PSES216-19/20EC
PSES216-19/20EC
Award Date:
4 March 2020
Case Number: PSES216-19/20EC
Province: Eastern Cape
Applicant: NATU obo Somraba F
Respondent: Department of Education Eastern Cape
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education – Mbizana – Eastern Cape
Award Date: 4 March 2020
Arbitrator: NKOSINATHI MKHIZE
NATU obo Somraba F “the Applicant”
and
DEPARTMENT OF EDUCATION – EASTERN CAPE “the Respondent”
AWARD
Case Number: PSES216-19/20EC
Last date of arbitration: 28 November 2019
Date of Award: 04 March 2020
NKOSINATHI MKHIZE
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The hearing of the arbitration was held on various dates in Kokstad and was concluded on the 28th of November 2019at Department of Education – Mbizana – Eastern Cape.The Applicant was present and represented by Ms. Simangele Shusha (NATU Official).
2. The Respondent is the Department of Education – Eastern Cape. The respondent was represented by Mr. Thando Arthur Makina, its Labour Relations official.
3. The parties submitted written closing arguments by 10 December 2019, on request for extension.
ISSUE TO BE DECIDED
4. I had to determine whether the dismissal of the applicant was substantively fair.
RESPONDENT’S VERSION AND ARGUMENTS
1st Witness – Ms. Lelethu Lokotho (“Lelethu”)
5. Lelethu conceded that she was a student at Walter Sisulu University, Umtata. At the time of the incident, she was a student teacher at Vulindlela Technical School.
6. She attended a farewell function held by the school. The farewell was in two parts, the formal and informal parts. After they finished the formal part, they went to St Michaels beach for the informal one. There they had a meal and drinks.
7. That at around 18h00, the applicant arrived and by the look of things, she thought that he was known to her teachers. She did not know him as she was doing her practical teacher training at the school at the time and the applicant was not a teacher there. He sat with the teachers, spoke and joked with them.
8. Ms. Thole then called us to join them. She then said jokingly to him that there were the girls and he should choose a girlfriend.
9. When the formal party was over, Mr. Mthembu told them to jump into the bus as it was leaving. The applicant offered to drop them off at their places, as he had no problem doing so. They then remained behind. The children left and they remained behind dancing.
10. The applicant then asked for her cell phone number but she did not give it to him. After some time, they then left the place. She was seated at the back seat (5 seater sedan). There were 5 of them in the car. The applicant then asked her to come and sit with him at the front. They then changed seats.
11. The applicant was drinking with Mr. Mgingi. The applicant then stopped the car at Senzi’s and asked if they wanted to go in but at the same time said they were not going to afford. He then asked her to step out of the car. He asked her if she loved him and she said no. He accepted the response. He then went back in the car visibly angry, became loudly (aggressive) and played the music loudly.
12. She was supposed to be the 1st one to be dropped off. The applicant then locked the doors and said he was going to drop her off last. He told her that he was going to drop everyone else and come back to drop off her. She tried opening the door but it was locked.
13. He drove to drop off one teacher at Drumin and then proceeded to drop off Mr. Mgingi and the other teacher together.
14. On their way back, he then stopped the car at some flats, got out of the car and said he was ending there. He took the keys and opened one room. She asked him to take her home and his reply was that he was not going to do that.
15. Her door remained locked. He then unlocked it and came to her door and opened it and asked her to come out but she refused. He then pulled her out and pushed her inside the house. He then locked the door. He then demanded that she should take a seat but she refused. She again asked him to take her home but he refused. He then forcefully sat her on the bed. He attempted to kiss her but she kept fighting and asking him to take her home.
16. He then started to strip her of her trousers but she pulled it up. At that moment, they were arguing and shouting. He was also trying to put his fingers into her pants and vagina. He said she would love him by force. He was going to lock her inside the flat for the whole weekend.
17. She then bit him on his left arm and that caused him to be noisy and aggressive. He then threw her on the bed and pressed his knees on her neck and started beating her with his fists and open hands. That caused the bruises and swelling as could be seen on the J88 report at page 104 of the bundle.
18. She tried to cry and scream but the voice could not come out as his knee was on her neck and was strangling her. She tried crying for help but could not.
19. In trying to stop him from hurting her, she apologized. She did not know as to what she had done wrong to make him to do what he was doing. At that moment he was very violent and had changed to some animal. He further told her that he was going to get a gun from his car and kill her and throw her body in the river. He then demanded that she took off her clothes herself, as he was too angry to do it himself. He was walking up and down the room. At that moment she was scared for her life. She then started taking them off.
20. The applicant at that moment was wearing a vest and underwear only and demanded that she jumped in bed, under covers. She jumped in bed and he got on top of her. He then squeezed her arms together whilst on top of her. He then said he was sorry and did not know what had gotten into him. After about 30 minutes, he felt asleep whilst he was still on top of her.
21. Seeing that he was asleep, she then pushed his arms and legs off her body and put him aside. She then saw that he was still asleep; she then took her clothes, opened the door and ran away. She ran barefoot as her shoes were left in the room.
22. She tried stopping some cars for help until a taxi picked her up and dropped her by her place. Where she was staying, one of the tenants was a police officer. She went and knocked by his room and told him about what had happened. He called for the police to come and attend to the matter. They all went to the flats where the incident had happened.
23. The found the door still unlocked as she had left it and he was still asleep. The police then woke him up. Her bag was still in his car at that time and she was assisted to get it and they then left for the police station.
24. The police tried to get him to pay her so that they would not open the case but he refused.
25. As it could be seen on pages 81 – 83, she made a sworn statement at around 02h00 in the morning. The police officers then gave her a blank J88 form to take to the doctor.
26. Whilst at the doctor, Ms. Thole called and asked as to which doctor she was at. She told her that she was at Dr. Maistry. She then came with two ladies, one dark skinned and the other light skinned. They introduced themselves as from NATU and that the applicant was their chairperson, hence the matter should not be reported. They tried to get her to keep the matter between them and not to report it at home or school. She reported the matter to her family and they were shocked and came to visit her.
27. She offered to cover the medical bill with her medical aid and to pay her any amount because the applicant was her friend. She told them that she was hearing what they were proposing but that she would use her own money to cover the medical costs.
28. The doctor’s report noted that the case was about attempted rape (see under 1 of the report), she sustained injuries and beating (see under 5 of the report) and that there was evidence of assault having taken place (see under 8 of the report).
29. She denied having introduced herself to the applicant but that Ms. Thole was the one who introduced them to the applicant. She had never seen the applicant before the date of the incident.
30. She was not taking alcohol and that during the after party; none of them was taking alcohol but only soft drinks.
31. She never kissed the applicant at the beach or engaged in kissing and neither did she at any stage there engaged with the applicant. At the time the applicant arrived, they were called to come and meet him. He hugged her and told her that he loved her and wanted her contact number; she refused and decided to stay away from him thereafter.
32. She agreed to take a lift from him because other teachers were going to be there and they assured her that he was going to drop them off where they stay respectively.
33. In the car, there was a good mood, playing of music whilst others were drinking alcohol.
34. It was not true that at some point she asked the applicant not to drop her and she was going to go with him to his place.
35. It was not true that she voluntarily came out of the car and got into his room. The applicant dragged her out of the car, which caused an argument but no one came to help her.
36. It was also not true that at the police station she asked the applicant to pay her some money in order for her not to open a case.
37. It was also not true that she was being used to get the applicant dismissed from his job, she was the one assaulted by the applicant. She was also the one who was almost raped by the applicant – attempted rape.
38. She left the applicant’s house when it was still very dark and saw the doctor in the morning. Her injuries could not have happened at any time between the time she left the applicant’s room and the time she saw the doctor.
39. Because she was sober and the applicant was under the influence of alcohol, her version should be more believable and factual.
40. It was the applicant who removed her vest and the pair of jeans and after having been assaulted and demanded that she remove the rest of the clothes, and in fear she removed the bra and underwear (panty).
2nd witness- Xolani Sam (“Sam”)
41. Mr. Sam testified that he was appointed as an investigator, to investigate the incident complained about - (see page 56). He produced an investigation report thereafter – see page 34.
42. He interviewed everyone whose name was mentioned in the matter. His findings were that:
• Ms. Lokotho (Lelethu) was a student teacher and that the student teachers had their own transport.
• Ms. Lokotho met the applicant during the second part of the function. They were served drinks, including alcohol that was bought by others.
• The applicant was not part of the school’s staff at that time as he had been displaced and placed at the district office. He could therefore not have been aware of any student teachers and neither could he have been invited to that function.
• The applicant requested a cell phone number from Lelethu and she ignored him.
• Lelethu said she was going to be the last person to be taken to her place and everyone agreed.
• They then all went to Kongo and then dropped the two teachers at Solomon.
• The applicant then drove back and parked at his house and dragged Lelethu out of the car and forced her into his room. He then asked her to sit on the bed and she refused and he then pushed her onto the bed and forcefully undressed her.
• The version of the applicant was that he had thought that she was shy and he then took an initiative to undress her. During all that, Lelethu was continuously disagreeing.
43. The applicant had told him that he had thought that he had won her and that his colleague (Mgingi) had won Nozibele. He found that version problematic and did not agree with it.
44. After Lelethu had bitten the applicant on his arm, he started assaulting her. She started screaming and he instructed her to stop screaming otherwise he would get his gun and shoot both of them or her alone and throw her body away. The applicant did not deny having kissed her but denied having beaten her.
45. It could be that the applicant could not remember what happened, as he was drunk.
46. The applicant demanded that she undress herself and get under the covers.
47. Lelethu further told him that whilst he was on top of her, he apologized for having beaten her because he loved her. The applicant denied that he beat her.
48. The police report showed that there were bruises even before she went to see the doctor.
49. Lelethu told him that whilst he was asleep, she escaped and a taxi picked her up and dropped her by her place, there she told a policeman who was staying in the same place as her of what happened, hence the involvement of the police. They went to his place and found him asleep and the door still open as she had left it.
50. His findings were that the conduct of the applicant was unbecoming and further that he had attempted to rape her. He had brought the name of the Department into disrepute as the matter was in court and the public at large was aware of it. His conduct was not the one expected of an educator.
51. He found it improbable that she demanded a bribe in exchange for not opening a case against him as she had refused to undress and that he forcefully undressed her.
52. It was also improbable that Lelethu was used as an instrument to get him dismissed. It was the first time she met him and it was not possible to have planned it at that time.
53. It was improbable that she had willingly got out the car as she was going to be the first person to be dropped off.
54. It could only be in his mind that they agreed that she would sleep at his place because he thought he had won Lelethu. That was improbable.
55. As part of his recommendation, he directed the employer to create awareness about sexual harassment in the workplace, as it was unfortunate that professionals get involved into things like that.
