PSES407-19/20WC
PSES407-19/20WC
Award Date:
17 February 2020
Case Number: PSES407-19/20WC
Province: Western Cape
Applicant: MR MSIMELE SOGONI
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: Western Cape Education Department (WCED) in Cape Town
Award Date: 17 February 2020
Arbitrator: Jacques Buitendag
Commissioner: Jacques Buitendag
Case No.: PSES407-19/20WC
Date of Award: 17 February 2020
In the INQUIRY between:
MR MSIMELE SOGONI
(Respondent)
and
DEPARTMENT OF EDUCATION – WESTERN CAPE
(Union/Applicant)
Union / Applicant’s representative: Mr. S Ntamo
Telephone: 073 1951 353
Telefax: Not available
Email: zamalizini@webmail.co.za
Respondent’s representative: Mr. Z Dayimani
Telephone: 021 467 9232
Telefax: 021 425 8612
Email: Zola.Dayimani@westerncape.gov.za
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. This inquiry, in terms of section 188A of the Labour Relations Act, 66 of 1995 as amended (LRA), took place under the auspices of the Education Labour Relations Council (ELRC) on 15 October 2019 and 20-21 January 2020 at the premises of Western Cape Education Department (WCED) in Cape Town. The proceedings were digitally recorded.
2. Mr. S Ntamo, an official of SADTU, represented the educator, Mr. M Sogoni. The WCED was represented by its Labour Relations Officer, Mr. Z Dayimani. Ms. B Mankay interpreted the proceedings and Ms. D Xego was the intermediary.
3. At the conclusion of the proceedings on 21 January 2020 it was agreed that the parties will submit written closing arguments on 28 January 2020. I received the closing arguments of the parties on this day. I requested extension to issue the award. The ELRC granted the extension.
THE ISSUE IN DISPUTE
4. I must determine whether Mr. Sogoni is guilty of the allegations of sexual misconduct that is levelled against him and if so, I must determine the appropriate sanction.
BACKGROUND
5. On 25 September 2018 the parties to the Education Labour Relations Council (ELRC) entered into Collective Agreement 3 of 2018 which provides for compulsory inquiries by arbitrators in cases of disciplinary action against educators charged with sexual misconduct in respect of learners.
6. Mr. Sogoni is employed as a level 1 educator at the Isikhokelo Primary School in Khayelitsha. He teaches grade 7 Social Science and Math.
7. During July 2019 the WCED received allegations against Mr. Sogoni of sexual misconduct and other misconduct. During August 2019 the WCED placed Mr. Sogoni at one of its district offices pending an investigation into the allegations.
8. On or about 12 August 2019 the WCED requested the ELRC to appoint an arbitrator for an inquiry into alleged sexual misconduct allegations leveled against Mr. Sogoni.
9. The WCED preferred the following charges against Mr. Sogoni:
“Charge 1
It is alleged that you are guilty of misconduct in terms of section 17(1)(b) of the Employment of Educators Act, no. 76 of 1998 (hereinafter referred to as the Act), in that during the 2nd term of 2019 and/or July 2019, you committed an act of sexual assault on Learner A (identity of learner is protected), a grade 7 learner of Isikhokelo Primary School, by touching her breasts with you hand.
Alternative to charge 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Act, in that during the 2nd term of 2019 and/or July 2019, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner, in that you sexually harassed Learner A, a grade 7 learner of Isikhokelo Primary School, by touching her breasts with you hand.
Charge 2
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Act, in that during the 2nd term of 2019 and/or July 2019, while on duty you conducted yourself in an improper, disgraceful or unacceptable manner, in that you sexually harassed Learner A, a grade 7 learner of Isikhokelo Primary School, by requesting her to:
a) Kiss you; and/or
b) Hug you and/or attempting to hug her; and/or
c) Give you love “mamakunike uthando.”
10. Mr. Sogoni’s rights was explained to him at the commencement of the inquiry. Mr. Sogoni confirmed that he is satisfied with his representative; received adequate notice of the inquiry; received the charge sheet and had adequate time to prepare. Both parties indicated that they will call witnesses during the inquiry. I examined to the parties the nature of the inquiry and that both parties must also present mitigating and aggravating arguments, which will only be applicable if Mr. Sogoni is found guilty on one or more of the charges.
11. Mr. Sogoni pleaded not guilty to the charges.
SUMMARY OF EVIDENCE AND ARGUMENT
12. I have considered all the evidence and arguments presented, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence and argument that I regard as necessary to substantiate my findings in the determination of this matter.
The WCED’s case
13. Learner A testified in camera. She is 13 years old. In 2019 she was in grade 7C at Isikhokelo Primary School. Due to the age of the leaner I find it appropriate to protect her identity.
14. Learner A testified that Mr. Sogoni was her grade 7 Math and Social Science educator in 2019. She testified that during the 1st term of 2019 Mr. Sogoni would always asked her to buy him chips. When she told her mom that Mr. Sogoni was asking her to buy chips for him, her mother told her to must stop buying him chips.
15. Learner A testified that on a Friday, during the 2nd term, in either April or May 2019, Mr. Sogoni asked her to accompany him to his classroom. She said that it was during lunch time. Once inside the classroom Mr. Sogoni asked her why she had changed. She explained to Mr. Sogoni that she has not changed but that her mother had told her not to buy him chips anymore. She said that they were alone in the classroom. Leaner A testified that Mr. Sogoni asked her why she doesn’t love him anymore and that she replied that she loves all her teachers. She said that Mr. Sogoni asked her for a hug and a kiss and she told him that she can’t kiss him and that she is not even kissing her father. Leaner A explained that Mr. Sogoni then came closer and attempted to kiss her. He touched her breast and pressed it. When she tried to fend him off he told that she is feisty.
16. Learner A explained that she then pushed Mr. Sogoni aside, opened the classroom door, and went to her friends (Leaner B and Leaner C). She said that was shaking when she told her friends what had happened. They told her that Mr. Sogoni will look at her behind what she turns around. Her friends advised her to report the incident to the Principal. Leaner A testified that she was afraid of the Principal and has decided to rather tell her mother about what had happened.
17. Leaner A testified that her mother did not take her seriously at first. But when her mother told her sister (Leaner A’s sister) she reported it during a meeting at school. Leaner A said that she did not see Mr. Sogoni at the school after this meeting.
18. Learner A was asked whether the Principal has asked her to lie and make up the incident. She denied this and questioned why the Principal would pick her out of all the children in the school to lie.
19. Leaner A said that she will not going back to school if Mr. Sogoni returns to the school.
20. She mentioned that there was a previous incident where Mr. Sogoni also tried to hug her. She was questioned about the allegation that Mr. Sogoni told her to “mamakunike uthando.” (to give him love). She said that this did not happen on the same day.
21. Under cross-examination Leaner A she said that had bunked the Monday’s class following the incident but has continued to attend Mr. Sogoni’s classes thereafter. She said that she was thinking about her future.
22. Leaner A agreed that she is aware that incidents of harassment must be reported. She agreed that her class teacher, Ms. Frans taught her this in Life Orientation. She said that she was not comfortable speaking to Ms. Frans or to the Principal about the incident and that she decided to tell her mother about it.
23. Leaner A was questioned about her mother’s response and the delay in reporting the incident. She testified that her mother initially said that she will report it if something more serious happens. She said that she told her mother numerous times about the incident until her mother told her sister to report it at school. She does not know why her mother took so long to report the incident at the school.
24. She is not aware of whether Mr. Sogoni has also asked other leaners to buy him chips.
25. When questioned about the alleged incident in the classroom, Leaner A maintained that it happened during lunch; that he asked her for a hug and a kiss; that Mr. Sogoni touched her breast; that she pushed him aside; that she ran out of the class room; that she was shaking and that told her friend what has just happened.
26. When questioned about how Mr. Sogoni touched her breast, she explained that he was facing her and that he placed his right hand on her left breast and pressed it hard.
27. Leaner A agreed that Mr. Sogoni’s class room door cannot close properly. She said that one must put a piece of paper in the door so that the wind does not blow it open.
28. Learner B testified in camera. She is 13 years old. In 2019 she was in grade 7C at Isikhokelo Primary School. Due to the age of the leaner I find it appropriate to protect her identity.
29. Learner B testified that Leaner A came from Mr. Sogoni’s classroom and told her and Leaner C about what had happed in his classroom. She said that it was in the 2nd term during lunch time. She cannot remember the specific day.
30. Leaner B testified that Leaner A explained to them that Mr. Sogoni tried to hug and kiss her and that he had touched her breast. Leaner B said that Leaner A was visibly shaking when she told them what had happened. When they advised her to report it to the Principal Learner A told them that she will report it at home.
31. Leaner B said that she was disappointed in Mr. Sogoni and never expected that he could do such a thing.
32. She denied that the Principal told her to attend this inquiry and lie about the incident.
33. Leaner B testified that Learner C once asked her if she noticed how Mr. Sogoni was looking at Leaner A’s behind.
34. Under cross-examination Learner B testified that Mr. Sogoni is a good educator who explains the subjects that he taught well. She said that if an educator touches her breast, she would never go back to school and that after the incident she did not want to listen to Mr. Sogoni.
35. Learner C testified in camera. She is 13 years old. In 2019 she was in grade 7C at Isikhokelo Primary School. Due to the age of the leaner I find it appropriate to protect her identity.
36. Leaner C testified that Leaner A told them that Mr. Sogoni wanted to hug and kiss her and that he had pressed her breast. She said that Learner A was in a bad state when she described the incident, she was shaking, emotional and wanted to cry. Leaner C said that when she advised Learner A to report the incident to the Principal, Learner A told her that she is afraid of the Principal.
