ELRC1051-19/20GP
ELRC1051-19/20GP
Award Date:
30 November 2020
Case Number: ELRC1051-19/20GP
Province: Gauteng
Applicant: SADTU obo GODFREY MAPHOSA
Respondent: Department of Education -Gauteng
Issue: Unfair Labour Practice - Refusal to Re-instate i.t.o an agreement
Venue: Virtually
Award Date: 30 November 2020
Arbitrator: Gail McEwan
Commissioner: Gail McEwan
Case No.: ELRC1051-19/20GP
Date of Award: 30 November 2020
In the ARBITRATION between:
SADTU obo GODFREY MAPHOSA
(Employee)
and
THE DEPARTMENT OF EDUCATION GAUTENG
(Employer)
Union/Employee’s representative: Thabo Monyatsi (SADTU)
Union/Employee’s address:
Telephone: 083 451 3330
Email: thabomonyatsi@yahoo.com
Employer’s representative: Zakhele Nawa
Employer’s address:
Telephone: 011 736 0736
Email: zakhele.nawa@gauteng.gov.za
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
(1) Arbitration was held on 3, 9, 18, 22 September 2020; 6 and 7 October 2020 and concluded on 18 November 2020. The matter was heard virtually by Zoom with the consent of the parties. Present was Godfrey Maphosa (employee) who was represented by Thabo Monyatsi (SADTU). The Department of Education Gauteng (DOE) (employer) was represented by Zakhele Nawa (deputy chief specialist labour relations). The Certificate of Outcome declaring the matter unresolved at conciliation is on file and is dated 24 June 2020. These proceedings were digitally recorded and the employer sent in a bundle of documents electronically. A Zulu interpreter was present.
THE ISSUE IN DISPUTE
(2) I am required to determine on a balance of probabilities whether the dismissal of Maphosa was fair. SADTU confirmed that the issues in dispute were that the evidence of Maphosa was not considered. The concept of “on a balance of probabilities” was incorrectly applied leading to an incorrect decision. The decision of the chair of the disciplinary hearing had pre-determined the outcome after having refused to recuse herself. The chair had also shown bias against Maphosa and his witnesses. Maphosa is seeking retrospective re-instatement.
(3) I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
THE BACKGROUND TO THE DISPUTE
(4) Maphosa started working for the employer on 20 October 2015; worked as an educator teaching English to grades 8 and 9 and Life Orientation to grade 10; earned R25 020.63 per month and was summarily dismissed on 11 February 2020 facing the following charges:- (i) It is alleged that on or around 23 October 2016 while on duty at the H.B. Nyathi Secondary school, you misused your position as an educator in that you took Precious Zondi to Badanisile Place of Safety without her parents’ consent. In view of the above, you are thus charged in terms of the item 18(1) (g) of the Employment of Educators Act, 76 of 1998 as amended. (ii) It is alleged that during the period September 2016 to October 2016 you have unjustifiably prejudiced the administration, discipline or efficiency of the school in that you had an intimate relationship with Precious Zondi who is a learner at H.B. Nyathi Secondary School where you teach. In view of the above, you are thus charged in terms of item 18(1) (f) of the Employment of Educators Act, 76 of 1998 as amended. The dismissal was done in terms of section 18 (3) of the same Act.
SUMMARY OF EVIDENCE AND ARGUMENT
The employer’s version and testimony was as follows:-
(5) Joseph Ramaboya (now retired but was the Head of Department (HOD) for the subject life orientation in 2016) testified that as well as him being HOD he had also served on the School Based Support Team (SBST) which dealt with learners who were having any problems. On 23 September 2016 Ramaboya was responsible for monitoring late comers. At about 08h30 Ramaboya saw Maphosa leaving the school yard in his car and he had a learner with him. Ramaboya stopped Maphosa to ask where they were going as this was already during school hours. As HOD Ramaboya asked Maphosa how he could do this. Maphosa said it was an emergency and a special case. Ramaboya told Maphosa that this should be done after school and that before he left he needed to get permission from the principal. Ramaboya accompanied Maphosa to see the principal where Maphosa had explained the matter. The principal had said Maphosa could go but needed to return to school that day. It was never explained to Ramaboya what the emergency had been. Maphosa never said whether he had permission from the learners’ parents to take her to the Badanisile Place of Safety (Badanisili). Maphosa was not a member of the SBST and Ramaboya did not know whether Maphosa taught the learner. The school policy is that when any educator leaves the school premises a form is first required to be completed.
(6) Under cross-examination Ramaboya confirmed he was the HOD at the school for life orientation and had been introduced to Maphosa when he joined the school. SBST is there to support learners. Educators not on this team are aware of the type of support that is offered to learners. Ramaboya explained that each grade had a coordinator who disseminates the information to the other educators. Ramaboya had seen Maphosa about to leave the school with a learner in his car which is why he had been stopped. Maphosa had said he was taking the learner to a social worker and Ramaboya had said that this should be done after school. Maphosa insisted on leaving and was eventually given permission by the principal. Maphosa only said that the learner had an emergency case and needed to see a social worker. Further it was put to Ramaboya that he had heard what the matter was about when in the principal’s office. Ramaboya disagreed as Maphosa would not reveal what the emergency was about. It was put to Ramaboya that he could not just let an educator leave with a learner. Ramaboya confirmed he had only spoken to Maphosa when he was leaving the school and did not follow-up with him. The learner was Precious Zondi. Ramaboya realized that there was a problem when Maphosa was called to the district office to explain what happened between him and the learner. Ramaboya was aware of the charges against Maphosa. Maphosa had an affair with a learner but Ramaboya had not personally witnessed this. Ramaboya then read the charges into the record. Ramaboya confirmed that Maphosa had taken the learner to Badanisili without the consent of her parents. The parents had complained to the principal in this regard. The only involvement of Ramaboya was when he stopped Maphosa and the learner from leaving the school that day. Ramaboya was in contact with a social worker and had gone to the Daveyton police station to see the social worker. Ramaboya never said whether the learner had been abused by her father. No social worker had become directly involved in this case. Ramaboya denied that Faith (surname unknown) the resident social worker at the school had been involved. There was nothing added under re-examination.
(7) The next witness for the employer was called but needed the services of a Zulu interpreter. The interpreter had lost connectivity. With the assistance of the ELRC many attempts were made to reconnect with the interpreter. When this failed arbitration was adjourned to continue on both 18 and 22 September 2020. It was confirmed that in total the employer would be calling five witnesses and the employee six. All further witnesses were Zulu speaking.
(8) Agatha Mahlise (principal) testified that she was appointed to her potition in 2015 and held that post when the incidents involving Maphosa happened. Mahlise was in her deputies office on 23 September 2016 when Ramaboya and Maphosa approached as there was an emergency and Maphosa had to take Precious Zondi to the social worker. Mahlise had believed that Maphosa was just going to drop Zondi at the social worker so gave them permission to go. Maphosa had not explained what the emergency had been. Maphosa is not a member of the SBST. Maphosa in 2016 had not taught Zondi. Ramaboya had later explained that he too was unaware of what the emergency was all about. Ramaboya had stopped Maphosa and Zondi from leaving the premises as he needed the permission of the principal. Mahlise was unaware of whether or not Maphosa had permission from the parents to take Zondi to the social workers. There was no school based social worker.
(9) Under cross-exmination Mahlise confirmed that she is aware of the charges against Maphosa in that he took Zondi to the social workers without the consent of her parents. The first allegation was read into the record. Mahlise insisted that the incident happened on 23 September 2016 the day before heritage day and not 23 October 2016. Ramaboya and Maphosa had come into her meeting with the deputies in the administrative office. Mahlise held that the date in the charge is incorrect although Maphosa was not charged with anything for that date. Mahlise, as the principal, reports on issues and had reported that the incident happened on 23 September 2016. Mahlise had a number of interviews on this subject. Mahlise had spoken to Maphosa after the school had re-opened from the holidays. Ms. (first name unknown) Jinika (educator) told Mahlise that she and Maphosa had been verbally fighting over the holidays about Zondi. Jinika said she had reprimanded Maphosa and told him not to become involved with Zondi. It was put to Mahlise that unless Jinika testifies then what was said amounts to hearsay. Mahlise stated that other learners were also aware of the relationship between Maphosa and Zondi. Returning to the first allegation, Mahlise believed that Maphosa had misused his position as an educator when he took Zondi to the social workers. Mahlise had not known about Badanisili. Zondi had said that she did not have a relationship with Maphosa and Maphosa had refused to give the principal his version. It had been the father of Zondi (Lusenga) who had said that Zondi had a relationship with Maphosa. The principal agreed that thereafter no further steps were taken and Mahlise had not been involved in compiling the charges. Mahlise confirmed she had a good relationship with Maphosa. The school gives training every year on the role and functions of the SBST in terms of problems experienced with learners and the action that should be taken. Schools then closed for the holidays and Mahlise would address Maphosa after that. Mahlise never received a report from Maphosa and he had never explained what had happened with Zondi. Mahlise had done what she had believed was in the best interests of the child but had never requested a report from Maphosa. Mahlise had trusted Maphosa and hence had not asked for a report about what emergency he had been dealing with involving Zondi. Mahlise confirmed that it was not difficult being the principal and added that Maphosa had verbal altercations with some of the educators. The matters that the principal had with Maphosa were settled amicably. In re-examination Mahlise confirmed that she had reported this matter but had not been part of the investigation. Mahlise had been consulted in regard to the charges.
(10) At this point I explained to the employer that unless they called Jinika as a witness it may be dtrimental to their case.
(11) Joseph Lusenga (father of Zondi) testified that in 2016 Zondi was living with him. On 23 September 2016 Zondi had told Lusenga that she was going to see the social worker with her teacher. Zondi left home at 08h00 and returned at 17h00 when she was dropped off by Maphosa. Zondi had a packet of hair and body products which she said was given to her by the social worker. Maphosa had said to Zondi that they would return to the social worker the following week. On 30 September 2016 Zondi left home at 08h00 and was later going to see the social worker. In the afternoon Lusenga phoned Zondi who said she was with Maphosa at the Mayfield Square. When asked Zondi had said that she was coming from the social worker with Maphosa. When Zondi arrived home she was carrying KFC (Kentucky Fried Chicken) and a laptop. Lusenga told Zondi that if Maphosa needed his laptop back then he should ask Lusenga as Zondi was still a minor child. On the Saturday Zondi went with a friend to Mayfield Square but Zondi never returned home. Zondi had also switched her phone off. Lusenga had sent her a “please call me” but never got a response. On Sunday Zondi had still not come home so Lusenga phoned her friend Esne Ntantla but she did not know where Zondi was at that time. Four days went by and still Zondi never came home. Ramaboya phoned Lusenga and said that Zondi was with Maphosa. It then came out that there was a charge of rape against a man but Zondi had never told Lusenga. Between September and October 2016 when the school was closed for a week, Maphosa brought Zondi to Lusenga to explain why she had not been at home and to say they were sorry. Maphosa reported that Zondi had been raped but Lusenga was not given the name of the man who raped his daughter. Zondi, Maphosa and Lusenga all went together to the police station. Lusenga never heard what was said to the police. In the second week of October 2016 school re-opened and Zondi went to school but had never returned home. Lusenga was in Johannesburg with a cousin when he received a call from the police who accused Lusenga of abusing his daughter. The police said that Zondi was in a place of safety where Lusenga was not allowed. Lusenga was aware of the place where Zondi had been taken. Lusenga went there just to see how Zondi was living. Maphosa even took Zondi out and she would return at night. Lusenga was never arrested and had been to see the police. (Lusenga was reading from notes he had made in 2016 and a copy of these notes in Zulu was sent by email to SADTU.) Maphosa never asked Lusenga for permission to take Zondi to a place of safety. Lusenga was told he could not see Zondi until she had finished writing her examinations. School re-opened and Lusenga was having difficulty finding that same police officer. Lusenga went to the school to see the principal. Zondi had now not come home for three years. Zondi now had a baby and Lusenga only sees what she posts on Facebook.
(12) In cross-examination Lusenga empasized that Maphosa had taken Zondi away from him. Zondi no longer lived with Lusenga and currently lived together with the baby and the father of her baby. Zondi was taken to Badanisili in 2016 by Maphosa and that had been done without the consent of Lusenga. It was put to Lusenga that he never complained when Maphosa took Zond to Badanisili. Lusenga countered and said he had not known where to complain although he had reported the matter to the school principal. It was put to Lusenga that he went along with what had happened as he had accompanied Maphosa and Zondi to the police station. Lusenga explained that Zondi had slept out for four days and he had a problem with Maphosa taking Zondi to the social workers. Lusenga had reported that matter to the school and showed what Maphosa was doing. Zondi had told Lusenga that she was going to the social workers with Maphosa. Lusenga explained that the problem arose when Zondi never came home. Zondi had said that there was a man abusing her. The first time Zondi went to the social workers Lusenga was okay with that but then Zondi had been put on the wrong path. It was put to Lusenga that he knew what Zondi was doing all along and had gone along with what was happening. Lusenga said that he had been aware of the first meeting with the social workers and Zondi had told him about that meeting. The second visit was on 20 September 2016 which was also the day he, Zondi and Maphosa had gone to the police station. Maphosa had driven Lusenga and Zondi home. It was put to Lusenga that this was untrue and Maphosa had left them both at the police station. Schools re-opened on 16 October 2016 but still Zondi never came home. Maphosa took Zondi to Badanisile on 24 October 2016 (as confirmed on ER bundle page 3). It had been the police who took Zondi to the home and Maphosa was with them. It was after that that Maphosa said he was taking Zondi to a social worker. Zondi was in a relationship with Maphosa. It was put to Lusenga that he had no knowledge of the first charge against Maphosa. Lusenga said he had no knowledge of Badanisili and was unaware of where the social workers were based. On 23 September 2016 Maphosa had said he was taking Zondi to see the social workers. It was put to Lusenga that the principal had made up the allegations against Maphosa which was denied by Lusenga. It was put to Lusenga that Maphosa had said he was taking Zondi to Benoni to the social workers. Lusenga did not recall Maphosa mentioning a specific place of safety. It was put to Lusenga that the principal had given Maphosa her permission to take Zondi to the social workers. Lusenga stated that he had only found that out when the schools had re-opened. It was put to Lusenga that the principal gave her permission then charged Maphosa with the misuse of his position. Lusenga agreed that Maphosa had misused his position as an educator as what he did was not correct. The first time Lusenga had seen Maphosa was when Zondi returned home with the KFC and his Laptop. Lusenga had sensed something was wrong as school had closed and Zondi was brought home with the laptop belonging to Maphosa. Lusenga had a big problem with Maphosa giving Zondi his laptop which is why he told Zondi that Maphosa shoud only collect the laptop from him. Zondi had told Lusenga that she had been at the residence of Maphosa when Maphosa and his wife came to fetch the laptop. This had happened in October 2016. In terms of the second charge Lusenga had trusted the school to keep Zondi safe and when Zondi never returned he felt very disappointed. Lusenga could not say if they had an intimate relationship and he had not raised that with the school. Lusenga could not recall if he had met with Maphosa on 12 September 2016 at the golf course where he returned the laptop to Maphosa. It was put to Lusenga that he had appologized to Maphosa that day as he never had the laptop that day. Lusenga could not recall. Lusenga explained the first big problem had been Badanisili and at first it was an educator asissting Zondi. Lusenga had no knowledge of the second charge as the school had not consulted him in that regard. The school had called Lusenga as Zondi was not in class. It was put to Lusenga that the behaviour of Zondi was due to his bad parenting. Lusenga explained that he was a single parent and Zondi had first come to live with him when she had been under the care of social workers.
(13) The employer with Lusenga lost connectivity at 12h55. I made several calls to the employer who said they were trying but IT was not in the building and they were having difficulties. I sent the link again to the employer several times but they were still unable to re-connect. It was decided at 13h45 that there was no point in the employee party, the interpreter and I waiting for the employer any longer and arbitration was adjorned.
(14) Arbitration continued on 22 September 2020 and SADTU confirmed they had no further questions for this witness. In re-examination Lusenga denied that when at SAPS he gave Maphosa permission to take Zondi to Badanisili. Lusenga confirmed he had never been charged with abusing Zondi. In answers to questions of clarification from me Lusenga explained that he is separated from his wife. The father of the baby Zondi had given birth to was Thulani (surname unknown). At the time of the incidents Zondi was sixteen years old. Lusenga had been and is still unemployed.
(15) Nompulelo Dlamini who had witnessed some of the incidents testified that she is now eigtheen years’ old. In 2016 Dlamini was in grade 10 and knows Zondi as they were class mates. Dlamini had seen Maphosa in class and when he with Zondi went to lunch together. Dlamini had also seen them both at the shopping mall where they had been holding hands. (The interpreter had lost connectivity and it was disputed that Dlamini had said she saw them holding hands.) I do not speak Zulu so was unable to say what had been said by Dlamini.) Dlamini added that she had seen them at the Mall over a weekend.
(16) In cross-examination Dlamini became very confused about how old she had been in 2016. Mathematics confirms that Dlamini was fourteen years’ old in 2016. Dlamini had seen them at the Mayfield Square Mall. Maphosa came often to their class to fetch Zondi to go to lunch whilst other learners were still in the class. Maphosa and Zondi were never seen leaving the school grounds and only met at the breaks. Dlamini had never followed them and it was put to Dlamini that she therefore cannot say where Maphosa took Zondi. At this point we again had no interpreter as she had lost connectivity and it was disputed as to whether or not Dlamini had said they bought a cool drink at the tuck shop.
(17) The audio of the employer which was being used by the witness was barely audible and the connectivity of the interpreter was a serious draw back. It was decided that arbitration would adjourn at this point and continue on both 6 and 7 October 2020 at 09h00. The parties were asked to be punctual and Nawa was cautioned that he needed to find a better audio connection for when arbitration proceeded. The same was applicable to the connectivity issues of the interpreter. Nawa confirmed that we needed to conclude the evidence of Dlamini and he had one more witness. SADTU confirmed that they had five witnesses.
(18) Cross-examination of Dlamini continued on 6 October 2020. Dlamini confirmed she was a learner in grade 10 in 2016 at H.B. Nyathi Secondary school. Dlamini and Zondi were in the same class and at lunch breaks Dlamini saw Maphosa coming to fetch Zondi to go to buy lunch. Dlamini knew this as she saw them returning from the shop with a food parcel. Dlamini never followed them to see where they went and as they both returned with food, she was sure about where they had been. Dlamini had never seen them eating together and could not say whether or not Maphosa paid for the food for Zondi. Zondi used to say that she had no lunch money but would return carrying lunch with Maphosa. Dlamini never saw Maphosa giving lunch to Zondi but it was not possible that another person bought the lunch for Zondi. Maphosa would appear in the classroom at lunch time, leave with Zondi and they would return with lunch. This happened several times and several others in the class also saw this happening. Dlamini, if she had thought it strange had never reported what happened to anyone as she felt it was none of her business. It was put to Dlamini that she is now testifying but had never actually seen Maphosa buying lunch for Zondi. It was put to Dlamini that her story is made up to suite those for whom she had been asked to testify. Dlamini denied this and said she had not been influenced in what to say at arbitration. Dlamini was unaware that Zondi had been housed in a place of safety. Dlamini explained that Zondi had been absent for a period of time and this had happened more than once a week. Dlamini could not say whether Zondi had an intimate relationship with Maphosa. Dlamini had only seen a learner with an educator both at school and at the Mayfield Mall. Zondi had been walking and holding hands with Maphosa. They had been in public when holding hands and they were seen on a Saturday. Dlamini knew at that time the schools were closed but could not recall the month that she saw them both. It was put to Dlamini that this was untrue as Maphosa would drive home to Mpumalanga during school holidays and Dlamini insisted on what she had seen in the school holidays. Dlamini was not far from them and was walking in their direction. They had seen Dlamini although none greeted the other. Dlamini was told her version is untrue and insisted she knew what she had seen. The meaning of an intimate relationship for Dlamini meant that they were dating. Dlamini only saw Maphosa and Zondi together at school and at the Mall. Both were only seen together during breaks at school. In terms of the culture of the school, Dlamini thought it was out of the ordinary for an educator to collect a learner during the break. Dlamini confirmed that she had been unaware that Maphosa works part-time for the radio station Iktandi FM 107.9 as a freelancer over weekends. In re-examination Dlamini confirmed she had seen Maphosa directly at the Mall. Zondi is aware that Dlamini had seen them together at the mall.