56. He was not influenced in the conduct of the investigation and had nothing against the applicant. The applicant attended at his own free will at Umtata for an interview about the matter. He still greets him and remained ethically neutral. He was also an employee of the Department, employed as a Labour Relations Officer, with over 19 years experience, having investigated a number of misconduct cases related to theft, assault, absenteeism etc.
57. The Department was in partnership with Department of Higher Education & Training and the universities (e.g. WSU) for experiential training, teacher training etc.
58. The reason why the applicant was charged even though the incident happened outside the school event was because the incidents of kissing on the check and the asking for the number started during the event. Had the applicant not attended the event, there would not have been this case. The incident therefore started at the work event.
59. It was not part of his terms of reference to investigate whether the applicant attended the event uninvited, therefore he could not make any finding in that regard.
60. The allegations about the plan to have him dismissed through the use of Lelethu was improbable because the applicant told him that he was not invited by management to the function but that one of his colleagues, who was not management, called him and invited him to the event and therefore could not have been placed in harms way by management.
61. It could be said that I abused the powers given to me when I investigated the matter had my report went beyond the terms of reference. He did not receive any brief or mandate from anyone except the terms of reference as per page 34. He was only mandated to investigate what happened between the applicant and Lelethu.
62. Even though the applicant gave him the background as to why he was not at school but displaced because the principal had a problem with him, his finding was that the existence of the conspiracy theory that he was framed, was improbable.
APPLICANT’S VERSION AND ARGUMENT
1st witness - Mr. Somraba Fezile (applicant)
63. Mr. Somraba testified that he had been teaching for 10 years at the same school. At the time of the alleged incident, he was no longer at that school but reporting at the circuit office since he was displaced.
64. That the charges as per pages 29 -30 were explained to him. The charges were fabricated or staged as a result of a bad relationship between him and his school principal. It was so bad such that the principal had threatened to destroy him as he saw him as a troublemaker and troublesome. The cause of the sour relations was because he reported his school principal to the district director in that he had suspended the school’s nutrition program against their advise as the SGB. He told him that even if he would report him to any official in their province, nothing will happen to him but would deal with him even if it would take years.
65. As to the offence itself, he knew the complainant; they met at the beach when there was a school’s year-end function. He was also at the St Michael’s beach since it was a weekend. He normally visits the beach over the weekends.
66. Whilst he was on his way to the beach, he was called by Ms. Thole who told him that some people told her that they saw his car around Margate, so she was checking if indeed he was around there.
67. As he arrived at the venue where there was the function, his colleagues started calling his name (“Shude”). At that moment the complainant came from his behind and touched him and tried to kiss him. He stopped her and suggested that they do it in a proper way if she was not scared of anybody around there. She agreed and they started kissing. She told him to stop when she saw Mam’ Vutha (‘Ms. Vutha’). She further told him that she had heard about him.
68. He then asked her for her contact number and she willingly entered it in his cell phone. She however requested that he should not call her when either Mr. Mthembu or Nyawose were around, as she would marry into the Mthembus’ clan.
69. He was never introduced to her by anyone but that the complainant introduced herself to him. He denied having pestered her for a kiss and her contact numbers. She even voluntarily got into his car and they kissed again.
70. The complainant lied as she had been drinking at the beach, drinking Pine Twist whilst he was drinking the Guarana. After she had finished her drinks, she joined him in drinking Guarana.
71. The complainant had told him about her plans to remain behind so that she could be with him. He then told her that he was planning of going to Senzi’s afterwards and she asked to come with him and he agreed.
72. Mr. Mgingi (another teacher) came to him to complain that he was playing rough as he was taking all the ladies. He told him that he had finalised an arrangement to go with her.
73. He denied having asked her to come and sit next to him when they were leaving the beach. During the time they left the beach, the only person who was not drinking alcohol was Mr. Yenge as he was busy cleaning the braai stand. He also did not travel with them as he was driving his own car.
74. In his car, all the occupants were dancing. He also asked the complainant to kiss him and she refused as she was scared as to what other occupants would say. He told her that she should not worry, as they were all adults. She then asked him to stop the car as she wanted to kiss him and he did so. Ms. Lushaba then complained and said they should go to Senzi’s and he told her to wait as he was still busy with his lady. He cautioned them that they might not be allowed to enter Senzi’s as they were casually dressed but they insisted to go true to his words they were refused entry.
75. They then went to Margate beach and all were dancing there including the complainant. Whilst they were over there, Ms. Nontshe received a phone call from her boyfriend who was complaining that other teachers were back at their homes but not her. She told him that she was coming with him.
76. They then left and had to stop at Sandermere (a hotel like venue) as his passengers at the back wanted to smoke. With that gap, he jumped on her and she was visibly scared of others. Ms. Lushaba then came in and said they should not have sex in the car but rather must go somewhere else. The complainant did not at that moment complain when he jumped over her.
77. They then left and stopped at Port Edward for a smoke break again. He and the complainant were not smoking and they then used that opportunity for kissing. They then left for Kongo as Nontshe’s boyfriend was no longer at Port Edward but at Kongo.
78. The complainant told him that she did not want to go to his place, as she knew that they as boys want to have sex on the first night together. If he wanted her to come with him to his place, he should agree that they were not going to have sex. The complainant was worried that if she agreed to go with him to his place, he was going to force himself onto her; he then told her that he was a gentleman and not a hooligan and he was not going to do that.
79. He however also told her that he could not commit to her request, as she should know that lust was difficult to control. She then said that was exactly what she did not like. She also made him aware that she did not like the ‘one night stands’.
80. Mr. Mgingi then told them that Lelethu (‘the complainant) must be ready as they were approaching where she would be jumping off – at Gagane. He then asked her to come with him to his house and not to jump off. They then proceeded past her bus stop and went to drop off Ms. Nontshe at Kongo. They all got out of the car except him. The complainant then quickly came back into the car and told him that she wanted to go to sleep. He then asked Mr. Mgingi to come back as he had pleaded with him not to leave him behind. He and Ms. Lushaba then came back and they left Kongo. He then proceeded to drop off Mr. Mgingi and Ms. Lushaba.
81. Since he had been displaced, he was no longer staying in his rented room but at his home. At arrival at his rented room, he left the complainant in the car and went to check if the room was still tidy. The room was among other flats. The complainant did not refuse or resist to get out of the car and to go into his room. There was a chair in his room. He then started getting undressed. The complainant followed suit and removed her own jacket and dropped her pair of jeans to her knees and they started kissing. He then tucked her under covers. He then pulled further down her jeans and asked her why she was not getting fully undressed. She told him that she did not like the ‘one night stands’.
82. He did not forcefully remove her jeans but she asked him to remove the left leg and she would remove the right leg. She even jumped off the bed for ease of removal of the pair of jeans.
83. He would concede that the complainant did say no to sexual advances but he persuaded her to agree. He did not assault her, as there were no reasons to do so. He was drunk and that when the girl says no, he gets turned off sexually, hence he decided to sleep, and hence he fell asleep. He woke up with the police in his room coming to arrest a criminal. They could recognize him, as his father was a pastor. They then asked him to come with them as they were arresting him and they then left for the police station.
84. He was disturbed by the allegations that he had threatened to shoot the complainant; he was not owning a gun, let alone knowing how to use it.
85. The charges against him were withdrawn owing to lack of enough evidence. The police had told him that the lady had complained to them that he had kidnapped her, threatened her with murder and attempted to rape her. He asked to talk to her on the side but the police refused.
86. He did not offer any money to the complainant in exchange for peace or for her to drop the charges against him.
87. The investigation report (see page 142 /143) as done by Mr. Xolani Sam was very biased. That report did not show his responses to his questions.
88. The real reason why he was charged was because he was troubling the chairperson of SADTU, his school principal. He had told him that he was troubling him.
89. He believed that the charges were all the work of his school principal. He had coerced Lelethu, Mr. Sam and the MEC to lay charges against him. He had told him that he had contacts in higher places.
90. He believed that Lelethu was sent by someone to him; however Ms. Thole could not have been involved as he had a good relationship with her. Lelethu was used. The late, Ms. Nozibele had called him and wanted to see him about the conspiracy.
91. He could not have been remorseful as he was accused for something he did not do. The complainant refused to have sex with him; hence he fell asleep aside and could therefore have never been removed by the complainant on top of her.
92. He did not know as to who had beaten Lelethu. At the time she arrived and left his room, she was not beaten she was fine. He did not know as to what happened to her on her way home. He did not beat her.
93. The commissioner should believe the theory he had narrated about Lelethu being used by the principal as some witnesses would come and corroborate his version.
94. No man would have been happy when a woman refused to have sex with him more so when in the condition he was.
2nd witness – Ms. Nomashiya Thole
95. Ms. Thole testified that she had been an educator for 10 years at Vulindlela Comtech. Mr. Somraba was her colleague and the complainant was a trainee teacher at the same school.
96. At their school, they had a matric farewell braai at St. Michael’s beach and she was told by her friend that Somraba was seen around the area. She then called him and checked his whereabouts at which he told her that he was on his way to the same place – the beach.
97. When he arrived, he parked his car somewhere far from them and at that time she was busy braaing meat. Mr. Mgenge went to him with the girls. She thought that Somraba knew the girls. She then saw Somraba hugging Lelethu and Lelethu kissing Somraba. The girls (including Lelethu) were drinking something in a blue bottle. Mr. Somraba was drinking the Guarana at the time, she was very sure of that and that after the girls had finished their alcohol, they started drinking the Guarana with Somraba was for that reason that she thought that Lelethu was the applicant’s girlfriend and also that they were friendly to each other. She even said they should not do nasty things in front of them. She left them behind at the beach.
98. She slept the whole of Saturday and on Sunday she was not ok. On Monday she decided to go to Dr. Maistry and whilst waiting there, Lelethu came in and asked to talk to her. She told her that she was almost raped by the applicant. She could not believe it. Lelethu further told her that the applicant was in jail for that reason. She further told her that she had told the applicant to pay her R5000 for her to cancel the matter. She called it a lousy R5000, as others would have asked for R20000 for the same reason. Her name was then called and she went in to see the doctor.
99. After her consultation, she saw Lelethu and said goodbye, Lelethu asked for her number. She then left to meet with Ms. Lushaba at the KFC restaurant. Whilst she was there with Ms. Lushaba and Ms. Makhalima, Lelethu called and asked to see her. She then asked the two ladies to accompany her.
100. She then asked Lelethu to repeat what she had told her about the incident. She told them that Somraba tried to rape and beat her. She also told them about the R5000 request. They were in her car at that time. She never asked her to drop the charges.
101. She accepted that it could be said that she did not have authority to invite people to attend the school function. She agreed that gender-based violence was not right as women and children were being killed.