37. Leaner C denied that the Principal has asked her to attend this inquiry and to lie.
38. Under cross-examination, Leaner C said that she liked Mr. Sogoni as an educator. She said that she was shocked when she heard about the incident because the incident because the type of person that Mr. Sogoni is does not match up with the incident. She testified that when she tried to play the incident out in her mind, she recalled how Mr. Sogoni was looking at Leaner A in the funny manner in the past. She said that after the incident she was afraid that it could also happen to her.
39. Ms. LK testified under oath. She is the mother of Leaner A. Her name and surname is not being disclosed because if it is disclosed the identity of Leaner A will become known.
40. Ms. LK testified she does not know Mr. Sogoni that well.
41. She said that when Leaner A informed her that she must buy chips for Mr. Sogoni and that she told her not to buy him chips anymore.
42. She testified that Learner A one day disclosed to her that Mr. Sogoni has asked her for a hug and kiss and that he has touched her breasts. Ms. LK said that Mr. Sogoni looked like an honorable person and she wondered how he could have done such a thing. Ms. LK testified that she was shocked and knew that it had to be reported to the community structures but that she did not immediately knew how to react. Ms. LK said that she has started a new job as a Domestic Worker and asked her eldest daughter to report it at a school meeting.
43. Ms. LK testified that the Principal has requested her to come to the school after the matter was reported by her eldest daughter. She explained to the Principal what Leaner A had told her.
44. Upon questioning whether the Principal asked them to lie, Ms. LK testified that she would not lie and would not allow her child to lie. She said that one must be mad to make up a story about sexual abuse.
45. Under cross-examination, Ms. LK confirmed that Leaner A told her in the 2nd term of 2019 about the incident. She could not recall the date. She said that Leaner A was emotional and did not want to go back to school. Ms. LK testified that she told Leaner A that she must stay in school.
46. Upon being questioned why she took so long to report the incident at the school, Ms. LK said that she was taken off guard. She said that she decided that there was an opportunity to report the incident when she heard that a school meeting was called. She then sent her eldest daughter to the meeting to report the incident. She was confused about the dates.
47. It was put to Ms. LK that the Principal did not feed her with enough information to testify at this inquiry. Ms. LK denied that the Principal fed her with information and she questioned whether the Principal even knows her name. She said that the Principal only knows her as Leaner A’s mother.
48. Ms. X Bongela testified under oath. She is employed by the WCED as a Social Worker. Ms. Bongela testified that when the incident was brought to her attention she went to the school and spoke to the Principal, learners and parents. When she spoke to Leaner A and her mother she noticed that Leaner A was still in a shocked state and that she narrated what had happened as if it was yesterday.
49. Ms. Bongela testified that leaners react differently to sexual abuse. Some leaners may have short- and/or long term effects; behaviour problems and some leaners may even drop out of school. Leaners do not feel safe at school, becomes afraid of educators and loses trust in the education system. Bongela testified that Leaner A is still receiving counselling.
50. In her experience parents don’t jump to report abuse because educators get expelled.
51. Under cross-examination Ms. Bongela denied that she had no interaction with leaners at the school.
52. Ms. N Qomoyi testified under oath. She is the Principal at Isikhokelo Primary School. She knows Mr. Sogoni since 2015 as an educator at the school.
53. Ms. Qomoyi testified that the allegations of sexual harassment against Mr. Sogoni was first reported by the sister of Leaner A at a meeting held on 17 July 2019. There were also other allegations against Mr. Sogoni that was raised during this meeting. She referred to the minutes of the meeting, the handwritten notes of the secretary of the School Governing Body (SGB) and to an attendance register of SGB members, educators and parents who attended the meeting.
54. She said that on 18 July 2019 Mr. Sogoni was refused entry to the school by some parents and members of the SGB. Ms. Qomoyi testified that she met with the mother of Leaner A on this day and reported the allegations to the WCED for investigation. She also referred Leaner A for counselling.
55. She said that during December 2019 Mr. Sogoni was dismissed on charges of misconduct unrelated to sexual abuse (his appeal in this matter must still be finalised by the MEC for Education).
56. She said that educators are aware of the policies relating to sexual harassment and that the allegations, if true, are unacceptable and disgraceful. She said that parents trust educators with their children and that educators must protect the children. She said that other allegations of misconduct against Mr. Sogoni, such as corporeal punishment, has also surfaced. Ms. Qomoyi testified that she does not trust Mr. Sogoni anymore.
57. Ms. Qomoyi denied Mr. Sogoni’s allegations that the incidents are fabricated, that she fabricated the allegations or that she has a personal vendetta against him.
58. Under cross-examination it was put to Ms. Qomoyi that the meeting held on 17 July 2019 did not keep to the agenda. She agreed and said that the parents were angry and wanted to expose what was happening at the school. She maintained that Learner A’s sister made the sexual harassment allegations during the meeting and she denied that the minutes were fabricated.
59. It was put to Ms. Qomoyi that the persons who denied Mr. Sogoni entry to the school on 18 July 2019 broke the law.
Mr. Sogoni’s case
60. Ms. S Piyose testified under oath. She has two children at Isikhokelo Primary School. Ms. Piyose testified that she attended the meeting on 18 July 2019. She did not sign the attendance register as it did not reach her.
61. Ms. Piyose testified that the SGB did not keep to the agenda and that the meeting became chaotic as parents wanted to raise issues relating to Mr. Sogoni.
62. Under cross-examination, and in reference to the minutes of the meeting, Ms. Piyose agreed that the allegations against Mr. Sogoni that are referred to in the minutes were raised at the meeting except that she cannot recall whether the allegations of sexual harassment were raised. She said that the sister of Leaner A may have been at the meeting, but that she did not see her there.
63. She testified that the sexual harassment allegations might or might not have been raised at the meeting. She said that she and other parents were walking back from the meeting and discussed the issues. They could not establish who has raised it.
64. Ms. C Speelman testified under oath. She is an educator at Isikhokelo Primary School. She testified that Mr. Sogoni is always accommodating and that the leaners like him. She does not know the learner who is accusing Mr. Sogoni of sexual assault.
65. Ms. Speelman testified that at a meeting held on 11 July 2019 between staff members and the SGB, the Principal made allegations against Mr. Sogoni.
66. Ms. Speelman said that she attended the meeting held on 17 July 2019. She testified that the SGB chairperson said that were problems with Mr. Sogoni because he has no respect for the SGB and does not attend meetings. Ms. Speelman testified that the sexual harassment allegations were not raised during at this meeting.
67. Under cross-examination Ms. Speelman denied that she and Mr. Sogoni is in a relationship.
68. Ms. Speelman testified that during the meeting held 17 July 2019 one of the parents complained about the lack of contact time with Mr. Sogoni.
69. Ms. Speelman was referred to the minutes of the meeting and the complaints listed therein against Mr. Sogoni. She said that the listed complaints came from the SGB. She maintained that the sexual harassment allegations were not raised at this meeting.
70. She agreed that the Principal did not raise an allegation of sexual abuse at the meeting held in 11 July 2019. Ms. Speelman added that the Principal said at this meeting that Mr. Sogoni does not adhere to instructions.
71. Learner D testified in camera. She is 13 years old. In 2019 she was in grade 7B at Isikhokelo Primary School. Due to the age of the leaner I find it appropriate to protect her identity.
72. Leaner D testified that on 18 July 2019 3 SGB members, the Principal and the Caretaker refused Mr. Sogoni entry to the school.
73. She said that when the school bell rand for a break, that the prefects will ensure that no one is left behind in a classroom.
74. Leaner D testified that after Mr. Sogoni was expelled Leaner A told her that Mr. Sogoni violated her by touching her breast. Leaner A told her that she never mentioned it to anyone. She is not sure if Leaner A has told other learners about the incident.
75. Leaner D does not believe that the incident happened because Mr. Sogoni is not such a person.
76. Leaner D testified that Mr. Sogoni did sometimes asked them to bring him chips.
77. Under cross-examination, Leaner D testified that as a prefect she is always around and did not see anything untoward. She recounted how Leaner A once referred to Mr. Sogoni as “the old man” and “my sugar daddy” prior to the incident.
78. Learner E testified in camera. She is 13 years old. In 2019 she was in grade 7B at Isikhokelo Primary School. Due to the age of the leaner I find it appropriate to protect her identity.
79. Leaner E testified that on 18 July 2018 she saw Mr. Sogoni being refused entry to the school by 3 SGB members, the caretaker and the Principal.
80. She knows Leaner A but they were not in the same class and were not friends. Leaner E testified that she only heard about the alleged sexual abuse after Mr. Sogoni was no longer at the school. She said that they learn in Life Orientation that harassment must be reported to a teacher and to one’s parents.
81. Leaner E testified that Mr. Sogoni’s classroom door cannot lock from the inside.
82. Mr. M Sogoni testified under oath.
83. Mr. Sogoni testified that he had a candid and professional relationship with the Principal.
84. Mr. Sogoni denied the allegations levelled against him. He testified that he did not call Leaner A to his classroom and did not asked her for a hug and a kiss. He said that some children lie whilst others speak the truth.
85. Mr. Sogoni testified that he could not attend the meeting held on 17 July 2019. He denied the allegation reflected in the minutes of the meeting that he is harassing woman. He said that he has never touched or harassed a learner and that it was all orchestrated.
86. Mr. Sogoni testified that on 18 July 2019 he was stopped at the entrance to the school. There were 3 SGB members and the caretaker at the gate. One of the SGB members told him that he is not allowed to enter the premises. Mr. Sogoni testified that he could not get inside the premises to go to the Principal.
