was teaching her Accounting and Economics. She agreed that only Jamile gave them extra classes.

35. She agreed that she is in the photos at page 4 of Bundle B together with Learner C. The pictures were taken with Jamile’s phone, and it was after her incident. She was not the one that asked for the phone. Although she was upset and hurt, she smiled in the photos because she wanted to look beautiful. Some of the photos were sent from Jamile’s phone to her mum’s phone.

36. She maintained that Jamile was sometimes nice and used to make jokes and sometime Jamile used to be scary when he used to shout at them. Jamile called her “iphara” in class after she had written test/exams. She agreed that if the person from outside school did not come or if Jamile was not arrested, her case would not have progressed this far.

37. Learner F testified that she was a grade 11 learner at the school in 2022 but joined another school after the first term. In March 2022, Jamile asked a Grade 12 learner, Learner T, to question them as to why they were doing commerce. She answered the first question, but Learner T said that that answer was incorrect and he moved on to the next question. Before she could answer the second question, Jamile came back to class and asked for feedback. Learner T informed Jamile that all the learners had failed to give a response. Jamile said that because they did not know what they were there to do in commerce, it would be better if they don’t attend his extra classes.

38. She did not attend the extra classes on the following day. As she was about to leave school, Jamile asked her why she was leaving. She told him that he had chased her away from extra classes. Jamile told her “Don’t you know you are my girlfriend”. He then asked her to enter his office. Two other learners were in the office but they collected their meal and left. Jamile then locked the door and came and stood behind her. He started kissing her, touching her breasts and vagina. He kissed her for about 30 Seconds and touched her body during that time. He grabbed her shoulders and turned her to the direction of the chairs and then forcefully pushed her down. He made her sleep on the chairs. There were two chairs, and it did not have armrests. She was crying and tried to scream but he said that if she makes a noise, people in the next class would know that she slept with an old man.

39. She tried to get up whilst she was on the chairs, but Jamile locked her down with his knees and she couldn’t move. He then removed her panties down to her ankles and then dropped his pants to his knees. Whilst on top of her, he inserted his penis into her vagina and started “humping” her multiple times until he came. He removed his penis and as he was dressing, he told her “You so fucking tight”. She then dressed, unlocked the door and went to the toilet to clean herself. She then went back to class. Jamile was already there and said that the lesson was postponed. The following day Jamile sent her a message asking her to come to his house to rectify accounting mistakes, but she did not go because she knew that he wanted to repeat the same thing.

40. She did not tell anyone in class about the incident because no one would have believed her. She did not tell her mother because her mother would have gone to school and created drama and Jamile would have further embarrassed her in front of the other kids.
41. A friend called her one day and related the story about what Jamile had done to Learner B in his office. The following day, she asked Learner B to come home. Learner B, Learner B’s aunt and the chair of the ward committee came to her home. Her mother was also at home. Learner B’s aunt related to her mum what Jamile had done to Learner B. Her mother asked her what Jamile did to her and she told her mum everything. The following day (20 or 21 April 2022) they laid a charge at the SAPS. When she went for a medical checkup, she discovered that she had STD and was given medication. She was friends with the other learners that laid complaints. She denied that she fabricated her version because Jamile did not want to do favours for her. She had no reason to do so as she was no longer a learner at the school.

42. She also testified that Jamile used to ask learners to kiss in class. In February 2022, Jamile asked her to kiss another male learner in class. She refused to do so. Most girls used to ask Jamile to use his phone to take photos, but she didn’t. She is in one of the photos but didn’t ask Jamile for his phone. With regard to the photo on page 6 of Bundle B, she indicated that one of her classmates took the photo. After the sexual assault, Jamile asked her to join his extra classes. She appeared not to be afraid of Jamile because Jamile asked her to act normal.

43. Under cross-examination, she indicated that the relationship with Jamile was normal prior to the incident. She never visited Jamile’s house. She was told by a teacher to write her statement. She was at the new school when she wrote the statement. She also wrote a statement in April 2022 which she gave to the SAPS.