(19) Gerald Malefa Mothlaping (had been the deputy principal at H.B Nyathi Secondary School in 2016). Maphosa had been an educator at the school and after the school holidays in September 2016 Mothlaping had a discussion with the principal regarding the relationship between Zondi and Maphosa. The principal had said she wanted to charge Maphosa and required a statement from Zondi. Mothlaping went to the classroom to call Zondi and found she was not in the classroom. Learners, who were in the classroom, told Mothlaping that Zondi could be found in the adjacent classroom. Mothlaping went there and found Zondi and Maphosa sitting alone in the classroom. Mothlaping told Zondi the principal needed to see her and when Zondi went to the principal Mothlaping had not been present.
(20) In cross-examination Mothlaping confirmed that he had been aware that Maphosa was to be charged with misconduct and at that time the matter was still under investigation. The principal had written a statement about the improper relationship that Maphosa had with Zondi and Mothlaping had not seen the statement when it had been completed. Mothlaping had no further involvement in this matter other than to have delivered the message to Zondi to see the principal. Mothlaping was aware that Zondi was being abused as he heard this from Zondi when the principal had Ramaboya, Maphosa and himself in the admin room. The information that Maphosa was assisting a child who was being abused was relayed to Mothlaping. Maphosa had come to report this abuse of his own accord and this may have been just before the school holidays and before the lunch break. No-one said anything except that it was okay for Maphosa to help Zondi. Both Ramaboya and the principal gave Maphosa their consent. Mothlaping had no knowledge of the charges and said he had never seen Maphosa and Zondi when they were together. It had only been the principal who told Mothlaping about the allegations made. Jabulani Simalani (educator but now retired) had said there was an allegation about Maphosa having an improper relationship with Zondi. Simalani had got this information from Simegele Jinika (educator) although she had not been interviewed. Being part of management Mothlaping had treated the information as hearsay and it had been the principal who investigated the matter and held the interviews. Mothlaping had not seen any improper conduct during the school hours. In re-examination Mothlaping confirmed that the other learners in the classroom had known exactly where he could find Zondi when she had not been in the classroom as expected.
(21) At this time I again cautioned the employer that their failure to call Jinika may be detrimental to their case. Nawa explained that she no longer resided in Davyton, had resigned as an educator and they had been unable to make any contact to get to come to arbitration.
The employee’s version and testimony was as follows:
(22) Precious Zondi (a learner at the school in 2016) testified that she came from an abusive background and she had started living with Lusenga in 2012. Zondi whilst living with her mother had been raped more than once so had relocated to Davyton where she started living with Lusenga. Zondi was unable to speak up about the rapes as it was too difficult for her and hence had started writing everything down that bothered her. Zondi did tell Lusenga everything and he had tried to get help for her. Lusenga had lost his job so referred Zondi to a social worker from whom Zondi received food parcels to survive. Zondi explained that her father was very difficult at times. Zondi started at H. B. Nyathi Secondary School in 2015 when her problems got worse. Zondi went to the Church called House of Glory International which was led by the prophet Clive Botha. Zondi felt free to speak to Botha and other congregants but then Lusenga accused her of having an affair with Botha when Zondi had started attending night services. The Church services at night were from 18h00 to 20h00 and then at midnight Zondi had to say prayers. Lusenga then stopped Zondi from going to Church as he had problems with her routine in this regard. Zondi had been close to Victor (her uncle) and at the time was entering puberty and needed feminine hygiene products. Zondi had not been able to speak about these needs with Lusenga so had used cloths to protect herself during menstruation. Lusenga then turned on Zondi accusing her of having an affair with Victor. Thereafter Lusenga started to beat Zondi and during one such beating Zondi managed to record what was happening and sent this to Victor. Zondi came across Maphosa at school after she had been cut off from Victor. Lusenga deeply humiliated Zondi as he allowed others (friends and other learners) to see the cloths used and other private things which Zondi had not wanted anyone to see. Her friend Noxola Mabene tried to assist Zondi and advised her that Maphosa had helped her when she had suffered similar problems with her mother and she told Zondi to approach Maphosa to avoid making incorrect decisions. Zondi explained her problems to Maphosa which led to some of her class mates insulting Zondi. Simegele Jinika (educator) had joined in insulting Zondi. Everyone at the school was aware of the issues of Zondi and some educators never wanted to teach Zondi. Zondi visited a social worker named Faith (surname unknown) who said she would come back to Zondi but this never happened. On 23 September 2016 Zondi told Maphosa she was worried and then she was referred to another social worker. Zondi had been referred to Ramaboya by Maphosa to assist Zondi but he had said his hands were tied. The time was around 10h30 (almost break time) and then Maphosa went to see the principal but Zondi stayed waiting for Maphosa to return. Ramaboya had also gone to the principal and Zondi had the impression that Maphosa was then given permission to take Zondi to the Rape & Trauma Centre. On arrival at the Centre Zondi spoke to a lady who said they could not assist rape victims without a case number from the South African Police Services (SAPS). Zondi had to open a case with SAPS before she could receive any help. Zondi had not wanted to involve SAPS but she had to get a case number (referred to as an “OB” by Zondi). On 30 September 2016 Zondi, accompanied by Maphosa, went to SAPS to hand in a statement she had written. Lusenga was aware that Zondi and Maphosa had gone to SAPS and after the case was opened they returned home at a time when Lusenga and Victor had been playing chess. Lusenga was happy that Maphosa was helping Zondi. Later that day Zondi had to return to SAPS and Lusenga was aware that Maphosa would be taking Zondi there. Zondi had always reported everything to Lusenga. On arrival back at SAPS Maphosa was in a rush as he had to collect his wife so he left. Maphosa and his wife had been present on 30 September 2016. Zondi had told her father when they were on their way home after which she would explain everything to him. Lusenga had thanked Maphosa for assisting Zondi.
(23) Zondi explained that she and Lusenga argued which ended with him chasing Zondi away so she went to stay with her friend. Lusenga tried to talk to Zondi on 13 October 2016, had shown remorse towards her, Maphosa and Mabene. Lusenga complained at the school and told them that Zondi was dating teachers. Zondi entered Badanisile Place of Safety (Badanisile) on 17 October 2016 after she had spoken to Maphosa as Lusenga had been abusing her. Zondi was unable to study as Lusenga switched off the lights. Lusenga and Zondi were fetched by Maphosa and they went to SAPS where Constable Khumalo assisted them as Zondi wanted to go to Badanisile until she had finished writing her examinations. SAPS told Lusenga to allow Zondi space to study and write the examinations. Lusenga had said it was okay for Zondi to go to Badanisile as when they were at home they kept arguing with each other. Maphosa was present when Lusenga said Zondi could go to Badanisile and Maphosa had then excused himself and then Zondi was alone with Lusenga. Once at Badanisile Lusenga was allowed to visit Zondi. Zondi was escorted to Badanisile by two members of SAPS and a further 2 members escorted Lusenga back to his home. All this was done in the presence of Lusenga and he had agreed that Zondi could go to Badanisile. Lusenga visited Zondi frequently at Badanisile and when her shoe broke Lusenga had taken it to have it repaired. Victor had said that Zondi should have a phone; on her birthday on 4 November 2016 Lusenga took Zondi out that day having begged to be allowed to do that and she had only returned the following day. Zondi was only allowed to leave Badanisile for school and then the gates would be closed. Maphosa had never visited Zondi at Badanisile. Zondi stayed at Badanisile from September to December 2016 when Lusenga fetched her on 5 December 2016 and took her home. It was untrue that Maphosa would fetch or visit Zondi at Badanisile as this was not permitted as no-one there could come and go as they please. Zondi was unsure whether SAPS registered her with Badanisile and then was told that she had been registered. On 3 September 2016 Zondi had wanted to borrow the laptop belonging to Maphosa so that she could write her novel and Maphosa had agreed. The book she was writing was to be about the things which Zondi had had to face as people are careless to the word of God. Lusenga saw the laptop and Zondi said it was on loan from Maphosa. Zondi showed the laptop to Lusenga and had mistakenly taken a photograph of herself. That was the only photograph of Zondi on the laptop and it was untrue that there were other photographs of her allegedly taken at the home of Maphosa. Zondi had never been to his home. On 3 October 2016 Zondi, Victor, Ntumi (friend’s brother) and Lusenga were at the golf course as Lusenga wanted to ask Zondi to come home. Lusenga had apologized in that he had thought Maphosa had taken Zondi which was not true. Lusenga was present when the laptop was returned to Maphosa. Zondi denied that she ever had an intimate relationship with Maphosa; had not thought about him in that way and had rather related to Maphosa as father figure. Maphosa had been willing to assist Zondi and gave her the correct advice. Outside of school Zondi had only accompanied Maphosa to the golf course, the Trauma & Rape Centre and to SAPS. Zondi had never been alone with Maphosa at any other place. On 30 September 2016 when Zondi lent the laptop they were on their way home from therapy when Itu Moragi (the fiancé of Maphosa) had said she was hungry so they bought KFC chicken. Zondi had eaten and asked if she could take the leftovers home for Lusenga. Maphosa had never bought lunch for Zondi. Lusenga had lost his job in 2012 and she was raised by Lusenga, Victor and by herself. Zondi again denied she had ever had an intimate relationship with Maphosa and explained that it had been Lusenga who started those rumors which were not true. Zondi was not aware of any letter written by Badanisile.
(24) In cross-examination Zondi confirmed that before going to live at Badanisile she had not previously met Ms. Tshabalalala (owner and Founder of Badanisile.) Zondi confirmed she had been taken there by two SAPS officials who had left the police station at 17h00. When the second paragraph of the letter from Badanisile was read Zondi said it was incorrect to have stated that Zondi went to stay there on 24 October 2016. Zondi was resolute that she first came to stay at Badanisile on 17 October 2016. Tshabalala (called “Gogo” by her staff and those in the shelter) had not been present when Zondi arrived and two other females were present. Zondi confirmed that there were 8 days between 17 October 2016 and 24 October 2016 at which time Zondi had been living there since the former date. Zondi did not believe that Gogo would lie but the date she arrived was not 24 October 2016 but 17 October 2016. Zondi explained that she would not be forced to agree with a letter that had been written in her absence. It was put to Zondi that Gogo would not lie and Zondi countered that Gogo was not present when she arrived at Badanisile. Zondi eventually stated that her final answer is that she arrived at Badanisile on 17 October 2016. Zondi was asked if it were possible that anyone might have thought that Maphosa as her educator was present that day. Zondi explained that Maphosa was not present when she was taken to Badanisile. Lusenga was at all times aware that Zondi was at Badanisile, had taken her shoe for repairs on one visit and had also taken Zondi out for her birthday. Zondi was unaware of any documents in regard to parental consent as she had been brought to Badanisile by 2 officials of SAPS. Lusenga and SAPS had agreed that Zondi should stay at Badanisile. Zondi confirmed that she had never met with SADTU before arbitration; she was telling the truth and no-one told what she had to say. Zondi felt that Nawa was not listening – on 17 October 2016 when they were at SAPS Maphosa had left and two officials escorted Zondi to one place and two others took Lusenga home. It was put to Zondi that Lusenga had said that when at the police station Maphosa plus Zondi had been far away and Lusenga could not hear what was said. Zondi corrected this by saying that Maphosa left; she and Lusenga were sitting together. At the time only Lusenga and Zondi were at the police station. Lusenga had never wanted everyone to know that he was abusing Zondi and hence he had started all the rumors such as Zondi was having an affair with Victor and then with Maphosa. Lusenga had gone to the school as a parent to complain that Zondi was a troublesome daughter which is why Jinike and other educators had bad mouthed Zondi. Lusenga had started those rumors as when out he stopped her friends and asked if they knew that Zondi and Maphosa were dating. Others saw Zondi as troublesome as it was alleged she was dating Maphosa but Zondi only saw him as a father figure. Zondi was not aware of everyone who had thought badly of her as she was unaware of who all had heard the rumors started by Lusenga. It was put to Zondi that there were more than 1060 learners at the school and out of that total Zondi was unable to give a total of the number of people who had bad mouthed her and added that there was a lot of bullying at the school. Zondi could also not say who liked or did not like her at school. Zondi clarified that the rumors started by Lusenga about her had not been true. Zondi had sought refuge at the home of Mabene when she was being abused by Lusenga. Lusenga, when Zondi was not home, would arrive at the home of Mabene to fetch Zondi to take her home. In 2016 Zondi had also stayed with her sister in Thembisa and then had to leave as Lusenga had shouted at her sister. Zondi had also lived for a while with her aunt and again Lusenga had caused problems which resulted in Zondi having to move out. Zondi had to live in different places due to the behavior of Lusenga. Zondi confirmed that she was being honest and it was Lusenga who was in the wrong. Zondi explained that Lusenga had bad mouthed her so she would never leave his home. Zondi was told that the principal spoke badly about her and Zondi explained that this was because Lusenga had put dirty linen into public view but not everything he said was true. When the principal had chased Zondi away she had sent an email to the district office. Zondi had been absent on a number of days and representatives from the district office then visited the school. Zondi met with the principal who had asked Zondi why she was so dirty and troublesome. Zondi was scolded by the principal based on the rumors started by Lusenga. Jinike had called Zondi to her classroom where she was told that Maphosa would lose his job due to the behavior of Zondi and had added that Zondi should behave like a lady. Zondi tried to focus on her studies and going to church. Everyone had been shocked by the rumors even Jinika and Similane had also heard about the alleged relationship with Maphosa. Zondi knows how she conducts herself and the others were only taking the rumors started by Lusenga into account. Zondi was the victim in all of this. On 23 September 2016 Zondi had never heard what had been said to the principal when Ramaboya was present as Zondi had sat outside. Ramaboya had never stopped Maphosa and Zondi from leaving the school grounds. It was put to Zondi that Ramaboya had testified that they were stopped and Maphosa had said there was an emergency which is why he was taking Zondi. This was denied by Zondi who explained on 23 September 2016 there had been no emergency. After Maphosa spoke to the principal Maphosa took Zondi to the iThemba Rape and Trauma Support Centre (iThemba) where Zondi spent two hours only as she needed to open a case with SAPS before they could assist her. Zondi was taken to SAPS which was for about an hour and Zondi was home by 16h00. That morning Maphosa only met with Zondi at about 10h00 and not at 08h30. Zondi had been given a “hamper” of ladies products (such as sanitary towels, soaps and such like). Zondi had her own KFC and gave the left overs to Lusenga and Zondi added that she had not made this up – it is what happened. Zondi never asked Maphosa to buy food for her father and had only asked to take him the left overs. Lusenga sometimes tells the truth but when he feels under pressure this is what results in him reporting untrue and often bad things about Zondi. What Lusenga had said in the rumors was not true. It was never said that Lusenga trusted Zondi and hence the rumors were started by him as he was under pressure as he abused Zondi. On 23 September 2016 Zondi went for counselling, was at SAPS because she had suicidal thoughts as her situation was bad. Zondi could not be assisted further without a number from SAPS. An OB (Occurrence Book) number was written on a scrap of paper for Zondi and she was told to keep that number in a safe place. Zondi confirmed that she had no documents in this respect as she had only received counselling. iThemba had not given any documents to Zondi and she had only received the gift “hamper”. Zondi stated that SADTU during their investigations had been given the OB number. Zondi confirmed she had received the OB number on 30 September 2016. On that day Zondi had left home at 09h00 when she had been fetched by Maphosa and had returned home by 17h00. They went to SAPS to talk to Sargent Nbele and had waited for him for seven or eight hours. At SAPS Zondi had been put into a room to speak with Nbele and once he arrived they had spent time talking. Zondi confirmed that she had phoned Lusenga about the key to the house and Lusenga had not lied as he was at Zenzele but it had been Zondi who phoned and not the other way around.
(25) The testimony about there being a photograph of Zondi on the laptop belonging to Maphosa was not true. Zondi had never been to the house of Maphosa let alone sat on his bed. The only photograph taken had been when this was done mistakenly when Zondi was showing the laptop to Lusenga. Zondi said she was telling the truth, Nawa was hearing her version for the first time but was not listening. When entering the room for arbitration Zondi had seen the deputy principal on the screen as she was at the office of the employer; Zondi sat down with her child and the laptop had been far away from where Zondi had sat. It was put to Zondi that the evidence of Mothlaping had been that the principal had sent him to call Zondi but she had not been in the classroom as was expected. Mothlaping had been directed to a different classroom where he had found Zondi sitting alone with Maphosa. Zondi said that she left the classroom as she was crying and had no-one with whom to speak. Zondi when speaking to or being with Maphosa had never tried to hide and some of the learners were aware of what Zondi was going through at the time. It was put to Zondi that everyone knew about her relationship with Maphosa to which Zondi responded that she could not say as she never had a relationship with Maphosa. Lusenga would make sure that Zondi had lunch or she could go the feeding scheme to get food. Noxolo Mabene was the best friend of Zondi and Zondi had never received any special treatment. When Zondi was very young she had not lived with Lusenga and only started living with him in 2012. Previously Zondi had lived with her grandmother and then her mother. When not living with Lusenga, Zondi had written him letters and it had been Lusenga who had then referred her then to a social worker. Zondi attended a five day workshop and had not had any counselling. That had been held with others who had problems and was a time to forget all the problems.
(26) In re-examination Zondi confirmed that Lusenga never called when she was with Maphosa and there were no photographs as alleged of Zondi sitting on a bed in his house. Zondi confirmed that she had been called to see the principal and stopped when writing the Life Orientation examination. Zondi had been fetched by Mothlaping and was told by the principal to write down what happened regarding the alleged relationship with Maphosa. Her friends Mabene and Ndemiso had been asked to do the same thing. Zondi had written that there was no relationship between her and Maphosa. It was a learner speaking to an educator only and had never been more than that. Lusenga had been aware when Zondi went to Badanisile and there had never been an intimate relationship with Maphosa. Maphosa had never bought lunch for Zondi who had treated Maphosa as a friendly father figure. Zondi agreed that Lusenga had acted irresponsibly, she had lost everything, and had thought Lusenga would protect her but he never did. Lusenga had disappointed Zondi as she got hurt due to his behavior. Zondi had not completed school and is no longer a student. Zondi did not get her matric due to the false allegations made. In answer to questions of clarification from me Zondi confirmed that her daughter is two years old and they live with the father of her child – Thulani Luel. During her time at school Zondi had been very clever; she got on with the teachers and thought she would make it through to finish matric. Zondi thought she had lost everything.
(27) Noxolo Mabene (now 19 years old had been close friends with Zondi at school) testified that she was the person who advised Zondi to seek assistance from Maphosa. Zondi told Mabene everything and the problems that Zondi was undergoing were discussed. Zondi had problems with Lusenga and Mabene had similar problems with her mother. Both had disagreed with their respective parent. The reason Mabene told Zondi to speak to Maphosa was that he had helped Mabene with her problems regarding her mother. Zondi had been specific about her problems which Mabene felt she could share. Zondi just had not been good enough for Lusenga and he even accused Zondi of having affairs with men at the church. Mabene had told Zondi about the help that Maphosa had given to her. Zondi was referred to therapy and had also been placed in Badanisile where she had stayed for a period of time. Lusenga had gone to visit her and was aware of where she lived. Mabene was aware that Maphosa had been charged by the Department of Education. Maphosa took Zondi to Badanisile and Lusenga was aware as he had to have given consent. Zondi had felt that she was not safe as when she was trying to study to write her examination Lusenga would taser Zondi which is why she needed to live in a safe place. When Lusenga would chase Zondi away she would come to stay at the home of Mabene. Mabene could not recall the exact dates but it happened mainly in September to October 2016 amongst other times. Mabene recalled a date of 30 September 2016 as Zondi stayed with Mabene for a longer period of time than was usual as Zondi was very sad. Zondi had overstayed as Lusenga had chased Zondi away again and told her that he never wanted to see her again. Lusenga was moody and when his mood changed he became a different person. Zondi that time had stayed with Mabene for two weeks. Her brother and Zondi had gone together to the golf course to meet Lusenga to find out where Zondi would live. There had been a rumor that Zondi was having an affair with Maphosa. Lusenga had apologized to Maphosa for his having falsely accused him of the affair. Lusenga had been aware that he was wrong. Zondi did not return after that to stay with Mabene who did not know what happened. Mabene was aware that Zondi had been put in a place of safety and that Lusenga still had contact with Zondi. Maphosa had assisted Zondi to get through that process when he took her to SAPS and then SAPS took her to the safe place. Zondi never had an intimate relationship with Maphosa as he was seen like a father figure to the learners. Maphosa had never treated Zondi differently than other learners as he assisted them a lot. Maphosa had helped Zondi in a similar manner to the help he gave to Mabene and some others. Maphosa was different to other educators as he listened and took what he was told seriously. In the unlikely event that Maphosa had a relationship with Zondi, Mabene was confident that she would have known. Mabene was aware that Zondi lent a laptop from Maphosa so that she could write a book and had no further knowledge regarding the laptop. Zondi had only ever gone with Maphosa to public places like SAPS. Zondi had never shared any intimate details between herself and Maphosa. Zondi had told Mabene about other relationships she had like for example with an educator from the school – Mr. Sinuvio Mabambo. Mabene was not aware that Lusenga had made a complaint at the school but was aware that he had falsely accused Zondi of having an affair with Maphosa. At school a leaner had been sent to call other learners who were friends with Zondi to go to the principal’s office. The principal made those learners write letters about their friendship with Zondi and any misunderstandings. Friday 30 September 2016 Maphosa and Zondi had a disagreement, Maphosa dropped Zondi off at her home and Lusenga chased Zondi away. Zondi had then spent the weekend with Mabene.