87. Under cross-examination Mr. Sogoni testified that he does not know why Leaner A would make up the allegations against him. He said that he has treated Leaner A as any other leaner.
88. Asked about the allegation that he asked Leaner A to buy him chips, Mr. Sogoni testified that it was just figure of speech. Whilst he asked for chips now one brought him chips.
89. Asked about why he alleged that the Principal has orchestrated the allegations, Mr. Sogoni testified that on 22 May 2019 he was informed by a colleague that the Principal said that she will sent her boyfriend for him because he said that her boyfriend is a gangster. Mr. Sogoni said that on 23 May 2019 the tyres of his car were slashed.
Closing arguments
90. The written closing arguments of the parties are on record. If I do not refer to a particular argument in this summary, it does not mean that I have not considered it.
91. Mr. Dayimane argued that the evidence proves the allegations against Mr. Sogoni. Mr. Dayimane referred to the provisions of section 17(1)(b) of the EEA which provides that an educator must be dismissed if he or she is found guilty of sexual assault of the learner. He further argued that the conduct of Mr. Sogoni of requesting the leaner to kiss him and attempted to hug and kiss her cannot be condoned. Mr. Sogoni did not showed no remorse and the gravity of the misconduct warrants dismissal.
92. Mr. Ntamo argued that the allegations are fabricated to tarnish the good name of Mr. Sogoni. The fact that the exact date of the alleged incident is not known is raising suspicion and the mother does not try and help her child when she is informed of the incident. The mother is also clueless as to when the alleged incident happened. The child also does not go to a doctor, the SAPS or reports it at school. The incident allegedly happened in April or May 2019 but is only reported in the 3rd term, in July 2019. All the allegations came from the SGB and not from the parents. No names of the parents who made the allegations are reflected in the minutes of the meeting and the minutes were fabricated. The incident was fabricated by the Principal to have Mr. Sogoni expelled from school for unbeknown reasons. Mr. Sogoni is not guilty of the allegations.
ANALYSIS OF EVIDENCE AND ARGUMENTS
93. The WCED preferred the following charges against Mr. Sogoni:
“Charge 1
It is alleged that you are guilty of misconduct in terms of section 17(1)(b) of the Employment of Educators Act, no. 76 of 1998 (hereinafter referred to as the Act), in that during the 2nd term of 2019 and/or July 2019, you committed an act of sexual assault on Learner A (identity of learner is protected), a grade 7 learner of Isikhokelo Primary School, by touching her breasts with you hand.
“Alternative to charge 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Act, in that during the 2nd term of 2019 and/or July 2019, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner, in that you sexually harassed Learner A, a grade 7 learner of Isikhokelo Primary School, by touching her breasts with you hand.
Charge 2
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Act, in that during the 2nd term of 2019 and/or July 2019, while on duty you conducted yourself in an improper, disgraceful or unacceptable manner, in that you sexually harassed Learner A, a grade 7 learner of Isikhokelo Primary School, by requesting her to:
Kiss you; and/or
Hug you and/or attempting to hug her; and/or
Give you love “mamakunike uthando.”
94. Mr. Sogoni pleaded not guilty to the charges and the WCED bears the onus to proof the allegations levelled against Mr. Sogoni on a balance of probability. In WESUSA & Others vs Jacobz 2000 8 BLLR 977 (LC), the Court remarked that “the onus will be discharged if the respondent can show credible evidence that its version is the more probable and acceptable version. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondents version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradictions is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that a the end of the day one can say with conviction that one version is false and be rejected with safety”. The onus will not be discharged by raising mere suspicions of misconduct.
95. Questions was raised during this inquiry about the fact that the exact date of the alleged incident is not known. Mr. Sogoni’s representative referred to it as being suspicious.
96. Leaner A testified that the incident happed in Mr. Sogoni’s classroom in 2nd term, on a Friday, during lunch time, in either April or May 2019. Leaner B testified that Leaner A reported the incident to her and to Leaner C on a day in the 2nd term during lunch time when Leaner A come from Mr. Sogoni’s classroom. It was not put to Learner B or to Leaner C in cross-examination that Leaner A did not report the incident to them on a day in the 2nd term during lunch time. There is thus some indication of when the alleged incident took place.
97. To find that an employer has not proven charges against an employee merely because the exact calendar date of the incident is not known or might be incorrectly reflected in a charge would constitute an overly technical and legalistic approach. The date of the incident, whether it was in April or May 2019 does not change the nature of the charges levelled against Mr. Sogoni i.e. that of sexual assault and of conducting himself in an improper, disgraceful or unacceptable manner towards Leaner A by sexually harassing her.
98. During this inquiry Learner A was also questioned extensively why she did not report the alleged incident immediately to the Principal or to her class teacher.
99. In R v Valentine 1996 2 Cr App R213 the court held that: “We now have greater understanding that those who are the victims of sexual offences, be they male or female, often need time before they can bring themselves to tell what has been done to them; that some victims will find it impossible to complain to anyone other than a parent or member of their family whereas others may feel it quite impossible to tell their parents or members of their family”. When children do report an act of sexual abuse, they would normally report it to a person in which they have particular trust. The fact that a child does not tell another teacher or the Principal at the school about an incident of sexual abuse that occurred at the school but only tells a friend, parent or another family member is no indication that the child has fabricated the evidence.
100. In this respect Leaner A testified that she was afraid of the Principal and was not comfortable to report it to her or to her class teacher. She has decided to rather report it at home. There is nothing sinister in her decision to have told her mother about the incident.
101. It is unclear from the evidence when precisely Leaner A has told her mother about the incident. Mr. Sogoni’s representative also question Leaner A’s mother extensively about why it took so long before the incident was reported at the school. Leaner A’s mother was clearly confused about the time frames of when Leaner A reported it to her and when it was reported to the school. But it is evident that the allegations only came to the school’s knowledge in July 2019 which is 2 or 3 months after the incident. When Leaner A reported the incident to her mother, or why her mother took her time before deciding to report the incident to the school, is in my view not important as it does not proof or disprove the allegations. Leaner A cannot be responsible for her mother’s actions, or in actions.
102. Leaner A was 13 years when she gave her evidence during this enquiry in 2019. At the time she was a grade 7C learner at Isikhokelo Primary School and Mr. Sogoni was her grade 7 Math and Social Science teacher.
103. The general quality of her testimony and her consistency within the content and structure of her own evidence and that of the other witnesses are factors that I considered in examining her credibility as a witness.
104. The imaginativeness and suggestibility of children, their memory, understanding of the importance of telling the truth, their capacity of observation, recollection and narrative ability, their age, mental ability and development is just some of the factors that our Courts have held to be taken into account when scrutinising the testimony of a child. I must hasten to add that this does not mean that the evidence of children should be approached on the basis of assuming that all children make false allegations, have poor memories or is highly suggestible. There used to be a cautionary rule that applied to the evidence of complainants in sexual cases. But this rule was abolished by the Supreme Court of Appeal in its decision S v Jackson 1998 1 SACR 470 (SCA). The court per Oliver JA held: “In my view the cautionary rule in sexual assault cases is based on an irrational and out-dated perception. It unjustly stereotypes complaints in sexual cases as particularly unreliable…The evidence in a particular case may call for a cautionary approach but it a far cry from the application of a general cautionary rule”.
105. Leaner A testified that during the 1st term of 2019 Mr. Sogoni would always asked her to buy him chips and that after she told her mother about it, her mother instructed her to stop buying him chips. When Mr. Sogoni was asked about Leaner A’s version on this aspect, he replied that it was just “figure of speech” and that no one has brought him chips. He did not explain what he meant by “figure of speech”. I found Mr. Sogoni’s reply vague and as if he wanted to skirt the issue. His evidence in fact corroborates Leaner A’s version that he has asked her to buy him chips. She was thus not dishonest on this score.
106. Learner A testified in detail about what has transpired in Mr. Sogoni’s classroom. She explained that Mr. Sogoni asked her to accompany him to his classroom. That they were alone in the classroom. That he asked her why she had changed and that she explained to him that she has not changed but that her mother told her not to buy him chips anymore. That he asked her why she doesn’t love him anymore and that she replied to him that she loves all her teachers. That he asked her for a hug and a kiss and that when she refused he came closer to her and attempted to kiss her. That he put his right hand on her left breast and pressed it. That she pushed him aside. That she opened the classroom door, was shaking and that she went to her friends and told them what had happened. That they told her to report the incident to the Principal.
107. Her description of what had transpired remained, at its core, the same during her testimony in chief and during cross-examination. As far as there might have been minor charges, I don’t find it material. She withstood vigorous cross-examination and did not change her version.
108. This then brings me to the first report evidence. Whilst evidence of previous consistent statements is normally inadmissible there is an exception to the rule when it comes to rape, indecent assault and similar offences. In cases of misconduct of a sexual nature our law provides evidence may be given of a voluntary complaint made by the victim after the commission of the misconduct. The contents are admissible evidence to show the consistency of the complainant’s version.
109. In this respect, Leaner B explained that Leaner A came from Mr. Sogoni’s classroom and told her and Leaner C that Mr. Sogoni tried to hug and kiss her and had touched her breast. She testified that Leaner A was visibly shaking and that they advised her to report it to the Principal but Learner A told them that she will report it at home. Leaner C corroborated the version of Leaner B. She testified that Leaner A told them that Mr. Sogoni wanted to hug and kiss her and that he had touched her breast. She also described that Leaner A was shaking and emotional when she relayed to them what has transpired. Leaner C also confirmed that they advised Leaner A to report the incident to the Principal.