44. She agreed that she felt disrespected after the Learner T had not accepted her answer and had given feed back to Jamile. She was not the only one that Learner T said had failed to respond and she was not the only one that was kicked out of the extra classes. She could not remember whether she communicated with Jamile on WhatsApp on 16 March 2023. She did not communicate with Jamile after the incident.
45. Regarding the incident in Jamile’s office, the office door was open when they entered. She could not remember who entered first. She saw Jamile then close and lock the door. She could not remember if the table had a cloth but there was no cloth on the chairs. Her head was supported but her feet were on the ground, together but not tight. The thigh on one of her legs was covered by his leg. She could not remember the colour of Jamile’s shirt and pants. She saw his private parts. Jamile pushed opened her legs and stood between her legs. he did not kiss or touch her prior to this incident.

46. She could not exit when the other learners that came to fetch their food left as Jamile was standing in front of her and only one person could leave at a time. She later indicated that she could not remember whether she was inside or outside the office when the two boys came to collect food. She did not tell those learners that something was wrong because they were Jamile’s boys, and they were the key holders. When it was put to her that she contradicted her evidence because she previously indicated that she did not know who kept the office keys, she indicated that she did not know who from amongst them kept the keys. She could not say no if called by an educator. She could not remember each and every detail because the incident occurred a long time ago. She did not have a medical report regarding the rape because she did not know that she could get the report. She indicated that the rape was one of the reasons why she transferred to another school.

47. She agreed that she used Jamile’s phone but insisted that she did not request the phone from Jamile. The photos at page 6 were taken soon after the incident. She agreed that she took the photos and not another person. The photo does not reflect whether she was happy or sad and it was just a pose. She used Jamile’s phone because she was told to act normally and also, she had to act normal to be in Jamile’s extra classes. Taking photos was normal. She was not able to talk to the principal because he wouldn’t have done anything and she could not talk to strangers like the police but after talking to her parents, she was able to trust the police. She voluntarily reported the case to the SAPS.

48. She disputed that the chairperson of the ward committee used them to fulfil his own personal political agenda. She went to hospital because she could not refuse the request by the investigating officer to do so. She agreed that her aunt was a teacher at the school, but she didn’t report the incident with her aunt because her aunt was going to tell her mum.

49. Jamile testified that he offered extra classes before and after school and on Saturdays and sometimes even on Sundays. He got approval from the principal to do so. He had a meeting with parents about the extra classes and outlined the purpose and his expectations and established a WhatsApp group for parents/learners. The purpose of the extra classes was to capacitate and fill gaps where necessary. Learners had to undertake to do the work expected of them. He focused on his department being the best of the best.

50. In respect of Learner D, Jamile testified that the principal consulted with him regarding the admission of Learner D to the school. They don’t normally accept Grade 11 learners from other schools, but he agreed to Learner D being admitted. Learner D failed grade 12 at her previous school and could not be admitted into Grade 12 again and that is why Learner D was admitted to Grade 11. Durning extra classes, he would see Learner D sitting and reading in class next door and he saw her as someone dedicated to her schoolwork. He invited Learner D to motivate Grade 11 learners to do what she was doing.

51. On 09 February 2022, he saw Learner C fiddling with a phone during class. He confiscated the phone and a few days later Learner C asked for the phone saying that the phone belonged to Learner D and was not hers. It disappointed him that Learner D was also violating the rules, but he was not going to relax the rules or give Learner D special treatment. He was sick and had to be hospitalised for a week. On 22 February 2022, Learner D phoned him regarding her cell phone. The phone was eventually returned to Learner D because Learner D informed him that her mother was not well and that she needed her phone to call her mother. When he returned to school, Learner D tried to again explain why she needed the phone. He articulated his displeasure and told her that he never expected her to break the rules. That was the end of his interaction with Learner D. His wife, accompanied by his son, handed the phone over to Learner D and Learner C.

52. In response to Learner D’s statement, he testified that he did not teach business studies to Grade 10, 11 or 12 learners. Mrs Dlamini did. He taught accounting and Learner D did not do accounting. He therefore did not teach Learner D in Grade 11. Grades 10, 11 and 12 were departmental papers and grade 11 started on 14 March 2022 and were marked over the vacation period. He therefore could not have moderated any of the papers that were marked by educators in his department. The only time he became aware of their performance was when he was invited by Mrs Dlamini to the Grade 11 class, and this was in the second week of Term 2.