102. She did not believe that Lelethu was beaten, as there were no visible marks from beating. She also did not believe her as she was still going to meet with the applicant and would then hear his side of the story.
103. She was told by Lelethu that it was her first attendance at the doctor that Monday.
104. She had noticed that Lelethu was after money as she was asking for money for various things. She did not promise her any money nor visited her at the doctor.
105. She did not believe what was written on page 47 as at the time she last saw her, (25th), she had no bruises. She accepted that at page 45 the date stamp for the 26/08/2017 appeared. She did not want to comment about the doctor’s report.
106. It was not true that Lelethu was not taking alcohol on that day as she was drunk. She believed that Lelethu was lying about the whole thing and that some people told her to lie.
107. She did not want to comment about part 8 of page 45. She did not know if the case was one of gender-based violence as Lelethu lied a lot. She lied about her promising to pay, she never told her that she had been to the doctor before they met there and that she was not telling the truth when she was saying that she had not been drinking on that day.
108. She did not want to comment as to whether she was a competent witness.
109. The principal also gave her a suspended sentence and told her that he could have dismissed her had it not been for her parents that he knew.
3rd Witness – Xoliswa Lutshaba
110. Ms. Lutshaba testified that she was a schoolteacher at Vulindlela School. She was there when they met Lelethu at the doctor. The other person who was there was her aunt, Ms. Makhalima.
111. On that Monday, she had an appointment with Ms. Thole and had agreed to meet at the KFC, together with her aunt. They then started working on the document they had to submit to their head office.
112. Whilst at the KFC, Ms.Thole’s phone rang and she answered. She afterwards told them that it was a lady who wanted to meet with her by the doctor’s rooms. She asked them to accompany her. They used Ms. Thole’s car. The lady came in and sat at the back. Ms. Thole then asked her to repeat her story. She told them that she was sexually harassed by the applicant and she had made the offer to him to pay her a lousy R5000 in order for her to cancel the case. She further said that if he did not want to pay, she could get him dismissed. She had not seen her before as she was not at the school when she was a student teacher.
113. Ms. Thole said she had nothing to say until she had spoken to the applicant. Lelethu then said that if she had nothing to say, then the matter would be discussed in Court.
114. It was a Monday when they met; she remembered because she had been displaced and had reported at the district office and then went to Port Edward.
115. She did not believe Lelethu as there were no physical scars on her face. Even though it may be that in some cases of sexual assault, there may be no physical scars, she did not believe Lelethu.
116. She was opposed to gender-based violence but did not believe or support Lelethu as she wanted money and urgently. Her view was that if she was the one assaulted, money would have been the last thing on her mind. The case of Lelethu seemed to be all about money and that the law takes its course was the last thing.
117. She believed that Lelethu was used to get the applicant dismissed as she also was one of the people that their school principal had tried to get dismissed. Lelethu did not say that she was sent by the school principal to go and seduce the applicant, however, the principal could have used anyone to achieve that.
118. The school principal had displaced her, the applicant and Ms. Khondlo and had threatened to follow the applicant wherever he was. He further told her that he was sorry for her because she was young and had just got employed but was involved in those matters.
119. She accepted that page 45 was how the doctor saw it, that Lelethu had sustained bruises. She was not in attendance to protect the applicant but to state what she knew.
4th witness – Mr. Sicelo Yenge
120. Mr. Yenge testified and stated that he was a teacher and a colleague of the applicant. Ms. Lelethu was a student teacher at their school. He was present at the farewell’s after party and that the applicant arrived later to join the party.
121. The party was at the public place (at the beach). When the applicant arrived, Mr. Mgenge and the student teachers went to meet with the applicant. They looked like they were friends with him as they were dancing and laughing together, the applicant had started playing music from his car.
122. He then saw the applicant and Lelethu kissing freely. People were drinking soft drinks and alcohol. The applicant was drinking alcohol.
123. He told the three student teachers (Lelethu, Lutshaba and Notshe) that their kombi was leaving and they said they would leave with Somraba.
124. Lelethu was seated with the applicant but he did not know their arrangement as he was from Port Shepstone and all left for the casino. The applicant brought alcoholic drinks and all started drinking.
125. In one meeting at their school, there was no agenda and the applicant asked the principal about the agenda. The principal then said he could fight the war for five years for as long as he would win it. That left him puzzled as there was nothing about the war but about the agenda.
126. He was appearing to assist the process and not to show loyalty.
127. He did not notice as to what Lelethu was drinking but saw her at some stage drinking guarana. He could not say as to who was more drunk between the two.
128. Ms. Lelethu was drinking alcohol at the party and they all left at the same time albeit that he left for Port Shepstone whilst they left for the casino. At the time they left the venue, Ms. Lelethu was seated on the passenger seat next to the applicant.
129. Though it was at night when everything happened; he was seated on the applicant’s car bonnet and saw that they were drinking.
130. All he knew was that Lelethu was drinking that night but could not say that she was drunk and could not understand what was meant by the doctor (about her not taking alcohol).
131. Lelethu came into their school the following Tuesday or Wednesday and he did not see any bruises, he therefore did not believe the doctor’s report.
132. He did not believe that she was sexually assaulted.
5th Witness – Stella Khondlo
133. Ms. Khondlo testified that she was employed as a teacher at Vulindlela High School, having started there in 1996 and the applicant joined the school later.
134. In 2016/17, she was displaced together with the applicant and Ms. Lutshaba.
135. She did not attend the farewell party.
136. The school principal joined their school in 2016 and during their very first meeting with him, he told them that if he did not like a person, he can hate that person for 5 years if that person had disappointed him.
137. During one SMT meeting, he told them that the boy named Somraba (the applicant here) was going about in the village making accusations about him saying he was fraudulently / wrongly appointed. He was so angry about it such that he nearly called him but exercised restraint but opted to report it to the SMT. He promised to destroy the applicant such that he would not be employable anywhere. He had people in the Education Department in Bisho and even at the district office that could assist him in dealing with that boy. She then volunteered to investigate the matter of the applicant rather than to have him destroyed.
138. The following day, she started her normal duty and was called by the principal and he asked her if she had spoken to the applicant. She said no and requested for more time. After some few days, she and other teachers met with the applicant. She then requested for a meeting with Ms. Mafunda, Jiga, the applicant and the principal for the matter to be discussed.
139. Then there was a strike in their school and the learners damaged the principal’s car. During that incident, the applicant and Ms. Lutshaba were not there. The following Monday, the principal called a staff meeting. She then put forward an apology on behalf of Ms. Jiga. She was scolded at by the principal for putting forward an apology and everybody got scared and the meeting turned into a one-man show. She also noticed that the principal had a gun on his waist under the coat he was wearing. He then promised to bring a permanent solution to the school so that there could be no more strike actions.
140. The principal promised to do anything possible to destroy the applicant; hence she believed that he was behind the allegations against the applicant. She believed that the principal influenced the girl (Lelethu) to destroy the applicant. She did not have proof that the principal was behind the allegations or what was happening to the applicant.
141. The principal was no longer in their school. Before the applicant was dismissed, they as teachers met with the district director and presented evidence of what he was doing wrong or the maladministration that was happening in their school. He had since been displaced and an administrator was appointed to run the school. There has been peace in the school since then.
142. She was from the same trade union as the applicant and the principal was from the other trade union.
ANALYSIS OF EVIDENCE
143. The main issue for investigation was what happened at the house of the applicant. The other issues were secondary thereto and could only assist in providing some theories or versions.
144. It was common cause that there was a school’s farewell party held at the beach. At that time, Lelethu was a student teacher at Vulindlela Comtech. The applicant who was employed as a teacher at Vulindlela Comtech, but was no longer at that school since he had been displaced. The applicant attended the informal after party held at the beach on invitation by one of his colleagues, Ms. Thole who was not part of management.
145. It was also common cause that the school principal was a member / leader of SADTU whilst the applicant, Ms. Khondlo, Thole and Nontshe were members / leaders of NATU another rival trade union. The applicant was the branch chairperson of NATU.
146. It was also common cause that the applicant, Ms. Khondlo and Ms. Lutshaba were all displaced by the principal. Ms. Thole was also charged by the principal but given a suspended sentence instead of dismissal.
147. Lelethu testified that she and other student teachers were seated some distance from the teachers and were called by Ms. Thole and introduced to the applicant. Ms. Thole jokingly told the applicant to choose a girlfriend. It was the first time she was seeing the applicant. The applicant then hugged and attempted to kiss her and asked for her contact number but she did not give it to him and decided to be distant from him. The applicant testified that Lelethu hugged him from behind and kissed him. He then asked her to kiss him properly and she did. She also willingly entered her contact number into his phone. Lelethu denied ever kissing the applicant. The applicant has put forward a number of incidents wherein he was involved in a kissing encounter with the applicant. Ms. Thole testified that she saw Mr. Mgenge walking with the girls (Lelethu and them) towards the applicant and then saw Lelethu and the applicant kissing. Mr. Yenge also testified that he saw the applicant and Lelethu kissing. It would appear that the details as supplied by all the witnesses were different. If Ms. Thole saw Lelethu walking with Mgenge and others towards the applicant, surely, if the version of the applicant was to be believed, she should have seen Lelethu coming from the applicant’s behind and attempting to kiss him. In the evidence of the applicant, that’s where everything started. That was what Mr. Yenge should have seen as well. As Lelethu had testified and her version not attacked, it was the first time she saw the applicant. The version that Lelethu started the whole thing as if she knew the applicant from way back, was inconsistent with the norms, where a junior (student teacher) sees an unknown senior (Applicant) and jump on him with a kiss. There was no evidence that the applicant had the number of Lelethu as Lelethu testified that she refused or ignored his advances. Lelethu appeared to be shy and reserved. The applicant himself testified that he thought that Lelethu was one of those shy girls (hence she was scared of taking off her clothes).The version that at the party when they met for the very first time, he and Lelethu kissed was therefore improbable and that the version of the applicant and his witnesses was therefore not probable. Ms. Thole has an interest in the kind of version she has given in that Lelethu testified that she was the one who introduced them to the applicant and she on her own testified that she was the one who called the applicant and invited him into the party.
148. Lelethu testified that she did not drink during the function and that she does not take alcohol. The doctor’s report showed that there was nil ‘clinical evidence of drugs or alcohol’ on Lelethu. The applicant, Ms. Thole and Yenge testified that the applicant had been drinking during the after party. Ms. Thole testified that they were drinking something in a blue bottle, the applicant was sure that they were drinking the Pine Twist. Both these witnesses were there and Ms. Thole saw Lelethu drinking alcohol on her way to meet with the applicant. The fact of the matter was that the Pine Twist was in a green / lime container (bottle /can) and not blue bottle. The version of a blue bottle was also not put to Lelethu. Mr. Yenge did not mention the colour of the bottle or the brand of alcohol the applicant was drinking. The statements of the witnesses in that respect were therefore contradictory. The brand or the colour of the bottle was important details as all the witnesses testified that at some stage the applicant was drinking guarana. The witnesses seemed to be knowledgeable about alcohol and different types. I therefore find the version of Lelethu to be more probable than that of the applicant and his witnesses.