110. I find both Leaner B and Learner C to have been credible witnesses and I find their testimony reliable. What Leaner A told them is consistent with what she has told this inquiry and what she had told her mother. It is evident that she came directly from Mr. Sogoni’s classroom to her friends, people she trusted. There is no evidence that Leaner A was acting or has made up her emotional state when she told her friends what has just happened. I find her emotional state not to be inconsistent with someone who has experienced a traumatic event such as sexual abuse. I find it improbable that this was an act on her part.
111. Leaner D and Leaner E was not present when Leaner A made the first report of the incident. Although they seemingly do not believe Leaner A, their testimony does not assist this enquiry to determine whether the allegations are true or not. I have noted that both Leaner D and E testified that 3 SGB members, the Principal and the Caretaker has refused Mr. Sogoni entry to the school on 18 July 2019, whilst Mr. Sogoni himself testified that it was 3 SGB members and the caretaker that has refused him entry to the school. But nothing turns on this and it is a periphery issue that requires no more analysis.
112. Learner D testified that Learner A once referred to Mr. Sogoni as “the old man” and “my sugar daddy”. This version was not put to Leaner A and Mr. Sogoni has also not testify as to why Leaner A will say such things, if it was indeed said. Leaner A did testify that it was not the first time that Mr. Sogoni has asked her for a hug. The matter may or may not be related. I cannot speculate and it cannot be taken further.
113. Much was made during this inquiry about the meeting which was held on 17 July 2019, the accuracy of the minutes of that meeting and whether the alleged sexual assault was reported during this meeting or not. Ms. LK testified that she had sent he eldest daughter to report the incident at this meeting. The minutes of the meeting reflects several allegations that were levelled against Mr. Sogoni, including allegations of assaulting children physically and sexually. Ms. Qomoyi testified that the incident was reported at this meeting. On the other hand, Ms. Pyisose could not recall that allegations of sexual harassment were mentioned at this meeting and Ms. Speelman testified that sexual harassment allegation was not raised at the meeting. Whist I am not persuaded that the minutes of the meeting which reflect the allegation was fabricated, whether the specific allegation was raised at the meeting held on 17 July 2019 or not, does not prove or disprove the allegation. On a balance of probability what is clear, is that the allegation which has not form the basis of the charges against Mr. Sogoni had come to the attention of the school during July 2019 and that it was investigated by the WCED.
114. Mr. Sogoni has offered little more than a mere denial that he has sexually assaulted Leaner A. His version is that it is all orchestrated by the Principal. When Mr. Sogoni was asked under cross-examination why the Principal would have orchestrated it. Mr. Sogoni responded that he was informed by a colleague that the Principal said that she will sent her boyfriend for him because he said that her boyfriend is a gangster. One would have expected that this version would have been put to the Principal for her to answer to it. But it was not. Mr. Sogoni’s version on this score also remains uncorroborated. I can also find no motive why Leaner A would falsely accuse Mr. Sogoni and under cross-examination Mr. Sogoni himself could not provide a reason why Leaner A would lie. The suggestion that the Principal is behind the allegations is not being supported by credible evidence. For Mr. Sogoni’s version that the Principal has orchestrated the allegation to be true it would mean that the Principal must have somehow persuaded Leaner A, either personally or through a third party, to make up the allegation against Mr. Sogoni. She must have convinced Leaner A to plan for a convenient date, then to go to her friends in an emotional state and told them about a fictional event in such a manner that they would believe her so that they would be prepared to testify to it in an inquiry. On top of that Leaner A must then have been persuaded to persist with her lie during this inquiry. There is no evidence that the Principal could have wielded such power over either Leaner A, B, C or over leaner A’ mother. I find it highly improbable that the Principal has orchestrated the allegation.
115. Leaner A’s understanding of the importance of telling the truth, her recollection of the incident in Mr. Sogoni’s classroom; the small details that she remembers such as that she told him that that she can’t kiss him because she is not even kissing her father and the right hand that he used to touch her left breast; the consistency of her version since the first report to her friends; and her withstanding lengthy cross-examination persuades me that she is telling the truth about what had transpired in Mr. Sogoni’s classroom. I find her version more probable than Mr. Sogoni’s mere denial of the incident and his version that the allegations has all been orchestrated by the Principal.
116. Mr. Sogoni is charged in terms of section 17(1)(b) of the EEA with sexually assault of Leaner A (Main charge 1) and in terms of section 18(1)(q) with conducting himself in an improper, disgraceful or unacceptable manner by sexually harassing Leaner A.
117. Assault is defined as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires on another person a belief that such impairment of his/her body is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. Assault by means of menacing threats of a sexual nature may occur without any touching.
118. The elements of sexual assault are a) conduct of a sexual nature; b) which results in the victim’s integrity being impaired (or inspired the believe that it will be impaired); c) unlawfulness – meaning that there must not be a justification ground for the action, such as for example consent; d) intention to commit the misconduct - in other words accidental unintentional bodily contact is excluded from the definition.
119. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in light of all the circumstances. The part of the body touched, the nature of the contact, the situation in which is occurred, the words or gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force will be relevant. The intent or purpose of the person committing the act, to the extent that it may appear from the evidence, may also be a factor in considering whether the conduct is of a sexual nature.
120. Given the wide meaning of sexual assault, it involves not only rape, sodomy, oral sex or other forms of sexual activity without the consent of the victim but also includes other forms of intentional conduct of a sexual /erotic nature such as kissing on the lips, and touching or caressing buttocks or breasts of a victim.
121. Misconduct of a sexual nature that does not constitute misconduct in term of section 17 of the EEA would generally constitute misconduct in terms of section 18. Examples may include kissing a learner without consent, asking for hugs and kisses from a leaner; having a sexual relationship with a leaner or another school, grooming a learner, etcetera.
122. In casu Mr. Sogoni has intentionally asked a 13-year old leaner in his classroom for a hug and a kiss and when she refused he approached her, attempted to kiss her and then touched her breast before she could push him away. Mr. Sogoni’s conduct was of a sexual nature, it was deliberate and intentional and it without consent of the learner. His conduct has impaired the integrity and dignity of the learner. I find on a balance of probability that Mr. Sogoni has sexually assaulted Leaner A on a day during the 2nd term of 2019 by touching her breast.
123. Whilst there is no evidence that Mr. Sogoni has also asked the leaner to give him love “mamakunike uthando” during this incident, he did conduct himself in an improper, disgraceful and unacceptable manner by requesting Leaner A to hug and kiss him and then attempted to kiss her.
124. I find Mr. Sogoni guilty on the Main Charge 1 and on Charge 2.
125. The WCED has argued that Mr. Sogoni has broken the trust relationship and has called for his dismissal.
126. It is trite that mitigating factors such as the personal circumstances of an employee should normally be considered before deciding the appropriate sanction. Mr. Sogoni has not presented any mitigating arguments. I did however consider that he is employed as a level 1 educator; that no evidence was presented of him being found guilty of similar misconduct in the past; and that he will probably find it difficult to secure employment in the education sector if he is dismissed.
127. I must take into account that the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC, held that section 28 of the Constitution impress an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance. Courts and administrative authorities are constitutionally bound to give consideration to the effect their decision will have on children’s lives.
128. With regards to charge 2, the conduct of Mr. Sogoni to asked a 13-year old learner for a hug and a kiss and then to also attempt to kiss her is inappropriate, unacceptable and far removed from acting in the best interest of Leaner A. A 13 year old child that also has a general right to be protected from sexual abuse and harassment. Educators are entrusted with the care of children and they must act with utmost good faith in the conduct towards leaners as society must be able to trust educators unconditionally with their children. Mr. Sogoni has breached this trust on that faithful day in the 2nd term of 2019 and he has displayed no remorse for his conduct. Leaner A is traumatized by the event as she is still receiving counseling. The impact of what happened to her appears from her testimony when she said that she will not be going back to school if Mr. Sogoni returns to the school. It has also impacted other learners at the school. Leaner B testified that is disappointed in Mr. Sogoni and did not expected it from him. She testified that after the incident she did no pay attention in his class. Leaner C said that she is afraid that it can also happen to her.
129. Considering all the above mentioned factors, I find dismissal to be the only appropriate sanction in as far as charge 2 is concerned.
130. With regards to charge 1, the sexual assault perpetrated by Mr. Sogoni falls within the ambit of section 17 of the EEA and in terms of this section an educator must be dismissed for inter alia committing an act of sexual assault on a leaner. There is thus no alternative sanction that can be considered once an educator has been found guilty of a section 17 offence no matter what the mitigating circumstances might be.
131. Lastly, I have informed the parties at the commencement of the inquiry that section 120(1) of the Children’s Act, No 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” Section 120(2) of the act provides that a finding that a person is unsuitable to work with children may be made by such forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children.
132. I informed the parties that the WCED representative may make such an application during the course of the proceedings or at the end of the proceedings. I can only make such a finding after the accused employee had an opportunity to make submissions why such finding should not be made.
133. The WCED representative did not make such an application either during or at the end of this inquiry. Whilst I can make such a finding on own accord, I find that in the absence of such an application by the WCED and in the absence of the accused employee not having had an opportunity to make submission as to why such a finding should not be made, I cannot make a finding at this stage as to whether or not the accused employee must be declared unsuitable to work with children.
AWARD
1. I find Mr. Msimele Sogoni guilty on the main charge 1 and on charge 2.
2. The sanction is summary dismissal.
3. The WCED must inform Mr. Sogoni of the date of his dismissal.
4. The ELRC is directed to send a copy of this award to the South African Council for Educators (SACE) to consider revoking Mr. Sogoni’s SACE certificate.
