ELRC275-24/25LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT LEBOWAKGOMU

Case No. ELRC275-24/25LP

In the matter between

LIMPOPO DEPARTMENT OF EDUCATION Employer

And

SECHOCHO CLIFTON Employee

ARBITRATION AWARD (ENQUIRY BY ARBITRATOR)

Details of hearing and representation

1. This enquiry is conducted in terms of Section 188A of the Labour Relations Act, 66 of 1995 (the Act). The hearing took place at the Department of Education, Capricorn South District, Lebowakgomo, Limpo Province, on 31 July 2024 at 9:00AM. The employee, Sechocho Clifton was represented by Seopa Martin from South African Democratic Teachers Union (SADTU), while the employer, Department of Education - Limpopo was represented by Ntsaone I.L, its official. The proceedings were digitally voice recorded and Christinah Hlongwane was the Interpreter. The Intermediary was R.M Kupa. The employer handed in bundle of documents I marked Bundle R. There was no bundle of documents handed in by the employee.

Issues to be decided.

2. This was a disciplinary enquiry by an Arbitrator. I must decide whether the employee is guilty of misconduct levelled against him or not. If guilt, I must determine an appropriate sanction.

Background and common cause issues

3. The employee, Sechocho Clifton is currently employed as CS1 Educator since 01 January 2005. He is earning a salary of R33 252.25 per month. He is employed at Mmasesha Primary School. He was charged with two charges of misconduct. Each charge has ten (10) counts.

4. Charge 1: You contravened the provisions of section 17 (1) (b) of the Act in that, on or around the year 2022 and 2023 or at any period incidental thereto, at or near Mmasesha Primary School, you committed acts of sexual assault to the learners that:
Count 1: You sexually assaulted RM by showing her pornographic video that was in your phone,
Count 2: You sexually assaulted LM by spanking her bums,
Count 3: You sexually assaulted RM by grapping her breasts,
Count 4: You sexually assaulted RM by offering to give her R1 000.00 if she can have sex with you.
Count 5: You sexually assaulted LM by asking her to have sex with you whilst she was in Grade 7,
Count 6: You sexually assaulted LM by asking her what she is going to pee with when she is going to the toilet and the size of her vagina,
Count 7: You sexually assaulted LM by asking her if you can teach her how to have sex,
Count 8: You sexually assaulted TT by asking her if she knows how to make a baby.
Count 9: You sexually assaulted TT by demonstrating sexual moves in front of her while she was doing Grades 6 and 7,
Count 10: You sexually assaulted TT by asking her what she is going to pee with when she is going to the toilet and the size of her vagina.

Charge 2: You contravened the provisions of section 18 (1) (a) of the Act in that, on or around the year 2022 and 2023 or at any period incidental thereto, at or near Mmasesha Primary School, you failed to comply with or contravened the South African Council of Educators Act 31 of 2000 “Code of Professional Ethics” Item 3.9 by failing to refrain from any form of sexual harassment with learners at a school in that:
Count 1: You sexually assaulted RM by showing her pornographic video that was in your phone,
Count 2: You sexually assaulted LM by spanking her bums,
Count 3: You sexually assaulted RM by graping her breasts,
Count 4: You sexually assaulted RM by offering to give her R1 000.00 if she can have sex with you.
Count 5: You sexually assaulted LM by asking her to have sex with you whilst she was in Grade 7,
Count 6: You sexually assaulted LM by asking her what she is going to pee with when she is going to the toilet and the size of her vagina,
Count 7: You sexually assaulted LM by asking her if you can teach her how to have sex,
Count 8: You sexually assaulted TT by asking her if she knows how to make a baby.
Count 9: You sexually assaulted TT by demonstrating sexual moves in front of her while she was doing Grades 6 and 7,
Count 10: You sexually assaulted TT by asking her what she is going to pee with when she is going to the toilet and the size of her vagina.

5. The Employee through his SADTU representative pleaded not guilty.

Survey of the employer’s evidence and argument.