149. Lelethu testified that the applicant offered them a lift and was going to drop them off at their respective bus stops. Lelethu was going to be the first one to be dropped off. She agreed to take the lift because other teachers were going to take a lift from the applicant. At one point Lelethu testified that she decided to stay away from the applicant because he wanted her contact details but did not want to give it to him. The taking of the lift from the applicant whilst they had their own transport was inconsistent with that version, however such does not negate the version that she had understood the arrangement to be that she was going to be dropped off at her home. The applicant refused to drop her off on their way from the party. Even at the time when they were at the applicant’s place, she repeatedly asked him to drop her at her home as agreed. Therefore on balance of probabilities, she was taken to the applicant’s place against her own will.
150. The main issue in this dispute was about how she ended up at the applicant’s house and the events therein. It was common cause that Lelethu was still in the applicant’s car when he dropped off the other teachers. It was also common cause that the applicant did not drop her off at her place or offered to drop her at her place after they had transported the other teachers. As I have already found that Lelethu was taken to the applicant’s place against her own will, it would be necessary to examine other elements related to that. The applicant testified that whilst they were at Kongo, Lelethu came back into the car and told him that she wanted to go and asleep. Since it was very late, that version was very probable but such did not mean that she wanted to sleep at the applicant’s place. The applicant testified and such was confirmed by Mr. Xolani Sam that he had thought that he had ‘won’ Lelethu hence he acted in the manner he did. I found the logical conclusion of Mr. Sam that it could only have been in the applicant’s imagination that he had won her considering the totality of circumstances to be sound and probable. A person who would have been won would not have resisted so many things. The applicant in his testimony (if it could be believed) knew exactly what would happen if he could be under the same roof with Lelethu. His testimony was that she did not like having sex on the first night / encounter and that he had promised that such would not happen. At the same time he knew that lust would not be something he could control. He however proceeded to take her into his house. Understanding how she felt about sex on the first encounter and his own weaknesses, even if she had offered to sleep in his house, he should have refused as it could have ended up ugly.
151. The applicant testified that Lelethu voluntarily got out the car and into his house , which Lelethu disputed. A woman and her bag are normally inseparable. Lelethu testified that her bag remained in the applicant’s car until the police came to arrest him. When she was forced out of the car, it remained there. She further testified that she was dragged out of the car and forced into the house. If therefore logically, she had voluntarily left the car, she would have taken her bag with her. She also testified that even when he had parked his car and said that was where he was ending, she repeatedly asked him to take her home. That version was never challenged. A person who wanted to sleep over would not have asked to be taken home. It was therefore probable that she was forced to get out of the car and into the house. A person who enters a house voluntarily and with intentions of sleeping over would not have risked the dangers of the night and walked on foot and tried to get transport home whilst her boyfriend has a car. The actions of Lelethu were consistent with the version that she was in the house against her own will and that she remained there and did as she was told because she feared for her life.
152. Lelethu testified that after she was forced into the house, the applicant locked the door from the inside. As it was late at night, it could have been necessary to lock the door for safety reasons. She further testified that the applicant asked her to sit on the bed and she refused after which she was forcefully made to sit on the bed. The applicant denied that version. Lelethu further testified that the applicant jumped onto her and pressed her arms on the bed with his knees and started kissing her and told her that he loved her. The applicant denied that version. Lelethu further testified that the applicant forcefully removed her pair of jeans and vest and tried to put his fingers into her vagina but she fought him off until she bit him on the arm. He then got enraged and started beating her. He then demanded that she take off the remaining clothes and in fear of being shot and her body thrown away, she took of the remaining clothes herself. The applicant denied that version. Lelethu further testified that whilst she was in bed, the applicant jumped on top of her and tried to make love to her but she fought off until he passed out or fell asleep, thanks to his state of drunkenness. She then moved him over and got to escape. The applicant denied that he ever jumped over her but that seeing that she was resisting; he offered to sleep on her side. It was common cause that the applicant had been drinking and that he was not sober. The applicant testified together with his witnesses that Lelethu could have been lying because she was used by the principal to get the applicant dismissed. All witnesses however conceded that they did not have any evidence to that effect. It was improbable that Lelethu could have been used to seduce the applicant and to get him to do what he did on instruction of the principal. The applicant in the first place was not going to be part of the event. The applicant was invited into the event by her confidante and friend from the same trade union, Ms. Thole. Lelethu testified that it was Ms. Thole who offered the applicant whichever girl he wanted (told him to choose a girlfriend), hence he wanted her. That leaves us with no conspiracy about the principal as to whatever happened between them. As per the applicant’s testimony, he did tell Lelethu that he was not promising her that he would be able to control himself and not want to have sex with her. It would appear that that was exactly what happened. He failed to control himself and demanded to have sex with her. The testimony of Lelethu and the chilling details were cogent and believable. The independent police report and the doctor’s report showed that she had sustained bruises and injuries consistent with the version of Lelethu. The applicant could not explain how else she could have sustained such injuries and therefore the only version as to the injuries was that of Lelethu. As mentioned before, the applicant’s witnesses testimony had less weight in that they had an interest in the matter in that most of them had been charged or displaced by the principal and were the members of the same trade union with the applicant which was at the centre of the problems between them and the principal who was the chairperson of the other trade union.
153. It was therefore probable that the applicant physically assaulted Lelethu as corroborated by the police report and Dr. Maistry. The assault was as a result of him having attempted to sexually assault her. There was no evidence that the police and Dr. Maistry had a direct interest in the matter, either through them knowing the complainant, hating the applicant or having been bribed in order to find in a manner they did in so far as the bruises and injuries were concerned.
154. Lelethu was a student teacher at Vulindlela Comtech, the applicant was still employed by the Department of Education and the incident started during the school’s function. When the incident was brought to the attention of the respondent, it could not have ignored it. The principle of vicarious liability could have applied.
155. The applicant and his witnesses testified that Lelethu wanted money and liked money hence she blackmailed the applicant and wanted to extort money from him. There was no proof that Lelethu ever extorted money from the applicant however Lelethu testified that she was offered money by Thole in exchange for her not opening a case against the applicant. It is a common phenomenon in this country that victims are offered money in exchange for silence. As mentioned, the witnesses had an interest in the matter hence they testified in the manner they did, they were charged and displaced by the principal and they were from the same trade union as the applicant, in fact he was their chairperson.
156. I have noted that the applicant was charged with the following charges / allegations:
• Charge 1: That you are guilty of misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998 as emended which inter alia as follows: “ An educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employee” in that on the 25August 2017 you assaulted Lelethu Lokotho with the intention of violating her sexually at your own place taking her to your place against her will.
• Charge 2: That you are guilty of misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998 as emended which inter alia as follows: “ An educator must be dismissed if he or she is found guilty of seriously assaulting, with the intention to cause grievous bodily harm to a learner student or other employee” in that on the 25August 2017 you assaulted and threatened to shoot both of you, if Lelethu Lokotho did not comply with your instruction of keeping quiet as you were advancing to violate her sexually by trying to remove her trouser forcefully.
• Charge 3: That you are guilty of misconduct in terms of section 18(1)(d) of the Employment of Educators Act 76 of 1998 as emended which inter alia: “ An educator commits misconduct if she/he commits common law or statutory of offence” in that on the 25August 2017 you took Lelethu Lokotho to your place of stay against her will, assault her so as to submit to your own advances whilst trying to remove her trouser forcefully.
157. The Employment of Educators Act 76 of 1998 is legislation that governs the employment of educators in the public service. Its purpose is to ensure that the highest level of professional conduct and ethical standards are maintained by all educators at all times. Indeed the applicant has violated such standards. The Act provides that an educator who is found to have violated that Act, be dismissed, hence the dismissal of the applicant.
158. In Bandat v De Kock and Another (2015) 36 ILJ 979 (LC)the Court reasoned that it is clear from the provisions of the Code that central to the existence of sexual harassment is the ‘unwelcome’ nature of the conduct. Where the conduct is not unwelcome, it cannot be said to constitute sexual harassment. In determining whether or not the conduct was unwelcome, the dynamic of the work and personal relationship between the applicant and the respondent must be considered. The Court went on to state the test to be applied in this determination is an objective one.
159. In determining the seriousness of the charge of sexual harassment, the Court in Motsamai v Everite Building Products (Pty) Ltd [2011] 2 BLLR 144 (LAC) the Court held that sexual harassment is the most heinous conduct that plagues the workplace, not only is it demeaning, it undermines the dignity, integrity and self worth of the harassed employee. Sexual harassment goes to the root of one’s being and must therefore be viewed from the point of view of a victim, or to put it differently, how did he / she perceive it, and whether or not the perception is reasonable.
160. The Courts have therefore determined that applying the objective test, the allegations of sexual harassment if proven are very serious in that they impact on human dignity, integrity and self worth. The applicant even refused to show any remorse as he maintained that he did not do anything wrong even in the face of all the evidence and probabilities placed before him by Lelethu and Mr. Sam.
161. The applicant indeed placed the image of the respondent in disrepute and therefore dismissal was fair and an appropriate sanction.
162. For some witnesses to even to comment that they did not know or agreed that the case at hand was one of gender based violence said a lot about the extent they were prepared to go in defending the applicant. The assault on one gender by another for reasons based on gender is gender based violence. The allegations were that the applicant who was male assaulted a female because she refused to sleep or have sex with him.
163. Further in Fidelity Cash Management Service v Commission for Conciliation Mediation and Arbitration & others Case DA10/05 the Labour Appeal Court held that in considering the totality of circumstances the commissioner would have to answer the question whether dismissal was in all of the circumstances a fair sanction. In answering that question, he or she would have to use his or her own sense of fairness. That the commissioner is required to use his or her own sense of justice or fairness to decide the fairness or otherwise of dismissal does not mean that he or she is at liberty to act arbitrarily or capriciously or to be mala fide. He or she is required to make a decision or finding that is reasonable. It is my finding on a balance of probabilities that the dismissal of the applicant was both procedurally and substantively fair and that the respondent had considered all the circumstances.