53. He did not call Learner D to his office to discuss her marks or to compliment her, ie, to say that she was beautiful, has a beautiful body structure or that she is sexy. Learner D’s version is improbable because the results were not out at that stage. Learner insisted that she wanted her phone back and he did not want to talk to her after that incident. He also did not invite Learner D to his office after the break.

54. Learner D and learner C were close, and they used his phone to take out photos together. Learner D could not have given her phone to Learner C knowing that her phone could be confiscated. Learner D requested a favour from him when she requested him to return her phone. He was not supposed to return the phone to Learner D without her following the rules but given that Learner D’s mother was sick, he decided to return the phone. The second favour to Learner D was to allow her to be admitted at school. This was done only in exceptional circumstances because the school wanted the best.

55. In respect of Learner B, Jamile testified that he taught her in Grade 10 and 11. Over time, he came to know and communicated with Learner B’s guardians. Learner B informed him that her aunt sells clothing, and he ended up buying some clothing. During 2021, Learner B was in Grade 10, and he was teaching her economics. She appeared to be active in class and always participated to the point where he took notice of her.

56. He gave extra classes to Grade 12 learners but also allowed Grade 11 learners to join if they wanted to. Learner B started joining the extra classes. She enjoyed economics and wanted to improve her knowledge, so he welcomed her. She became a regular in class. He would send her to his office to collect stuff and she would also visit his office as and when she felt like. The bond between them became close and they would laugh and tease each other. She would borrow his phone and take selfies and photos with her friends. She was young, vibrant and a happy child and, with the boys, they were a happy group. Towards the end of 2021, he went to the extent of lending her his personal economics notes for her to prepare for exams. She came to his house on several occasions, sometimes sent by her aunt and sometimes of her own volition.

57. In October 2021, whilst preparing for the final exams, Learner B was insulted by a male Grade 12 learner who said despicable and ugly things to her. She reported the matter to him, and he reprimanded that learner. Learner B’s aunt also came to school, and he addressed the matter again. He subsequently learnt that Learner B had a relationship with that boy. He called in Learner B and reprimanded her, and he informed her aunt. He also advised her that she could no longer be part of his extra classes out of fear of things that might happen.'

58. Learner B used to tidy his office whilst he was not there. As departmental head, it was his responsibility to moderate papers to be written by learners. A memo that had the answers to the economics question papers were in his office. The memo went missing and he looked everywhere for it but could not find it. He was assisting with invigilating during the October/November 2021 exam when he came across a learner that had a script note containing the exact answers as the memo.

59. Learner B and other learners were with him when another learner, Learner M, came and called Learner B to the office. Learner B came back crying. When he enquired from Learner B as to what happened, she indicated that whilst she was tidying up his office, Learner M took the memo. When he enquired further, Learner M indicated that Learner B had given her the memo. He was seriously angered by that as it was not what he was expecting from Learner B, and it seriously impacted on the trust he had in Learner B. He knew that Learner M and Learner B were close friends, and he did not know who to believe. It is from that time that he decided to distance himself from Learner B.

60. Although he wanted to maintain his distance from Learner B, he had already bought sweets and clothes from Learner B’s aunt some of which was not paid for and some not yet delivered. During December 2021, the aunt sent Learner B and another learner to his home to deliver the items he ordered. He was not at home, and she left it with his children. He tried it on when he returned but it did not fit. He sent his son to return it to the aunt. The aunt later sent Learner B with the replacement items. He was at home, but his sons accompanied Learner B to the gate. Learner B came running back and wished him a merry Christmas because she was leaving to go and see her mum. He had a good relationship with Learner B and Learner E’s aunts and treated them like family.

61. In 2022, Learner B came to him and apologised about everything that happened in 2021, ie, the memo and the situation with the boy that insulted her, and she requested that she be part of the extra classes. He advised her that she had to prove that she was serious about her schoolwork. He gave her examples of other learners that had been suspended. He therefore did not allow her into his extra classes. He was teaching accounting for Grade 11 learners, and he identified gaps in knowledge so he decided to bring back the learners that were suspended from the extra classes.

62. In February 2022, he gave R500.00 to Learner B to give to her aunt as payment for items he had purchased. The aunt sent him a message stating that she only received R470.00 so Learner B lied when she gave only R470.00 to her aunt.