Five witnesses/complainants testified for the employer. The first complainant / witness of the employer was RM. RM testified under oath that:

6. She is schooling at Mmasesha Primary School in Grade 6. The employee is teaching her Social Science (SS) this year (2024). She forgot the subjects that the employee was teaching her last year (2023). The employee used to come to school being drunk and would touch them breasts. The employee would call them one by one and when they approach him, he would tell them to stand aside him. The employee would touch her breasts. She reported this first to the educator Ms. Mokgetla and her mother. Educator Mokgetla took this matter to the office. The principal and the deputy principal called the employee and questioned him about the incident. The employee denied the allegations. The employee showed them people who were naked/undressed from his phone. It was herself, LN and Isaac. The employee would say to her and LN, he wants to see them naked like the girls in his phone and go with them somewhere. The employee told her and LN that if they could go with him, he would give them R1 000.00. She refused the R1 000.00 and told the employee that she was going to tell her mother. The employee told her that she is a fool and he then left with LN.

7. During cross examination, she testified that the employee’s eyes would be red and smelling alcohol to show that he was drunk. The employee would sometimes take off his spectacles and put them on top of his table. She does not hate the employee. It was her and LN and later she called X to come and see what the employee was showing them from his phone.

The second witness/complainant of the employer was LM. LM testified under oath that:


8. She was schooling at Mmasesha Primary School last year (2023). The employee taught her Social Science (SS) in Grade 6 and Sepedi in Grade 7. Their relationship was that of a learner and teacher. The employee made sexual advances while she was with MH outside the class. The employee would tell us how people are doing sex and from where children are coming. When they ask to go to the toilet, the employee would ask what part of the body we were going to use to urinate. She would not respond but ignores him. The employee asked to have sex with her when she was alone. She did not report this at home or school because she thought people would not believe her. She sometimes felt bad as a child about those sexual advances, or just ignore him. She never enjoyed the employee’s class because he would come to her desk and tell her about sex. The employee never touched her.

9. During cross examination, she testified that she was not enjoying the employee’s class. She sometimes ignored the employee when he was talking about sex. She took the employee as a misbehaving person who teach learners bad things. MD helped her by reporting this incident to the principal.

The third witness/complainant of the employer was TT. TT testified under oath that:

10. Her primary school was Mmasesha Primary School where she did Grade R up to Grade 7. She was introduced to the employee when she was in Grade 5. The employee taught her Social Science in Grades 5 and 6 as well as Sepedi in Grade 7. The employee asked her if she was able to have a child while she was in Grade 6. She responded in negative. The employee continued to tell her that he wanted to show her how to make a baby. The employee started to shake before her and LM. The employee never touched and offered her money. The employee never offered her anything in exchange of sex. She did not report anything because no one would trust her. She is not scared of the employee, but she hates him for the sexual things he told her. There was nothing bad that the employee told them when they were going to toilet.
11. During cross examination, she testified that she started to hate the employee from when she was doing Grade 6. She was not happy with the things that the employee was telling her. MD was the one who reported the incident to the principal. The employee was a good teacher.

The fourth witness/complainant of the employer was MD. MD testified under oath that:

12. She attended primary school from Grade R to 7 at Mmasesha Primary School. The employee taught her in Grades 5, 6, and 7. In Grades 5 and 6, he taught her Social Science. In Grade 7 he taught her Sepedi. She never saw bad things about the employee. The other complainants were her friends. LM came to her and sought advice regarding the employee’s behaviour. LM came to her and said the employee was telling her (LM) about sexual things. LM sought advice from her on what to do. She advised LM to go and tell one of the teachers. LM never went to the teachers and report. She was the one who reported the matter to the principal because she wanted to protect her friends from the employee. She never plotted to get the employee in trouble. She does not have any personal problem with the employee.

13. During cross examination, she testified that she never saw the employee abusing her friends sexually. It was her who reported the sexual assault incidents to the teachers. She went with the other complainant. She does not hate the employee. She had to stand against what the employee did to her friends. The employee used to come to school drunk and would sit with her friends.

The fifth witness/complainant of the employer was Mokgetle Mamadibana Elizebeth. Mokgetle Mamadibana Elizebeth testified under oath that:


14. She was the coopted departmental head since 2021. Her relationship with the employee was good. There was nothing personal against the employee. On the 17th of November 2023, she was called to the principal’s office to discuss the allegations against the employee brought by MD. In the meeting it was herself, the principal, deputy principal, Mam Mohlono, SADTU site stewards, gender convener and SADTU secretary. The principal reported that DM informed him that LM told her (DM) that the employee was always talking about sex with them (LM, TT and RS). LM was also called in the principal’s office and explained that the employee called them to his office and asked them if they know how to have sex. TT also explained that the employee called them and asked if they know sex and he was intending to teach them how to do sex. TT continued to tell them that the employee asked them what they were going to use in the toilet. After that they compiled a report and sent it to Seshego Circuit Offices

15. During cross examination, she testified that she took statement from learners concerned and wrote a report. She only knows what she was explained by the learners and did not know if indeed the employee did it. Learners were called one by one to explain. She knows what LM and TT explained in the principal’s office.