AWARD
164. The dismissal of the applicant, Mr Fezile Somraba, was both procedurally and substantively fair.
165. The applicant’s application is therefore dismissed.
166. There is no order as to costs.
NKOSINATHI MKHIZE
Arbitrator
PSES216-19/20EC
Province: Eastern Cape
Applicant: NATU obo Somraba F
Respondent: Department of Education Eastern Cape
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education – Mbizana – Eastern Cape
Award Date: 4 March 2020
Arbitrator: NKOSINATHI MKHIZE
NATU obo Somraba F “the Applicant”
and
DEPARTMENT OF EDUCATION – EASTERN CAPE “the Respondent”
AWARD
Case Number: PSES216-19/20EC
Last date of arbitration: 28 November 2019
Date of Award: 04 March 2020
NKOSINATHI MKHIZE
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The hearing of the arbitration was held on various dates in Kokstad and was concluded on the 28th of November 2019at Department of Education – Mbizana – Eastern Cape.The Applicant was present and represented by Ms. Simangele Shusha (NATU Official).
2. The Respondent is the Department of Education – Eastern Cape. The respondent was represented by Mr. Thando Arthur Makina, its Labour Relations official.
3. The parties submitted written closing arguments by 10 December 2019, on request for extension.
ISSUE TO BE DECIDED
4. I had to determine whether the dismissal of the applicant was substantively fair.
RESPONDENT’S VERSION AND ARGUMENTS
1st Witness – Ms. Lelethu Lokotho (“Lelethu”)
5. Lelethu conceded that she was a student at Walter Sisulu University, Umtata. At the time of the incident, she was a student teacher at Vulindlela Technical School.
6. She attended a farewell function held by the school. The farewell was in two parts, the formal and informal parts. After they finished the formal part, they went to St Michaels beach for the informal one. There they had a meal and drinks.
7. That at around 18h00, the applicant arrived and by the look of things, she thought that he was known to her teachers. She did not know him as she was doing her practical teacher training at the school at the time and the applicant was not a teacher there. He sat with the teachers, spoke and joked with them.
8. Ms. Thole then called us to join them. She then said jokingly to him that there were the girls and he should choose a girlfriend.
9. When the formal party was over, Mr. Mthembu told them to jump into the bus as it was leaving. The applicant offered to drop them off at their places, as he had no problem doing so. They then remained behind. The children left and they remained behind dancing.
10. The applicant then asked for her cell phone number but she did not give it to him. After some time, they then left the place. She was seated at the back seat (5 seater sedan). There were 5 of them in the car. The applicant then asked her to come and sit with him at the front. They then changed seats.
11. The applicant was drinking with Mr. Mgingi. The applicant then stopped the car at Senzi’s and asked if they wanted to go in but at the same time said they were not going to afford. He then asked her to step out of the car. He asked her if she loved him and she said no. He accepted the response. He then went back in the car visibly angry, became loudly (aggressive) and played the music loudly.
12. She was supposed to be the 1st one to be dropped off. The applicant then locked the doors and said he was going to drop her off last. He told her that he was going to drop everyone else and come back to drop off her. She tried opening the door but it was locked.
13. He drove to drop off one teacher at Drumin and then proceeded to drop off Mr. Mgingi and the other teacher together.
14. On their way back, he then stopped the car at some flats, got out of the car and said he was ending there. He took the keys and opened one room. She asked him to take her home and his reply was that he was not going to do that.
15. Her door remained locked. He then unlocked it and came to her door and opened it and asked her to come out but she refused. He then pulled her out and pushed her inside the house. He then locked the door. He then demanded that she should take a seat but she refused. She again asked him to take her home but he refused. He then forcefully sat her on the bed. He attempted to kiss her but she kept fighting and asking him to take her home.
16. He then started to strip her of her trousers but she pulled it up. At that moment, they were arguing and shouting. He was also trying to put his fingers into her pants and vagina. He said she would love him by force. He was going to lock her inside the flat for the whole weekend.
17. She then bit him on his left arm and that caused him to be noisy and aggressive. He then threw her on the bed and pressed his knees on her neck and started beating her with his fists and open hands. That caused the bruises and swelling as could be seen on the J88 report at page 104 of the bundle.
18. She tried to cry and scream but the voice could not come out as his knee was on her neck and was strangling her. She tried crying for help but could not.
19. In trying to stop him from hurting her, she apologized. She did not know as to what she had done wrong to make him to do what he was doing. At that moment he was very violent and had changed to some animal. He further told her that he was going to get a gun from his car and kill her and throw her body in the river. He then demanded that she took off her clothes herself, as he was too angry to do it himself. He was walking up and down the room. At that moment she was scared for her life. She then started taking them off.
20. The applicant at that moment was wearing a vest and underwear only and demanded that she jumped in bed, under covers. She jumped in bed and he got on top of her. He then squeezed her arms together whilst on top of her. He then said he was sorry and did not know what had gotten into him. After about 30 minutes, he felt asleep whilst he was still on top of her.
21. Seeing that he was asleep, she then pushed his arms and legs off her body and put him aside. She then saw that he was still asleep; she then took her clothes, opened the door and ran away. She ran barefoot as her shoes were left in the room.
22. She tried stopping some cars for help until a taxi picked her up and dropped her by her place. Where she was staying, one of the tenants was a police officer. She went and knocked by his room and told him about what had happened. He called for the police to come and attend to the matter. They all went to the flats where the incident had happened.
23. The found the door still unlocked as she had left it and he was still asleep. The police then woke him up. Her bag was still in his car at that time and she was assisted to get it and they then left for the police station.
24. The police tried to get him to pay her so that they would not open the case but he refused.
25. As it could be seen on pages 81 – 83, she made a sworn statement at around 02h00 in the morning. The police officers then gave her a blank J88 form to take to the doctor.
26. Whilst at the doctor, Ms. Thole called and asked as to which doctor she was at. She told her that she was at Dr. Maistry. She then came with two ladies, one dark skinned and the other light skinned. They introduced themselves as from NATU and that the applicant was their chairperson, hence the matter should not be reported. They tried to get her to keep the matter between them and not to report it at home or school. She reported the matter to her family and they were shocked and came to visit her.
27. She offered to cover the medical bill with her medical aid and to pay her any amount because the applicant was her friend. She told them that she was hearing what they were proposing but that she would use her own money to cover the medical costs.
28. The doctor’s report noted that the case was about attempted rape (see under 1 of the report), she sustained injuries and beating (see under 5 of the report) and that there was evidence of assault having taken place (see under 8 of the report).
29. She denied having introduced herself to the applicant but that Ms. Thole was the one who introduced them to the applicant. She had never seen the applicant before the date of the incident.
30. She was not taking alcohol and that during the after party; none of them was taking alcohol but only soft drinks.
31. She never kissed the applicant at the beach or engaged in kissing and neither did she at any stage there engaged with the applicant. At the time the applicant arrived, they were called to come and meet him. He hugged her and told her that he loved her and wanted her contact number; she refused and decided to stay away from him thereafter.
32. She agreed to take a lift from him because other teachers were going to be there and they assured her that he was going to drop them off where they stay respectively.
33. In the car, there was a good mood, playing of music whilst others were drinking alcohol.
34. It was not true that at some point she asked the applicant not to drop her and she was going to go with him to his place.
35. It was not true that she voluntarily came out of the car and got into his room. The applicant dragged her out of the car, which caused an argument but no one came to help her.
36. It was also not true that at the police station she asked the applicant to pay her some money in order for her not to open a case.
37. It was also not true that she was being used to get the applicant dismissed from his job, she was the one assaulted by the applicant. She was also the one who was almost raped by the applicant – attempted rape.
38. She left the applicant’s house when it was still very dark and saw the doctor in the morning. Her injuries could not have happened at any time between the time she left the applicant’s room and the time she saw the doctor.
39. Because she was sober and the applicant was under the influence of alcohol, her version should be more believable and factual.
40. It was the applicant who removed her vest and the pair of jeans and after having been assaulted and demanded that she remove the rest of the clothes, and in fear she removed the bra and underwear (panty).
2nd witness- Xolani Sam (“Sam”)
41. Mr. Sam testified that he was appointed as an investigator, to investigate the incident complained about - (see page 56). He produced an investigation report thereafter – see page 34.
42. He interviewed everyone whose name was mentioned in the matter. His findings were that:
• Ms. Lokotho (Lelethu) was a student teacher and that the student teachers had their own transport.
• Ms. Lokotho met the applicant during the second part of the function. They were served drinks, including alcohol that was bought by others.
• The applicant was not part of the school’s staff at that time as he had been displaced and placed at the district office. He could therefore not have been aware of any student teachers and neither could he have been invited to that function.
• The applicant requested a cell phone number from Lelethu and she ignored him.
• Lelethu said she was going to be the last person to be taken to her place and everyone agreed.
• They then all went to Kongo and then dropped the two teachers at Solomon.
• The applicant then drove back and parked at his house and dragged Lelethu out of the car and forced her into his room. He then asked her to sit on the bed and she refused and he then pushed her onto the bed and forcefully undressed her.
• The version of the applicant was that he had thought that she was shy and he then took an initiative to undress her. During all that, Lelethu was continuously disagreeing.
43. The applicant had told him that he had thought that he had won her and that his colleague (Mgingi) had won Nozibele. He found that version problematic and did not agree with it.
44. After Lelethu had bitten the applicant on his arm, he started assaulting her. She started screaming and he instructed her to stop screaming otherwise he would get his gun and shoot both of them or her alone and throw her body away. The applicant did not deny having kissed her but denied having beaten her.
45. It could be that the applicant could not remember what happened, as he was drunk.
46. The applicant demanded that she undress herself and get under the covers.
47. Lelethu further told him that whilst he was on top of her, he apologized for having beaten her because he loved her. The applicant denied that he beat her.
48. The police report showed that there were bruises even before she went to see the doctor.
49. Lelethu told him that whilst he was asleep, she escaped and a taxi picked her up and dropped her by her place, there she told a policeman who was staying in the same place as her of what happened, hence the involvement of the police. They went to his place and found him asleep and the door still open as she had left it.
50. His findings were that the conduct of the applicant was unbecoming and further that he had attempted to rape her. He had brought the name of the Department into disrepute as the matter was in court and the public at large was aware of it. His conduct was not the one expected of an educator.
51. He found it improbable that she demanded a bribe in exchange for not opening a case against him as she had refused to undress and that he forcefully undressed her.
52. It was also improbable that Lelethu was used as an instrument to get him dismissed. It was the first time she met him and it was not possible to have planned it at that time.
53. It was improbable that she had willingly got out the car as she was going to be the first person to be dropped off.
54. It could only be in his mind that they agreed that she would sleep at his place because he thought he had won Lelethu. That was improbable.
55. As part of his recommendation, he directed the employer to create awareness about sexual harassment in the workplace, as it was unfortunate that professionals get involved into things like that.