63. At one stage, he requested Grade 12 learners to motivate the Grade 11 learners. He was present when the Grade 12 learners asked some questions but left at some point. He requested feedback when he returned. He picked up that the mood in the class was not the same as before he left. The Grade 12 learners indicated that the Grade 11 learners were showing attitude and disrespect. The Grade 11 learners did not provide answers as to what transpired. He told the Grade 11 learners that he cannot waste his family time with learners that do not respect him and the people that he requested to assist them. He terminated all extra classes for Grade 10 and 11 learners in the heat of the moment. As they were leaving, he noticed their faces that they were not happy with it. Learner B was crying.

64. He later learnt that there were very harsh words exchanged between Learner B and the Grade 12 learners. Learner B’s aunt came to school. She advised that she was very angry about what happened to Learner B and that Learner B had been crying throughout the night. After the aunt spoke to him and one of the Grade 12 learners that had apparently made derogatory remarks, she was given the opportunity to address the Grade 11 and 12 learners. The aunt told the Grade 12 learners how angry other parents were about the insults and about the decision to suspend Grade 10 and 11 learners from extra classes. He was not surprised that the aunt said other parents were angry because another parent uttered words that were unbecoming. He was sad because he dedicated all his time to assisting learners. As from Grade 10, Learner B had been part of the extra classes, and he walked her through it getting her to matric. He never cut her off in spite of all the challenges.

65. With regard to Learner B’s statement, he agreed that he drew her close to him when she was in Grade 10. This was especially so because of his relationship with her aunt. He denied that he made untoward utterances to her. He never called Learner B to his office, and he does not know what papers (scripts) Learner B was talking about. He did not request her to undress or to sit on his lap and at no stage did he punch any learner. He had no reason to punch Learner B. His office has a hole in the ceiling and his office connects to the toilets and classes which do not have ceilings. The sound of him punching Learner B would have reverberated to the classrooms. He denied that he ever asked learners to kiss each other in class. He encouraged them to treat each other as brother and sister. He did not request Learner B to buy him biscuits because he has diabetes.

66. He testified in general that he pushed learners away and was not there for them. This issues and the issues of being insulted by Grade 12 learners triggered an angry response by the learners that had made statements against him. He was the main vein to matric. The only learners that complained were the ones that were cut off from his close circle by him pushing them out. He did a lot of favours for Learner B and the other learners because he looked at their performance. During Covid-19, although they did not do well at school, he moved them to the next grade.

67. He also turned down favours. Learner B understood that he gave her close attention and when he removed her, she was no longer going to get that attention. That is why her aunt came to school and asked him to reinstate Learner B for extra classes. The learners in question are a close group of friends. They took photos together and they lived close to each other. They were disgruntled that he had chased them out of the extra classes. They were struggling and if removed from extra classes, the chances were that they would have to repeat the grade. The community was not happy with Grade 12 learners addressing the Grade 11 learners and for him removing learners from extra classes. These are the reasons why the learners colluded with each other to make their statements.

ANALYSIS OF EVIDENCE AND ARGUMENTS
68. The employer made an application on 25 August 2023 to amend the charges against Jamile to include a further charge of sexual misconduct against him in respect of Learner F. Having considered the application and the opposing papers, I granted the application for the following reason. Jamile suffered no prejudice by the inclusion of the additional charge. He was granted sufficient time and information to prepare and present his version in response to the allegations of sexual misconduct made by Learner F. This case had already been going on for a year and it would have been futile to hold a second/separate hearing in respect of the allegation made by Learner F against Jamile.

69. I note the concern raised by Jamile that Learner F did not submit a written statement which would have enabled him to prepare and respond to the allegations of Learner F. I found that it was not necessary for Learner F to submit a written statement and allowed the process to continue. I was satisfied that the charges were sufficiently clear, that Learner F would testify in person and that Jamile would be given sufficient time to prepare for cross-examination. Jamile did not suffer any prejudice in the absence of a written statement.

70. I note that Jamile did not attend the last hearing scheduled for 26 July 2024. He, therefore, did not complete his evidence-in-chief and did not give his version in respect of Learner E and Learner F. He was also not subjected to cross-examination and his evidence is largely untested.

71. The key issue to be determined in this matter is whether Jamile had committed misconduct that was of a sexual nature against Learner B, Learner D, Learner E and Learner F. Jamile denied all the allegations of sexual misconduct made against him.