(28) In cross-examination Mabene agreed that Zondi and Maphosa went to public places and had gone to Mayfield Mall during the week. Maphosa would take Zondi to the Mall after her therapy session. Zondi had never said that she and Maphosa were intimate and Mabene believed that Zondi would have told her if this was true. Mabene was not aware of how many therapy sessions Zondi had attended. Mabene confirmed that Lusenga was aware that Zondi was living at a place of safety as Zondi had said Lusenga had given his consent in this regard. Lusenga was aware of what Zondi was facing and why she was taken to the place of safety by SAPS, Maphosa as well as Lusenga.
(29) In re-examination Mabene agreed that Zondi was taken to the Mall by Maphosa after her therapy session during the week. Zondi had said that Lusenga was aware of where she was being taken. While at School Zondi had told Mabene about what happened when she was taken to the safe place. Zondi said she had started at SAPS and was then taken to the safe place. Lusenga was aware of the safe place and agreed to Zondi going there to be safe. Zondi had said Lusenga was present so Mabene was aware that Lusenga knew what happened.
(30) Berlina Tshabalala (founder and owner of Badanisile Place of Safety) testified that she provides refuge to abused children and women. Zondi was a child who had been brought to them by SAPS although Tshabalala was not present when Zondi arrived. It had been reported to Tshabalala by Rhoda Maphefo (an assistant) that a new child had been brought to them. The day after the arrival of Zondi, Tshabalala learnt that Zondi had been escorted by two officials of SAPS. There had been no-one else present with Zondi when she arrived. Zondi had come from Lusenga’s house and he used to come to visit to check she was safe. When a new comer arrives at Badanisile an intake letter is completed where the history of that person gets written down. The facts in the letter are privileged and may not be shared with anyone. All in the Centre are registered in the OB (occurrence book) held at the Centre and the contents of this register may also not be shared with others. Those seeking safety due to abuse are generally brought in by SAPS. At Davyton two SAPS officials usually do this and the female is named Lizzy (surname unknown) who is always accompanied by a male official who usually drove the vehicle. Lizzy is reflected in the register as the person who brought Zondi into the Centre. Lusenga had visited Zondi the next day to see that she was safe. Lusenga came to the Centre many times and had even helped with the garden. Lusenga had only taken Zondi out once for her birthday and had also taken her shoe to be repaired. Zondi went to school daily and there were other children so that they walked together in safety. Tshabalala explained that Zondi had been raped five times and had to always be back at the Centre by 18h00 when the gates were closed. Zondi had been very open with her and had told Tshabalala everything. The principal and another female had visited the Centre and had come to ask how Zondi behaved. Tshabalala told them that Zondi was well behaved. The Department of Education had never contacted Tshabalala to ask for proof that Zondi was in the Centre although a male came one time who turned out to be Victor – the uncle of Zondi. Maphosa had never come to the Centre. Tshabalala stated that another male had come and that he was present at arbitration. That person was identified as being Nawa who denied it had been him immediately. When shown the letter in the bundle from Badanisile Tshabalala recognized the letterhead and stamp of the Centre but had no knowledge of the contents of it or who had written that letter. Although the letter purported to be from Tshabalala she denied ever seeing this letter previously. Tshabalala usually writes out her full name as her signature so she had not signed that letter and held it to be fake. The NPO (Non-profit organization) number on the letterhead was correct but on the stamp from the Centre the NPO number had been crossed out and the correct number was hand written. Tshabalala confirmed that Maphosa had never come to the Centre to visit or take Zondi out. Tshabalala only met Maphosa during the hearings. When it had been time for Zondi to leave she had been collected by Lusenga. Tshabalala agreed to make the documented registration of Zondi in the Centre available to SADTU who would forward copies to me and Nawa. In answer to a question in clarification from me it was confirmed that the employer had placed the Badanisile letter into the bundle of evidence.
(31) Cross-examination commenced with Nawa stating that he wanted to investigate the NPO number as the Centre was funded and the NPO number needed to be verified. Tshabalala agreed to send in her registration paper which SADTU would circulate to Nawa and myself. Tshabalala confirmed that it was not her signature on the letter. Lizzy is based at SAPS in Davyton and is married. Nawa stated that he is married to Ntombi Masibuku who is the blood sister of Lizzy. Nawa confirmed that Lizzy is an administrator and not a police officer. Nawa was reminded that he needs to put questions to the witness. Tshabalala confirmed that Lizzy is based at SAPS in Davyton and brings woman and children to the Centre. Tshabalala confirmed that she was not present when Zondi had been brought to the Centre. At the time when Zondi arrived Mapife Ifo had been in charge. All documents relating to those in the Centre are kept in the office of Tshabalala, are secured and only she had the keys to her office and files. Tshabalala confirmed she had never written the letter in the bundle of documents and that she had not been present when Zondi arrived. Tshabalala confirmed this was the truth and that Zondi had been accompanied by two officials from SAPS. Tshabalalala could not say if the other official was Khumalo. It was put to Tshabalala that her evidence is hearsay as she had not been present when Zondi arrived and therefore could not say whether or not Maphosa had been present. Tshabalala confirmed that the social workers take care of the compliance to any Acts or law. Tshabalala confirmed that no documents were submitted as SAPS does not bring any documents with a child entering the Centre. The Centre is a shelter and people may be admitted without documents but when a person transfers from one shelter to another then documents are provided. Usually when a child is involved with some domestic disturbance at their home the police officials will bring them in but there are no documents. As the Centre is not an orphanage there was no need for any documents when Zondi entered the Centre. It was put to Tshabalala that the information in the letter purported to be from her was disputed and she was asked who else would have had access to the information to have written the letter. Tshabalala stated that she had no knowledge about the letter and that as no documentation was required there had been no need for her to investigate anything in regard to the admission of Zondi to the Centre. It was put to Tshabalala that only those present when Zondi arrived at the Centre would have had access to the information which is recorded in the disputed letter. Tshabalala stated that Mapife was present when Zondi was admitted. Lusenga had come to visit the next day so as Zondi’s parent he was aware of where Zondi was staying. It was put to Tshabalala that Lusenga had indicated that he was phoned by Khumalo and informed that Zondi was in a place of safety. Tshabalala stated that Lusenga had come the next day as she had spoken to him and he had only taken Zondi out for her birthday. It was possible that Zondi had left the Centre on 5 December 2016. It was put to Tshabalala that Zondi spent three months at the Centre and yet there is no documentation. Tshabalala explained that no documents were required and Lusenga frequently visited the Centre. Lusenga did not come every day. No-one exits the Centre after 18h00. Tshabalala agreed that Lusenga gave his consent for Zondi which is further illustrated by his frequent visits to the Centre. Tshabalala had not been present when Zondi arrived so had not spoken to SAPS personally.
(32) In re-examination Tshabalala confirmed that Lizzy was from the Davyton branch of SAPS and when dropping off anyone at the Centre they were always accompanied by a male official from SAPS. Lizzy specifically deals with cases involving abuse and through the social workers is in close contact with the Department of Social Development. Social workers deal a lot with places of safety. Tshabalala had never seen Maphosa at the Centre.
(33) In answer to questions of clarification from me Nawa explained he had been carrying out an investigation as there was an educator who was misbehaving with a learner. Nawa had not threatened anyone, had spoken politely and he added that Lizzy does not wear a uniform. NAWA denied that a week before arbitration commenced he had visited Davyton and pointed out that Mdabazathi Mvandaba (labour relations officer) is the one who had visited Davyton.
(34) Mapheto Sunday (an assistant at Badanisile) testified that she was aware that this case is against Maphosa and involved whether or not he had come to visit Zondi at Badanisile. Zondi had been brought to the Centre by Lizzy with a male official from SAPS. No one else was present with Zondi when she arrived at the Centre. Lizzy usually brings woman or children to the Centre without documents. On arrival at the Centre everything about the new person is written in the OB. Lizzy had made the entry in the OB for Zondi. Sunday explained the rules and showed Zondi around the Centre. It was explained that Zondi would go to school but they would walk in a group for the safety of all. Tshabalala arrived back the next day which is when Lusenga arrived for the first time. Tshabalala and Lusenga went into the office to speak in private. On leaving Lusenga had said he will check on Zondi whenever he had the time. Lusenga regularly visited the Centre and had even done the gardening. Lusenga also had a shoe repaired for Zondi. Sunday thought that Zondi had stayed at the Centre for three months. Men are prohibited from entering the Centre but as her father Lusenga had been allowed to enter. Sunday had never met Maphosa and confirmed that no-one else took Zondi out. The gates to the Centre are locked at 18h00. Zondi was taken out by Lusenga on her birthday and thereafter had not returned. Zondi was well behaved and open. Sunday was unaware if anyone had asked for proof that Zondi had stayed at the Centre.
(35) In cross-examination Sunday confirmed that she had worked at the Centre since 2010 when Tshabalala had opened the Centre. Sunday did not know the NPO number off by heart. There are rules for obtaining the details of everyone who enters the Centre and those new people are generally brought in by SAPS or social workers. The Centre works with women and children who have been abused. Sunday was not aware of which laws applied to the Centre and explained the documents for an orphanage were different. Badanisile only dealt with women and children who had been abused. Sunday could not say what happened to a person in an orphanage if they too were abused. Zondi had been allowed to stay as they could not just throw her outside. It was the social workers and SAPS who dealt with the law and mostly the abused woman or child were brought to the Centre by SAPS or the social workers. Sunday was aware of the arrival of Zondi as she had been brought in by Lizzy with a male SAPS official and receiving Lizzy from the Centre had been Zodwa, Lerato and two others. Sunday was not aware of any letter from the Centre and confirmed that Zondi arrived on 17 October 2016. Zondi arrived only with the two officials from SAPS. The letterheads for Badanisile were kept locked in the office of Tshabalala who was the only one who had a key. Sunday since 2010 had never seen Lizzy wear a uniform. Sunday confirmed that the documents are only completed when and if the case goes to Court. Sunday knows the procedures and Lusenga had agreed that Zondi be admitted to stay at the Centre. Sunday a couple of times had given both Zondi and Lusenga lunch. Lusenga had once commented that Zondi was safe in the Centre. Lusenga had given his permission for Zondi to stay at the Centre and visited Zondi which confirmed that her stay had his consent. It is not allowed to disclose who is staying at the Centre for their safety. Additionally that information could not be disclosed as it was confidential. Zondi had been referred to the Centre and Sunday was unaware if Lusenga had ever abused Zondi. Zondi seemed always happy to see Lusenga.
(36) Sergeant Kotlekizer Nbele (Family Violence, Child Protection and Sexual Offences (FCS) unit in the SAPS) testified that he knew Zondi and Maphosa when they came into the station in Benoni. Zondi opened a case of rape but had been unsure as the abuse came from a family member. Nbele explained to Zondi that she would be protected and Zondi said she would decide later. They returned later with a statement in respect of the sexual assault which Nbele had written up in the OB to record on that date he had assisted Zondi. As a case had not been opened Nbele gave Zondi the number from the entry in the OB. Writing up details in the OB is standard practice when no criminal case is opened. Nbele offered that if this arbitration needed the OB he could get it from the archives as all this happened in 2016. Nbele recalled the OB number as being 2150/09/2016 but did not have specific dates and times as the OB for 2016 had been archived. The matter had been about sexual assault by a family member. Zondi had raised the assaults that happened when living with her grandmother but Zondi had said she was never believed. Maphosa had brought Zondi into SAPS to lay a charge and had done so in his role as an educator. Maphosa had supported Zondi throughout this difficult time as Zondi had trusted him enough to have opened up to him. Lusenga was aware of what was happening as he had called the SAPS in Davyton. The complaint filed had been the violation of a child by family members, the child was the complainant and the priority in such matters is the safety of the child. Lusenga had been aware that Zondi had been violated but had failed to act. Nbele had also given testimony at the disciplinary hearing for Maphosa. Captain Khumalo and another had taken Zondi to a place of safety. Zondi had during this time become close to Nbele and confided with him regarding many things that had happened. At the time Zondi was very troubled and had been having suicidal thoughts. Nbele was not aware of any improper relationship with Maphosa despite there being many allegations. Lusenga had said that Maphosa was having an affair with Zondi and Nbele himself had been accused of the same thing by Lusenga. Lusenga would accuse everyone who was helping Zondi of dating her or having an affair. Nbele had never met Lusenga having only spoken to him telephonically. After Lusenga had complained to SAPS the decision of SAPS was to place Zondi into a place of safety. At the time in 2016 Lusenga had threatened to sue the police but to date this had never happened. Zondi had never said she and Maphosa were intimate.
(37) In cross examination Nbele confirmed he worked for the FSC branch of SAPS. Nbele knows the Children’s Act and explained that whether or not documents were needed depended on the specifics of what had happened. The abuse had been reported, an entry was made in the OB book and at law a twelve year old can make a decision to take the matter further. Zondi had not wanted to continue with the criminal case and SAPS had a duty to assist had Zondi decided to continue with that case. A child aged twelve can make legal decisions. Nbele explained that had he thought he needed to explain the Children’s Act he would have brought a copy with him to arbitration. This provision was in terms of both the Sexual Offences Act and the Children’s Act. Nbele confirmed that there was no duty to advise the parents. When a child is victimized SAPS have authority to place the child in a place of safety without parental consent. A form is completed by SAPS and the social worker who are removing the child. Nbele confirmed that it was not illegal to remove a child as SAPS assumes custody of the child when family members are the abusers. Once in a place of safety the social workers get involved and go to Court. Each child is allocated a social worker in cases of abuse. The documents to be done within twenty four hours are done by the social workers.
(38) In re-examination Nbele confirmed that usually form 4 and an affidavit are completed. However in cases of an emergency a quick removal of a child in danger can be arranged and is the area of expertise where Nbele works. Nbele confirmed that the case for Zondi had been an emergency where the duty to put her in a place of safety had fallen on SAPS – which is what happened.
(39) Godfrey Maphosa testified that he wished to start with some background information. Maphosa was raised by his mothers’ uncle in Mpumalanga as his mother had lost her mother at the age of twelve years old. His Grandmother who was in her second marriage had died and his mother underwent some abuse. Maphosa at age fourteen went back to his mother who had abused him by bashing him, insulting him and had on a regular basis been kicked out of her house. Maphosa got by as he slept at the homes of his friends and his mother was not expected to know where he was. Maphosa became an educator. Maphosa received help in 1999 in his first year at university and he went to Church. Maphosa attended uplifting programmes and became involved in music, praise and worship. Maphosa was able to forgive his mother as she had been abused as a child and in turn had abused Maphosa as she had never got the help she needed. During his school years Maphosa in matric got help from teachers, social workers, SAPS and they were able to find him other families which were far away so he could finish matric. Maphosa had not wanted to open a case against his mother as he did not want to see her arrested and he had been scared of his mother. The Church had healed Maphosa and he was in a student fellowship. They went to different rural areas doing counselling, church services, motivating the young so that they too believed they could make it to rise above their problems. In early 2016 the students in the fellowship started a community radio station in Mpumalanga which also broadcast in Limpopo. This had been in order to help more people. In the same year Maphosa came across learners who had similar problems to what he had gone through. Maphosa had a heart for the children as they are the future of our country. Maphosa taught English and Life Orientation – a subject which he loved. Understanding the learners Maphosa was better able to guide and help them. Maphosa heard about what Zondi was going through via Mabene – whom he had already helped. His encounters with Zondi had been about a school child wearing no outside signs but Maphosa then learnt that Zondi had been raped, was subjected to domestic abuse and he realized that day at school that she needed help.
(40) Faith (surname unknown) was the visiting social worker and she had spoken with Zondi. Faith undertook to come back in two weeks’ time and in the interim Zondi needed to be taken to the iThemba Rape and Trauma Support Centre. Maphosa had informed his HOD – Ramaboya. Maphosa explained that Zondi needed to be taken to the Centre as Faith had phoned Maphosa on 23 September 2016 advising that she had made an appointment for Zondi to be seen at the Centre. Maphosa looked for Zondi in grade 10C and took her along to see Ramaboya so that Maphosa could take Zondi to the Centre. Ramaboya had said he was busy and his hands were tied. Ramaboya told Maphosa to take Zondi to the Centre. They went to see the principal and Zondi remained outside as learners were not permitted to enter the staff room. Maphosa told the principal what had transpired, that Ramaboya was busy so had told Maphosa to take Zondi to the Centre. The principal gave Maphosa permission and Maphosa had asked her about money from petty cash for petrol. The principal had said to take Zondi first and Maphosa will get his money refunded when he returns. Maphosa had left with Zondi before the break at about 10h30. Ramaboya was not present as he was busy with papers and he had not been at the gate as he claimed in his evidence. Maphosa explained that he had not been free that day in the first and second periods. Faith had phoned at about 09h30 which meant that Maphosa had to wrap things up as he needed to locate Zondi. Maphosa went to Ramaboya (no gate was involved) and initially Ramaboya had said that he should take Zondi after school as it was not an emergency. Ramaboya had never sat with Zondi to ask her about what had happened. Maphosa had explained that Zondi had been raped a number of times and had been subjected to domestic violence. Maphosa had also said that Faith had made an appointment for Zondi to be seen at the Centre and had phoned Maphosa to take Zondi to the Centre. Ramaboya was part of the SBST whose function included the induction of new educators which had not been done for Maphosa by either the principal or Ramaboya. Maphosa felt that as he taught Life Orientation he should help in school and in life. Maphosa said he felt he owed it to help a child who was experiencing things similar to what he had undergone. Zondi had said she had been raped by family members and had domestic abuse at her home. Maphosa felt that Ramaboya was not interested as he had never sat down to talk to Zondi or Maphosa. Maphosa had attended meetings and denied that he had been difficult. Maphosa agreed that the principal had said that she had never had any problems between herself and Maphosa. Further she not been aware of any problems between Maphosa and Ramaboya.
(41) On 23 September 2016 Maphosa was at the iTemba Rape and Trauma Centre where he went to speak to the receptionist. Maphosa was shown to an office where he introduced himself, said he was an educator and brought a learner for help who alleged she had been raped several times and at home was suffering domestic abuse. Zondi was then called into the room and Maphosa left to wait in the reception area. Zondi spoke with the other person for a while and then came out of the room smiling carrying a hamper of girls stuff. The Centre was unable to assist Zondi as she never had a case number. They were told to approach SAPS in Benoni and meet with Sergeant Nbele to open a case. They went to SAPS and Maphosa explained why he had brought the child into see SAPS. Zondi was taken into a room to speak with Nbele while Maphosa waited outside. When Zondi and Nbele came back it had been established that Zondi said she had been raped five times and was undergoing domestic abuse at her home. Nbele said it was doubtful that he could assist Zondi as she had not wanted to open a case as it was some family members who were involved. Nbele said they should return the following week with a written statement to either open a case or get an OB number. Maphosa and Zondi returned on 30 September 2016 and afterwards had driven back to Davyton where Lusenga and Victor were playing Ludo or something similar outside. Maphosa greeted them both and introduced himself. Maphosa had explained to them that he had been tasked to take Zondi to iThemba in Benoni due to the alleged problems she was experiencing. Lusenga had been happy and told Maphosa he was glad Zondi could get justice and healing. Maphosa informed them that they needed a case number and that he would return the next Friday. Maphosa left their home at about 17h00. Maphosa returned to school on the Monday and approached Ramaboya to let him know what had happened but that Zondi needed a case number and that they would return to SAPS the next week. Maphosa again went to the principal for petty cash and she had said she would pay him later.