Survey of the employee’s evidence and argument.

One witness, the employee himself testified. Nkgape Clifton Sechocho testified under oath and in English that:

16. He understands the charges leveled against him. He did nothing. He does not know about all the allegations. He did not do it.

17. During cross examination, he testified that he knows RM, LM, TT, and MD as his former learners. He taught them from Grade 5, 6, and 7. He is currently teaching RM social science. He knows RM as a learner like other learners. He does not know any sexual advancement to RM. He never attempted to touch her. He does not know why the learners singled out him amongst all the other male educators at the school. They have other male educators at school. He never showed the learners video in his phone.

Analysis of the evidence and arguments

18. The employer was required to prove on the balance of probabilities that the employee is guilty of all the allegations. I have considered the closing arguments of the parties together with the oral evidence led, in determining the outcome of this matter. The employee was charged with committing an act of misconduct in terms of Sections 17(1)(b) and 18(1)(a) of the Employment of Educators Act, 76 of 1998 in that he committed an act of sexual assault on learners RM, LM, and TT who were then in Grades 5, 6, and 7 at Mmasesha Primary School.

19. It is common cause that the employee was an educator at Mmasesha Primary School and RM, LM, and TT were learners of that school in 2022 and 2023. It is also common cause that the employee taught the learners Social Science and Sepedi in 2023. The testimony of the employer’s witnesses, RM, LM, and TT showed that the employee touched RM’s breasts, showed her people who were naked from his phone and promised to give her R1 000.00 if she could go with him. LM testified that the employee would tell them how people were doing sex and where from the baby is coming. TT’s testimony was that the employee told her how to make a baby. The testimony of MD was in the main about how the matter was reported to the principal. Mokgetle Mamadibana Elizebeth’s testimony was on the meeting in the principal’s office after the matter was reported to the principal. She confirmed some of the evidence led by LM and TT.

20. The employee did not challenge the evidence of all the witnesses of the employer. What he did was just a bare denial of the evidence. He failed to respond to a question as to why the three learners chosen him amongst all the male educators at Mmasesha Primary School as the one who sexually assaulted them. The employee had much to answer, instead of just denying everything said.
21. Based on the testimony of the employer and the bare denial of the employee, I deduced that the employee could have sexually assaulted the learners, RM, LM, and TT. Therefore, I find the employee guilty of Counts 1, 3, 4, 5, 7, and 8 of both charges 1 and 2. He is not guilty of the other counts, 2, 6, 9, and 10 of the two charges.

22. In view of the above analysis, it is therefore my finding that the employer has on the balance of probabilities proved that the employee has committed the misconduct as charged in terms of sections 17 (1)(b) and 18(1)(a) of the Employment of Educators Act, 76 of 1998.

23. Having found the employee guilty as charged in terms of section 17(1)(b) of the Employment of Educators Act, 76 of 1998, the sanction of dismissal is mandatory, irrespective of the mitigating factors. The interest of the learner should prevail. Sexual assault of learners by an educator is not acceptable at school environment. Educators play a role of a parent at school. They must ensure that learners are educated.

24. The parties made submission about the suitability or not of the employee to work with children. The employer submitted that the employee is not suitable to work with children, while the employee did not. Section 120(1)(c) of the Children’s Act, 38 of 2005 makes provisions that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. The employee was found guilty as charged. Considering the above, I make the finding on the unsuitability of the employee to work with the children in terms of section 120(2) of the Children’s Act, 38 of 2005.

Award

25. I find that the employee, Sechocho Clifton is guilty of Counts 1, 3, 4, 5, 7, and 8 of both charges 1 and 2.
26. I impose the sanction of mandatory dismissal with immediate effect.
27. Mr. Sechocho Clifton is found unsuitable to work with children in terms section 120(4) of the Children’s Act, 38 of 2005.
28. The General Secretary of the ELRC must, in terms of section 122 (1) of the Children’s Act, 38 of 2005, notify the Director General: Department of Social Development in writing of the findings this forum made in terms of Section 120(4) of the Children’s Act, 38 of 2005 that Mr. Sechocho Clifton is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.


VICTOR MADULA
ELRC PANELIST
19 August 2024