56. He was not influenced in the conduct of the investigation and had nothing against the applicant. The applicant attended at his own free will at Umtata for an interview about the matter. He still greets him and remained ethically neutral. He was also an employee of the Department, employed as a Labour Relations Officer, with over 19 years experience, having investigated a number of misconduct cases related to theft, assault, absenteeism etc.
57. The Department was in partnership with Department of Higher Education & Training and the universities (e.g. WSU) for experiential training, teacher training etc.
58. The reason why the applicant was charged even though the incident happened outside the school event was because the incidents of kissing on the check and the asking for the number started during the event. Had the applicant not attended the event, there would not have been this case. The incident therefore started at the work event.
59. It was not part of his terms of reference to investigate whether the applicant attended the event uninvited, therefore he could not make any finding in that regard.
60. The allegations about the plan to have him dismissed through the use of Lelethu was improbable because the applicant told him that he was not invited by management to the function but that one of his colleagues, who was not management, called him and invited him to the event and therefore could not have been placed in harms way by management.
61. It could be said that I abused the powers given to me when I investigated the matter had my report went beyond the terms of reference. He did not receive any brief or mandate from anyone except the terms of reference as per page 34. He was only mandated to investigate what happened between the applicant and Lelethu.
62. Even though the applicant gave him the background as to why he was not at school but displaced because the principal had a problem with him, his finding was that the existence of the conspiracy theory that he was framed, was improbable.
APPLICANT’S VERSION AND ARGUMENT
1st witness - Mr. Somraba Fezile (applicant)
63. Mr. Somraba testified that he had been teaching for 10 years at the same school. At the time of the alleged incident, he was no longer at that school but reporting at the circuit office since he was displaced.
64. That the charges as per pages 29 -30 were explained to him. The charges were fabricated or staged as a result of a bad relationship between him and his school principal. It was so bad such that the principal had threatened to destroy him as he saw him as a troublemaker and troublesome. The cause of the sour relations was because he reported his school principal to the district director in that he had suspended the school’s nutrition program against their advise as the SGB. He told him that even if he would report him to any official in their province, nothing will happen to him but would deal with him even if it would take years.
65. As to the offence itself, he knew the complainant; they met at the beach when there was a school’s year-end function. He was also at the St Michael’s beach since it was a weekend. He normally visits the beach over the weekends.
66. Whilst he was on his way to the beach, he was called by Ms. Thole who told him that some people told her that they saw his car around Margate, so she was checking if indeed he was around there.
67. As he arrived at the venue where there was the function, his colleagues started calling his name (“Shude”). At that moment the complainant came from his behind and touched him and tried to kiss him. He stopped her and suggested that they do it in a proper way if she was not scared of anybody around there. She agreed and they started kissing. She told him to stop when she saw Mam’ Vutha (‘Ms. Vutha’). She further told him that she had heard about him.
68. He then asked her for her contact number and she willingly entered it in his cell phone. She however requested that he should not call her when either Mr. Mthembu or Nyawose were around, as she would marry into the Mthembus’ clan.
69. He was never introduced to her by anyone but that the complainant introduced herself to him. He denied having pestered her for a kiss and her contact numbers. She even voluntarily got into his car and they kissed again.
70. The complainant lied as she had been drinking at the beach, drinking Pine Twist whilst he was drinking the Guarana. After she had finished her drinks, she joined him in drinking Guarana.
71. The complainant had told him about her plans to remain behind so that she could be with him. He then told her that he was planning of going to Senzi’s afterwards and she asked to come with him and he agreed.
72. Mr. Mgingi (another teacher) came to him to complain that he was playing rough as he was taking all the ladies. He told him that he had finalised an arrangement to go with her.
73. He denied having asked her to come and sit next to him when they were leaving the beach. During the time they left the beach, the only person who was not drinking alcohol was Mr. Yenge as he was busy cleaning the braai stand. He also did not travel with them as he was driving his own car.
74. In his car, all the occupants were dancing. He also asked the complainant to kiss him and she refused as she was scared as to what other occupants would say. He told her that she should not worry, as they were all adults. She then asked him to stop the car as she wanted to kiss him and he did so. Ms. Lushaba then complained and said they should go to Senzi’s and he told her to wait as he was still busy with his lady. He cautioned them that they might not be allowed to enter Senzi’s as they were casually dressed but they insisted to go true to his words they were refused entry.
75. They then went to Margate beach and all were dancing there including the complainant. Whilst they were over there, Ms. Nontshe received a phone call from her boyfriend who was complaining that other teachers were back at their homes but not her. She told him that she was coming with him.
76. They then left and had to stop at Sandermere (a hotel like venue) as his passengers at the back wanted to smoke. With that gap, he jumped on her and she was visibly scared of others. Ms. Lushaba then came in and said they should not have sex in the car but rather must go somewhere else. The complainant did not at that moment complain when he jumped over her.
77. They then left and stopped at Port Edward for a smoke break again. He and the complainant were not smoking and they then used that opportunity for kissing. They then left for Kongo as Nontshe’s boyfriend was no longer at Port Edward but at Kongo.
78. The complainant told him that she did not want to go to his place, as she knew that they as boys want to have sex on the first night together. If he wanted her to come with him to his place, he should agree that they were not going to have sex. The complainant was worried that if she agreed to go with him to his place, he was going to force himself onto her; he then told her that he was a gentleman and not a hooligan and he was not going to do that.
79. He however also told her that he could not commit to her request, as she should know that lust was difficult to control. She then said that was exactly what she did not like. She also made him aware that she did not like the ‘one night stands’.
80. Mr. Mgingi then told them that Lelethu (‘the complainant) must be ready as they were approaching where she would be jumping off – at Gagane. He then asked her to come with him to his house and not to jump off. They then proceeded past her bus stop and went to drop off Ms. Nontshe at Kongo. They all got out of the car except him. The complainant then quickly came back into the car and told him that she wanted to go to sleep. He then asked Mr. Mgingi to come back as he had pleaded with him not to leave him behind. He and Ms. Lushaba then came back and they left Kongo. He then proceeded to drop off Mr. Mgingi and Ms. Lushaba.
81. Since he had been displaced, he was no longer staying in his rented room but at his home. At arrival at his rented room, he left the complainant in the car and went to check if the room was still tidy. The room was among other flats. The complainant did not refuse or resist to get out of the car and to go into his room. There was a chair in his room. He then started getting undressed. The complainant followed suit and removed her own jacket and dropped her pair of jeans to her knees and they started kissing. He then tucked her under covers. He then pulled further down her jeans and asked her why she was not getting fully undressed. She told him that she did not like the ‘one night stands’.
82. He did not forcefully remove her jeans but she asked him to remove the left leg and she would remove the right leg. She even jumped off the bed for ease of removal of the pair of jeans.
83. He would concede that the complainant did say no to sexual advances but he persuaded her to agree. He did not assault her, as there were no reasons to do so. He was drunk and that when the girl says no, he gets turned off sexually, hence he decided to sleep, and hence he fell asleep. He woke up with the police in his room coming to arrest a criminal. They could recognize him, as his father was a pastor. They then asked him to come with them as they were arresting him and they then left for the police station.
84. He was disturbed by the allegations that he had threatened to shoot the complainant; he was not owning a gun, let alone knowing how to use it.
85. The charges against him were withdrawn owing to lack of enough evidence. The police had told him that the lady had complained to them that he had kidnapped her, threatened her with murder and attempted to rape her. He asked to talk to her on the side but the police refused.
86. He did not offer any money to the complainant in exchange for peace or for her to drop the charges against him.
87. The investigation report (see page 142 /143) as done by Mr. Xolani Sam was very biased. That report did not show his responses to his questions.
88. The real reason why he was charged was because he was troubling the chairperson of SADTU, his school principal. He had told him that he was troubling him.
89. He believed that the charges were all the work of his school principal. He had coerced Lelethu, Mr. Sam and the MEC to lay charges against him. He had told him that he had contacts in higher places.
90. He believed that Lelethu was sent by someone to him; however Ms. Thole could not have been involved as he had a good relationship with her. Lelethu was used. The late, Ms. Nozibele had called him and wanted to see him about the conspiracy.
91. He could not have been remorseful as he was accused for something he did not do. The complainant refused to have sex with him; hence he fell asleep aside and could therefore have never been removed by the complainant on top of her.
92. He did not know as to who had beaten Lelethu. At the time she arrived and left his room, she was not beaten she was fine. He did not know as to what happened to her on her way home. He did not beat her.
93. The commissioner should believe the theory he had narrated about Lelethu being used by the principal as some witnesses would come and corroborate his version.
94. No man would have been happy when a woman refused to have sex with him more so when in the condition he was.
2nd witness – Ms. Nomashiya Thole
95. Ms. Thole testified that she had been an educator for 10 years at Vulindlela Comtech. Mr. Somraba was her colleague and the complainant was a trainee teacher at the same school.
96. At their school, they had a matric farewell braai at St. Michael’s beach and she was told by her friend that Somraba was seen around the area. She then called him and checked his whereabouts at which he told her that he was on his way to the same place – the beach.
97. When he arrived, he parked his car somewhere far from them and at that time she was busy braaing meat. Mr. Mgenge went to him with the girls. She thought that Somraba knew the girls. She then saw Somraba hugging Lelethu and Lelethu kissing Somraba. The girls (including Lelethu) were drinking something in a blue bottle. Mr. Somraba was drinking the Guarana at the time, she was very sure of that and that after the girls had finished their alcohol, they started drinking the Guarana with Somraba was for that reason that she thought that Lelethu was the applicant’s girlfriend and also that they were friendly to each other. She even said they should not do nasty things in front of them. She left them behind at the beach.
98. She slept the whole of Saturday and on Sunday she was not ok. On Monday she decided to go to Dr. Maistry and whilst waiting there, Lelethu came in and asked to talk to her. She told her that she was almost raped by the applicant. She could not believe it. Lelethu further told her that the applicant was in jail for that reason. She further told her that she had told the applicant to pay her R5000 for her to cancel the matter. She called it a lousy R5000, as others would have asked for R20000 for the same reason. Her name was then called and she went in to see the doctor.
99. After her consultation, she saw Lelethu and said goodbye, Lelethu asked for her number. She then left to meet with Ms. Lushaba at the KFC restaurant. Whilst she was there with Ms. Lushaba and Ms. Makhalima, Lelethu called and asked to see her. She then asked the two ladies to accompany her.
100. She then asked Lelethu to repeat what she had told her about the incident. She told them that Somraba tried to rape and beat her. She also told them about the R5000 request. They were in her car at that time. She never asked her to drop the charges.
101. She accepted that it could be said that she did not have authority to invite people to attend the school function. She agreed that gender-based violence was not right as women and children were being killed.