ELRC Commissioner: Jacques Buitendag
Province: Western Cape
Applicant: MR MSIMELE SOGONI
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: Western Cape Education Department (WCED) in Cape Town
Award Date: 17 February 2020
Arbitrator: Jacques Buitendag
Commissioner: Jacques Buitendag
Case No.: PSES407-19/20WC
Date of Award: 17 February 2020
In the INQUIRY between:
MR MSIMELE SOGONI
(Respondent)
and
DEPARTMENT OF EDUCATION – WESTERN CAPE
(Union/Applicant)
Union / Applicant’s representative: Mr. S Ntamo
Telephone: 073 1951 353
Telefax: Not available
Email: zamalizini@webmail.co.za
Respondent’s representative: Mr. Z Dayimani
Telephone: 021 467 9232
Telefax: 021 425 8612
Email: Zola.Dayimani@westerncape.gov.za
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. This inquiry, in terms of section 188A of the Labour Relations Act, 66 of 1995 as amended (LRA), took place under the auspices of the Education Labour Relations Council (ELRC) on 15 October 2019 and 20-21 January 2020 at the premises of Western Cape Education Department (WCED) in Cape Town. The proceedings were digitally recorded.
2. Mr. S Ntamo, an official of SADTU, represented the educator, Mr. M Sogoni. The WCED was represented by its Labour Relations Officer, Mr. Z Dayimani. Ms. B Mankay interpreted the proceedings and Ms. D Xego was the intermediary.
3. At the conclusion of the proceedings on 21 January 2020 it was agreed that the parties will submit written closing arguments on 28 January 2020. I received the closing arguments of the parties on this day. I requested extension to issue the award. The ELRC granted the extension.
THE ISSUE IN DISPUTE
4. I must determine whether Mr. Sogoni is guilty of the allegations of sexual misconduct that is levelled against him and if so, I must determine the appropriate sanction.
BACKGROUND
5. On 25 September 2018 the parties to the Education Labour Relations Council (ELRC) entered into Collective Agreement 3 of 2018 which provides for compulsory inquiries by arbitrators in cases of disciplinary action against educators charged with sexual misconduct in respect of learners.
6. Mr. Sogoni is employed as a level 1 educator at the Isikhokelo Primary School in Khayelitsha. He teaches grade 7 Social Science and Math.
7. During July 2019 the WCED received allegations against Mr. Sogoni of sexual misconduct and other misconduct. During August 2019 the WCED placed Mr. Sogoni at one of its district offices pending an investigation into the allegations.
8. On or about 12 August 2019 the WCED requested the ELRC to appoint an arbitrator for an inquiry into alleged sexual misconduct allegations leveled against Mr. Sogoni.
9. The WCED preferred the following charges against Mr. Sogoni:
“Charge 1
It is alleged that you are guilty of misconduct in terms of section 17(1)(b) of the Employment of Educators Act, no. 76 of 1998 (hereinafter referred to as the Act), in that during the 2nd term of 2019 and/or July 2019, you committed an act of sexual assault on Learner A (identity of learner is protected), a grade 7 learner of Isikhokelo Primary School, by touching her breasts with you hand.
Alternative to charge 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Act, in that during the 2nd term of 2019 and/or July 2019, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner, in that you sexually harassed Learner A, a grade 7 learner of Isikhokelo Primary School, by touching her breasts with you hand.
Charge 2
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Act, in that during the 2nd term of 2019 and/or July 2019, while on duty you conducted yourself in an improper, disgraceful or unacceptable manner, in that you sexually harassed Learner A, a grade 7 learner of Isikhokelo Primary School, by requesting her to:
a) Kiss you; and/or
b) Hug you and/or attempting to hug her; and/or
c) Give you love “mamakunike uthando.”
10. Mr. Sogoni’s rights was explained to him at the commencement of the inquiry. Mr. Sogoni confirmed that he is satisfied with his representative; received adequate notice of the inquiry; received the charge sheet and had adequate time to prepare. Both parties indicated that they will call witnesses during the inquiry. I examined to the parties the nature of the inquiry and that both parties must also present mitigating and aggravating arguments, which will only be applicable if Mr. Sogoni is found guilty on one or more of the charges.
11. Mr. Sogoni pleaded not guilty to the charges.
SUMMARY OF EVIDENCE AND ARGUMENT
12. I have considered all the evidence and arguments presented, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence and argument that I regard as necessary to substantiate my findings in the determination of this matter.
The WCED’s case
13. Learner A testified in camera. She is 13 years old. In 2019 she was in grade 7C at Isikhokelo Primary School. Due to the age of the leaner I find it appropriate to protect her identity.
14. Learner A testified that Mr. Sogoni was her grade 7 Math and Social Science educator in 2019. She testified that during the 1st term of 2019 Mr. Sogoni would always asked her to buy him chips. When she told her mom that Mr. Sogoni was asking her to buy chips for him, her mother told her to must stop buying him chips.
15. Learner A testified that on a Friday, during the 2nd term, in either April or May 2019, Mr. Sogoni asked her to accompany him to his classroom. She said that it was during lunch time. Once inside the classroom Mr. Sogoni asked her why she had changed. She explained to Mr. Sogoni that she has not changed but that her mother had told her not to buy him chips anymore. She said that they were alone in the classroom. Leaner A testified that Mr. Sogoni asked her why she doesn’t love him anymore and that she replied that she loves all her teachers. She said that Mr. Sogoni asked her for a hug and a kiss and she told him that she can’t kiss him and that she is not even kissing her father. Leaner A explained that Mr. Sogoni then came closer and attempted to kiss her. He touched her breast and pressed it. When she tried to fend him off he told that she is feisty.
16. Learner A explained that she then pushed Mr. Sogoni aside, opened the classroom door, and went to her friends (Leaner B and Leaner C). She said that was shaking when she told her friends what had happened. They told her that Mr. Sogoni will look at her behind what she turns around. Her friends advised her to report the incident to the Principal. Leaner A testified that she was afraid of the Principal and has decided to rather tell her mother about what had happened.
17. Leaner A testified that her mother did not take her seriously at first. But when her mother told her sister (Leaner A’s sister) she reported it during a meeting at school. Leaner A said that she did not see Mr. Sogoni at the school after this meeting.
18. Learner A was asked whether the Principal has asked her to lie and make up the incident. She denied this and questioned why the Principal would pick her out of all the children in the school to lie.
19. Leaner A said that she will not going back to school if Mr. Sogoni returns to the school.
20. She mentioned that there was a previous incident where Mr. Sogoni also tried to hug her. She was questioned about the allegation that Mr. Sogoni told her to “mamakunike uthando.” (to give him love). She said that this did not happen on the same day.
21. Under cross-examination Leaner A she said that had bunked the Monday’s class following the incident but has continued to attend Mr. Sogoni’s classes thereafter. She said that she was thinking about her future.
22. Leaner A agreed that she is aware that incidents of harassment must be reported. She agreed that her class teacher, Ms. Frans taught her this in Life Orientation. She said that she was not comfortable speaking to Ms. Frans or to the Principal about the incident and that she decided to tell her mother about it.
23. Leaner A was questioned about her mother’s response and the delay in reporting the incident. She testified that her mother initially said that she will report it if something more serious happens. She said that she told her mother numerous times about the incident until her mother told her sister to report it at school. She does not know why her mother took so long to report the incident at the school.
24. She is not aware of whether Mr. Sogoni has also asked other leaners to buy him chips.
25. When questioned about the alleged incident in the classroom, Leaner A maintained that it happened during lunch; that he asked her for a hug and a kiss; that Mr. Sogoni touched her breast; that she pushed him aside; that she ran out of the class room; that she was shaking and that told her friend what has just happened.
26. When questioned about how Mr. Sogoni touched her breast, she explained that he was facing her and that he placed his right hand on her left breast and pressed it hard.
27. Leaner A agreed that Mr. Sogoni’s class room door cannot close properly. She said that one must put a piece of paper in the door so that the wind does not blow it open.
28. Learner B testified in camera. She is 13 years old. In 2019 she was in grade 7C at Isikhokelo Primary School. Due to the age of the leaner I find it appropriate to protect her identity.
29. Learner B testified that Leaner A came from Mr. Sogoni’s classroom and told her and Leaner C about what had happed in his classroom. She said that it was in the 2nd term during lunch time. She cannot remember the specific day.
30. Leaner B testified that Leaner A explained to them that Mr. Sogoni tried to hug and kiss her and that he had touched her breast. Leaner B said that Leaner A was visibly shaking when she told them what had happened. When they advised her to report it to the Principal Learner A told them that she will report it at home.
31. Leaner B said that she was disappointed in Mr. Sogoni and never expected that he could do such a thing.
32. She denied that the Principal told her to attend this inquiry and lie about the incident.
33. Leaner B testified that Learner C once asked her if she noticed how Mr. Sogoni was looking at Leaner A’s behind.
34. Under cross-examination Learner B testified that Mr. Sogoni is a good educator who explains the subjects that he taught well. She said that if an educator touches her breast, she would never go back to school and that after the incident she did not want to listen to Mr. Sogoni.
35. Learner C testified in camera. She is 13 years old. In 2019 she was in grade 7C at Isikhokelo Primary School. Due to the age of the leaner I find it appropriate to protect her identity.
36. Leaner C testified that Leaner A told them that Mr. Sogoni wanted to hug and kiss her and that he had pressed her breast. She said that Learner A was in a bad state when she described the incident, she was shaking, emotional and wanted to cry. Leaner C said that when she advised Learner A to report the incident to the Principal, Learner A told her that she is afraid of the Principal.