(42) On 30 September 2016 the schools were closing for the learners and Maphosa approached Ramaboya as Zondi needed to be taken back to iThemba in Benoni. There had been an activity that day at school, Zondi was not in her classroom and Mabene said that she was at home. Maphosa went to fetch Zondi and Lusenga was at home. Maphosa and Zondi left to see Nbele and Lusenga was aware of where they were going. Nbele had not been at the station but called and said he was on his way. On arrival Nbele and Zondi went to a room where they could speak. Maphosa had waited outside. Nbele came out with Zondi and explained that they had made an entry in the OB and Zondi had handed in her statement. That day the schools closed at 12h00 and Maphosa had an appointment in Mpumalanga which was a two hour drive. Maphosa also had to fetch his finance – Ita Moragi. Moragi had phoned to tell Maphosa she was ready so that they could beat the traffic. Zondi was still in the car and they fetched Moragi from Springs. Before dropping off Zondi. Moragi had said she was hungry so they went to the drive through at the Mall and bought KFC chicken. Zondi phoned Lusenga to say she was on her way home but Lusenga was not at home. By the time they were dropping off Zondi Lusenga was at home and had seen Maphosa. Zondi had borrowed the laptop belonging to Maphosa and Lusenga had opened the door for Zondi to get out. Maphosa greeted Lusenga and said his goodbyes as he was in a hurry to get to Mpumalanga. The laptop had not been discussed with Lusenga and Maphosa spent the weekend at his grandfathers’ place. The school re-opened on about 10 October 2016 and Maphosa was not well so had asked for permission to go home. The next day Maphosa received a phone call from Khaka (first name unknown) who said there was a problem as Jinika was being insulting towards Zondi and accused her of dating Maphosa. Maphosa got the phone number of Jinika and called her. Jinika said she had nothing to say to Maphosa only that he should speak to the principal. On 12 October 2016 Maphosa went to SADTU, explained what had happened and had asked for advice. Maphosa was told to wait for the principal to call him regarding what had transpired. Mothlaping called Maphosa to advise that he needed to see the principal. Maphosa informed SADTU and went to see the principal. This had taken too long so Maphosa never spoke to the principal and had then received the charges against him. Lusenga had started the rumors and had been well aware that Zondi was in Badanisile Place of Safety. There had been the meeting at the golf course where Lusenga had apologized and the laptop was returned. Lusenga was told to stop taking his anger with his wife out on Zondi and Lusenga had apologized for spreading the false rumors about Maphosa and Zondi. Victor had joined the meeting later which had ended amicably. Nbele had phoned to inform that he believed that Zondi was suicidal and hence needed help urgently. Maphosa was told to take Zondi and Lusenga to Captain Khumalo at SAPS. Maphosa collected Zondi and Lusenga who had at that point made peace with each other. Maphosa was fine with having to face Lusenga and had taken them to SAPS. Lusenga and Zondi went together to speak to Khumalo. It was agreed that Maphosa could leave as he was on his way to Springs. Maphosa denied he took Zondi to Badanisile. Maphosa never visited Zondi there nor had he ever taken her out. Lusenga had been involved throughout and was aware of what was happening. It was untrue that Maphosa ever bought lunch for Zondi. When a learner had no food they were able to rely on the feeding scheme. The learners would line up and be served whatever was on the menu for the day. The feeding scheme never served slices of bread. Mothlaping had been sent to class to call Zondi and Maphosa had not been told what happened in that meeting with Zondi. Maphosa denied that he took Zondi to a place of safety and that this had been done without parental consent. It was not true that Zondi and Maphosa had ever walked holding hands and they had only gone to the drive through at the Mall. Over weekends Maphosa volunteered at the radio station. Maphosa was reminded that the version of seeing him with Zondi had changed to having been seen during the week. Maphosa confirmed he had never had a relationship with Zondi and there had never been any intimacy between them. Zondi was going through issues that had reminded Maphosa of what he had experienced with his mother. Maphosa confirmed he would never harm a learner. Zondi had herself involved SAPS and Lusenga.
(43) In cross-examination it was put to Maphosa that his version had not been put to Ramaboya who had specifically testified that he had stopped Maphosa and Zondi from leaving. It was further put to Maphosa that there was a difference as to who went to see the principal and at what time. Maphosa confirmed he found Ramaboya in his office and he was reminded that Ramaboya said he stopped Maphosa at the gate. Regarding being seen at the Mall, Maphosa was reminded that Mabene had been his witness and she had seen them at the Mayfield Mall. Maphosa held he said he had been at the Mall once with Zondi at the drive through at KFC. Maphosa stated that his version was the correct one. It was put to Maphosa that the version had been that he and Zondi went to the Mall after therapy sessions and now it is only at the Mall drive through at KFC. At this point we lost connection with SADTU and as it was late arbitration was adjourned to 09h00 on 18 November 2020.
(44) Cross-examination of Maphosa continued on 18 November 2020. Maphosa confirmed he was not a member of the SBST and was unaware of how it operates. Maphosa explained that it was the responsibility of the HOD (Ramaboya) to take learners to the social workers yet when told about Zondi, Ramaboya had been busy and told Maphosa to take Zondi to the social worker. It was put to Maphosa that the HOD did not have that responsibility as suggested. Maphosa explained that when at school the educators are the parents of the learners and need to do whatever will benefit the child. Maphosa confirmed he had reported the matter to Ramaboya; then Faith had called to confirm Zondi had an appointment at iThembe and when this was relayed to Ramaboya he said then Maphosa should take Zondi to the appointment at iThembe. Maphosa explained that he was not aware of the procedures of the SBST so had never reported this matter to them. Faith had said to Maphosa that he should take Zondi to on 23 September 2016 and that may have been perceived as an emergency. It was put to Maphosa that this version had not been put to Ramaboya meaning that Maphosa never said to Ramaboya that he had always known about the case of Zondi. Maphosa confirmed that this version had been put to Ramaboya. It was put to Maphosa that the principal had said she had never been told what the emergency had been. Maphosa reiterated the emergency had been that Faith got an appointment at iThembe for someone to see Zondi. It was put to Maphosa that in the testimony of Mabene and two others that Lusenga never knew for days where Zondi was staying. Maphosa denied that he usually brought Mabene and Zondi back to her home. Maphosa confirmed he had no access to Zondi outside of school hours. Maphosa clarified that there is the Davyton Mall and the Mayfair Shopping Centre in the area. Maphosa explained that on one occasion Zondi, his fiancé and he had driven through the KFC drive through at the Centre as his fiancé had said she was hungry. Maphosa denied he could have been seen at the Mall over weekends as he works at the radio station over weekends. Maphosa confirmed he had assisted Mabene who had introduced Zondi to Maphosa. Maphosa had taken Zondi and Lusenga to SAPS on 17 October 2016 and had left them there which is when SAPS had taken Zondi to Badanisile. At SAPS Maphosa sat away from where Zondi was speaking to the officer and he had not heard what had been said. It was put to Maphosa that he had never put it to Lusenga that he could not hear what was being discussed. Maphosa held that the letter from Badanisile stating that her educator had brought Zondi to Badanisile was in dispute; Tshabalalala had denied she had written the letter; the letter did not contain her correct signature and Zondi had been admitted to Badanisile on 17 October 2016 and not 24 October 2016 as contained in the latter. Maphosa reiterated he had left Zondi and Lusenga at SAPS. Maphosa was not aware whether or not Lusenga gave his permission for Zondi to be placed at Badanisile. Maphosa added that it had been SAPS who took Zondi to Badanisile. It was put to Maphosa that Lusenga blamed Maphosa for the times when Zondi did not return home for a number of days. Maphosa could not say what or who Lusenga blamed for Zondi not going home over several days. Maphosa stated that if Zondi had not returned home it had not been through any fault of his or his actions.
During the cross-examination of Maphosa SADTU confirmed that they had received a copy of the identity document of Tshabalala which contained her signature for comparison purposes with the undated letter purportedly received from Badanisile. It was evident as demonstrated during her leading evidence that the signature on the letter was not that of Tshabalala. The Certificate of registration of Badanisile as a NPO was also received and confirmed the registration number as being NPO081290. This number is correct on the letterhead but different from the stamped details at the bottom of the page of the letter from Badanisile (which had been scratched out and corrected by hand). SADTU had also been sent a copy of the OB which records that Zondi was admitted to Badanisile on 17 October 2016 at 16h50 by SAPS as she was a “scholar abused”.
(45) Under re-examination Maphosa confirmed that there had never been any intimacy between him and Zondi as stated in charge 2. Maphosa had told Lusenga where they were going when Maphosa had to take Zondi for instance to Benoni. Maphosa confirmed he would never walk in a shopping area holding hands with any learner as he is a well know community personality.
(46) It was agreed that closing arguments would be emailed to me and the Council by no later than 17h00 on 25 November 2020. Closing arguments were received from both parties – the contents of which have been noted.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
(47) Zondi wrote down everything that was bothering her and had wanted to write a book about her story of abuse. I found her to be a credible witness and found no doubt to question what she was saying. It is not easy for a young woman to state in a public forum her ordeals having been raped and physically abused. Zondi did not waver from her version despite almost being “badgered” in an attempt to get her to change her version. It is for this reason that I have fully recorded her version. It is for the same reason and her consistency that I accepted her version on a balance of probabilities.
(48) The interaction between Maphosa and Zondi started when Mabene told Zondi to approach Maphosa for assistance as she had been sexually abused and was still being abused by Lusenga. Zondi had been raped by Victor (and others) and whilst trying to study at night Lusenga did not allow Zondi to turn on the lights. Lusenga had also used a Taser on Zondi, had beaten her which beating had been recorded by Zondi and sent to Victor. Tasers are painful. People shocked by them often call the experience the most painful of their lives. It was for this reason that Zondi did not return to her home for a number of days and it had nothing to do with Maphosa. Maphosa had listened to what Zondi said and had contacted the district social worker (Faith) as he was required to do. Faith made an appointment for Zondi to be seen at the iThemba Rape and Trauma Support Centre on 23 September 2016. Maphosa received a call from Faith about the appointment on the same day at a time when school was in progress. Maphosa found Zondi and took her for the appointment. The question about whether or not Maphosa was stopped from leaving the school is irrelevant to the charges against him. On their return to drop off Zondi it was the evidence of Zondi that she had told Lusenga where she had been and had returned with a basket of “girl things” given to her by the social worker. That social worker had referred them to Nbele at SAPS which is where Maphosa later took Zondi only to be told they needed a charge to be laid or an entry made into the OB. Zondi wrote out her statement. Maphosa with Zondi returned accompanied by Lusenga to SAPS on 17 October 2020. Maphosa left them at SAPS and went on his way. This evidence is confirmed by Maphosa, Zondi and Nbele and is the most probable. It was Khumalo of SAPS and a female officer (Lizzy) who took Zondi to be admitted to Badanisile and not Maphosa. Lusenga was aware at all times where Zondi had been taken; had visited her; taken her shoe for repairs and even took her out on her birthday. Lusenga had also assisted working in the garden of Badanisile.
(49) At law a social worker or a police official may remove a child from their home and place the child in temporary safe care without a court order. However, there must be reasonable grounds for believing that the child is in need of care and protection and needs immediate emergency protection. This may only be done when the delay in getting a court order for the removal of the child may jeopardise the child’s safety and well-being. The official concerned must also make sure that the removal of the child from her home environment is the best way to secure the child’s safety and well-being. In this instance SAPS placed Zondi at Badanisile lawfully with or without the consent of Lusenga as they are required to do in the best interests of the child. In such instances it is the accountability of the social worker to thereafter get the requisite Court Order. I have noted that at all material times Lusenga was fully aware of where Zondi had been placed. Lusenga did not state in his evidence that he was fighting against Zondi being placed at Badanisile or that he in any way objected to this happening. Nbele confirmed that in terms of both the Sexual Offences Act and the Children’s Act that there was no duty to advise the parents or to get their consent to place a child in a place of safety.
(50) According to section 110(1) of the Children’s Amendment Act an educator who “on reasonable grounds concludes that a child has been abused in a manner causing physical injury, sexually abused or deliberately neglected must report that conclusion to a designated protection organization, the provincial department of social development or a police official”. Maphosa reported the abuse of Zondi to Faith who in turn made an appointment for Zondi to be seen at the iThemba Rape and Trauma Support Centre in Benoni. Thereafter the abuse suffered by Zondi and her placement at Badanisile had been dealt with exclusively by the police (SAPS). Maphosa carried out his duties / obligations in terms of the Children’s Amendment Act.
(51) In terms of the first charge Ramaboya testified that Maphosa took Zondi to Badanisile without parental consent but he was not present and could only have heard this from others which evidence amounts to hearsay. The testimony of the other witness was consistent in that SAPS took Zondi to Badanisisle and Maphosa was not present. Ramaboya also testified that the principal gave consent for Maphosa to take Zondi to the social workers on 23 September 2016. In her testimony, despite being fully involved in getting together statements, Mahlise testified that she had thought the charges were about Maphosa taking Zondi to the social workers without parental consent. This is clearly incorrect. Mahlise further testified that she had been unaware of Badanisili which again indicates that she was unaware of the exact charges laid against Maphosa.
(52) In light of the above paragraphs I find on a balance of probabilities that Maphosa is not guilty of the first charge in that he was not the person who took Zondi to be admitted to Badanisile. Rather Zondi had been taken to Badanisile by SAPS as they are permitted at law to do with or without the consent of the parent of Zondi. The first charge was linked to section 18(1)(g) of the Employment of Educators Act, 76 of 1998 Section 18 (1) (g) which states: “misuses his or her position in the Department of Basic Education or a school or adult learning centre to promote or to prejudice the interests of any person”. Maphosa did not misuse his position as an educator as he never took Zondi to Badanisile but rather had followed the correct channels to get the help required for Zondi to be placed in Badanisile as was required of him in terms of the Children’s Act.
(53) It was confirmed that Lusenga was the person who spread the rumours about Zondi dating Maphosa and had even reported this to the principal. Lusenga accused most males of having affairs with Zondi such as Victor, Maphosa, the Church pastor and congregants and even Nbele from SAPS. Dlamini never reported to a person in authority that Maphosa and Zondi were together during lunch breaks if she felt that was unusual, improper or even true. Dlamini testified that she had seen Maphosa and Zondi in the Mall holding hands. Dlamini claimed that she and Zondi were friends yet it is strange that when two “friends” cross each other’s path at the Mall they do not greet each other. It is surprising that Dlamini was not aware of anything to do with Badanisile which begs the question as to whether or not the two were actually friends as claimed. The evidence of Dlamini is rejected as being improbable. Mothlaping testified that he had been sent to find Zondi to tell her the principal wanted to see her. Mothlaping found Zondi and Maphosa in the adjacent classroom but had never asked what they were doing there. Zondi had been crying and left the classroom so it was not unusual for Maphosa to have gone to check on her. Mothlaping also overheard that Mahlise wrote a statement regarding Maphosa and Zondi having an “improper relationship” yet he had never seen the completed statement. Mothlaping had been present when Maphosa and Ramaboya came into the office of Mahlise to get permission to take Zondi to the social workers. At that point in time Mothlaping overheard that Zondi was being abused which begs the question as to why both Ramaboya and Mahlise knew nothing about the abuse of Zondi that was taking place. Mothlaping testified that he had never seen any improper conduct during school hours despite his testimony that he found them alone in an adjacent classroom. Zondi was not new to social workers as when she moved to live with Lusenga in 2012 she had been referred by social workers. Zondi took solace in Church / their activities and Lusenga accused her of having affairs with the pastor and other congregants. Zondi testified that Lusenga embarrassed her by showing others the cloths she used when menstruating and other private things. Zondi also testified that it had been Lusenga who started the rumours about her dating Maphosa which rumours were untrue. It made sense that Zondi thought Lusenga had bad mouthed her as he never wanted anyone to know he had been abusing Zondi. Zondi testified further that when she had approached Mahlise for help she had been turned away which is why Zondi had sent an email to the District Office.
(54) It is very difficult to prove or disprove the existence of an intimate relationship as intimacy involves feelings of emotional closeness and connectedness with another person. Intimate relationships are often characterized by attitudes of mutual trust, caring, and acceptance. There is no doubt that an emotional bond formed between Zondi and Maphosa as she trusted him and no one during their evidence mentioned that Maphosa had judged Zondi for the situation in which she found herself in any way. There had been a mutual acceptance of the situation in which Zondi was placed which is why Maphosa, having suffered abuse himself as a child, had reached out to help Zondi and to carry out his mandate in terms of section 110(1) of the Children’s Amendment Act. Zondi and Maphosa both gave evidence that there was nothing sexual in their relationship. It is highly unlikely that with a fiancé accompanying them on at least one occasion that there would have been a sexual relationship between Zondi and Maphosa. In the event that the DOE were accusing Maphosa of having a sexual relationship with Zondi then the word “intimate” would have been replaced by “sexual” in the charge itself. Zondi in her interactions with Maphosa had been frank, open and honest. An abused person is unlikely to have been that way had there been no trust in the person to whom she was taking into her confidence. I find on a balance of probabilities that the relationship between Zondi and Maphosa had been one of trust and caring without any sexual connotations attached. There had been no “intimate relationship” between Maphosa and Zondi and I find on a balance of probabilities that Maphosa is not guilty of the second charge.
(55) On 23 September 2016 it is confirmed that Maphosa, in the company of Ramaboya was given permission from Mahlise to take Zondi to the social workers which is exactly what Maphosa had done. On the same day Zondi had told Lusenga that she was going to the social workers with Maphosa giving her a lift to Benoni. In her testimony Zondi confirmed that she had spoken to Ramaboya about her issues and he had said he could not help as his hands were tied despite him being on the SBST.
(56) On 30 September 2016 Lusenga was told by Zondi that she was at the Mall with Maphosa – which was when the KFC was purchased using the drive-through. According to the testimony of Lusenga on the same date he was phoned by Ramaboya to advise that Maphosa was with Zondi. Lusenga was inconsistent with his testimony when he initially said on this date Maphosa took Zondi to Benoni but then confirmed that Maphosa was with him at SAPS. It is trite that Mahlise gave Maphosa permission to take Zondi to the social workers but then thought she had charged him for this offence.
(57) On 17 October 2016 Zondi had told Maphosa that Lusenga was again abusing her which is when Maphosa, Lusenga and Zondi all went to SAPS. Zondi testified that Lusenga was fine with Zondi going to Badanisili as he said that when they went home they usually argued. The evidence of Zondi is that Maphosa left SAPS that day as he was in a hurry. Two officials from SAPS escorted Lusenga back to his home while two other SAPS officials escorted Zondi to Badanisili. The OB from Badanisili confirms that SAPS brought Zondi to Badanisile on 17 October 2016 at 16h45. Sunday confirmed that SAPS brought Zondi to Badanisili and she had not previously met Maphosa. Sunday also confirmed that no men were allowed at the shelter and Maphosa had never visited Zondi during her stay at the Centre. Lusenga had been allowed to visit at times as he was the parent of Zondi.
(58) The Employment of Educators Act. 76 of 1998 in section 18(1) (f) states: “unjustifiably prejudices the administration, discipline or efficiency of the Department of Basic Education, an office of the State or a school or adult learning centre”. It was not proved that Maphosa had done anything that would prejudice the administration, discipline or efficiency of the DOE. Having been found not guilty of the second charge there are no factual grounds that would trigger the provisions of item 18 (1) (f) of the Act.
(59) Taking all circumstances into there is no evidence of Maphosa having had an “intimate relationship” with Zondi. Rather there was a bond formed between them as Zondi trusted Maphosa sufficiently to tell him what was happening in her life and Maphosa was in a position to have assisted Zondi. Maphosa is found not guilty of both charges. There is no factual evidence that would trigger Item 18(3) (i) If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1), the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of— (i) dismissal, if the nature or extent of the misconduct warrants dismissal. This item is not applicable to the current case.
(60) There were no procedural challenges in this dismissal and the procedure followed by the employer aligns with Schedule 8 – Code of Good Conduct: Dismissals of the LRA. Consequently the dismissal is found to be fair on procedural grounds.
(61) The dismissal of Maphosa is found to be unfair on substantive grounds. Maphosa is seeking retrospective re-instatement and there is no valid reason why this should not be done. The Department of Education – Gauteng is ordered to retrospectively reinstate Maphosa into the same position he held prior to his dismissal on 11 February 2020 with effect from 4 December 2020. Back pay of R225 185.67 (calculated at R25 020.63 per month x 9 months = R225 185.67) is to be paid to Maphosa by no later than 31 December 2020.
AWARD
(62) The dismissal of Godfrey Maphosa is found to be fair on procedural grounds and unfair on substantive grounds. The Department of Education – Gauteng is ordered to retrospectively reinstate Maphosa with effect from 4 December 2020 into the same position he held prior to his dismissal on 11 February 2020. Back pay of R225 185.67(two hundred and twenty five thousand, one hundred and eighty five rands and sixty seven cents) less his normal deductions is to be paid to Maphosa by no later than 31 December 2020.
(63) Godfrey Maphosa is ordered to report for duty at his usual time on 4 December 2020.