102. She did not believe that Lelethu was beaten, as there were no visible marks from beating. She also did not believe her as she was still going to meet with the applicant and would then hear his side of the story.
103. She was told by Lelethu that it was her first attendance at the doctor that Monday.
104. She had noticed that Lelethu was after money as she was asking for money for various things. She did not promise her any money nor visited her at the doctor.
105. She did not believe what was written on page 47 as at the time she last saw her, (25th), she had no bruises. She accepted that at page 45 the date stamp for the 26/08/2017 appeared. She did not want to comment about the doctor’s report.
106. It was not true that Lelethu was not taking alcohol on that day as she was drunk. She believed that Lelethu was lying about the whole thing and that some people told her to lie.
107. She did not want to comment about part 8 of page 45. She did not know if the case was one of gender-based violence as Lelethu lied a lot. She lied about her promising to pay, she never told her that she had been to the doctor before they met there and that she was not telling the truth when she was saying that she had not been drinking on that day.
108. She did not want to comment as to whether she was a competent witness.
109. The principal also gave her a suspended sentence and told her that he could have dismissed her had it not been for her parents that he knew.
3rd Witness – Xoliswa Lutshaba
110. Ms. Lutshaba testified that she was a schoolteacher at Vulindlela School. She was there when they met Lelethu at the doctor. The other person who was there was her aunt, Ms. Makhalima.
111. On that Monday, she had an appointment with Ms. Thole and had agreed to meet at the KFC, together with her aunt. They then started working on the document they had to submit to their head office.
112. Whilst at the KFC, Ms.Thole’s phone rang and she answered. She afterwards told them that it was a lady who wanted to meet with her by the doctor’s rooms. She asked them to accompany her. They used Ms. Thole’s car. The lady came in and sat at the back. Ms. Thole then asked her to repeat her story. She told them that she was sexually harassed by the applicant and she had made the offer to him to pay her a lousy R5000 in order for her to cancel the case. She further said that if he did not want to pay, she could get him dismissed. She had not seen her before as she was not at the school when she was a student teacher.
113. Ms. Thole said she had nothing to say until she had spoken to the applicant. Lelethu then said that if she had nothing to say, then the matter would be discussed in Court.
114. It was a Monday when they met; she remembered because she had been displaced and had reported at the district office and then went to Port Edward.
115. She did not believe Lelethu as there were no physical scars on her face. Even though it may be that in some cases of sexual assault, there may be no physical scars, she did not believe Lelethu.
116. She was opposed to gender-based violence but did not believe or support Lelethu as she wanted money and urgently. Her view was that if she was the one assaulted, money would have been the last thing on her mind. The case of Lelethu seemed to be all about money and that the law takes its course was the last thing.
117. She believed that Lelethu was used to get the applicant dismissed as she also was one of the people that their school principal had tried to get dismissed. Lelethu did not say that she was sent by the school principal to go and seduce the applicant, however, the principal could have used anyone to achieve that.
118. The school principal had displaced her, the applicant and Ms. Khondlo and had threatened to follow the applicant wherever he was. He further told her that he was sorry for her because she was young and had just got employed but was involved in those matters.
119. She accepted that page 45 was how the doctor saw it, that Lelethu had sustained bruises. She was not in attendance to protect the applicant but to state what she knew.
4th witness – Mr. Sicelo Yenge
120. Mr. Yenge testified and stated that he was a teacher and a colleague of the applicant. Ms. Lelethu was a student teacher at their school. He was present at the farewell’s after party and that the applicant arrived later to join the party.
121. The party was at the public place (at the beach). When the applicant arrived, Mr. Mgenge and the student teachers went to meet with the applicant. They looked like they were friends with him as they were dancing and laughing together, the applicant had started playing music from his car.
122. He then saw the applicant and Lelethu kissing freely. People were drinking soft drinks and alcohol. The applicant was drinking alcohol.
123. He told the three student teachers (Lelethu, Lutshaba and Notshe) that their kombi was leaving and they said they would leave with Somraba.
124. Lelethu was seated with the applicant but he did not know their arrangement as he was from Port Shepstone and all left for the casino. The applicant brought alcoholic drinks and all started drinking.
125. In one meeting at their school, there was no agenda and the applicant asked the principal about the agenda. The principal then said he could fight the war for five years for as long as he would win it. That left him puzzled as there was nothing about the war but about the agenda.
126. He was appearing to assist the process and not to show loyalty.
127. He did not notice as to what Lelethu was drinking but saw her at some stage drinking guarana. He could not say as to who was more drunk between the two.
128. Ms. Lelethu was drinking alcohol at the party and they all left at the same time albeit that he left for Port Shepstone whilst they left for the casino. At the time they left the venue, Ms. Lelethu was seated on the passenger seat next to the applicant.
129. Though it was at night when everything happened; he was seated on the applicant’s car bonnet and saw that they were drinking.
130. All he knew was that Lelethu was drinking that night but could not say that she was drunk and could not understand what was meant by the doctor (about her not taking alcohol).
131. Lelethu came into their school the following Tuesday or Wednesday and he did not see any bruises, he therefore did not believe the doctor’s report.
132. He did not believe that she was sexually assaulted.
5th Witness – Stella Khondlo
133. Ms. Khondlo testified that she was employed as a teacher at Vulindlela High School, having started there in 1996 and the applicant joined the school later.
134. In 2016/17, she was displaced together with the applicant and Ms. Lutshaba.
135. She did not attend the farewell party.
136. The school principal joined their school in 2016 and during their very first meeting with him, he told them that if he did not like a person, he can hate that person for 5 years if that person had disappointed him.
137. During one SMT meeting, he told them that the boy named Somraba (the applicant here) was going about in the village making accusations about him saying he was fraudulently / wrongly appointed. He was so angry about it such that he nearly called him but exercised restraint but opted to report it to the SMT. He promised to destroy the applicant such that he would not be employable anywhere. He had people in the Education Department in Bisho and even at the district office that could assist him in dealing with that boy. She then volunteered to investigate the matter of the applicant rather than to have him destroyed.
138. The following day, she started her normal duty and was called by the principal and he asked her if she had spoken to the applicant. She said no and requested for more time. After some few days, she and other teachers met with the applicant. She then requested for a meeting with Ms. Mafunda, Jiga, the applicant and the principal for the matter to be discussed.
139. Then there was a strike in their school and the learners damaged the principal’s car. During that incident, the applicant and Ms. Lutshaba were not there. The following Monday, the principal called a staff meeting. She then put forward an apology on behalf of Ms. Jiga. She was scolded at by the principal for putting forward an apology and everybody got scared and the meeting turned into a one-man show. She also noticed that the principal had a gun on his waist under the coat he was wearing. He then promised to bring a permanent solution to the school so that there could be no more strike actions.
140. The principal promised to do anything possible to destroy the applicant; hence she believed that he was behind the allegations against the applicant. She believed that the principal influenced the girl (Lelethu) to destroy the applicant. She did not have proof that the principal was behind the allegations or what was happening to the applicant.
141. The principal was no longer in their school. Before the applicant was dismissed, they as teachers met with the district director and presented evidence of what he was doing wrong or the maladministration that was happening in their school. He had since been displaced and an administrator was appointed to run the school. There has been peace in the school since then.
142. She was from the same trade union as the applicant and the principal was from the other trade union.
ANALYSIS OF EVIDENCE
143. The main issue for investigation was what happened at the house of the applicant. The other issues were secondary thereto and could only assist in providing some theories or versions.
144. It was common cause that there was a school’s farewell party held at the beach. At that time, Lelethu was a student teacher at Vulindlela Comtech. The applicant who was employed as a teacher at Vulindlela Comtech, but was no longer at that school since he had been displaced. The applicant attended the informal after party held at the beach on invitation by one of his colleagues, Ms. Thole who was not part of management.
145. It was also common cause that the school principal was a member / leader of SADTU whilst the applicant, Ms. Khondlo, Thole and Nontshe were members / leaders of NATU another rival trade union. The applicant was the branch chairperson of NATU.
146. It was also common cause that the applicant, Ms. Khondlo and Ms. Lutshaba were all displaced by the principal. Ms. Thole was also charged by the principal but given a suspended sentence instead of dismissal.
147. Lelethu testified that she and other student teachers were seated some distance from the teachers and were called by Ms. Thole and introduced to the applicant. Ms. Thole jokingly told the applicant to choose a girlfriend. It was the first time she was seeing the applicant. The applicant then hugged and attempted to kiss her and asked for her contact number but she did not give it to him and decided to be distant from him. The applicant testified that Lelethu hugged him from behind and kissed him. He then asked her to kiss him properly and she did. She also willingly entered her contact number into his phone. Lelethu denied ever kissing the applicant. The applicant has put forward a number of incidents wherein he was involved in a kissing encounter with the applicant. Ms. Thole testified that she saw Mr. Mgenge walking with the girls (Lelethu and them) towards the applicant and then saw Lelethu and the applicant kissing. Mr. Yenge also testified that he saw the applicant and Lelethu kissing. It would appear that the details as supplied by all the witnesses were different. If Ms. Thole saw Lelethu walking with Mgenge and others towards the applicant, surely, if the version of the applicant was to be believed, she should have seen Lelethu coming from the applicant’s behind and attempting to kiss him. In the evidence of the applicant, that’s where everything started. That was what Mr. Yenge should have seen as well. As Lelethu had testified and her version not attacked, it was the first time she saw the applicant. The version that Lelethu started the whole thing as if she knew the applicant from way back, was inconsistent with the norms, where a junior (student teacher) sees an unknown senior (Applicant) and jump on him with a kiss. There was no evidence that the applicant had the number of Lelethu as Lelethu testified that she refused or ignored his advances. Lelethu appeared to be shy and reserved. The applicant himself testified that he thought that Lelethu was one of those shy girls (hence she was scared of taking off her clothes).The version that at the party when they met for the very first time, he and Lelethu kissed was therefore improbable and that the version of the applicant and his witnesses was therefore not probable. Ms. Thole has an interest in the kind of version she has given in that Lelethu testified that she was the one who introduced them to the applicant and she on her own testified that she was the one who called the applicant and invited him into the party.
148. Lelethu testified that she did not drink during the function and that she does not take alcohol. The doctor’s report showed that there was nil ‘clinical evidence of drugs or alcohol’ on Lelethu. The applicant, Ms. Thole and Yenge testified that the applicant had been drinking during the after party. Ms. Thole testified that they were drinking something in a blue bottle, the applicant was sure that they were drinking the Pine Twist. Both these witnesses were there and Ms. Thole saw Lelethu drinking alcohol on her way to meet with the applicant. The fact of the matter was that the Pine Twist was in a green / lime container (bottle /can) and not blue bottle. The version of a blue bottle was also not put to Lelethu. Mr. Yenge did not mention the colour of the bottle or the brand of alcohol the applicant was drinking. The statements of the witnesses in that respect were therefore contradictory. The brand or the colour of the bottle was important details as all the witnesses testified that at some stage the applicant was drinking guarana. The witnesses seemed to be knowledgeable about alcohol and different types. I therefore find the version of Lelethu to be more probable than that of the applicant and his witnesses.