37. Leaner C denied that the Principal has asked her to attend this inquiry and to lie.
38. Under cross-examination, Leaner C said that she liked Mr. Sogoni as an educator. She said that she was shocked when she heard about the incident because the incident because the type of person that Mr. Sogoni is does not match up with the incident. She testified that when she tried to play the incident out in her mind, she recalled how Mr. Sogoni was looking at Leaner A in the funny manner in the past. She said that after the incident she was afraid that it could also happen to her.
39. Ms. LK testified under oath. She is the mother of Leaner A. Her name and surname is not being disclosed because if it is disclosed the identity of Leaner A will become known.
40. Ms. LK testified she does not know Mr. Sogoni that well.
41. She said that when Leaner A informed her that she must buy chips for Mr. Sogoni and that she told her not to buy him chips anymore.
42. She testified that Learner A one day disclosed to her that Mr. Sogoni has asked her for a hug and kiss and that he has touched her breasts. Ms. LK said that Mr. Sogoni looked like an honorable person and she wondered how he could have done such a thing. Ms. LK testified that she was shocked and knew that it had to be reported to the community structures but that she did not immediately knew how to react. Ms. LK said that she has started a new job as a Domestic Worker and asked her eldest daughter to report it at a school meeting.
43. Ms. LK testified that the Principal has requested her to come to the school after the matter was reported by her eldest daughter. She explained to the Principal what Leaner A had told her.
44. Upon questioning whether the Principal asked them to lie, Ms. LK testified that she would not lie and would not allow her child to lie. She said that one must be mad to make up a story about sexual abuse.
45. Under cross-examination, Ms. LK confirmed that Leaner A told her in the 2nd term of 2019 about the incident. She could not recall the date. She said that Leaner A was emotional and did not want to go back to school. Ms. LK testified that she told Leaner A that she must stay in school.
46. Upon being questioned why she took so long to report the incident at the school, Ms. LK said that she was taken off guard. She said that she decided that there was an opportunity to report the incident when she heard that a school meeting was called. She then sent her eldest daughter to the meeting to report the incident. She was confused about the dates.
47. It was put to Ms. LK that the Principal did not feed her with enough information to testify at this inquiry. Ms. LK denied that the Principal fed her with information and she questioned whether the Principal even knows her name. She said that the Principal only knows her as Leaner A’s mother.
48. Ms. X Bongela testified under oath. She is employed by the WCED as a Social Worker. Ms. Bongela testified that when the incident was brought to her attention she went to the school and spoke to the Principal, learners and parents. When she spoke to Leaner A and her mother she noticed that Leaner A was still in a shocked state and that she narrated what had happened as if it was yesterday.
49. Ms. Bongela testified that leaners react differently to sexual abuse. Some leaners may have short- and/or long term effects; behaviour problems and some leaners may even drop out of school. Leaners do not feel safe at school, becomes afraid of educators and loses trust in the education system. Bongela testified that Leaner A is still receiving counselling.
50. In her experience parents don’t jump to report abuse because educators get expelled.
51. Under cross-examination Ms. Bongela denied that she had no interaction with leaners at the school.
52. Ms. N Qomoyi testified under oath. She is the Principal at Isikhokelo Primary School. She knows Mr. Sogoni since 2015 as an educator at the school.
53. Ms. Qomoyi testified that the allegations of sexual harassment against Mr. Sogoni was first reported by the sister of Leaner A at a meeting held on 17 July 2019. There were also other allegations against Mr. Sogoni that was raised during this meeting. She referred to the minutes of the meeting, the handwritten notes of the secretary of the School Governing Body (SGB) and to an attendance register of SGB members, educators and parents who attended the meeting.
54. She said that on 18 July 2019 Mr. Sogoni was refused entry to the school by some parents and members of the SGB. Ms. Qomoyi testified that she met with the mother of Leaner A on this day and reported the allegations to the WCED for investigation. She also referred Leaner A for counselling.
55. She said that during December 2019 Mr. Sogoni was dismissed on charges of misconduct unrelated to sexual abuse (his appeal in this matter must still be finalised by the MEC for Education).
56. She said that educators are aware of the policies relating to sexual harassment and that the allegations, if true, are unacceptable and disgraceful. She said that parents trust educators with their children and that educators must protect the children. She said that other allegations of misconduct against Mr. Sogoni, such as corporeal punishment, has also surfaced. Ms. Qomoyi testified that she does not trust Mr. Sogoni anymore.
57. Ms. Qomoyi denied Mr. Sogoni’s allegations that the incidents are fabricated, that she fabricated the allegations or that she has a personal vendetta against him.
58. Under cross-examination it was put to Ms. Qomoyi that the meeting held on 17 July 2019 did not keep to the agenda. She agreed and said that the parents were angry and wanted to expose what was happening at the school. She maintained that Learner A’s sister made the sexual harassment allegations during the meeting and she denied that the minutes were fabricated.
59. It was put to Ms. Qomoyi that the persons who denied Mr. Sogoni entry to the school on 18 July 2019 broke the law.
Mr. Sogoni’s case
60. Ms. S Piyose testified under oath. She has two children at Isikhokelo Primary School. Ms. Piyose testified that she attended the meeting on 18 July 2019. She did not sign the attendance register as it did not reach her.
61. Ms. Piyose testified that the SGB did not keep to the agenda and that the meeting became chaotic as parents wanted to raise issues relating to Mr. Sogoni.
62. Under cross-examination, and in reference to the minutes of the meeting, Ms. Piyose agreed that the allegations against Mr. Sogoni that are referred to in the minutes were raised at the meeting except that she cannot recall whether the allegations of sexual harassment were raised. She said that the sister of Leaner A may have been at the meeting, but that she did not see her there.
63. She testified that the sexual harassment allegations might or might not have been raised at the meeting. She said that she and other parents were walking back from the meeting and discussed the issues. They could not establish who has raised it.
64. Ms. C Speelman testified under oath. She is an educator at Isikhokelo Primary School. She testified that Mr. Sogoni is always accommodating and that the leaners like him. She does not know the learner who is accusing Mr. Sogoni of sexual assault.
65. Ms. Speelman testified that at a meeting held on 11 July 2019 between staff members and the SGB, the Principal made allegations against Mr. Sogoni.
66. Ms. Speelman said that she attended the meeting held on 17 July 2019. She testified that the SGB chairperson said that were problems with Mr. Sogoni because he has no respect for the SGB and does not attend meetings. Ms. Speelman testified that the sexual harassment allegations were not raised during at this meeting.
67. Under cross-examination Ms. Speelman denied that she and Mr. Sogoni is in a relationship.
68. Ms. Speelman testified that during the meeting held 17 July 2019 one of the parents complained about the lack of contact time with Mr. Sogoni.
69. Ms. Speelman was referred to the minutes of the meeting and the complaints listed therein against Mr. Sogoni. She said that the listed complaints came from the SGB. She maintained that the sexual harassment allegations were not raised at this meeting.
70. She agreed that the Principal did not raise an allegation of sexual abuse at the meeting held in 11 July 2019. Ms. Speelman added that the Principal said at this meeting that Mr. Sogoni does not adhere to instructions.
71. Learner D testified in camera. She is 13 years old. In 2019 she was in grade 7B at Isikhokelo Primary School. Due to the age of the leaner I find it appropriate to protect her identity.
72. Leaner D testified that on 18 July 2019 3 SGB members, the Principal and the Caretaker refused Mr. Sogoni entry to the school.
73. She said that when the school bell rand for a break, that the prefects will ensure that no one is left behind in a classroom.
74. Leaner D testified that after Mr. Sogoni was expelled Leaner A told her that Mr. Sogoni violated her by touching her breast. Leaner A told her that she never mentioned it to anyone. She is not sure if Leaner A has told other learners about the incident.
75. Leaner D does not believe that the incident happened because Mr. Sogoni is not such a person.
76. Leaner D testified that Mr. Sogoni did sometimes asked them to bring him chips.
77. Under cross-examination, Leaner D testified that as a prefect she is always around and did not see anything untoward. She recounted how Leaner A once referred to Mr. Sogoni as “the old man” and “my sugar daddy” prior to the incident.
78. Learner E testified in camera. She is 13 years old. In 2019 she was in grade 7B at Isikhokelo Primary School. Due to the age of the leaner I find it appropriate to protect her identity.
79. Leaner E testified that on 18 July 2018 she saw Mr. Sogoni being refused entry to the school by 3 SGB members, the caretaker and the Principal.
80. She knows Leaner A but they were not in the same class and were not friends. Leaner E testified that she only heard about the alleged sexual abuse after Mr. Sogoni was no longer at the school. She said that they learn in Life Orientation that harassment must be reported to a teacher and to one’s parents.
81. Leaner E testified that Mr. Sogoni’s classroom door cannot lock from the inside.
82. Mr. M Sogoni testified under oath.
83. Mr. Sogoni testified that he had a candid and professional relationship with the Principal.
84. Mr. Sogoni denied the allegations levelled against him. He testified that he did not call Leaner A to his classroom and did not asked her for a hug and a kiss. He said that some children lie whilst others speak the truth.
85. Mr. Sogoni testified that he could not attend the meeting held on 17 July 2019. He denied the allegation reflected in the minutes of the meeting that he is harassing woman. He said that he has never touched or harassed a learner and that it was all orchestrated.
86. Mr. Sogoni testified that on 18 July 2019 he was stopped at the entrance to the school. There were 3 SGB members and the caretaker at the gate. One of the SGB members told him that he is not allowed to enter the premises. Mr. Sogoni testified that he could not get inside the premises to go to the Principal.