Gail McEwan
COMMISSIONER
Province: Gauteng
Applicant: SADTU obo GODFREY MAPHOSA
Respondent: Department of Education -Gauteng
Issue: Unfair Labour Practice - Refusal to Re-instate i.t.o an agreement
Venue: Virtually
Award Date: 30 November 2020
Arbitrator: Gail McEwan
Commissioner: Gail McEwan
Case No.: ELRC1051-19/20GP
Date of Award: 30 November 2020
In the ARBITRATION between:
SADTU obo GODFREY MAPHOSA
(Employee)
and
THE DEPARTMENT OF EDUCATION GAUTENG
(Employer)
Union/Employee’s representative: Thabo Monyatsi (SADTU)
Union/Employee’s address:
Telephone: 083 451 3330
Email: thabomonyatsi@yahoo.com
Employer’s representative: Zakhele Nawa
Employer’s address:
Telephone: 011 736 0736
Email: zakhele.nawa@gauteng.gov.za
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
(1) Arbitration was held on 3, 9, 18, 22 September 2020; 6 and 7 October 2020 and concluded on 18 November 2020. The matter was heard virtually by Zoom with the consent of the parties. Present was Godfrey Maphosa (employee) who was represented by Thabo Monyatsi (SADTU). The Department of Education Gauteng (DOE) (employer) was represented by Zakhele Nawa (deputy chief specialist labour relations). The Certificate of Outcome declaring the matter unresolved at conciliation is on file and is dated 24 June 2020. These proceedings were digitally recorded and the employer sent in a bundle of documents electronically. A Zulu interpreter was present.
THE ISSUE IN DISPUTE
(2) I am required to determine on a balance of probabilities whether the dismissal of Maphosa was fair. SADTU confirmed that the issues in dispute were that the evidence of Maphosa was not considered. The concept of “on a balance of probabilities” was incorrectly applied leading to an incorrect decision. The decision of the chair of the disciplinary hearing had pre-determined the outcome after having refused to recuse herself. The chair had also shown bias against Maphosa and his witnesses. Maphosa is seeking retrospective re-instatement.
(3) I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
THE BACKGROUND TO THE DISPUTE
(4) Maphosa started working for the employer on 20 October 2015; worked as an educator teaching English to grades 8 and 9 and Life Orientation to grade 10; earned R25 020.63 per month and was summarily dismissed on 11 February 2020 facing the following charges:- (i) It is alleged that on or around 23 October 2016 while on duty at the H.B. Nyathi Secondary school, you misused your position as an educator in that you took Precious Zondi to Badanisile Place of Safety without her parents’ consent. In view of the above, you are thus charged in terms of the item 18(1) (g) of the Employment of Educators Act, 76 of 1998 as amended. (ii) It is alleged that during the period September 2016 to October 2016 you have unjustifiably prejudiced the administration, discipline or efficiency of the school in that you had an intimate relationship with Precious Zondi who is a learner at H.B. Nyathi Secondary School where you teach. In view of the above, you are thus charged in terms of item 18(1) (f) of the Employment of Educators Act, 76 of 1998 as amended. The dismissal was done in terms of section 18 (3) of the same Act.
SUMMARY OF EVIDENCE AND ARGUMENT
The employer’s version and testimony was as follows:-
(5) Joseph Ramaboya (now retired but was the Head of Department (HOD) for the subject life orientation in 2016) testified that as well as him being HOD he had also served on the School Based Support Team (SBST) which dealt with learners who were having any problems. On 23 September 2016 Ramaboya was responsible for monitoring late comers. At about 08h30 Ramaboya saw Maphosa leaving the school yard in his car and he had a learner with him. Ramaboya stopped Maphosa to ask where they were going as this was already during school hours. As HOD Ramaboya asked Maphosa how he could do this. Maphosa said it was an emergency and a special case. Ramaboya told Maphosa that this should be done after school and that before he left he needed to get permission from the principal. Ramaboya accompanied Maphosa to see the principal where Maphosa had explained the matter. The principal had said Maphosa could go but needed to return to school that day. It was never explained to Ramaboya what the emergency had been. Maphosa never said whether he had permission from the learners’ parents to take her to the Badanisile Place of Safety (Badanisili). Maphosa was not a member of the SBST and Ramaboya did not know whether Maphosa taught the learner. The school policy is that when any educator leaves the school premises a form is first required to be completed.
(6) Under cross-examination Ramaboya confirmed he was the HOD at the school for life orientation and had been introduced to Maphosa when he joined the school. SBST is there to support learners. Educators not on this team are aware of the type of support that is offered to learners. Ramaboya explained that each grade had a coordinator who disseminates the information to the other educators. Ramaboya had seen Maphosa about to leave the school with a learner in his car which is why he had been stopped. Maphosa had said he was taking the learner to a social worker and Ramaboya had said that this should be done after school. Maphosa insisted on leaving and was eventually given permission by the principal. Maphosa only said that the learner had an emergency case and needed to see a social worker. Further it was put to Ramaboya that he had heard what the matter was about when in the principal’s office. Ramaboya disagreed as Maphosa would not reveal what the emergency was about. It was put to Ramaboya that he could not just let an educator leave with a learner. Ramaboya confirmed he had only spoken to Maphosa when he was leaving the school and did not follow-up with him. The learner was Precious Zondi. Ramaboya realized that there was a problem when Maphosa was called to the district office to explain what happened between him and the learner. Ramaboya was aware of the charges against Maphosa. Maphosa had an affair with a learner but Ramaboya had not personally witnessed this. Ramaboya then read the charges into the record. Ramaboya confirmed that Maphosa had taken the learner to Badanisili without the consent of her parents. The parents had complained to the principal in this regard. The only involvement of Ramaboya was when he stopped Maphosa and the learner from leaving the school that day. Ramaboya was in contact with a social worker and had gone to the Daveyton police station to see the social worker. Ramaboya never said whether the learner had been abused by her father. No social worker had become directly involved in this case. Ramaboya denied that Faith (surname unknown) the resident social worker at the school had been involved. There was nothing added under re-examination.
(7) The next witness for the employer was called but needed the services of a Zulu interpreter. The interpreter had lost connectivity. With the assistance of the ELRC many attempts were made to reconnect with the interpreter. When this failed arbitration was adjourned to continue on both 18 and 22 September 2020. It was confirmed that in total the employer would be calling five witnesses and the employee six. All further witnesses were Zulu speaking.
(8) Agatha Mahlise (principal) testified that she was appointed to her potition in 2015 and held that post when the incidents involving Maphosa happened. Mahlise was in her deputies office on 23 September 2016 when Ramaboya and Maphosa approached as there was an emergency and Maphosa had to take Precious Zondi to the social worker. Mahlise had believed that Maphosa was just going to drop Zondi at the social worker so gave them permission to go. Maphosa had not explained what the emergency had been. Maphosa is not a member of the SBST. Maphosa in 2016 had not taught Zondi. Ramaboya had later explained that he too was unaware of what the emergency was all about. Ramaboya had stopped Maphosa and Zondi from leaving the premises as he needed the permission of the principal. Mahlise was unaware of whether or not Maphosa had permission from the parents to take Zondi to the social workers. There was no school based social worker.
(9) Under cross-exmination Mahlise confirmed that she is aware of the charges against Maphosa in that he took Zondi to the social workers without the consent of her parents. The first allegation was read into the record. Mahlise insisted that the incident happened on 23 September 2016 the day before heritage day and not 23 October 2016. Ramaboya and Maphosa had come into her meeting with the deputies in the administrative office. Mahlise held that the date in the charge is incorrect although Maphosa was not charged with anything for that date. Mahlise, as the principal, reports on issues and had reported that the incident happened on 23 September 2016. Mahlise had a number of interviews on this subject. Mahlise had spoken to Maphosa after the school had re-opened from the holidays. Ms. (first name unknown) Jinika (educator) told Mahlise that she and Maphosa had been verbally fighting over the holidays about Zondi. Jinika said she had reprimanded Maphosa and told him not to become involved with Zondi. It was put to Mahlise that unless Jinika testifies then what was said amounts to hearsay. Mahlise stated that other learners were also aware of the relationship between Maphosa and Zondi. Returning to the first allegation, Mahlise believed that Maphosa had misused his position as an educator when he took Zondi to the social workers. Mahlise had not known about Badanisili. Zondi had said that she did not have a relationship with Maphosa and Maphosa had refused to give the principal his version. It had been the father of Zondi (Lusenga) who had said that Zondi had a relationship with Maphosa. The principal agreed that thereafter no further steps were taken and Mahlise had not been involved in compiling the charges. Mahlise confirmed she had a good relationship with Maphosa. The school gives training every year on the role and functions of the SBST in terms of problems experienced with learners and the action that should be taken. Schools then closed for the holidays and Mahlise would address Maphosa after that. Mahlise never received a report from Maphosa and he had never explained what had happened with Zondi. Mahlise had done what she had believed was in the best interests of the child but had never requested a report from Maphosa. Mahlise had trusted Maphosa and hence had not asked for a report about what emergency he had been dealing with involving Zondi. Mahlise confirmed that it was not difficult being the principal and added that Maphosa had verbal altercations with some of the educators. The matters that the principal had with Maphosa were settled amicably. In re-examination Mahlise confirmed that she had reported this matter but had not been part of the investigation. Mahlise had been consulted in regard to the charges.
(10) At this point I explained to the employer that unless they called Jinika as a witness it may be dtrimental to their case.
(11) Joseph Lusenga (father of Zondi) testified that in 2016 Zondi was living with him. On 23 September 2016 Zondi had told Lusenga that she was going to see the social worker with her teacher. Zondi left home at 08h00 and returned at 17h00 when she was dropped off by Maphosa. Zondi had a packet of hair and body products which she said was given to her by the social worker. Maphosa had said to Zondi that they would return to the social worker the following week. On 30 September 2016 Zondi left home at 08h00 and was later going to see the social worker. In the afternoon Lusenga phoned Zondi who said she was with Maphosa at the Mayfield Square. When asked Zondi had said that she was coming from the social worker with Maphosa. When Zondi arrived home she was carrying KFC (Kentucky Fried Chicken) and a laptop. Lusenga told Zondi that if Maphosa needed his laptop back then he should ask Lusenga as Zondi was still a minor child. On the Saturday Zondi went with a friend to Mayfield Square but Zondi never returned home. Zondi had also switched her phone off. Lusenga had sent her a “please call me” but never got a response. On Sunday Zondi had still not come home so Lusenga phoned her friend Esne Ntantla but she did not know where Zondi was at that time. Four days went by and still Zondi never came home. Ramaboya phoned Lusenga and said that Zondi was with Maphosa. It then came out that there was a charge of rape against a man but Zondi had never told Lusenga. Between September and October 2016 when the school was closed for a week, Maphosa brought Zondi to Lusenga to explain why she had not been at home and to say they were sorry. Maphosa reported that Zondi had been raped but Lusenga was not given the name of the man who raped his daughter. Zondi, Maphosa and Lusenga all went together to the police station. Lusenga never heard what was said to the police. In the second week of October 2016 school re-opened and Zondi went to school but had never returned home. Lusenga was in Johannesburg with a cousin when he received a call from the police who accused Lusenga of abusing his daughter. The police said that Zondi was in a place of safety where Lusenga was not allowed. Lusenga was aware of the place where Zondi had been taken. Lusenga went there just to see how Zondi was living. Maphosa even took Zondi out and she would return at night. Lusenga was never arrested and had been to see the police. (Lusenga was reading from notes he had made in 2016 and a copy of these notes in Zulu was sent by email to SADTU.) Maphosa never asked Lusenga for permission to take Zondi to a place of safety. Lusenga was told he could not see Zondi until she had finished writing her examinations. School re-opened and Lusenga was having difficulty finding that same police officer. Lusenga went to the school to see the principal. Zondi had now not come home for three years. Zondi now had a baby and Lusenga only sees what she posts on Facebook.
(12) In cross-examination Lusenga empasized that Maphosa had taken Zondi away from him. Zondi no longer lived with Lusenga and currently lived together with the baby and the father of her baby. Zondi was taken to Badanisili in 2016 by Maphosa and that had been done without the consent of Lusenga. It was put to Lusenga that he never complained when Maphosa took Zond to Badanisili. Lusenga countered and said he had not known where to complain although he had reported the matter to the school principal. It was put to Lusenga that he went along with what had happened as he had accompanied Maphosa and Zondi to the police station. Lusenga explained that Zondi had slept out for four days and he had a problem with Maphosa taking Zondi to the social workers. Lusenga had reported that matter to the school and showed what Maphosa was doing. Zondi had told Lusenga that she was going to the social workers with Maphosa. Lusenga explained that the problem arose when Zondi never came home. Zondi had said that there was a man abusing her. The first time Zondi went to the social workers Lusenga was okay with that but then Zondi had been put on the wrong path. It was put to Lusenga that he knew what Zondi was doing all along and had gone along with what was happening. Lusenga said that he had been aware of the first meeting with the social workers and Zondi had told him about that meeting. The second visit was on 20 September 2016 which was also the day he, Zondi and Maphosa had gone to the police station. Maphosa had driven Lusenga and Zondi home. It was put to Lusenga that this was untrue and Maphosa had left them both at the police station. Schools re-opened on 16 October 2016 but still Zondi never came home. Maphosa took Zondi to Badanisile on 24 October 2016 (as confirmed on ER bundle page 3). It had been the police who took Zondi to the home and Maphosa was with them. It was after that that Maphosa said he was taking Zondi to a social worker. Zondi was in a relationship with Maphosa. It was put to Lusenga that he had no knowledge of the first charge against Maphosa. Lusenga said he had no knowledge of Badanisili and was unaware of where the social workers were based. On 23 September 2016 Maphosa had said he was taking Zondi to see the social workers. It was put to Lusenga that the principal had made up the allegations against Maphosa which was denied by Lusenga. It was put to Lusenga that Maphosa had said he was taking Zondi to Benoni to the social workers. Lusenga did not recall Maphosa mentioning a specific place of safety. It was put to Lusenga that the principal had given Maphosa her permission to take Zondi to the social workers. Lusenga stated that he had only found that out when the schools had re-opened. It was put to Lusenga that the principal gave her permission then charged Maphosa with the misuse of his position. Lusenga agreed that Maphosa had misused his position as an educator as what he did was not correct. The first time Lusenga had seen Maphosa was when Zondi returned home with the KFC and his Laptop. Lusenga had sensed something was wrong as school had closed and Zondi was brought home with the laptop belonging to Maphosa. Lusenga had a big problem with Maphosa giving Zondi his laptop which is why he told Zondi that Maphosa shoud only collect the laptop from him. Zondi had told Lusenga that she had been at the residence of Maphosa when Maphosa and his wife came to fetch the laptop. This had happened in October 2016. In terms of the second charge Lusenga had trusted the school to keep Zondi safe and when Zondi never returned he felt very disappointed. Lusenga could not say if they had an intimate relationship and he had not raised that with the school. Lusenga could not recall if he had met with Maphosa on 12 September 2016 at the golf course where he returned the laptop to Maphosa. It was put to Lusenga that he had appologized to Maphosa that day as he never had the laptop that day. Lusenga could not recall. Lusenga explained the first big problem had been Badanisili and at first it was an educator asissting Zondi. Lusenga had no knowledge of the second charge as the school had not consulted him in that regard. The school had called Lusenga as Zondi was not in class. It was put to Lusenga that the behaviour of Zondi was due to his bad parenting. Lusenga explained that he was a single parent and Zondi had first come to live with him when she had been under the care of social workers.
(13) The employer with Lusenga lost connectivity at 12h55. I made several calls to the employer who said they were trying but IT was not in the building and they were having difficulties. I sent the link again to the employer several times but they were still unable to re-connect. It was decided at 13h45 that there was no point in the employee party, the interpreter and I waiting for the employer any longer and arbitration was adjorned.
(14) Arbitration continued on 22 September 2020 and SADTU confirmed they had no further questions for this witness. In re-examination Lusenga denied that when at SAPS he gave Maphosa permission to take Zondi to Badanisili. Lusenga confirmed he had never been charged with abusing Zondi. In answers to questions of clarification from me Lusenga explained that he is separated from his wife. The father of the baby Zondi had given birth to was Thulani (surname unknown). At the time of the incidents Zondi was sixteen years old. Lusenga had been and is still unemployed.
(15) Nompulelo Dlamini who had witnessed some of the incidents testified that she is now eigtheen years’ old. In 2016 Dlamini was in grade 10 and knows Zondi as they were class mates. Dlamini had seen Maphosa in class and when he with Zondi went to lunch together. Dlamini had also seen them both at the shopping mall where they had been holding hands. (The interpreter had lost connectivity and it was disputed that Dlamini had said she saw them holding hands.) I do not speak Zulu so was unable to say what had been said by Dlamini.) Dlamini added that she had seen them at the Mall over a weekend.
(16) In cross-examination Dlamini became very confused about how old she had been in 2016. Mathematics confirms that Dlamini was fourteen years’ old in 2016. Dlamini had seen them at the Mayfield Square Mall. Maphosa came often to their class to fetch Zondi to go to lunch whilst other learners were still in the class. Maphosa and Zondi were never seen leaving the school grounds and only met at the breaks. Dlamini had never followed them and it was put to Dlamini that she therefore cannot say where Maphosa took Zondi. At this point we again had no interpreter as she had lost connectivity and it was disputed as to whether or not Dlamini had said they bought a cool drink at the tuck shop.
(17) The audio of the employer which was being used by the witness was barely audible and the connectivity of the interpreter was a serious draw back. It was decided that arbitration would adjourn at this point and continue on both 6 and 7 October 2020 at 09h00. The parties were asked to be punctual and Nawa was cautioned that he needed to find a better audio connection for when arbitration proceeded. The same was applicable to the connectivity issues of the interpreter. Nawa confirmed that we needed to conclude the evidence of Dlamini and he had one more witness. SADTU confirmed that they had five witnesses.
(18) Cross-examination of Dlamini continued on 6 October 2020. Dlamini confirmed she was a learner in grade 10 in 2016 at H.B. Nyathi Secondary school. Dlamini and Zondi were in the same class and at lunch breaks Dlamini saw Maphosa coming to fetch Zondi to go to buy lunch. Dlamini knew this as she saw them returning from the shop with a food parcel. Dlamini never followed them to see where they went and as they both returned with food, she was sure about where they had been. Dlamini had never seen them eating together and could not say whether or not Maphosa paid for the food for Zondi. Zondi used to say that she had no lunch money but would return carrying lunch with Maphosa. Dlamini never saw Maphosa giving lunch to Zondi but it was not possible that another person bought the lunch for Zondi. Maphosa would appear in the classroom at lunch time, leave with Zondi and they would return with lunch. This happened several times and several others in the class also saw this happening. Dlamini, if she had thought it strange had never reported what happened to anyone as she felt it was none of her business. It was put to Dlamini that she is now testifying but had never actually seen Maphosa buying lunch for Zondi. It was put to Dlamini that her story is made up to suite those for whom she had been asked to testify. Dlamini denied this and said she had not been influenced in what to say at arbitration. Dlamini was unaware that Zondi had been housed in a place of safety. Dlamini explained that Zondi had been absent for a period of time and this had happened more than once a week. Dlamini could not say whether Zondi had an intimate relationship with Maphosa. Dlamini had only seen a learner with an educator both at school and at the Mayfield Mall. Zondi had been walking and holding hands with Maphosa. They had been in public when holding hands and they were seen on a Saturday. Dlamini knew at that time the schools were closed but could not recall the month that she saw them both. It was put to Dlamini that this was untrue as Maphosa would drive home to Mpumalanga during school holidays and Dlamini insisted on what she had seen in the school holidays. Dlamini was not far from them and was walking in their direction. They had seen Dlamini although none greeted the other. Dlamini was told her version is untrue and insisted she knew what she had seen. The meaning of an intimate relationship for Dlamini meant that they were dating. Dlamini only saw Maphosa and Zondi together at school and at the Mall. Both were only seen together during breaks at school. In terms of the culture of the school, Dlamini thought it was out of the ordinary for an educator to collect a learner during the break. Dlamini confirmed that she had been unaware that Maphosa works part-time for the radio station Iktandi FM 107.9 as a freelancer over weekends. In re-examination Dlamini confirmed she had seen Maphosa directly at the Mall. Zondi is aware that Dlamini had seen them together at the mall.