149. Lelethu testified that the applicant offered them a lift and was going to drop them off at their respective bus stops. Lelethu was going to be the first one to be dropped off. She agreed to take the lift because other teachers were going to take a lift from the applicant. At one point Lelethu testified that she decided to stay away from the applicant because he wanted her contact details but did not want to give it to him. The taking of the lift from the applicant whilst they had their own transport was inconsistent with that version, however such does not negate the version that she had understood the arrangement to be that she was going to be dropped off at her home. The applicant refused to drop her off on their way from the party. Even at the time when they were at the applicant’s place, she repeatedly asked him to drop her at her home as agreed. Therefore on balance of probabilities, she was taken to the applicant’s place against her own will.
150. The main issue in this dispute was about how she ended up at the applicant’s house and the events therein. It was common cause that Lelethu was still in the applicant’s car when he dropped off the other teachers. It was also common cause that the applicant did not drop her off at her place or offered to drop her at her place after they had transported the other teachers. As I have already found that Lelethu was taken to the applicant’s place against her own will, it would be necessary to examine other elements related to that. The applicant testified that whilst they were at Kongo, Lelethu came back into the car and told him that she wanted to go and asleep. Since it was very late, that version was very probable but such did not mean that she wanted to sleep at the applicant’s place. The applicant testified and such was confirmed by Mr. Xolani Sam that he had thought that he had ‘won’ Lelethu hence he acted in the manner he did. I found the logical conclusion of Mr. Sam that it could only have been in the applicant’s imagination that he had won her considering the totality of circumstances to be sound and probable. A person who would have been won would not have resisted so many things. The applicant in his testimony (if it could be believed) knew exactly what would happen if he could be under the same roof with Lelethu. His testimony was that she did not like having sex on the first night / encounter and that he had promised that such would not happen. At the same time he knew that lust would not be something he could control. He however proceeded to take her into his house. Understanding how she felt about sex on the first encounter and his own weaknesses, even if she had offered to sleep in his house, he should have refused as it could have ended up ugly.
151. The applicant testified that Lelethu voluntarily got out the car and into his house , which Lelethu disputed. A woman and her bag are normally inseparable. Lelethu testified that her bag remained in the applicant’s car until the police came to arrest him. When she was forced out of the car, it remained there. She further testified that she was dragged out of the car and forced into the house. If therefore logically, she had voluntarily left the car, she would have taken her bag with her. She also testified that even when he had parked his car and said that was where he was ending, she repeatedly asked him to take her home. That version was never challenged. A person who wanted to sleep over would not have asked to be taken home. It was therefore probable that she was forced to get out of the car and into the house. A person who enters a house voluntarily and with intentions of sleeping over would not have risked the dangers of the night and walked on foot and tried to get transport home whilst her boyfriend has a car. The actions of Lelethu were consistent with the version that she was in the house against her own will and that she remained there and did as she was told because she feared for her life.
152. Lelethu testified that after she was forced into the house, the applicant locked the door from the inside. As it was late at night, it could have been necessary to lock the door for safety reasons. She further testified that the applicant asked her to sit on the bed and she refused after which she was forcefully made to sit on the bed. The applicant denied that version. Lelethu further testified that the applicant jumped onto her and pressed her arms on the bed with his knees and started kissing her and told her that he loved her. The applicant denied that version. Lelethu further testified that the applicant forcefully removed her pair of jeans and vest and tried to put his fingers into her vagina but she fought him off until she bit him on the arm. He then got enraged and started beating her. He then demanded that she take off the remaining clothes and in fear of being shot and her body thrown away, she took of the remaining clothes herself. The applicant denied that version. Lelethu further testified that whilst she was in bed, the applicant jumped on top of her and tried to make love to her but she fought off until he passed out or fell asleep, thanks to his state of drunkenness. She then moved him over and got to escape. The applicant denied that he ever jumped over her but that seeing that she was resisting; he offered to sleep on her side. It was common cause that the applicant had been drinking and that he was not sober. The applicant testified together with his witnesses that Lelethu could have been lying because she was used by the principal to get the applicant dismissed. All witnesses however conceded that they did not have any evidence to that effect. It was improbable that Lelethu could have been used to seduce the applicant and to get him to do what he did on instruction of the principal. The applicant in the first place was not going to be part of the event. The applicant was invited into the event by her confidante and friend from the same trade union, Ms. Thole. Lelethu testified that it was Ms. Thole who offered the applicant whichever girl he wanted (told him to choose a girlfriend), hence he wanted her. That leaves us with no conspiracy about the principal as to whatever happened between them. As per the applicant’s testimony, he did tell Lelethu that he was not promising her that he would be able to control himself and not want to have sex with her. It would appear that that was exactly what happened. He failed to control himself and demanded to have sex with her. The testimony of Lelethu and the chilling details were cogent and believable. The independent police report and the doctor’s report showed that she had sustained bruises and injuries consistent with the version of Lelethu. The applicant could not explain how else she could have sustained such injuries and therefore the only version as to the injuries was that of Lelethu. As mentioned before, the applicant’s witnesses testimony had less weight in that they had an interest in the matter in that most of them had been charged or displaced by the principal and were the members of the same trade union with the applicant which was at the centre of the problems between them and the principal who was the chairperson of the other trade union.
153. It was therefore probable that the applicant physically assaulted Lelethu as corroborated by the police report and Dr. Maistry. The assault was as a result of him having attempted to sexually assault her. There was no evidence that the police and Dr. Maistry had a direct interest in the matter, either through them knowing the complainant, hating the applicant or having been bribed in order to find in a manner they did in so far as the bruises and injuries were concerned.
154. Lelethu was a student teacher at Vulindlela Comtech, the applicant was still employed by the Department of Education and the incident started during the school’s function. When the incident was brought to the attention of the respondent, it could not have ignored it. The principle of vicarious liability could have applied.
155. The applicant and his witnesses testified that Lelethu wanted money and liked money hence she blackmailed the applicant and wanted to extort money from him. There was no proof that Lelethu ever extorted money from the applicant however Lelethu testified that she was offered money by Thole in exchange for her not opening a case against the applicant. It is a common phenomenon in this country that victims are offered money in exchange for silence. As mentioned, the witnesses had an interest in the matter hence they testified in the manner they did, they were charged and displaced by the principal and they were from the same trade union as the applicant, in fact he was their chairperson.
156. I have noted that the applicant was charged with the following charges / allegations:
• Charge 1: That you are guilty of misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998 as emended which inter alia as follows: “ An educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employee” in that on the 25August 2017 you assaulted Lelethu Lokotho with the intention of violating her sexually at your own place taking her to your place against her will.
• Charge 2: That you are guilty of misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998 as emended which inter alia as follows: “ An educator must be dismissed if he or she is found guilty of seriously assaulting, with the intention to cause grievous bodily harm to a learner student or other employee” in that on the 25August 2017 you assaulted and threatened to shoot both of you, if Lelethu Lokotho did not comply with your instruction of keeping quiet as you were advancing to violate her sexually by trying to remove her trouser forcefully.
• Charge 3: That you are guilty of misconduct in terms of section 18(1)(d) of the Employment of Educators Act 76 of 1998 as emended which inter alia: “ An educator commits misconduct if she/he commits common law or statutory of offence” in that on the 25August 2017 you took Lelethu Lokotho to your place of stay against her will, assault her so as to submit to your own advances whilst trying to remove her trouser forcefully.
157. The Employment of Educators Act 76 of 1998 is legislation that governs the employment of educators in the public service. Its purpose is to ensure that the highest level of professional conduct and ethical standards are maintained by all educators at all times. Indeed the applicant has violated such standards. The Act provides that an educator who is found to have violated that Act, be dismissed, hence the dismissal of the applicant.
158. In Bandat v De Kock and Another (2015) 36 ILJ 979 (LC)the Court reasoned that it is clear from the provisions of the Code that central to the existence of sexual harassment is the ‘unwelcome’ nature of the conduct. Where the conduct is not unwelcome, it cannot be said to constitute sexual harassment. In determining whether or not the conduct was unwelcome, the dynamic of the work and personal relationship between the applicant and the respondent must be considered. The Court went on to state the test to be applied in this determination is an objective one.
159. In determining the seriousness of the charge of sexual harassment, the Court in Motsamai v Everite Building Products (Pty) Ltd [2011] 2 BLLR 144 (LAC) the Court held that sexual harassment is the most heinous conduct that plagues the workplace, not only is it demeaning, it undermines the dignity, integrity and self worth of the harassed employee. Sexual harassment goes to the root of one’s being and must therefore be viewed from the point of view of a victim, or to put it differently, how did he / she perceive it, and whether or not the perception is reasonable.
160. The Courts have therefore determined that applying the objective test, the allegations of sexual harassment if proven are very serious in that they impact on human dignity, integrity and self worth. The applicant even refused to show any remorse as he maintained that he did not do anything wrong even in the face of all the evidence and probabilities placed before him by Lelethu and Mr. Sam.
161. The applicant indeed placed the image of the respondent in disrepute and therefore dismissal was fair and an appropriate sanction.
162. For some witnesses to even to comment that they did not know or agreed that the case at hand was one of gender based violence said a lot about the extent they were prepared to go in defending the applicant. The assault on one gender by another for reasons based on gender is gender based violence. The allegations were that the applicant who was male assaulted a female because she refused to sleep or have sex with him.
163. Further in Fidelity Cash Management Service v Commission for Conciliation Mediation and Arbitration & others Case DA10/05 the Labour Appeal Court held that in considering the totality of circumstances the commissioner would have to answer the question whether dismissal was in all of the circumstances a fair sanction. In answering that question, he or she would have to use his or her own sense of fairness. That the commissioner is required to use his or her own sense of justice or fairness to decide the fairness or otherwise of dismissal does not mean that he or she is at liberty to act arbitrarily or capriciously or to be mala fide. He or she is required to make a decision or finding that is reasonable. It is my finding on a balance of probabilities that the dismissal of the applicant was both procedurally and substantively fair and that the respondent had considered all the circumstances.
AWARD
164. The dismissal of the applicant, Mr Fezile Somraba, was both procedurally and substantively fair.
165. The applicant’s application is therefore dismissed.
166. There is no order as to costs.
NKOSINATHI MKHIZE
Arbitrator
PSES216-19/20EC