87. Under cross-examination Mr. Sogoni testified that he does not know why Leaner A would make up the allegations against him. He said that he has treated Leaner A as any other leaner.
88. Asked about the allegation that he asked Leaner A to buy him chips, Mr. Sogoni testified that it was just figure of speech. Whilst he asked for chips now one brought him chips.
89. Asked about why he alleged that the Principal has orchestrated the allegations, Mr. Sogoni testified that on 22 May 2019 he was informed by a colleague that the Principal said that she will sent her boyfriend for him because he said that her boyfriend is a gangster. Mr. Sogoni said that on 23 May 2019 the tyres of his car were slashed.
Closing arguments
90. The written closing arguments of the parties are on record. If I do not refer to a particular argument in this summary, it does not mean that I have not considered it.
91. Mr. Dayimane argued that the evidence proves the allegations against Mr. Sogoni. Mr. Dayimane referred to the provisions of section 17(1)(b) of the EEA which provides that an educator must be dismissed if he or she is found guilty of sexual assault of the learner. He further argued that the conduct of Mr. Sogoni of requesting the leaner to kiss him and attempted to hug and kiss her cannot be condoned. Mr. Sogoni did not showed no remorse and the gravity of the misconduct warrants dismissal.
92. Mr. Ntamo argued that the allegations are fabricated to tarnish the good name of Mr. Sogoni. The fact that the exact date of the alleged incident is not known is raising suspicion and the mother does not try and help her child when she is informed of the incident. The mother is also clueless as to when the alleged incident happened. The child also does not go to a doctor, the SAPS or reports it at school. The incident allegedly happened in April or May 2019 but is only reported in the 3rd term, in July 2019. All the allegations came from the SGB and not from the parents. No names of the parents who made the allegations are reflected in the minutes of the meeting and the minutes were fabricated. The incident was fabricated by the Principal to have Mr. Sogoni expelled from school for unbeknown reasons. Mr. Sogoni is not guilty of the allegations.
ANALYSIS OF EVIDENCE AND ARGUMENTS
93. The WCED preferred the following charges against Mr. Sogoni:
“Charge 1
It is alleged that you are guilty of misconduct in terms of section 17(1)(b) of the Employment of Educators Act, no. 76 of 1998 (hereinafter referred to as the Act), in that during the 2nd term of 2019 and/or July 2019, you committed an act of sexual assault on Learner A (identity of learner is protected), a grade 7 learner of Isikhokelo Primary School, by touching her breasts with you hand.
“Alternative to charge 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Act, in that during the 2nd term of 2019 and/or July 2019, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner, in that you sexually harassed Learner A, a grade 7 learner of Isikhokelo Primary School, by touching her breasts with you hand.
Charge 2
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Act, in that during the 2nd term of 2019 and/or July 2019, while on duty you conducted yourself in an improper, disgraceful or unacceptable manner, in that you sexually harassed Learner A, a grade 7 learner of Isikhokelo Primary School, by requesting her to:
Kiss you; and/or
Hug you and/or attempting to hug her; and/or
Give you love “mamakunike uthando.”
94. Mr. Sogoni pleaded not guilty to the charges and the WCED bears the onus to proof the allegations levelled against Mr. Sogoni on a balance of probability. In WESUSA & Others vs Jacobz 2000 8 BLLR 977 (LC), the Court remarked that “the onus will be discharged if the respondent can show credible evidence that its version is the more probable and acceptable version. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondents version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradictions is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that a the end of the day one can say with conviction that one version is false and be rejected with safety”. The onus will not be discharged by raising mere suspicions of misconduct.
95. Questions was raised during this inquiry about the fact that the exact date of the alleged incident is not known. Mr. Sogoni’s representative referred to it as being suspicious.
96. Leaner A testified that the incident happed in Mr. Sogoni’s classroom in 2nd term, on a Friday, during lunch time, in either April or May 2019. Leaner B testified that Leaner A reported the incident to her and to Leaner C on a day in the 2nd term during lunch time when Leaner A come from Mr. Sogoni’s classroom. It was not put to Learner B or to Leaner C in cross-examination that Leaner A did not report the incident to them on a day in the 2nd term during lunch time. There is thus some indication of when the alleged incident took place.
97. To find that an employer has not proven charges against an employee merely because the exact calendar date of the incident is not known or might be incorrectly reflected in a charge would constitute an overly technical and legalistic approach. The date of the incident, whether it was in April or May 2019 does not change the nature of the charges levelled against Mr. Sogoni i.e. that of sexual assault and of conducting himself in an improper, disgraceful or unacceptable manner towards Leaner A by sexually harassing her.
98. During this inquiry Learner A was also questioned extensively why she did not report the alleged incident immediately to the Principal or to her class teacher.
99. In R v Valentine 1996 2 Cr App R213 the court held that: “We now have greater understanding that those who are the victims of sexual offences, be they male or female, often need time before they can bring themselves to tell what has been done to them; that some victims will find it impossible to complain to anyone other than a parent or member of their family whereas others may feel it quite impossible to tell their parents or members of their family”. When children do report an act of sexual abuse, they would normally report it to a person in which they have particular trust. The fact that a child does not tell another teacher or the Principal at the school about an incident of sexual abuse that occurred at the school but only tells a friend, parent or another family member is no indication that the child has fabricated the evidence.
100. In this respect Leaner A testified that she was afraid of the Principal and was not comfortable to report it to her or to her class teacher. She has decided to rather report it at home. There is nothing sinister in her decision to have told her mother about the incident.
101. It is unclear from the evidence when precisely Leaner A has told her mother about the incident. Mr. Sogoni’s representative also question Leaner A’s mother extensively about why it took so long before the incident was reported at the school. Leaner A’s mother was clearly confused about the time frames of when Leaner A reported it to her and when it was reported to the school. But it is evident that the allegations only came to the school’s knowledge in July 2019 which is 2 or 3 months after the incident. When Leaner A reported the incident to her mother, or why her mother took her time before deciding to report the incident to the school, is in my view not important as it does not proof or disprove the allegations. Leaner A cannot be responsible for her mother’s actions, or in actions.
102. Leaner A was 13 years when she gave her evidence during this enquiry in 2019. At the time she was a grade 7C learner at Isikhokelo Primary School and Mr. Sogoni was her grade 7 Math and Social Science teacher.
103. The general quality of her testimony and her consistency within the content and structure of her own evidence and that of the other witnesses are factors that I considered in examining her credibility as a witness.
104. The imaginativeness and suggestibility of children, their memory, understanding of the importance of telling the truth, their capacity of observation, recollection and narrative ability, their age, mental ability and development is just some of the factors that our Courts have held to be taken into account when scrutinising the testimony of a child. I must hasten to add that this does not mean that the evidence of children should be approached on the basis of assuming that all children make false allegations, have poor memories or is highly suggestible. There used to be a cautionary rule that applied to the evidence of complainants in sexual cases. But this rule was abolished by the Supreme Court of Appeal in its decision S v Jackson 1998 1 SACR 470 (SCA). The court per Oliver JA held: “In my view the cautionary rule in sexual assault cases is based on an irrational and out-dated perception. It unjustly stereotypes complaints in sexual cases as particularly unreliable…The evidence in a particular case may call for a cautionary approach but it a far cry from the application of a general cautionary rule”.
105. Leaner A testified that during the 1st term of 2019 Mr. Sogoni would always asked her to buy him chips and that after she told her mother about it, her mother instructed her to stop buying him chips. When Mr. Sogoni was asked about Leaner A’s version on this aspect, he replied that it was just “figure of speech” and that no one has brought him chips. He did not explain what he meant by “figure of speech”. I found Mr. Sogoni’s reply vague and as if he wanted to skirt the issue. His evidence in fact corroborates Leaner A’s version that he has asked her to buy him chips. She was thus not dishonest on this score.
106. Learner A testified in detail about what has transpired in Mr. Sogoni’s classroom. She explained that Mr. Sogoni asked her to accompany him to his classroom. That they were alone in the classroom. That he asked her why she had changed and that she explained to him that she has not changed but that her mother told her not to buy him chips anymore. That he asked her why she doesn’t love him anymore and that she replied to him that she loves all her teachers. That he asked her for a hug and a kiss and that when she refused he came closer to her and attempted to kiss her. That he put his right hand on her left breast and pressed it. That she pushed him aside. That she opened the classroom door, was shaking and that she went to her friends and told them what had happened. That they told her to report the incident to the Principal.
107. Her description of what had transpired remained, at its core, the same during her testimony in chief and during cross-examination. As far as there might have been minor charges, I don’t find it material. She withstood vigorous cross-examination and did not change her version.
108. This then brings me to the first report evidence. Whilst evidence of previous consistent statements is normally inadmissible there is an exception to the rule when it comes to rape, indecent assault and similar offences. In cases of misconduct of a sexual nature our law provides evidence may be given of a voluntary complaint made by the victim after the commission of the misconduct. The contents are admissible evidence to show the consistency of the complainant’s version.
109. In this respect, Leaner B explained that Leaner A came from Mr. Sogoni’s classroom and told her and Leaner C that Mr. Sogoni tried to hug and kiss her and had touched her breast. She testified that Leaner A was visibly shaking and that they advised her to report it to the Principal but Learner A told them that she will report it at home. Leaner C corroborated the version of Leaner B. She testified that Leaner A told them that Mr. Sogoni wanted to hug and kiss her and that he had touched her breast. She also described that Leaner A was shaking and emotional when she relayed to them what has transpired. Leaner C also confirmed that they advised Leaner A to report the incident to the Principal.
110. I find both Leaner B and Learner C to have been credible witnesses and I find their testimony reliable. What Leaner A told them is consistent with what she has told this inquiry and what she had told her mother. It is evident that she came directly from Mr. Sogoni’s classroom to her friends, people she trusted. There is no evidence that Leaner A was acting or has made up her emotional state when she told her friends what has just happened. I find her emotional state not to be inconsistent with someone who has experienced a traumatic event such as sexual abuse. I find it improbable that this was an act on her part.
111. Leaner D and Leaner E was not present when Leaner A made the first report of the incident. Although they seemingly do not believe Leaner A, their testimony does not assist this enquiry to determine whether the allegations are true or not. I have noted that both Leaner D and E testified that 3 SGB members, the Principal and the Caretaker has refused Mr. Sogoni entry to the school on 18 July 2019, whilst Mr. Sogoni himself testified that it was 3 SGB members and the caretaker that has refused him entry to the school. But nothing turns on this and it is a periphery issue that requires no more analysis.
112. Learner D testified that Learner A once referred to Mr. Sogoni as “the old man” and “my sugar daddy”. This version was not put to Leaner A and Mr. Sogoni has also not testify as to why Leaner A will say such things, if it was indeed said. Leaner A did testify that it was not the first time that Mr. Sogoni has asked her for a hug. The matter may or may not be related. I cannot speculate and it cannot be taken further.
113. Much was made during this inquiry about the meeting which was held on 17 July 2019, the accuracy of the minutes of that meeting and whether the alleged sexual assault was reported during this meeting or not. Ms. LK testified that she had sent he eldest daughter to report the incident at this meeting. The minutes of the meeting reflects several allegations that were levelled against Mr. Sogoni, including allegations of assaulting children physically and sexually. Ms. Qomoyi testified that the incident was reported at this meeting. On the other hand, Ms. Pyisose could not recall that allegations of sexual harassment were mentioned at this meeting and Ms. Speelman testified that sexual harassment allegation was not raised at the meeting. Whist I am not persuaded that the minutes of the meeting which reflect the allegation was fabricated, whether the specific allegation was raised at the meeting held on 17 July 2019 or not, does not prove or disprove the allegation. On a balance of probability what is clear, is that the allegation which has not form the basis of the charges against Mr. Sogoni had come to the attention of the school during July 2019 and that it was investigated by the WCED.
114. Mr. Sogoni has offered little more than a mere denial that he has sexually assaulted Leaner A. His version is that it is all orchestrated by the Principal. When Mr. Sogoni was asked under cross-examination why the Principal would have orchestrated it. Mr. Sogoni responded that he was informed by a colleague that the Principal said that she will sent her boyfriend for him because he said that her boyfriend is a gangster. One would have expected that this version would have been put to the Principal for her to answer to it. But it was not. Mr. Sogoni’s version on this score also remains uncorroborated. I can also find no motive why Leaner A would falsely accuse Mr. Sogoni and under cross-examination Mr. Sogoni himself could not provide a reason why Leaner A would lie. The suggestion that the Principal is behind the allegations is not being supported by credible evidence. For Mr. Sogoni’s version that the Principal has orchestrated the allegation to be true it would mean that the Principal must have somehow persuaded Leaner A, either personally or through a third party, to make up the allegation against Mr. Sogoni. She must have convinced Leaner A to plan for a convenient date, then to go to her friends in an emotional state and told them about a fictional event in such a manner that they would believe her so that they would be prepared to testify to it in an inquiry. On top of that Leaner A must then have been persuaded to persist with her lie during this inquiry. There is no evidence that the Principal could have wielded such power over either Leaner A, B, C or over leaner A’ mother. I find it highly improbable that the Principal has orchestrated the allegation.
115. Leaner A’s understanding of the importance of telling the truth, her recollection of the incident in Mr. Sogoni’s classroom; the small details that she remembers such as that she told him that that she can’t kiss him because she is not even kissing her father and the right hand that he used to touch her left breast; the consistency of her version since the first report to her friends; and her withstanding lengthy cross-examination persuades me that she is telling the truth about what had transpired in Mr. Sogoni’s classroom. I find her version more probable than Mr. Sogoni’s mere denial of the incident and his version that the allegations has all been orchestrated by the Principal.
116. Mr. Sogoni is charged in terms of section 17(1)(b) of the EEA with sexually assault of Leaner A (Main charge 1) and in terms of section 18(1)(q) with conducting himself in an improper, disgraceful or unacceptable manner by sexually harassing Leaner A.
117. Assault is defined as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires on another person a belief that such impairment of his/her body is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. Assault by means of menacing threats of a sexual nature may occur without any touching.
118. The elements of sexual assault are a) conduct of a sexual nature; b) which results in the victim’s integrity being impaired (or inspired the believe that it will be impaired); c) unlawfulness – meaning that there must not be a justification ground for the action, such as for example consent; d) intention to commit the misconduct - in other words accidental unintentional bodily contact is excluded from the definition.
119. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in light of all the circumstances. The part of the body touched, the nature of the contact, the situation in which is occurred, the words or gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force will be relevant. The intent or purpose of the person committing the act, to the extent that it may appear from the evidence, may also be a factor in considering whether the conduct is of a sexual nature.
120. Given the wide meaning of sexual assault, it involves not only rape, sodomy, oral sex or other forms of sexual activity without the consent of the victim but also includes other forms of intentional conduct of a sexual /erotic nature such as kissing on the lips, and touching or caressing buttocks or breasts of a victim.
121. Misconduct of a sexual nature that does not constitute misconduct in term of section 17 of the EEA would generally constitute misconduct in terms of section 18. Examples may include kissing a learner without consent, asking for hugs and kisses from a leaner; having a sexual relationship with a leaner or another school, grooming a learner, etcetera.
122. In casu Mr. Sogoni has intentionally asked a 13-year old leaner in his classroom for a hug and a kiss and when she refused he approached her, attempted to kiss her and then touched her breast before she could push him away. Mr. Sogoni’s conduct was of a sexual nature, it was deliberate and intentional and it without consent of the learner. His conduct has impaired the integrity and dignity of the learner. I find on a balance of probability that Mr. Sogoni has sexually assaulted Leaner A on a day during the 2nd term of 2019 by touching her breast.
123. Whilst there is no evidence that Mr. Sogoni has also asked the leaner to give him love “mamakunike uthando” during this incident, he did conduct himself in an improper, disgraceful and unacceptable manner by requesting Leaner A to hug and kiss him and then attempted to kiss her.
124. I find Mr. Sogoni guilty on the Main Charge 1 and on Charge 2.
125. The WCED has argued that Mr. Sogoni has broken the trust relationship and has called for his dismissal.
126. It is trite that mitigating factors such as the personal circumstances of an employee should normally be considered before deciding the appropriate sanction. Mr. Sogoni has not presented any mitigating arguments. I did however consider that he is employed as a level 1 educator; that no evidence was presented of him being found guilty of similar misconduct in the past; and that he will probably find it difficult to secure employment in the education sector if he is dismissed.
127. I must take into account that the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC, held that section 28 of the Constitution impress an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance. Courts and administrative authorities are constitutionally bound to give consideration to the effect their decision will have on children’s lives.
128. With regards to charge 2, the conduct of Mr. Sogoni to asked a 13-year old learner for a hug and a kiss and then to also attempt to kiss her is inappropriate, unacceptable and far removed from acting in the best interest of Leaner A. A 13 year old child that also has a general right to be protected from sexual abuse and harassment. Educators are entrusted with the care of children and they must act with utmost good faith in the conduct towards leaners as society must be able to trust educators unconditionally with their children. Mr. Sogoni has breached this trust on that faithful day in the 2nd term of 2019 and he has displayed no remorse for his conduct. Leaner A is traumatized by the event as she is still receiving counseling. The impact of what happened to her appears from her testimony when she said that she will not be going back to school if Mr. Sogoni returns to the school. It has also impacted other learners at the school. Leaner B testified that is disappointed in Mr. Sogoni and did not expected it from him. She testified that after the incident she did no pay attention in his class. Leaner C said that she is afraid that it can also happen to her.
129. Considering all the above mentioned factors, I find dismissal to be the only appropriate sanction in as far as charge 2 is concerned.
130. With regards to charge 1, the sexual assault perpetrated by Mr. Sogoni falls within the ambit of section 17 of the EEA and in terms of this section an educator must be dismissed for inter alia committing an act of sexual assault on a leaner. There is thus no alternative sanction that can be considered once an educator has been found guilty of a section 17 offence no matter what the mitigating circumstances might be.
131. Lastly, I have informed the parties at the commencement of the inquiry that section 120(1) of the Children’s Act, No 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” Section 120(2) of the act provides that a finding that a person is unsuitable to work with children may be made by such forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children.
132. I informed the parties that the WCED representative may make such an application during the course of the proceedings or at the end of the proceedings. I can only make such a finding after the accused employee had an opportunity to make submissions why such finding should not be made.
133. The WCED representative did not make such an application either during or at the end of this inquiry. Whilst I can make such a finding on own accord, I find that in the absence of such an application by the WCED and in the absence of the accused employee not having had an opportunity to make submission as to why such a finding should not be made, I cannot make a finding at this stage as to whether or not the accused employee must be declared unsuitable to work with children.
AWARD
1. I find Mr. Msimele Sogoni guilty on the main charge 1 and on charge 2.
2. The sanction is summary dismissal.
3. The WCED must inform Mr. Sogoni of the date of his dismissal.
4. The ELRC is directed to send a copy of this award to the South African Council for Educators (SACE) to consider revoking Mr. Sogoni’s SACE certificate.
ELRC Commissioner: Jacques Buitendag