(19) Gerald Malefa Mothlaping (had been the deputy principal at H.B Nyathi Secondary School in 2016). Maphosa had been an educator at the school and after the school holidays in September 2016 Mothlaping had a discussion with the principal regarding the relationship between Zondi and Maphosa. The principal had said she wanted to charge Maphosa and required a statement from Zondi. Mothlaping went to the classroom to call Zondi and found she was not in the classroom. Learners, who were in the classroom, told Mothlaping that Zondi could be found in the adjacent classroom. Mothlaping went there and found Zondi and Maphosa sitting alone in the classroom. Mothlaping told Zondi the principal needed to see her and when Zondi went to the principal Mothlaping had not been present.
(20) In cross-examination Mothlaping confirmed that he had been aware that Maphosa was to be charged with misconduct and at that time the matter was still under investigation. The principal had written a statement about the improper relationship that Maphosa had with Zondi and Mothlaping had not seen the statement when it had been completed. Mothlaping had no further involvement in this matter other than to have delivered the message to Zondi to see the principal. Mothlaping was aware that Zondi was being abused as he heard this from Zondi when the principal had Ramaboya, Maphosa and himself in the admin room. The information that Maphosa was assisting a child who was being abused was relayed to Mothlaping. Maphosa had come to report this abuse of his own accord and this may have been just before the school holidays and before the lunch break. No-one said anything except that it was okay for Maphosa to help Zondi. Both Ramaboya and the principal gave Maphosa their consent. Mothlaping had no knowledge of the charges and said he had never seen Maphosa and Zondi when they were together. It had only been the principal who told Mothlaping about the allegations made. Jabulani Simalani (educator but now retired) had said there was an allegation about Maphosa having an improper relationship with Zondi. Simalani had got this information from Simegele Jinika (educator) although she had not been interviewed. Being part of management Mothlaping had treated the information as hearsay and it had been the principal who investigated the matter and held the interviews. Mothlaping had not seen any improper conduct during the school hours. In re-examination Mothlaping confirmed that the other learners in the classroom had known exactly where he could find Zondi when she had not been in the classroom as expected.
(21) At this time I again cautioned the employer that their failure to call Jinika may be detrimental to their case. Nawa explained that she no longer resided in Davyton, had resigned as an educator and they had been unable to make any contact to get to come to arbitration.
The employee’s version and testimony was as follows:
(22) Precious Zondi (a learner at the school in 2016) testified that she came from an abusive background and she had started living with Lusenga in 2012. Zondi whilst living with her mother had been raped more than once so had relocated to Davyton where she started living with Lusenga. Zondi was unable to speak up about the rapes as it was too difficult for her and hence had started writing everything down that bothered her. Zondi did tell Lusenga everything and he had tried to get help for her. Lusenga had lost his job so referred Zondi to a social worker from whom Zondi received food parcels to survive. Zondi explained that her father was very difficult at times. Zondi started at H. B. Nyathi Secondary School in 2015 when her problems got worse. Zondi went to the Church called House of Glory International which was led by the prophet Clive Botha. Zondi felt free to speak to Botha and other congregants but then Lusenga accused her of having an affair with Botha when Zondi had started attending night services. The Church services at night were from 18h00 to 20h00 and then at midnight Zondi had to say prayers. Lusenga then stopped Zondi from going to Church as he had problems with her routine in this regard. Zondi had been close to Victor (her uncle) and at the time was entering puberty and needed feminine hygiene products. Zondi had not been able to speak about these needs with Lusenga so had used cloths to protect herself during menstruation. Lusenga then turned on Zondi accusing her of having an affair with Victor. Thereafter Lusenga started to beat Zondi and during one such beating Zondi managed to record what was happening and sent this to Victor. Zondi came across Maphosa at school after she had been cut off from Victor. Lusenga deeply humiliated Zondi as he allowed others (friends and other learners) to see the cloths used and other private things which Zondi had not wanted anyone to see. Her friend Noxola Mabene tried to assist Zondi and advised her that Maphosa had helped her when she had suffered similar problems with her mother and she told Zondi to approach Maphosa to avoid making incorrect decisions. Zondi explained her problems to Maphosa which led to some of her class mates insulting Zondi. Simegele Jinika (educator) had joined in insulting Zondi. Everyone at the school was aware of the issues of Zondi and some educators never wanted to teach Zondi. Zondi visited a social worker named Faith (surname unknown) who said she would come back to Zondi but this never happened. On 23 September 2016 Zondi told Maphosa she was worried and then she was referred to another social worker. Zondi had been referred to Ramaboya by Maphosa to assist Zondi but he had said his hands were tied. The time was around 10h30 (almost break time) and then Maphosa went to see the principal but Zondi stayed waiting for Maphosa to return. Ramaboya had also gone to the principal and Zondi had the impression that Maphosa was then given permission to take Zondi to the Rape & Trauma Centre. On arrival at the Centre Zondi spoke to a lady who said they could not assist rape victims without a case number from the South African Police Services (SAPS). Zondi had to open a case with SAPS before she could receive any help. Zondi had not wanted to involve SAPS but she had to get a case number (referred to as an “OB” by Zondi). On 30 September 2016 Zondi, accompanied by Maphosa, went to SAPS to hand in a statement she had written. Lusenga was aware that Zondi and Maphosa had gone to SAPS and after the case was opened they returned home at a time when Lusenga and Victor had been playing chess. Lusenga was happy that Maphosa was helping Zondi. Later that day Zondi had to return to SAPS and Lusenga was aware that Maphosa would be taking Zondi there. Zondi had always reported everything to Lusenga. On arrival back at SAPS Maphosa was in a rush as he had to collect his wife so he left. Maphosa and his wife had been present on 30 September 2016. Zondi had told her father when they were on their way home after which she would explain everything to him. Lusenga had thanked Maphosa for assisting Zondi.
(23) Zondi explained that she and Lusenga argued which ended with him chasing Zondi away so she went to stay with her friend. Lusenga tried to talk to Zondi on 13 October 2016, had shown remorse towards her, Maphosa and Mabene. Lusenga complained at the school and told them that Zondi was dating teachers. Zondi entered Badanisile Place of Safety (Badanisile) on 17 October 2016 after she had spoken to Maphosa as Lusenga had been abusing her. Zondi was unable to study as Lusenga switched off the lights. Lusenga and Zondi were fetched by Maphosa and they went to SAPS where Constable Khumalo assisted them as Zondi wanted to go to Badanisile until she had finished writing her examinations. SAPS told Lusenga to allow Zondi space to study and write the examinations. Lusenga had said it was okay for Zondi to go to Badanisile as when they were at home they kept arguing with each other. Maphosa was present when Lusenga said Zondi could go to Badanisile and Maphosa had then excused himself and then Zondi was alone with Lusenga. Once at Badanisile Lusenga was allowed to visit Zondi. Zondi was escorted to Badanisile by two members of SAPS and a further 2 members escorted Lusenga back to his home. All this was done in the presence of Lusenga and he had agreed that Zondi could go to Badanisile. Lusenga visited Zondi frequently at Badanisile and when her shoe broke Lusenga had taken it to have it repaired. Victor had said that Zondi should have a phone; on her birthday on 4 November 2016 Lusenga took Zondi out that day having begged to be allowed to do that and she had only returned the following day. Zondi was only allowed to leave Badanisile for school and then the gates would be closed. Maphosa had never visited Zondi at Badanisile. Zondi stayed at Badanisile from September to December 2016 when Lusenga fetched her on 5 December 2016 and took her home. It was untrue that Maphosa would fetch or visit Zondi at Badanisile as this was not permitted as no-one there could come and go as they please. Zondi was unsure whether SAPS registered her with Badanisile and then was told that she had been registered. On 3 September 2016 Zondi had wanted to borrow the laptop belonging to Maphosa so that she could write her novel and Maphosa had agreed. The book she was writing was to be about the things which Zondi had had to face as people are careless to the word of God. Lusenga saw the laptop and Zondi said it was on loan from Maphosa. Zondi showed the laptop to Lusenga and had mistakenly taken a photograph of herself. That was the only photograph of Zondi on the laptop and it was untrue that there were other photographs of her allegedly taken at the home of Maphosa. Zondi had never been to his home. On 3 October 2016 Zondi, Victor, Ntumi (friend’s brother) and Lusenga were at the golf course as Lusenga wanted to ask Zondi to come home. Lusenga had apologized in that he had thought Maphosa had taken Zondi which was not true. Lusenga was present when the laptop was returned to Maphosa. Zondi denied that she ever had an intimate relationship with Maphosa; had not thought about him in that way and had rather related to Maphosa as father figure. Maphosa had been willing to assist Zondi and gave her the correct advice. Outside of school Zondi had only accompanied Maphosa to the golf course, the Trauma & Rape Centre and to SAPS. Zondi had never been alone with Maphosa at any other place. On 30 September 2016 when Zondi lent the laptop they were on their way home from therapy when Itu Moragi (the fiancé of Maphosa) had said she was hungry so they bought KFC chicken. Zondi had eaten and asked if she could take the leftovers home for Lusenga. Maphosa had never bought lunch for Zondi. Lusenga had lost his job in 2012 and she was raised by Lusenga, Victor and by herself. Zondi again denied she had ever had an intimate relationship with Maphosa and explained that it had been Lusenga who started those rumors which were not true. Zondi was not aware of any letter written by Badanisile.
(24) In cross-examination Zondi confirmed that before going to live at Badanisile she had not previously met Ms. Tshabalalala (owner and Founder of Badanisile.) Zondi confirmed she had been taken there by two SAPS officials who had left the police station at 17h00. When the second paragraph of the letter from Badanisile was read Zondi said it was incorrect to have stated that Zondi went to stay there on 24 October 2016. Zondi was resolute that she first came to stay at Badanisile on 17 October 2016. Tshabalala (called “Gogo” by her staff and those in the shelter) had not been present when Zondi arrived and two other females were present. Zondi confirmed that there were 8 days between 17 October 2016 and 24 October 2016 at which time Zondi had been living there since the former date. Zondi did not believe that Gogo would lie but the date she arrived was not 24 October 2016 but 17 October 2016. Zondi explained that she would not be forced to agree with a letter that had been written in her absence. It was put to Zondi that Gogo would not lie and Zondi countered that Gogo was not present when she arrived at Badanisile. Zondi eventually stated that her final answer is that she arrived at Badanisile on 17 October 2016. Zondi was asked if it were possible that anyone might have thought that Maphosa as her educator was present that day. Zondi explained that Maphosa was not present when she was taken to Badanisile. Lusenga was at all times aware that Zondi was at Badanisile, had taken her shoe for repairs on one visit and had also taken Zondi out for her birthday. Zondi was unaware of any documents in regard to parental consent as she had been brought to Badanisile by 2 officials of SAPS. Lusenga and SAPS had agreed that Zondi should stay at Badanisile. Zondi confirmed that she had never met with SADTU before arbitration; she was telling the truth and no-one told what she had to say. Zondi felt that Nawa was not listening – on 17 October 2016 when they were at SAPS Maphosa had left and two officials escorted Zondi to one place and two others took Lusenga home. It was put to Zondi that Lusenga had said that when at the police station Maphosa plus Zondi had been far away and Lusenga could not hear what was said. Zondi corrected this by saying that Maphosa left; she and Lusenga were sitting together. At the time only Lusenga and Zondi were at the police station. Lusenga had never wanted everyone to know that he was abusing Zondi and hence he had started all the rumors such as Zondi was having an affair with Victor and then with Maphosa. Lusenga had gone to the school as a parent to complain that Zondi was a troublesome daughter which is why Jinike and other educators had bad mouthed Zondi. Lusenga had started those rumors as when out he stopped her friends and asked if they knew that Zondi and Maphosa were dating. Others saw Zondi as troublesome as it was alleged she was dating Maphosa but Zondi only saw him as a father figure. Zondi was not aware of everyone who had thought badly of her as she was unaware of who all had heard the rumors started by Lusenga. It was put to Zondi that there were more than 1060 learners at the school and out of that total Zondi was unable to give a total of the number of people who had bad mouthed her and added that there was a lot of bullying at the school. Zondi could also not say who liked or did not like her at school. Zondi clarified that the rumors started by Lusenga about her had not been true. Zondi had sought refuge at the home of Mabene when she was being abused by Lusenga. Lusenga, when Zondi was not home, would arrive at the home of Mabene to fetch Zondi to take her home. In 2016 Zondi had also stayed with her sister in Thembisa and then had to leave as Lusenga had shouted at her sister. Zondi had also lived for a while with her aunt and again Lusenga had caused problems which resulted in Zondi having to move out. Zondi had to live in different places due to the behavior of Lusenga. Zondi confirmed that she was being honest and it was Lusenga who was in the wrong. Zondi explained that Lusenga had bad mouthed her so she would never leave his home. Zondi was told that the principal spoke badly about her and Zondi explained that this was because Lusenga had put dirty linen into public view but not everything he said was true. When the principal had chased Zondi away she had sent an email to the district office. Zondi had been absent on a number of days and representatives from the district office then visited the school. Zondi met with the principal who had asked Zondi why she was so dirty and troublesome. Zondi was scolded by the principal based on the rumors started by Lusenga. Jinike had called Zondi to her classroom where she was told that Maphosa would lose his job due to the behavior of Zondi and had added that Zondi should behave like a lady. Zondi tried to focus on her studies and going to church. Everyone had been shocked by the rumors even Jinika and Similane had also heard about the alleged relationship with Maphosa. Zondi knows how she conducts herself and the others were only taking the rumors started by Lusenga into account. Zondi was the victim in all of this. On 23 September 2016 Zondi had never heard what had been said to the principal when Ramaboya was present as Zondi had sat outside. Ramaboya had never stopped Maphosa and Zondi from leaving the school grounds. It was put to Zondi that Ramaboya had testified that they were stopped and Maphosa had said there was an emergency which is why he was taking Zondi. This was denied by Zondi who explained on 23 September 2016 there had been no emergency. After Maphosa spoke to the principal Maphosa took Zondi to the iThemba Rape and Trauma Support Centre (iThemba) where Zondi spent two hours only as she needed to open a case with SAPS before they could assist her. Zondi was taken to SAPS which was for about an hour and Zondi was home by 16h00. That morning Maphosa only met with Zondi at about 10h00 and not at 08h30. Zondi had been given a “hamper” of ladies products (such as sanitary towels, soaps and such like). Zondi had her own KFC and gave the left overs to Lusenga and Zondi added that she had not made this up – it is what happened. Zondi never asked Maphosa to buy food for her father and had only asked to take him the left overs. Lusenga sometimes tells the truth but when he feels under pressure this is what results in him reporting untrue and often bad things about Zondi. What Lusenga had said in the rumors was not true. It was never said that Lusenga trusted Zondi and hence the rumors were started by him as he was under pressure as he abused Zondi. On 23 September 2016 Zondi went for counselling, was at SAPS because she had suicidal thoughts as her situation was bad. Zondi could not be assisted further without a number from SAPS. An OB (Occurrence Book) number was written on a scrap of paper for Zondi and she was told to keep that number in a safe place. Zondi confirmed that she had no documents in this respect as she had only received counselling. iThemba had not given any documents to Zondi and she had only received the gift “hamper”. Zondi stated that SADTU during their investigations had been given the OB number. Zondi confirmed she had received the OB number on 30 September 2016. On that day Zondi had left home at 09h00 when she had been fetched by Maphosa and had returned home by 17h00. They went to SAPS to talk to Sargent Nbele and had waited for him for seven or eight hours. At SAPS Zondi had been put into a room to speak with Nbele and once he arrived they had spent time talking. Zondi confirmed that she had phoned Lusenga about the key to the house and Lusenga had not lied as he was at Zenzele but it had been Zondi who phoned and not the other way around.
(25) The testimony about there being a photograph of Zondi on the laptop belonging to Maphosa was not true. Zondi had never been to the house of Maphosa let alone sat on his bed. The only photograph taken had been when this was done mistakenly when Zondi was showing the laptop to Lusenga. Zondi said she was telling the truth, Nawa was hearing her version for the first time but was not listening. When entering the room for arbitration Zondi had seen the deputy principal on the screen as she was at the office of the employer; Zondi sat down with her child and the laptop had been far away from where Zondi had sat. It was put to Zondi that the evidence of Mothlaping had been that the principal had sent him to call Zondi but she had not been in the classroom as was expected. Mothlaping had been directed to a different classroom where he had found Zondi sitting alone with Maphosa. Zondi said that she left the classroom as she was crying and had no-one with whom to speak. Zondi when speaking to or being with Maphosa had never tried to hide and some of the learners were aware of what Zondi was going through at the time. It was put to Zondi that everyone knew about her relationship with Maphosa to which Zondi responded that she could not say as she never had a relationship with Maphosa. Lusenga would make sure that Zondi had lunch or she could go the feeding scheme to get food. Noxolo Mabene was the best friend of Zondi and Zondi had never received any special treatment. When Zondi was very young she had not lived with Lusenga and only started living with him in 2012. Previously Zondi had lived with her grandmother and then her mother. When not living with Lusenga, Zondi had written him letters and it had been Lusenga who had then referred her then to a social worker. Zondi attended a five day workshop and had not had any counselling. That had been held with others who had problems and was a time to forget all the problems.
(26) In re-examination Zondi confirmed that Lusenga never called when she was with Maphosa and there were no photographs as alleged of Zondi sitting on a bed in his house. Zondi confirmed that she had been called to see the principal and stopped when writing the Life Orientation examination. Zondi had been fetched by Mothlaping and was told by the principal to write down what happened regarding the alleged relationship with Maphosa. Her friends Mabene and Ndemiso had been asked to do the same thing. Zondi had written that there was no relationship between her and Maphosa. It was a learner speaking to an educator only and had never been more than that. Lusenga had been aware when Zondi went to Badanisile and there had never been an intimate relationship with Maphosa. Maphosa had never bought lunch for Zondi who had treated Maphosa as a friendly father figure. Zondi agreed that Lusenga had acted irresponsibly, she had lost everything, and had thought Lusenga would protect her but he never did. Lusenga had disappointed Zondi as she got hurt due to his behavior. Zondi had not completed school and is no longer a student. Zondi did not get her matric due to the false allegations made. In answer to questions of clarification from me Zondi confirmed that her daughter is two years old and they live with the father of her child – Thulani Luel. During her time at school Zondi had been very clever; she got on with the teachers and thought she would make it through to finish matric. Zondi thought she had lost everything.
(27) Noxolo Mabene (now 19 years old had been close friends with Zondi at school) testified that she was the person who advised Zondi to seek assistance from Maphosa. Zondi told Mabene everything and the problems that Zondi was undergoing were discussed. Zondi had problems with Lusenga and Mabene had similar problems with her mother. Both had disagreed with their respective parent. The reason Mabene told Zondi to speak to Maphosa was that he had helped Mabene with her problems regarding her mother. Zondi had been specific about her problems which Mabene felt she could share. Zondi just had not been good enough for Lusenga and he even accused Zondi of having affairs with men at the church. Mabene had told Zondi about the help that Maphosa had given to her. Zondi was referred to therapy and had also been placed in Badanisile where she had stayed for a period of time. Lusenga had gone to visit her and was aware of where she lived. Mabene was aware that Maphosa had been charged by the Department of Education. Maphosa took Zondi to Badanisile and Lusenga was aware as he had to have given consent. Zondi had felt that she was not safe as when she was trying to study to write her examination Lusenga would taser Zondi which is why she needed to live in a safe place. When Lusenga would chase Zondi away she would come to stay at the home of Mabene. Mabene could not recall the exact dates but it happened mainly in September to October 2016 amongst other times. Mabene recalled a date of 30 September 2016 as Zondi stayed with Mabene for a longer period of time than was usual as Zondi was very sad. Zondi had overstayed as Lusenga had chased Zondi away again and told her that he never wanted to see her again. Lusenga was moody and when his mood changed he became a different person. Zondi that time had stayed with Mabene for two weeks. Her brother and Zondi had gone together to the golf course to meet Lusenga to find out where Zondi would live. There had been a rumor that Zondi was having an affair with Maphosa. Lusenga had apologized to Maphosa for his having falsely accused him of the affair. Lusenga had been aware that he was wrong. Zondi did not return after that to stay with Mabene who did not know what happened. Mabene was aware that Zondi had been put in a place of safety and that Lusenga still had contact with Zondi. Maphosa had assisted Zondi to get through that process when he took her to SAPS and then SAPS took her to the safe place. Zondi never had an intimate relationship with Maphosa as he was seen like a father figure to the learners. Maphosa had never treated Zondi differently than other learners as he assisted them a lot. Maphosa had helped Zondi in a similar manner to the help he gave to Mabene and some others. Maphosa was different to other educators as he listened and took what he was told seriously. In the unlikely event that Maphosa had a relationship with Zondi, Mabene was confident that she would have known. Mabene was aware that Zondi lent a laptop from Maphosa so that she could write a book and had no further knowledge regarding the laptop. Zondi had only ever gone with Maphosa to public places like SAPS. Zondi had never shared any intimate details between herself and Maphosa. Zondi had told Mabene about other relationships she had like for example with an educator from the school – Mr. Sinuvio Mabambo. Mabene was not aware that Lusenga had made a complaint at the school but was aware that he had falsely accused Zondi of having an affair with Maphosa. At school a leaner had been sent to call other learners who were friends with Zondi to go to the principal’s office. The principal made those learners write letters about their friendship with Zondi and any misunderstandings. Friday 30 September 2016 Maphosa and Zondi had a disagreement, Maphosa dropped Zondi off at her home and Lusenga chased Zondi away. Zondi had then spent the weekend with Mabene.