72. His version is that all the learners in this case had fabricated versions against him because they were a group of friends that were angry with him for the following reasons:
72.1. He pushed them away from him by excluding them from extra classes.
72.2. The Grade 12 learners had insulted them which in turn resulted in his decision to exclude them from extra classes.
72.3. He stopped doing favours for these learners.
73. I accept that the learners that lodged complaints against Jamile were all friends but this, on its own, is no reason for them to fabricate their versions.
74. I reject Jamile’s version that learners fabricated versions against him because they were angry at being insulted by the Grade 12 learners or because they had been excluded from attending extra classes. I accept that learners would have been disadvantaged by being excluded from extra classes, but I am not convinced that the consequences of them being excluded from extra classes so early in the year was as serious as Jamile believes, ie, that they would have failed their grade. Even if they were angry with Jamile, I am not convinced that the extent of their anger would have resulted in them making such serious allegations against Jamile.

75. Further, this could hardly be the reason given that the learners in question had only made statements after Jamile had already been arrested. The learners’ relentless pursuit of their cases shows that they had deep seated pain because of what Jamile had done to them rather than a mere disappointment at being insulted or being excluded from extra classes. In any event, the learners that lodged complaints against Jamile were not the only ones that were insulted by grade 12 learners or excluded from extra classes. This affected the whole of the Grade 11 learners. The issue of the insults by Grade 12 learners and their exclusion from extra classes were, in any event, dealt with by the parents of learners and put to bed.

76. I reject Jamile’s version that the learners fabricated their versions because they were angry with him for pushing them away from him and because he had stopped doing favours for them. Jamile was unable to point out any real favours that he did for learners, or which favours he stopped doing for learners. Returning a phone, admitting a learner to school, providing extra classes for Grade 11 learners, etc, could hardly be seen as “favours”. Learner D did not attend any of Jamile’s extra classes and she did not ask Jamile for any favours.

77. I reject Jamile’s contention that the incidents did not take place because the learners could not remember some of the dates and times of the incidents. It is trite that children of a young age such as these learners would naturally have difficulties in remembering dates and times. Given the date of the incidents and how long the learners had to wait before they testified at this hearing, it is not surprising that they had difficulties in remembering some periphery details. This certainly does not go to the credibility of the witnesses or against the probability of their versions being true as, importantly, they were able to remember the exact details of the actual incidents of sexual misconduct that occurred.

78. Jamile led lengthy evidence with regard to other aspects, eg that learners had borrowed his phone, that learners had visited his home on more than one occasion, etc. As to whether these details are true or not has no relevance with regard to whether the incidents of sexual misconduct had taken place or whether the learners’ versions are true. A smile on a photo is not an accurate reflection of a happy or sad state of mind and it is not an indication of whether an incident took place.

79. In conclusion I reject Jamile’s version that the learners had fabricated their versions against him or that they had lied about the incidents taking place.
80. With regard to Learner B, the allegations against Jamile are that he made sexual advances and comments of a sexual nature to her and that he also hit her head with his fists when she turned down his sexual advances.

81. I considered Learner B to be a reliable and credible witness. She gave her evidence clearly and without contradiction or inconsistencies even under robust cross-examination. I find that the version she presented was probable. Jamile merely denied the allegations. As mentioned above, I reject Jamile’s version that Learner B had fabricated her version and accordingly find that there was no reason for Learner B to do so. I accept, as the more probable version, that Jamile told Learner B that she is sexy, her body is hairy and that she is now ready for sex. The words used by Jamile are clearly of a sexual nature and entirely inappropriate and that such constitutes an act of serious sexual misconduct.

82. I also accept, as the more probable version, that Jamile called Learner B (by now a Grade 11 learner) to his office and asked her to sit on top of his lap and that he also tried to unzip her skirt. I find such conduct to constitute serious sexual misconduct which is worsened by the forceful and egregious abuse of his power over the learner as demonstrated by the fact that he punched her on her head with his fist when she refused his sexual advances. He showed no sympathy when Learner B was crying as a result of his conduct and, instead, he put his hand against her mouth and pushed her against the wall. He further threatened her into not telling anyone about the incident.

83. With regard to Learner D, the allegation of sexual misconduct against Jamile is that he made suggestive remarks of a sexual nature by telling her that she has a beautiful body and that she is sexy. He also told her that he could take care of her and that she and her child could lead a high standard of life. He then asked her to return to his office and sit with him during the break.