(28) In cross-examination Mabene agreed that Zondi and Maphosa went to public places and had gone to Mayfield Mall during the week. Maphosa would take Zondi to the Mall after her therapy session. Zondi had never said that she and Maphosa were intimate and Mabene believed that Zondi would have told her if this was true. Mabene was not aware of how many therapy sessions Zondi had attended. Mabene confirmed that Lusenga was aware that Zondi was living at a place of safety as Zondi had said Lusenga had given his consent in this regard. Lusenga was aware of what Zondi was facing and why she was taken to the place of safety by SAPS, Maphosa as well as Lusenga.
(29) In re-examination Mabene agreed that Zondi was taken to the Mall by Maphosa after her therapy session during the week. Zondi had said that Lusenga was aware of where she was being taken. While at School Zondi had told Mabene about what happened when she was taken to the safe place. Zondi said she had started at SAPS and was then taken to the safe place. Lusenga was aware of the safe place and agreed to Zondi going there to be safe. Zondi had said Lusenga was present so Mabene was aware that Lusenga knew what happened.
(30) Berlina Tshabalala (founder and owner of Badanisile Place of Safety) testified that she provides refuge to abused children and women. Zondi was a child who had been brought to them by SAPS although Tshabalala was not present when Zondi arrived. It had been reported to Tshabalala by Rhoda Maphefo (an assistant) that a new child had been brought to them. The day after the arrival of Zondi, Tshabalala learnt that Zondi had been escorted by two officials of SAPS. There had been no-one else present with Zondi when she arrived. Zondi had come from Lusenga’s house and he used to come to visit to check she was safe. When a new comer arrives at Badanisile an intake letter is completed where the history of that person gets written down. The facts in the letter are privileged and may not be shared with anyone. All in the Centre are registered in the OB (occurrence book) held at the Centre and the contents of this register may also not be shared with others. Those seeking safety due to abuse are generally brought in by SAPS. At Davyton two SAPS officials usually do this and the female is named Lizzy (surname unknown) who is always accompanied by a male official who usually drove the vehicle. Lizzy is reflected in the register as the person who brought Zondi into the Centre. Lusenga had visited Zondi the next day to see that she was safe. Lusenga came to the Centre many times and had even helped with the garden. Lusenga had only taken Zondi out once for her birthday and had also taken her shoe to be repaired. Zondi went to school daily and there were other children so that they walked together in safety. Tshabalala explained that Zondi had been raped five times and had to always be back at the Centre by 18h00 when the gates were closed. Zondi had been very open with her and had told Tshabalala everything. The principal and another female had visited the Centre and had come to ask how Zondi behaved. Tshabalala told them that Zondi was well behaved. The Department of Education had never contacted Tshabalala to ask for proof that Zondi was in the Centre although a male came one time who turned out to be Victor – the uncle of Zondi. Maphosa had never come to the Centre. Tshabalala stated that another male had come and that he was present at arbitration. That person was identified as being Nawa who denied it had been him immediately. When shown the letter in the bundle from Badanisile Tshabalala recognized the letterhead and stamp of the Centre but had no knowledge of the contents of it or who had written that letter. Although the letter purported to be from Tshabalala she denied ever seeing this letter previously. Tshabalala usually writes out her full name as her signature so she had not signed that letter and held it to be fake. The NPO (Non-profit organization) number on the letterhead was correct but on the stamp from the Centre the NPO number had been crossed out and the correct number was hand written. Tshabalala confirmed that Maphosa had never come to the Centre to visit or take Zondi out. Tshabalala only met Maphosa during the hearings. When it had been time for Zondi to leave she had been collected by Lusenga. Tshabalala agreed to make the documented registration of Zondi in the Centre available to SADTU who would forward copies to me and Nawa. In answer to a question in clarification from me it was confirmed that the employer had placed the Badanisile letter into the bundle of evidence.
(31) Cross-examination commenced with Nawa stating that he wanted to investigate the NPO number as the Centre was funded and the NPO number needed to be verified. Tshabalala agreed to send in her registration paper which SADTU would circulate to Nawa and myself. Tshabalala confirmed that it was not her signature on the letter. Lizzy is based at SAPS in Davyton and is married. Nawa stated that he is married to Ntombi Masibuku who is the blood sister of Lizzy. Nawa confirmed that Lizzy is an administrator and not a police officer. Nawa was reminded that he needs to put questions to the witness. Tshabalala confirmed that Lizzy is based at SAPS in Davyton and brings woman and children to the Centre. Tshabalala confirmed that she was not present when Zondi had been brought to the Centre. At the time when Zondi arrived Mapife Ifo had been in charge. All documents relating to those in the Centre are kept in the office of Tshabalala, are secured and only she had the keys to her office and files. Tshabalala confirmed she had never written the letter in the bundle of documents and that she had not been present when Zondi arrived. Tshabalala confirmed this was the truth and that Zondi had been accompanied by two officials from SAPS. Tshabalalala could not say if the other official was Khumalo. It was put to Tshabalala that her evidence is hearsay as she had not been present when Zondi arrived and therefore could not say whether or not Maphosa had been present. Tshabalala confirmed that the social workers take care of the compliance to any Acts or law. Tshabalala confirmed that no documents were submitted as SAPS does not bring any documents with a child entering the Centre. The Centre is a shelter and people may be admitted without documents but when a person transfers from one shelter to another then documents are provided. Usually when a child is involved with some domestic disturbance at their home the police officials will bring them in but there are no documents. As the Centre is not an orphanage there was no need for any documents when Zondi entered the Centre. It was put to Tshabalala that the information in the letter purported to be from her was disputed and she was asked who else would have had access to the information to have written the letter. Tshabalala stated that she had no knowledge about the letter and that as no documentation was required there had been no need for her to investigate anything in regard to the admission of Zondi to the Centre. It was put to Tshabalala that only those present when Zondi arrived at the Centre would have had access to the information which is recorded in the disputed letter. Tshabalala stated that Mapife was present when Zondi was admitted. Lusenga had come to visit the next day so as Zondi’s parent he was aware of where Zondi was staying. It was put to Tshabalala that Lusenga had indicated that he was phoned by Khumalo and informed that Zondi was in a place of safety. Tshabalala stated that Lusenga had come the next day as she had spoken to him and he had only taken Zondi out for her birthday. It was possible that Zondi had left the Centre on 5 December 2016. It was put to Tshabalala that Zondi spent three months at the Centre and yet there is no documentation. Tshabalala explained that no documents were required and Lusenga frequently visited the Centre. Lusenga did not come every day. No-one exits the Centre after 18h00. Tshabalala agreed that Lusenga gave his consent for Zondi which is further illustrated by his frequent visits to the Centre. Tshabalala had not been present when Zondi arrived so had not spoken to SAPS personally.
(32) In re-examination Tshabalala confirmed that Lizzy was from the Davyton branch of SAPS and when dropping off anyone at the Centre they were always accompanied by a male official from SAPS. Lizzy specifically deals with cases involving abuse and through the social workers is in close contact with the Department of Social Development. Social workers deal a lot with places of safety. Tshabalala had never seen Maphosa at the Centre.
(33) In answer to questions of clarification from me Nawa explained he had been carrying out an investigation as there was an educator who was misbehaving with a learner. Nawa had not threatened anyone, had spoken politely and he added that Lizzy does not wear a uniform. NAWA denied that a week before arbitration commenced he had visited Davyton and pointed out that Mdabazathi Mvandaba (labour relations officer) is the one who had visited Davyton.
(34) Mapheto Sunday (an assistant at Badanisile) testified that she was aware that this case is against Maphosa and involved whether or not he had come to visit Zondi at Badanisile. Zondi had been brought to the Centre by Lizzy with a male official from SAPS. No one else was present with Zondi when she arrived at the Centre. Lizzy usually brings woman or children to the Centre without documents. On arrival at the Centre everything about the new person is written in the OB. Lizzy had made the entry in the OB for Zondi. Sunday explained the rules and showed Zondi around the Centre. It was explained that Zondi would go to school but they would walk in a group for the safety of all. Tshabalala arrived back the next day which is when Lusenga arrived for the first time. Tshabalala and Lusenga went into the office to speak in private. On leaving Lusenga had said he will check on Zondi whenever he had the time. Lusenga regularly visited the Centre and had even done the gardening. Lusenga also had a shoe repaired for Zondi. Sunday thought that Zondi had stayed at the Centre for three months. Men are prohibited from entering the Centre but as her father Lusenga had been allowed to enter. Sunday had never met Maphosa and confirmed that no-one else took Zondi out. The gates to the Centre are locked at 18h00. Zondi was taken out by Lusenga on her birthday and thereafter had not returned. Zondi was well behaved and open. Sunday was unaware if anyone had asked for proof that Zondi had stayed at the Centre.
(35) In cross-examination Sunday confirmed that she had worked at the Centre since 2010 when Tshabalala had opened the Centre. Sunday did not know the NPO number off by heart. There are rules for obtaining the details of everyone who enters the Centre and those new people are generally brought in by SAPS or social workers. The Centre works with women and children who have been abused. Sunday was not aware of which laws applied to the Centre and explained the documents for an orphanage were different. Badanisile only dealt with women and children who had been abused. Sunday could not say what happened to a person in an orphanage if they too were abused. Zondi had been allowed to stay as they could not just throw her outside. It was the social workers and SAPS who dealt with the law and mostly the abused woman or child were brought to the Centre by SAPS or the social workers. Sunday was aware of the arrival of Zondi as she had been brought in by Lizzy with a male SAPS official and receiving Lizzy from the Centre had been Zodwa, Lerato and two others. Sunday was not aware of any letter from the Centre and confirmed that Zondi arrived on 17 October 2016. Zondi arrived only with the two officials from SAPS. The letterheads for Badanisile were kept locked in the office of Tshabalala who was the only one who had a key. Sunday since 2010 had never seen Lizzy wear a uniform. Sunday confirmed that the documents are only completed when and if the case goes to Court. Sunday knows the procedures and Lusenga had agreed that Zondi be admitted to stay at the Centre. Sunday a couple of times had given both Zondi and Lusenga lunch. Lusenga had once commented that Zondi was safe in the Centre. Lusenga had given his permission for Zondi to stay at the Centre and visited Zondi which confirmed that her stay had his consent. It is not allowed to disclose who is staying at the Centre for their safety. Additionally that information could not be disclosed as it was confidential. Zondi had been referred to the Centre and Sunday was unaware if Lusenga had ever abused Zondi. Zondi seemed always happy to see Lusenga.
(36) Sergeant Kotlekizer Nbele (Family Violence, Child Protection and Sexual Offences (FCS) unit in the SAPS) testified that he knew Zondi and Maphosa when they came into the station in Benoni. Zondi opened a case of rape but had been unsure as the abuse came from a family member. Nbele explained to Zondi that she would be protected and Zondi said she would decide later. They returned later with a statement in respect of the sexual assault which Nbele had written up in the OB to record on that date he had assisted Zondi. As a case had not been opened Nbele gave Zondi the number from the entry in the OB. Writing up details in the OB is standard practice when no criminal case is opened. Nbele offered that if this arbitration needed the OB he could get it from the archives as all this happened in 2016. Nbele recalled the OB number as being 2150/09/2016 but did not have specific dates and times as the OB for 2016 had been archived. The matter had been about sexual assault by a family member. Zondi had raised the assaults that happened when living with her grandmother but Zondi had said she was never believed. Maphosa had brought Zondi into SAPS to lay a charge and had done so in his role as an educator. Maphosa had supported Zondi throughout this difficult time as Zondi had trusted him enough to have opened up to him. Lusenga was aware of what was happening as he had called the SAPS in Davyton. The complaint filed had been the violation of a child by family members, the child was the complainant and the priority in such matters is the safety of the child. Lusenga had been aware that Zondi had been violated but had failed to act. Nbele had also given testimony at the disciplinary hearing for Maphosa. Captain Khumalo and another had taken Zondi to a place of safety. Zondi had during this time become close to Nbele and confided with him regarding many things that had happened. At the time Zondi was very troubled and had been having suicidal thoughts. Nbele was not aware of any improper relationship with Maphosa despite there being many allegations. Lusenga had said that Maphosa was having an affair with Zondi and Nbele himself had been accused of the same thing by Lusenga. Lusenga would accuse everyone who was helping Zondi of dating her or having an affair. Nbele had never met Lusenga having only spoken to him telephonically. After Lusenga had complained to SAPS the decision of SAPS was to place Zondi into a place of safety. At the time in 2016 Lusenga had threatened to sue the police but to date this had never happened. Zondi had never said she and Maphosa were intimate.
(37) In cross examination Nbele confirmed he worked for the FSC branch of SAPS. Nbele knows the Children’s Act and explained that whether or not documents were needed depended on the specifics of what had happened. The abuse had been reported, an entry was made in the OB book and at law a twelve year old can make a decision to take the matter further. Zondi had not wanted to continue with the criminal case and SAPS had a duty to assist had Zondi decided to continue with that case. A child aged twelve can make legal decisions. Nbele explained that had he thought he needed to explain the Children’s Act he would have brought a copy with him to arbitration. This provision was in terms of both the Sexual Offences Act and the Children’s Act. Nbele confirmed that there was no duty to advise the parents. When a child is victimized SAPS have authority to place the child in a place of safety without parental consent. A form is completed by SAPS and the social worker who are removing the child. Nbele confirmed that it was not illegal to remove a child as SAPS assumes custody of the child when family members are the abusers. Once in a place of safety the social workers get involved and go to Court. Each child is allocated a social worker in cases of abuse. The documents to be done within twenty four hours are done by the social workers.
(38) In re-examination Nbele confirmed that usually form 4 and an affidavit are completed. However in cases of an emergency a quick removal of a child in danger can be arranged and is the area of expertise where Nbele works. Nbele confirmed that the case for Zondi had been an emergency where the duty to put her in a place of safety had fallen on SAPS – which is what happened.
(39) Godfrey Maphosa testified that he wished to start with some background information. Maphosa was raised by his mothers’ uncle in Mpumalanga as his mother had lost her mother at the age of twelve years old. His Grandmother who was in her second marriage had died and his mother underwent some abuse. Maphosa at age fourteen went back to his mother who had abused him by bashing him, insulting him and had on a regular basis been kicked out of her house. Maphosa got by as he slept at the homes of his friends and his mother was not expected to know where he was. Maphosa became an educator. Maphosa received help in 1999 in his first year at university and he went to Church. Maphosa attended uplifting programmes and became involved in music, praise and worship. Maphosa was able to forgive his mother as she had been abused as a child and in turn had abused Maphosa as she had never got the help she needed. During his school years Maphosa in matric got help from teachers, social workers, SAPS and they were able to find him other families which were far away so he could finish matric. Maphosa had not wanted to open a case against his mother as he did not want to see her arrested and he had been scared of his mother. The Church had healed Maphosa and he was in a student fellowship. They went to different rural areas doing counselling, church services, motivating the young so that they too believed they could make it to rise above their problems. In early 2016 the students in the fellowship started a community radio station in Mpumalanga which also broadcast in Limpopo. This had been in order to help more people. In the same year Maphosa came across learners who had similar problems to what he had gone through. Maphosa had a heart for the children as they are the future of our country. Maphosa taught English and Life Orientation – a subject which he loved. Understanding the learners Maphosa was better able to guide and help them. Maphosa heard about what Zondi was going through via Mabene – whom he had already helped. His encounters with Zondi had been about a school child wearing no outside signs but Maphosa then learnt that Zondi had been raped, was subjected to domestic abuse and he realized that day at school that she needed help.
(40) Faith (surname unknown) was the visiting social worker and she had spoken with Zondi. Faith undertook to come back in two weeks’ time and in the interim Zondi needed to be taken to the iThemba Rape and Trauma Support Centre. Maphosa had informed his HOD – Ramaboya. Maphosa explained that Zondi needed to be taken to the Centre as Faith had phoned Maphosa on 23 September 2016 advising that she had made an appointment for Zondi to be seen at the Centre. Maphosa looked for Zondi in grade 10C and took her along to see Ramaboya so that Maphosa could take Zondi to the Centre. Ramaboya had said he was busy and his hands were tied. Ramaboya told Maphosa to take Zondi to the Centre. They went to see the principal and Zondi remained outside as learners were not permitted to enter the staff room. Maphosa told the principal what had transpired, that Ramaboya was busy so had told Maphosa to take Zondi to the Centre. The principal gave Maphosa permission and Maphosa had asked her about money from petty cash for petrol. The principal had said to take Zondi first and Maphosa will get his money refunded when he returns. Maphosa had left with Zondi before the break at about 10h30. Ramaboya was not present as he was busy with papers and he had not been at the gate as he claimed in his evidence. Maphosa explained that he had not been free that day in the first and second periods. Faith had phoned at about 09h30 which meant that Maphosa had to wrap things up as he needed to locate Zondi. Maphosa went to Ramaboya (no gate was involved) and initially Ramaboya had said that he should take Zondi after school as it was not an emergency. Ramaboya had never sat with Zondi to ask her about what had happened. Maphosa had explained that Zondi had been raped a number of times and had been subjected to domestic violence. Maphosa had also said that Faith had made an appointment for Zondi to be seen at the Centre and had phoned Maphosa to take Zondi to the Centre. Ramaboya was part of the SBST whose function included the induction of new educators which had not been done for Maphosa by either the principal or Ramaboya. Maphosa felt that as he taught Life Orientation he should help in school and in life. Maphosa said he felt he owed it to help a child who was experiencing things similar to what he had undergone. Zondi had said she had been raped by family members and had domestic abuse at her home. Maphosa felt that Ramaboya was not interested as he had never sat down to talk to Zondi or Maphosa. Maphosa had attended meetings and denied that he had been difficult. Maphosa agreed that the principal had said that she had never had any problems between herself and Maphosa. Further she not been aware of any problems between Maphosa and Ramaboya.
(41) On 23 September 2016 Maphosa was at the iTemba Rape and Trauma Centre where he went to speak to the receptionist. Maphosa was shown to an office where he introduced himself, said he was an educator and brought a learner for help who alleged she had been raped several times and at home was suffering domestic abuse. Zondi was then called into the room and Maphosa left to wait in the reception area. Zondi spoke with the other person for a while and then came out of the room smiling carrying a hamper of girls stuff. The Centre was unable to assist Zondi as she never had a case number. They were told to approach SAPS in Benoni and meet with Sergeant Nbele to open a case. They went to SAPS and Maphosa explained why he had brought the child into see SAPS. Zondi was taken into a room to speak with Nbele while Maphosa waited outside. When Zondi and Nbele came back it had been established that Zondi said she had been raped five times and was undergoing domestic abuse at her home. Nbele said it was doubtful that he could assist Zondi as she had not wanted to open a case as it was some family members who were involved. Nbele said they should return the following week with a written statement to either open a case or get an OB number. Maphosa and Zondi returned on 30 September 2016 and afterwards had driven back to Davyton where Lusenga and Victor were playing Ludo or something similar outside. Maphosa greeted them both and introduced himself. Maphosa had explained to them that he had been tasked to take Zondi to iThemba in Benoni due to the alleged problems she was experiencing. Lusenga had been happy and told Maphosa he was glad Zondi could get justice and healing. Maphosa informed them that they needed a case number and that he would return the next Friday. Maphosa left their home at about 17h00. Maphosa returned to school on the Monday and approached Ramaboya to let him know what had happened but that Zondi needed a case number and that they would return to SAPS the next week. Maphosa again went to the principal for petty cash and she had said she would pay him later.
(42) On 30 September 2016 the schools were closing for the learners and Maphosa approached Ramaboya as Zondi needed to be taken back to iThemba in Benoni. There had been an activity that day at school, Zondi was not in her classroom and Mabene said that she was at home. Maphosa went to fetch Zondi and Lusenga was at home. Maphosa and Zondi left to see Nbele and Lusenga was aware of where they were going. Nbele had not been at the station but called and said he was on his way. On arrival Nbele and Zondi went to a room where they could speak. Maphosa had waited outside. Nbele came out with Zondi and explained that they had made an entry in the OB and Zondi had handed in her statement. That day the schools closed at 12h00 and Maphosa had an appointment in Mpumalanga which was a two hour drive. Maphosa also had to fetch his finance – Ita Moragi. Moragi had phoned to tell Maphosa she was ready so that they could beat the traffic. Zondi was still in the car and they fetched Moragi from Springs. Before dropping off Zondi. Moragi had said she was hungry so they went to the drive through at the Mall and bought KFC chicken. Zondi phoned Lusenga to say she was on her way home but Lusenga was not at home. By the time they were dropping off Zondi Lusenga was at home and had seen Maphosa. Zondi had borrowed the laptop belonging to Maphosa and Lusenga had opened the door for Zondi to get out. Maphosa greeted Lusenga and said his goodbyes as he was in a hurry to get to Mpumalanga. The laptop had not been discussed with Lusenga and Maphosa spent the weekend at his grandfathers’ place. The school re-opened on about 10 October 2016 and Maphosa was not well so had asked for permission to go home. The next day Maphosa received a phone call from Khaka (first name unknown) who said there was a problem as Jinika was being insulting towards Zondi and accused her of dating Maphosa. Maphosa got the phone number of Jinika and called her. Jinika said she had nothing to say to Maphosa only that he should speak to the principal. On 12 October 2016 Maphosa went to SADTU, explained what had happened and had asked for advice. Maphosa was told to wait for the principal to call him regarding what had transpired. Mothlaping called Maphosa to advise that he needed to see the principal. Maphosa informed SADTU and went to see the principal. This had taken too long so Maphosa never spoke to the principal and had then received the charges against him. Lusenga had started the rumors and had been well aware that Zondi was in Badanisile Place of Safety. There had been the meeting at the golf course where Lusenga had apologized and the laptop was returned. Lusenga was told to stop taking his anger with his wife out on Zondi and Lusenga had apologized for spreading the false rumors about Maphosa and Zondi. Victor had joined the meeting later which had ended amicably. Nbele had phoned to inform that he believed that Zondi was suicidal and hence needed help urgently. Maphosa was told to take Zondi and Lusenga to Captain Khumalo at SAPS. Maphosa collected Zondi and Lusenga who had at that point made peace with each other. Maphosa was fine with having to face Lusenga and had taken them to SAPS. Lusenga and Zondi went together to speak to Khumalo. It was agreed that Maphosa could leave as he was on his way to Springs. Maphosa denied he took Zondi to Badanisile. Maphosa never visited Zondi there nor had he ever taken her out. Lusenga had been involved throughout and was aware of what was happening. It was untrue that Maphosa ever bought lunch for Zondi. When a learner had no food they were able to rely on the feeding scheme. The learners would line up and be served whatever was on the menu for the day. The feeding scheme never served slices of bread. Mothlaping had been sent to class to call Zondi and Maphosa had not been told what happened in that meeting with Zondi. Maphosa denied that he took Zondi to a place of safety and that this had been done without parental consent. It was not true that Zondi and Maphosa had ever walked holding hands and they had only gone to the drive through at the Mall. Over weekends Maphosa volunteered at the radio station. Maphosa was reminded that the version of seeing him with Zondi had changed to having been seen during the week. Maphosa confirmed he had never had a relationship with Zondi and there had never been any intimacy between them. Zondi was going through issues that had reminded Maphosa of what he had experienced with his mother. Maphosa confirmed he would never harm a learner. Zondi had herself involved SAPS and Lusenga.
(43) In cross-examination it was put to Maphosa that his version had not been put to Ramaboya who had specifically testified that he had stopped Maphosa and Zondi from leaving. It was further put to Maphosa that there was a difference as to who went to see the principal and at what time. Maphosa confirmed he found Ramaboya in his office and he was reminded that Ramaboya said he stopped Maphosa at the gate. Regarding being seen at the Mall, Maphosa was reminded that Mabene had been his witness and she had seen them at the Mayfield Mall. Maphosa held he said he had been at the Mall once with Zondi at the drive through at KFC. Maphosa stated that his version was the correct one. It was put to Maphosa that the version had been that he and Zondi went to the Mall after therapy sessions and now it is only at the Mall drive through at KFC. At this point we lost connection with SADTU and as it was late arbitration was adjourned to 09h00 on 18 November 2020.
(44) Cross-examination of Maphosa continued on 18 November 2020. Maphosa confirmed he was not a member of the SBST and was unaware of how it operates. Maphosa explained that it was the responsibility of the HOD (Ramaboya) to take learners to the social workers yet when told about Zondi, Ramaboya had been busy and told Maphosa to take Zondi to the social worker. It was put to Maphosa that the HOD did not have that responsibility as suggested. Maphosa explained that when at school the educators are the parents of the learners and need to do whatever will benefit the child. Maphosa confirmed he had reported the matter to Ramaboya; then Faith had called to confirm Zondi had an appointment at iThembe and when this was relayed to Ramaboya he said then Maphosa should take Zondi to the appointment at iThembe. Maphosa explained that he was not aware of the procedures of the SBST so had never reported this matter to them. Faith had said to Maphosa that he should take Zondi to on 23 September 2016 and that may have been perceived as an emergency. It was put to Maphosa that this version had not been put to Ramaboya meaning that Maphosa never said to Ramaboya that he had always known about the case of Zondi. Maphosa confirmed that this version had been put to Ramaboya. It was put to Maphosa that the principal had said she had never been told what the emergency had been. Maphosa reiterated the emergency had been that Faith got an appointment at iThembe for someone to see Zondi. It was put to Maphosa that in the testimony of Mabene and two others that Lusenga never knew for days where Zondi was staying. Maphosa denied that he usually brought Mabene and Zondi back to her home. Maphosa confirmed he had no access to Zondi outside of school hours. Maphosa clarified that there is the Davyton Mall and the Mayfair Shopping Centre in the area. Maphosa explained that on one occasion Zondi, his fiancé and he had driven through the KFC drive through at the Centre as his fiancé had said she was hungry. Maphosa denied he could have been seen at the Mall over weekends as he works at the radio station over weekends. Maphosa confirmed he had assisted Mabene who had introduced Zondi to Maphosa. Maphosa had taken Zondi and Lusenga to SAPS on 17 October 2016 and had left them there which is when SAPS had taken Zondi to Badanisile. At SAPS Maphosa sat away from where Zondi was speaking to the officer and he had not heard what had been said. It was put to Maphosa that he had never put it to Lusenga that he could not hear what was being discussed. Maphosa held that the letter from Badanisile stating that her educator had brought Zondi to Badanisile was in dispute; Tshabalalala had denied she had written the letter; the letter did not contain her correct signature and Zondi had been admitted to Badanisile on 17 October 2016 and not 24 October 2016 as contained in the latter. Maphosa reiterated he had left Zondi and Lusenga at SAPS. Maphosa was not aware whether or not Lusenga gave his permission for Zondi to be placed at Badanisile. Maphosa added that it had been SAPS who took Zondi to Badanisile. It was put to Maphosa that Lusenga blamed Maphosa for the times when Zondi did not return home for a number of days. Maphosa could not say what or who Lusenga blamed for Zondi not going home over several days. Maphosa stated that if Zondi had not returned home it had not been through any fault of his or his actions.
During the cross-examination of Maphosa SADTU confirmed that they had received a copy of the identity document of Tshabalala which contained her signature for comparison purposes with the undated letter purportedly received from Badanisile. It was evident as demonstrated during her leading evidence that the signature on the letter was not that of Tshabalala. The Certificate of registration of Badanisile as a NPO was also received and confirmed the registration number as being NPO081290. This number is correct on the letterhead but different from the stamped details at the bottom of the page of the letter from Badanisile (which had been scratched out and corrected by hand). SADTU had also been sent a copy of the OB which records that Zondi was admitted to Badanisile on 17 October 2016 at 16h50 by SAPS as she was a “scholar abused”.
(45) Under re-examination Maphosa confirmed that there had never been any intimacy between him and Zondi as stated in charge 2. Maphosa had told Lusenga where they were going when Maphosa had to take Zondi for instance to Benoni. Maphosa confirmed he would never walk in a shopping area holding hands with any learner as he is a well know community personality.
(46) It was agreed that closing arguments would be emailed to me and the Council by no later than 17h00 on 25 November 2020. Closing arguments were received from both parties – the contents of which have been noted.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
(47) Zondi wrote down everything that was bothering her and had wanted to write a book about her story of abuse. I found her to be a credible witness and found no doubt to question what she was saying. It is not easy for a young woman to state in a public forum her ordeals having been raped and physically abused. Zondi did not waver from her version despite almost being “badgered” in an attempt to get her to change her version. It is for this reason that I have fully recorded her version. It is for the same reason and her consistency that I accepted her version on a balance of probabilities.
(48) The interaction between Maphosa and Zondi started when Mabene told Zondi to approach Maphosa for assistance as she had been sexually abused and was still being abused by Lusenga. Zondi had been raped by Victor (and others) and whilst trying to study at night Lusenga did not allow Zondi to turn on the lights. Lusenga had also used a Taser on Zondi, had beaten her which beating had been recorded by Zondi and sent to Victor. Tasers are painful. People shocked by them often call the experience the most painful of their lives. It was for this reason that Zondi did not return to her home for a number of days and it had nothing to do with Maphosa. Maphosa had listened to what Zondi said and had contacted the district social worker (Faith) as he was required to do. Faith made an appointment for Zondi to be seen at the iThemba Rape and Trauma Support Centre on 23 September 2016. Maphosa received a call from Faith about the appointment on the same day at a time when school was in progress. Maphosa found Zondi and took her for the appointment. The question about whether or not Maphosa was stopped from leaving the school is irrelevant to the charges against him. On their return to drop off Zondi it was the evidence of Zondi that she had told Lusenga where she had been and had returned with a basket of “girl things” given to her by the social worker. That social worker had referred them to Nbele at SAPS which is where Maphosa later took Zondi only to be told they needed a charge to be laid or an entry made into the OB. Zondi wrote out her statement. Maphosa with Zondi returned accompanied by Lusenga to SAPS on 17 October 2020. Maphosa left them at SAPS and went on his way. This evidence is confirmed by Maphosa, Zondi and Nbele and is the most probable. It was Khumalo of SAPS and a female officer (Lizzy) who took Zondi to be admitted to Badanisile and not Maphosa. Lusenga was aware at all times where Zondi had been taken; had visited her; taken her shoe for repairs and even took her out on her birthday. Lusenga had also assisted working in the garden of Badanisile.
(49) At law a social worker or a police official may remove a child from their home and place the child in temporary safe care without a court order. However, there must be reasonable grounds for believing that the child is in need of care and protection and needs immediate emergency protection. This may only be done when the delay in getting a court order for the removal of the child may jeopardise the child’s safety and well-being. The official concerned must also make sure that the removal of the child from her home environment is the best way to secure the child’s safety and well-being. In this instance SAPS placed Zondi at Badanisile lawfully with or without the consent of Lusenga as they are required to do in the best interests of the child. In such instances it is the accountability of the social worker to thereafter get the requisite Court Order. I have noted that at all material times Lusenga was fully aware of where Zondi had been placed. Lusenga did not state in his evidence that he was fighting against Zondi being placed at Badanisile or that he in any way objected to this happening. Nbele confirmed that in terms of both the Sexual Offences Act and the Children’s Act that there was no duty to advise the parents or to get their consent to place a child in a place of safety.
(50) According to section 110(1) of the Children’s Amendment Act an educator who “on reasonable grounds concludes that a child has been abused in a manner causing physical injury, sexually abused or deliberately neglected must report that conclusion to a designated protection organization, the provincial department of social development or a police official”. Maphosa reported the abuse of Zondi to Faith who in turn made an appointment for Zondi to be seen at the iThemba Rape and Trauma Support Centre in Benoni. Thereafter the abuse suffered by Zondi and her placement at Badanisile had been dealt with exclusively by the police (SAPS). Maphosa carried out his duties / obligations in terms of the Children’s Amendment Act.
(51) In terms of the first charge Ramaboya testified that Maphosa took Zondi to Badanisile without parental consent but he was not present and could only have heard this from others which evidence amounts to hearsay. The testimony of the other witness was consistent in that SAPS took Zondi to Badanisisle and Maphosa was not present. Ramaboya also testified that the principal gave consent for Maphosa to take Zondi to the social workers on 23 September 2016. In her testimony, despite being fully involved in getting together statements, Mahlise testified that she had thought the charges were about Maphosa taking Zondi to the social workers without parental consent. This is clearly incorrect. Mahlise further testified that she had been unaware of Badanisili which again indicates that she was unaware of the exact charges laid against Maphosa.
(52) In light of the above paragraphs I find on a balance of probabilities that Maphosa is not guilty of the first charge in that he was not the person who took Zondi to be admitted to Badanisile. Rather Zondi had been taken to Badanisile by SAPS as they are permitted at law to do with or without the consent of the parent of Zondi. The first charge was linked to section 18(1)(g) of the Employment of Educators Act, 76 of 1998 Section 18 (1) (g) which states: “misuses his or her position in the Department of Basic Education or a school or adult learning centre to promote or to prejudice the interests of any person”. Maphosa did not misuse his position as an educator as he never took Zondi to Badanisile but rather had followed the correct channels to get the help required for Zondi to be placed in Badanisile as was required of him in terms of the Children’s Act.
(53) It was confirmed that Lusenga was the person who spread the rumours about Zondi dating Maphosa and had even reported this to the principal. Lusenga accused most males of having affairs with Zondi such as Victor, Maphosa, the Church pastor and congregants and even Nbele from SAPS. Dlamini never reported to a person in authority that Maphosa and Zondi were together during lunch breaks if she felt that was unusual, improper or even true. Dlamini testified that she had seen Maphosa and Zondi in the Mall holding hands. Dlamini claimed that she and Zondi were friends yet it is strange that when two “friends” cross each other’s path at the Mall they do not greet each other. It is surprising that Dlamini was not aware of anything to do with Badanisile which begs the question as to whether or not the two were actually friends as claimed. The evidence of Dlamini is rejected as being improbable. Mothlaping testified that he had been sent to find Zondi to tell her the principal wanted to see her. Mothlaping found Zondi and Maphosa in the adjacent classroom but had never asked what they were doing there. Zondi had been crying and left the classroom so it was not unusual for Maphosa to have gone to check on her. Mothlaping also overheard that Mahlise wrote a statement regarding Maphosa and Zondi having an “improper relationship” yet he had never seen the completed statement. Mothlaping had been present when Maphosa and Ramaboya came into the office of Mahlise to get permission to take Zondi to the social workers. At that point in time Mothlaping overheard that Zondi was being abused which begs the question as to why both Ramaboya and Mahlise knew nothing about the abuse of Zondi that was taking place. Mothlaping testified that he had never seen any improper conduct during school hours despite his testimony that he found them alone in an adjacent classroom. Zondi was not new to social workers as when she moved to live with Lusenga in 2012 she had been referred by social workers. Zondi took solace in Church / their activities and Lusenga accused her of having affairs with the pastor and other congregants. Zondi testified that Lusenga embarrassed her by showing others the cloths she used when menstruating and other private things. Zondi also testified that it had been Lusenga who started the rumours about her dating Maphosa which rumours were untrue. It made sense that Zondi thought Lusenga had bad mouthed her as he never wanted anyone to know he had been abusing Zondi. Zondi testified further that when she had approached Mahlise for help she had been turned away which is why Zondi had sent an email to the District Office.
(54) It is very difficult to prove or disprove the existence of an intimate relationship as intimacy involves feelings of emotional closeness and connectedness with another person. Intimate relationships are often characterized by attitudes of mutual trust, caring, and acceptance. There is no doubt that an emotional bond formed between Zondi and Maphosa as she trusted him and no one during their evidence mentioned that Maphosa had judged Zondi for the situation in which she found herself in any way. There had been a mutual acceptance of the situation in which Zondi was placed which is why Maphosa, having suffered abuse himself as a child, had reached out to help Zondi and to carry out his mandate in terms of section 110(1) of the Children’s Amendment Act. Zondi and Maphosa both gave evidence that there was nothing sexual in their relationship. It is highly unlikely that with a fiancé accompanying them on at least one occasion that there would have been a sexual relationship between Zondi and Maphosa. In the event that the DOE were accusing Maphosa of having a sexual relationship with Zondi then the word “intimate” would have been replaced by “sexual” in the charge itself. Zondi in her interactions with Maphosa had been frank, open and honest. An abused person is unlikely to have been that way had there been no trust in the person to whom she was taking into her confidence. I find on a balance of probabilities that the relationship between Zondi and Maphosa had been one of trust and caring without any sexual connotations attached. There had been no “intimate relationship” between Maphosa and Zondi and I find on a balance of probabilities that Maphosa is not guilty of the second charge.
(55) On 23 September 2016 it is confirmed that Maphosa, in the company of Ramaboya was given permission from Mahlise to take Zondi to the social workers which is exactly what Maphosa had done. On the same day Zondi had told Lusenga that she was going to the social workers with Maphosa giving her a lift to Benoni. In her testimony Zondi confirmed that she had spoken to Ramaboya about her issues and he had said he could not help as his hands were tied despite him being on the SBST.
(56) On 30 September 2016 Lusenga was told by Zondi that she was at the Mall with Maphosa – which was when the KFC was purchased using the drive-through. According to the testimony of Lusenga on the same date he was phoned by Ramaboya to advise that Maphosa was with Zondi. Lusenga was inconsistent with his testimony when he initially said on this date Maphosa took Zondi to Benoni but then confirmed that Maphosa was with him at SAPS. It is trite that Mahlise gave Maphosa permission to take Zondi to the social workers but then thought she had charged him for this offence.
(57) On 17 October 2016 Zondi had told Maphosa that Lusenga was again abusing her which is when Maphosa, Lusenga and Zondi all went to SAPS. Zondi testified that Lusenga was fine with Zondi going to Badanisili as he said that when they went home they usually argued. The evidence of Zondi is that Maphosa left SAPS that day as he was in a hurry. Two officials from SAPS escorted Lusenga back to his home while two other SAPS officials escorted Zondi to Badanisili. The OB from Badanisili confirms that SAPS brought Zondi to Badanisile on 17 October 2016 at 16h45. Sunday confirmed that SAPS brought Zondi to Badanisili and she had not previously met Maphosa. Sunday also confirmed that no men were allowed at the shelter and Maphosa had never visited Zondi during her stay at the Centre. Lusenga had been allowed to visit at times as he was the parent of Zondi.
(58) The Employment of Educators Act. 76 of 1998 in section 18(1) (f) states: “unjustifiably prejudices the administration, discipline or efficiency of the Department of Basic Education, an office of the State or a school or adult learning centre”. It was not proved that Maphosa had done anything that would prejudice the administration, discipline or efficiency of the DOE. Having been found not guilty of the second charge there are no factual grounds that would trigger the provisions of item 18 (1) (f) of the Act.
(59) Taking all circumstances into there is no evidence of Maphosa having had an “intimate relationship” with Zondi. Rather there was a bond formed between them as Zondi trusted Maphosa sufficiently to tell him what was happening in her life and Maphosa was in a position to have assisted Zondi. Maphosa is found not guilty of both charges. There is no factual evidence that would trigger Item 18(3) (i) If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1), the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of— (i) dismissal, if the nature or extent of the misconduct warrants dismissal. This item is not applicable to the current case.
(60) There were no procedural challenges in this dismissal and the procedure followed by the employer aligns with Schedule 8 – Code of Good Conduct: Dismissals of the LRA. Consequently the dismissal is found to be fair on procedural grounds.
(61) The dismissal of Maphosa is found to be unfair on substantive grounds. Maphosa is seeking retrospective re-instatement and there is no valid reason why this should not be done. The Department of Education – Gauteng is ordered to retrospectively reinstate Maphosa into the same position he held prior to his dismissal on 11 February 2020 with effect from 4 December 2020. Back pay of R225 185.67 (calculated at R25 020.63 per month x 9 months = R225 185.67) is to be paid to Maphosa by no later than 31 December 2020.
AWARD
(62) The dismissal of Godfrey Maphosa is found to be fair on procedural grounds and unfair on substantive grounds. The Department of Education – Gauteng is ordered to retrospectively reinstate Maphosa with effect from 4 December 2020 into the same position he held prior to his dismissal on 11 February 2020. Back pay of R225 185.67(two hundred and twenty five thousand, one hundred and eighty five rands and sixty seven cents) less his normal deductions is to be paid to Maphosa by no later than 31 December 2020.
(63) Godfrey Maphosa is ordered to report for duty at his usual time on 4 December 2020.
Gail McEwan
COMMISSIONER