84. I considered Learner D to be a reliable and credible witness. She gave her evidence clearly and without contradiction or inconsistencies even under robust cross-examination. I also find that the version she presented was probable. Jamile merely denied the allegations. For reasons mentioned above, I reject Jamile’s version that Learner D had fabricated her version and find that there was no reason for Learner D to do so. I reject Jamile’s version that he did not teach learner D in Grade 11 and that her version was, therefore, not probable. Jamile failed to submit any evidence to support his version in this regard.

85. I find, as the more probable version, that Jamile had uttered these words to Learner D and that these words were clearly of a sexual nature and entirely inappropriate. In doing so, I find that Jamile committed serious sexual misconduct.

86. With regard to Learner E, the allegations of sexual misconduct against Jamile are that he instructed her to kiss a male learner whilst in class and asked her to leave the classroom and return only when she obeyed his instruction. He also asked her if she loved a particular male learner in class and asked her to leave the class until she could confirm that she was dating the male learner.

87. I considered Learner E to be a reliable and credible witness. She gave her evidence clearly and without contradiction or inconsistencies even under robust cross-examination. I also find that the version she presented was probable. Jamile merely denied the allegations. Although Jamile did not specifically testify in relation to the allegation made by Learner E, I reject his general version that all the learners, including Learner E, had fabricated their versions against him. I find that there was no reason for Learner E to do so. Learner E’s version, that Jamile had asked her to kiss a boy in class, was corroborated by Learner F.
88. I find, as the more probable version, that Jamile had asked Learner E to kiss another male learner in class and that he insisted that she dates a male learner. I find that Jamile was also very insistent in his actions as he punished her for not doing so and he also insulted her and told her she was selfish for not doing so. I find that the conduct of Jamile was of a sexual nature and entirely inappropriate. In doing so, I find that Jamile committed serious sexual misconduct.
89. In respect of Learner F, the allegations of sexual misconduct against Jamile are that he told her “Don’t you know you are my girlfriend”. He called her to his office where he kissed her and touched her breast and vagina for about 30 minutes. He thereafter pushed her onto some chairs and forcefully raped her.

90. I considered Learner F to be a reliable and credible witness. She gave her evidence clearly and without any significant contradiction or inconsistencies even under robust cross-examination. I also find that the version she presented was probable. Jamile merely denied the allegations. Although Jamile did not specifically testify in relation to the allegations made by Learner F, I reject his general version that all the learners, including Learner F, had fabricated their version against him. I find that there was no reason for Learner F to do so.

91. I accept, as the more probable version, that Jamile forcefully had sex with Learner F by inserting his penis into her vagina. It goes without saying that such conduct constitutes very serious sexual misconduct.

92. The various counts of misconduct that Jamile committed is of a sexual nature and is dealt with in section 17(1)(b) of the EEA. In terms of Section 17, the misconduct is regarded as serious misconduct for which dismissal is a mandatory sanction irrespective of any mitigating factors. Having regard to the gravity and the egregious nature of the misconduct in this case, the rights of learners to be treated with dignity and that Jamile is an educator who works closely with learners, it is clear that the employment relationship has irretrievably broken down. I therefore find that a sanction of dismissal is appropriate in the circumstances.

93. In addition, given the nature of the sexual misconduct involving vulnerable learners, I find that Jamile is unsuitable to work with children in terms of section 120 (1) of the Children’s Act no 38 of 2005 (as amended) (CA). The General Secretary of the ELRC is, in terms of section 122(1) of the CA, hereby directed to notify the Director-General: Department of Social Development of the findings of this forum so that the Director-General can, in terms of section 122(2) of the CA enter his name as contemplated in section 120 in part B of the register.

AWARD
94. In the circumstances I make the following award:
94.1. The employee, S. Jamile, contravened section 17 of the EEA.
94.2. The employer, Department of Education KZN, must with immediate effect impose the sanction of dismissal on S. Jamile in terms of the said Act.
94.3. The ELRC General Secretary must, in terms of section 121(1) of the CA, forward this award to the Department of Social Development for S. Jamile’s name to be included in the National Child Protection Register as contemplated in section 120, Part B, as unsuitable to work with children and to the SA Council for Educators (SACE) for appropriate action.


Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal