PSES 610-18/19 NC
PSES 610-18/19 NC
Award Date:
14 May 2019
Case Number: PSES 610-18/19 NC
Province: Northern Cape
Applicant: SADTU obo Sobantu Maxwell July
Respondent: Department of Education Northern Cape
Issue: Unfair Dismissal - Misconduct
Venue: Colesberg Magistrates Court
Award Date: 14 May 2019
Arbitrator: Minette van der Merwe
Arbitrator: Minette van der Merwe
Case Reference No.: PSES 610-18/19 NC
Date of award: 14 May 2019
In the arbitration between:
SADTU obo Sobantu Maxwell July Employee party/Accused
and
Department of Education – Northern Cape Employer party
Employee’s representative: Mr P Mogopodi (Official)
Tel: 082 967 5382 / 073 273 7757
E-mail: sobantujuly@gmail.com
Employer’s representative: Mr C Dombo (Labour Relations Officer)
Tel: (053) 632 9200
Fax: 086 621 9999
E-mail: cawenid@gmail.com
DETAILS OF HEARING AND REPRESENTATION
[1] The Inquiry by Arbitrator proceedings in terms of section 188A of the Labour Relations Act 66 of 1995 (“LRA”) in this matter was held on 30 November 2018, 31 January 2019, 01 February 2019, 13 & 14 March 2019 and 02 & 03 May 2019. On 31 January 2018 and 01 February 2019, the matter did not proceed due to the failure of the Interpreter, Mr Peacemaker Mbobi, to arrive on both dates.
[2] On 30 November 2018, 31 January 2019, 01 February 2019 and 13 & 14 March 2019 the matter was heard in the Colesberg Magistrates Court in order for the intermediary facilities to be utilized. On 02 & 03 May 2019 the Colesberg Municipal Library was utilized.
[3] Parties were present throughout and represented as per the cover page of this award.
[4] The Arbitration proceedings were digitally recorded, and hand written notes were kept.
[5] Interpretation was conducted by Mr Peacemaker Mbobi, Ms Vuyokazi Tyebela and Mr Brian Banga respectively.
ISSUE TO BE DECIDED
[6] The dispute which has been referred to the ELRC is an Inquiry by Arbitrator in terms of section 188A of the LRA, as amended, read with the ELRC Practice Note: 1 of 2018.
[7] I was required to determine whether the Accused is guilty of the charges as listed below, and if so, determine the appropriate sanction:
Count 1
During July 2017 at or near Noupoort you committed misconduct in term of Section 17(1)(c) of the Employment of Educators Act 76 of 1998 in that you inter alia having or had a sexual relationship with a learner A.M. at the school (Noupoort Combined School) where you are employed, whilst you knew or ought to have known that you were not allowed to do so.
Alternative Count 1
During July 2017 at or near Noupoort you committed misconduct in terms of Section 17(1) (f) of the Employment of Educators Act 76 of 1998 in that you inter alia caused a leaner A.M. to perform a sexual act with you in that; you inter alia chatted on social media (Facebook) sexual utterances and sexually violated her by kissing her in the classroom, whilst you knew or ought to have known that you were not allowed to do so.
Count 2
During July 2017 at or near Noupoort you committed misconduct in terms of Section 18(1) (q) of the Employment of Educators Act 76 of 1998 in that you inter alia while on duty, conducted yourself in an improper, disgraceful or unacceptable manner by putting a learner (A.M.) into a sexual act with you in that; you inter alia sexually violated her by kissing her in the classroom, whilst you knew or ought to have known that you were not allowed to do so.
Alternative count 1 (2)
During July 2017 at or near Noupoort you committed misconduct in terms of Section 18 (1) (dd) of the Employment of Educators Act 76 of 1998 in that, you inter alia committed a common law or statutory offence by causing a learner (A.M.) to perform a sexual act with you in that; you inter alia, whilst chatting with her on social media, (Facebook) exposed or displayed sexual icons or pictures to gain her into your own advantages, whilst you knew or ought to have known that you were not allowed to do so.
PRELIMINARY ISSUES
[8] A point in limine raised on behalf of the Accused, in that the Employer had violated section 32.4.1 of Part 10 of the ELRC Constitution, rendering the disciplinary action flawed, was dismissed, on the basis that the possible sanctions are contained in the Employment of Educators Act (“EEA”) and are therefore well known to the Employee.
BACKGROUND TO THE ISSUE
[9] The Accused (hereinafter referred to as “July”) was informed of the charges against him on 20 September 2018. He was not suspended pending the outcome of this matter.
[10] July pled not guilty to the charges, as well as the alternative charges. July confirmed he had adequate notice of the hearing and time to prepare, had received the charge sheet and were ready to proceed.
[11] July was an Educator at Noupoort Combined School. The minor, only identified as A.M. in this award and who will be referred to as the Complainant hereinafter, used to be a leaner at Noupoort Combined School, but left the school during January 2018. She is currently a learner at Enoch Mthetho High School in Noupoort.
[12] Prior to the testimonies of the minors, through the services of the Intermediary Ms Nolufefe Ntikinta, their competency to testify was determined through the asking of knowledge, comprehension and educational questions. They demonstrated that they could distinguish between the truth and a lie, and that there are consequences for lying in proceedings of this nature. They were both warned to tell the truth, and were not sworn in, by virtue of being minors.
SURVEY OF EVIDENCE AND ARGUMENT
Documentary:
[13] Bundle “A” and “B” submitted into evidence by the Employer (bundle “A” was later replaced by bundle “A2” as the initial bundle was not complete). Bundle “C” was submitted into evidence by the Employee.
EVIDENCE OF THE EMPLOYER PARTY:
[14] The Employer called four witnesses to testify. The testimonies are fully captured on the record of proceedings. I therefore do no deem it necessary to repeat it in this award.
[15] The 1st witness, A.M, being the Complainant and a minor, testified and her evidence was, in essence, that during the time of the incident (2017) she did not have a cellular phone, and used her mother’s or grandmother’s phone. July was known to her as, amongst others, her debate teacher and choir conductor when she was still at Noupoort Combined School. She changed schools because she was uncomfortable around July, amongst other reasons, because he’d told her he loved her. He had called her to his office alone more than once. She was in fear of being raped, but pretended she had the same interest in him as he had in her, so during an incident when he kissed her in his classroom, she kissed him back. July had engaged in text messaging with her via Facebook messenger, and same were contained in “A2”. She had no doubt that it was July that she had been chatting with, as his profile picture was indicated and some chats corresponded with certain incidents at school that had happened between them. Her mother had discovered the chats and sent a message to July, also through her Facebook messenger account. On 01 January 2018 her mother had confronted July. He appeared to be shocked and told her to answer, to which she stated that she had been chatting to July’s son. She said that, because she wanted to protect him, because he was a well-respected Educator and active in the church. That was, however, not the truth, and she confessed soon thereafter that she was chatting with July himself, and not his son, to her aunt. It was her statement as contained on page B4 – B9, which she read into the record. She had told her friends, N and L.T. about the chats, and L.T. (who also testified in these proceedings) informed her that there was a time that July had also chatted with her and told her that he loved her, which actions made her uncomfortable.
[16] She maintained her version since the onset, and the statement she made at (pages B4 – B9). She denied the version that she was a problematic learner at school. She maintained that July would call her from class to go to his classroom. She could not speculate as to what her friends noticed about certain incidents. She clarified that there were two specific and distinct incidents when she was called to July’s classroom - one where L.T. accompanied her and he kissed her, and another with N, both which happened during July 2017. In the incident where L.T. accompanied her to July’s classroom, he sent L.T. away to fetch something for him, and she was left alone with July. She was scared of being raped by July during the incident where L.T. accompanied her but was then sent away by July. She played along by responding to July’s texts (“A”). She did not tell her mother about the texts because of fear she might have thought that the Complainant initiated it and would not believe her because of July being such a respected person in the community, and then her fear evolved that July might hurt her if she told her mother. She was not sure if kissing was defined as a sexual act. She did not have sexual intercourse with July. She reluctantly kissed him back. She had a discussion with her friends, and she discovered that July also texted with L.T., which chats had similar contents. She maintained that she proffered the version that she was texting with July’s son (Asawela), when confronted on 01 January 2018 in July’s presence, because she was scared and wanted to protect July. When July left, she confessed the truth. She did not leave the school during 2017, despite being uncomfortable around July throughout, but left early 2018 when an opportunity arose when the school was shut down due to water and electricity having been shut off. She used to trust July and confide in him, but it all changed when he started with the chats and the kiss.
[17] The 2nd witness, Annelisiwe Luphumlo Mfengu, being the Complainant’s mother, testified under oath and her evidence was essentially that she had discovered Facebook messenger chats between her daughter and July on 01 January 2018. Her daughter had been using her cellular phone, and has not logged out of her Facebook account, as such she gained access to the account and chats. She was furious because he had acted inappropriately towards her 14-year old daughter, so she proceeded to write on his Facebook wall. She had trusted July and she was very disappointed in him. She engaged with July through text, whereafter he and his wife visited her at her sister’s house on 01 July 2018. July apologized and indicated that his son had access to his phone, and that it was not his chats she saw. She initially believed him and even apologized. When July and his wife left, her sister confronted her daughter, who then confessed to lying about it being July’s son she was chatting to. She saw the photo July sent of himself to her daughter (page 43 of A2). July denied it again, when she confronted him, and so she referred the matter to the South African Police Service and reported it to the Principal of the school, and further informed the church, as July was a Priest. She confirmed that the SAPS had discovered that her daughter was not the only leaner July had been appropriate towards, and one of the learners was her daughter’s friend, L.T.
[18] She further testified that she initially was not convinced that it was July who had chatted to the Complainant, but as events unfolded, she was convinced it was July (“A2”). The Complainant was visibly uncomfortable in July’s presence on 01 January 2018 when he visited her sister’s house, and her distinct impression was that July wanted her daughter to say it was his son that was chatting with her, and that it was not the Complainant’s initiative to proffer that explanation. She rejected the version that July’s account was hacked at the time (2017). The Complainant left the school (Noupoort Combined) because she was uncomfortable around July, and had the opportunity to do so in early January 2018 when the school was shut down. She confirmed that the Complainant had a closer relationship with her aunt than with her. She delayed in reporting the matter from January 2018 to July 2018 because the family and church intervened and tried to resolve it, and she further wanted to give July an opportunity to confess by himself.
[19] The 3rd witness, Fuzile Ezechiel Tom, being the Principal of Noupoort Combined School, testified under oath. His evidence did not take the Employer’s case further, save for the confirmation that the Complainant’s mother had reported the incident involving July and the Complainant to him on 03 August 2018. The complaint was escalated to the Department of Education for action.
[20] The 4th witness, L.T., a minor, testified and her evidence was essentially that she was the friend of the Complainant and that they had classes together during 2017. During 2017, as class had adjourned, July called her and said he had a message for her. He got very close to her and said he loved her and missed her. She confirmed that it was her statement on B11 – B13. July had obtained her cellular number because of a church choir WhatsApp group they were both part of, and he had started to send her inappropriate texts. She no longer used that number, which caused the messages from July to stop. There had been an incident during 2017 where July called both her and the Complainant to his class. Upon their arrival July sent her out of the class to fetch boiled water for him, and so the Complainant was left alone with July. When she returned, the Complainant told her July had said he meant everything he told (texted) her, but she found out that he had kissed her only in 2018. She had told the Complainant of July’s behaviour towards her.
[21] She further testified that July’s conduct had made her uncomfortable, and she told her friends, including the Complainant. The texts between July and she continued only for a short while, being one to two months. By September 2017 they had not longer been texting, but at that time only did she confide in her friends about it, when the topic came up that other learners were also being harassed by July. She made her statement (B11-B13) only as a result of the Complainant having lodged a formal complaint. She was still at Noupoort Combined School, and the interaction between her and July has normalized, however, she quit debate class which was taught by July in 2017.
EVIDENCE OF THE EMPLOYEE:
[22] Only the Accused, Sobantu Maxwell July, testified in his defense. The testimony is fully captured on the record of proceedings. I therefore do no deem it necessary to repeat it in this award.
[23] In essence, his evidence was that he had consulted with the church on the allegations against him, and had gone to meet the Complainant’s mother on 01 January 2018 as a result of her post on his Facebook wall, and their subsequent Facebook messenger chats. During the meeting on 01 January 2018 the Complainant indicated that she was chatting with his son, Asavela, and not him. His son had used his phone from time to time, and when he confronted him about the messages, his son stated that it was not he who chatted with her. He confirmed that he had sent a Facebook messenger chat in response to the messages on 01 January 2018 at 07h55, but that it was not him that had sent the Facebook messenger chat at 02h22 the same morning (A45). He was informed during July 2018 that the Complainant had pursued a case against him, and during August 2018 the Principal informed him of a formal complaint and the allegations. He did not understand why he was charged for incidents during July 2017, yet the statement of the Complainant mentioned September 2018. He did not chat with L.T. directly on WhatsApp, but they were on the same church choir WhatsApp group. Learners did not have free periods, therefore the debate group met after school with him. He would not meet with the Complainant alone, other than one-on-one discussions. He did not approach the Complainant for a sexual relationship and he did not tell her that he loved her. The Complainant did not return to Noupoort Combined School after she spent time at Enoch Mthetho High School due to the shut-down. He did not believe the Applicant’s version that she was traumatized and uncomfortable around him, as she had achieved good grades throughout and continued the chats in Facebook messenger. The evidence of the Employer’s 1st, 2nd and 4th witness could not be trusted.
[24] He further testified that debate class was after school. He did not know who wrote to the Complainant from his Facebook messenger account, especially page A44, as it was not him, and not his son. He confirmed that his phone was in his possession 31 December 2017 and 01 January 2018. He did not have an expert witness to testify on his version that he believed his account was hacked. He denied the Complainant and L.T.’s versions that an incident took place where they were both called to his classroom and L.T. sent away for him to be alone with the Complainant and then subsequently kissed her. He did not understand why the allegations were made against him. He did not know why a photo of him was sent to the Complainant during some of the texts (A34) and who sent it, but believed a photo of him was easily obtainable, and further that the photo in question was not inappropriate. During September 2018 he also believed his Facebook account was hacked for a single day. He denied ever telling L.T that he loved her over the phone, and she further was not able to provide such proof to substantiate her allegation. He never saw the chats with the Complainant on his Facebook messenger account. He did not respond as to the plausibility of his version when the chats showed multiple times that the Complainant was asked to delete the chats. He initially testified that he received g-mail alerts when there is a notification from his account, and later stated that he is only alerted when he accesses Facebook.
ANALYSIS OF EVIDENCE AND ARGUMENT:
[25] Parties had to submit written closing arguments by no later than 09 May 2019. An extension on the date of submission was sought, and granted until 12 May 2019.
[26] The Employer must prove on a balance of probabilities that the Accused is guilty of the charges levelled against him. The LRA provides in the Code of Good Practice: Dismissal in Schedule 8, Article 7, that a person considering the fairness of a dismissal for misconduct must consider the following:
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) If a rule or standard was contravened, whether or not –
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, or the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal is an appropriate sanction for the contravention of the rule or standard.
[27] Notwithstanding the fact that this is an Inquiry by Arbitrator, I will apply the same criteria when deciding whether the Accused, July, has made himself guilty of the charges against him, and if so, on the appropriate sanction.
Did the Employee Contravene The Rule?
[28] July was charged as follows:
Count 1
During July 2017 at or near Noupoort you committed misconduct in term of Section 17(1) (c) of the Employment of Educators Act 76 of 1998 in that you inter alia having or had a sexual relationship with a learner A.M. at the school (Noupoort Combined School) where you are employed, whilst you knew or ought to have known that you were not allowed to do so.
Alternative Count 1
During July 2017 at or near Noupoort you committed misconduct in terms of Section 17(1) (f) of the Employment of Educators Act 76 of 1998 in that you inter alia caused a leaner A.M. to perform a sexual act with you in that; you inter alia chatted on social media (Facebook) sexual utterances and sexually violated her by kissing her in the classroom, whilst you knew or ought to have known that you were not allowed to do so.
Count 2
During July 2017 at or near Noupoort you committed misconduct in terms of Section 18(1) (q) of the Employment of Educators Act 76 of 1998 in that you inter alia while on duty, conducted yourself in an improper, disgraceful or unacceptable manner by putting a learner (A.M.) into a sexual act with you in that; you inter alia sexually violated her by kissing her in the classroom, whilst you knew or ought to have known that you were not allowed to do so.
Alternative count 1 (2)
During July 2017 at or near Noupoort you committed misconduct in terms of Section 18 (1) (dd) of the Employment of Educators Act 76 of 1998 in that, you inter alia committed a common law or statutory offence by causing a learner (A.M.) to perform a sexual act with you in that; you inter alia, whilst chatting with her on social media, (Facebook) exposed or displayed sexual icons or pictures to gain her into your own advantages, whilst you knew or ought to have known that you were not allowed to do so.
[29] The Criminal Procedure Act, Act 51 of 1977, read with the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007; also referred to as the Sexual Offences Act) provides the following definitions:
1) Child grooming is befriending and establishing an emotional connection with a child, and sometimes the family, to lower the child's inhibitions with the objective of sexual abuse
2) Child sexual abuse, also called child molestation, is a form of child abuse in which an adult or older adolescent uses a child for sexual stimulation. Forms of child sexual abuse include engaging in sexual activities with a child (whether by asking or pressuring, or by other means), indecent exposure (of the genitals, female nipples, etc.), child grooming, child sexual exploitation or using a child to produce child pornography.
3) Sexual assault is an act in which a person intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence which includes rape (forced vaginal, anal or oral penetration or drug facilitated sexual assault), groping, child sexual abuse or the torture of the person in a sexual manner.
4) The term groping is used to define the touching or fondling of another person in a sexual way without the person's consent. Groping may occur under or over clothing.
5) Sexual acts are offences (crimes) if they are committed without the consent (permission) of one of the people involved in the sexual act.
6) A child under the age of 12 is too young to give permission to any sexual act (section 57). A sexual act with a child under 12 is automatically a crime and is defined as rape or sexual assault. The age of consent over which individuals can give permission to a sexual act is 16 years for both girls and boys.
7) Consensual sexual violation with a child between 12 and 16 is a fairly new crime. This crime is committed when an adult commits an act of sexual violation with a child with that child’s ‘consent’. Because of the wide definition of sexual violation this particular provision has been referred to as the “kissing law”, as it includes kissing.
[30] From the definitions above, it is clear that kissing a child younger than 16 years of age, would constitute a sexual act. This is further confirmed in ELRC Practice Note: 1 of 2018 which states at paragraph 19 that misconduct in terms of section 18 of the EEA may include kissing a learner.
[31] The evidence of the Complainant and L.T. were corroborative. They were further excellent witness, led credible and consistent evidence and were unwavering under cross-examination. The Complainant’s mother, Mfengu, was a good witness who gave chronological, factual and consistent testimony.
[32] The Applicant was evasive during his testimony, and very elaborate/exaggerated in the giving of his version, creating the impression he had meticulously planned it. He talked a lot but said very little, and overall did not create a good impression.
[33] Insofar as Count 1 is concerned, no evidence was led on a sexual relationship between the Complainant and July, and as such a finding of guilty cannot follows.
[34] Insofar as Alternative Count 1 is concerned, it has been established that a sexual act includes kissing. The Complainant led consistent evidence on the incident during which July had kissed her, when L.T. had accompanied her to his classroom. L.T. has corroborated the Complainant’s version, save for the part where she was not present, and the kissing happened. I have already dealt with the credibility of the respective witnesses, and the version of the Complainant is more probable than the version, being a bare denial, of July.
[35] At this stage the Facebook messenger chats need to be analyzed, as it has bearing on my finding. It was the Complainant’s evidence that she had chatted with July, and that she was certain thereof as some of the chats were relevant to incidents that had taken place at school. She explained that she had initially, when the chats were discovered by her mother, told her that it was July’s son whom she had been chatting to in order to protect him, but had later confessed the truth. July’s defense is that his Facebook account was hacked, and that the messages were neither sent by him nor his son. July did not secure the services of an expert witness to confirm the plausibility of his version. July’s version stands to be rejected for a number of reasons: (i) on his own version he was alerted by notifications of activity on his account. As such he would have known if an identified third person was using his account; (ii) the unidentified third person chatted with the Complainant at 02h22 yet he was chatting with the Complainant’s mother at 07h55 on the same day, using the same account; (iii) the likelihood of an unidentified third person sending a photo of July to the Complaint was improbable; (iv) the Facebook messenger chats with the Complainant’s account stopped immediately upon its discovery by her mother; (iv) July had not provided proof that he reported such alleged hacking of his Facebook account to Facebook in an attempt to prove his version.
[36] It is therefore my finding that the chats contained in “A2” were between the Complainant and July.
[37] The chats include the following, sent by July to the Complainant:
a) I Love You emoticons
b) Kissing emoticons
c) “Delete plz after viewing”
d) Ok ke dear….jst hope you keep Roxy in the dark nhe”
e) “Mhhh….can I join plz?” (after Complainant indicated she was Lib – lying in bed)
f) “Mwaaaa”
g) “I wanted to kiss you then yaz”
h) “Especially when u were so close to me”
i) “Nakanjani…and can’t wait to hold u in mu arms looking at yr eyes and kissing you”
j) “Who’s phone is this? Ok pls dnt forget to delete bbs nhe”
[38] The relevance of the messages is its inappropriateness and apparent grooming of the Complainant. Further, questions posed to the Complainant on this aspect amounted to an indirect admission of guilt of July.
[39] In light of the above, the Applicant is guilty of Alternative Count 1 in terms of section 17(1) (f) of the EEA.
[40] Insofar as Count 2 is concerned, I have already found that the July had kissed the Complainant, on a balance of probabilities. As such, July is guilty of Count 2 in terms of section 18(1) (q).
[41] Insofar as Alternative Count 1 (2) is concerned, there was insufficient evidence led to prove the allegation that sexual icons or pictures were shown to her on Facebook messenger chats. As such, he cannot be found guilty on this alternative charge, with the emphasis on icons/pictures of a sexual nature.
IS THE RULE VALID AND REASONABLE?
[42] This aspect was not placed in dispute by July. It is worth mentioning that a rule against any sexual act between an Educator and Learner is reasonable in the education environment, for the protection of both Leaners and Educators.
WAS THE EMPLOYEE AWARE OF THE RULE?
[43] This aspect was not placed in dispute by July. Further the EEA is very clear in section 17 and section 18 as to the existence of the rule. July was appointed as an Educator in terms of the EEA, and reasonably ought to have been aware of the rule.
HAS THE EMPLOYER APPLIED THE RULE CONSISTENTLY?
[44] I had no evidence to the contrary.
APPROPRIATE SANCTION?
[45] Aside from physical traumas, rape and other sexual assault often result in long-term emotional effects, particularly in child victims. These can include: denial, learned helplessness, genophobia, anger, self-blame, anxiety, shame, nightmares, fear, depression, flashbacks, guilt, rationalization, mood swings, numbness, promiscuity, loneliness, social anxiety, difficulty trusting oneself or others, difficulty concentrating. Being the victim of sexual assault may lead to the development of post-traumatic stress disorder, addiction, major depressive disorder or other psychopathologies. Family and friends experience emotional scarring including a strong desire for revenge, a desire to "fix" the problem and/or move on, and a rationalization that "it wasn't that bad".
[46] Both the Complainant and L.T. testified they were uncomfortable around July during his unwanted advances, and the Complainant testified about her fear of being either raped by July, or victimized by him, and further she testified to her fear of not being believed. These actions of the Complainant are typical of an abused child, and explain her hesitance to report July’s actions.
[47] From the evidence it is clear that the Complainant was not July’s only victim, confirmed with the testimony of L.T. of her own experiences with July.
[48] In considering whether dismissal is the appropriate sanction, I considered the mitigating circumstances submitted by the Accused in his closing arguments. No arguments were received by from the Employer at the time this award was issued, despite the extension on submission having been granted until 13 May 2019.
[49] I am further guided by the EEA that stipulates that an educator must be dismissed if found guilty of offences in terms of section 17 of the Act, and may be dismissed if found guilty of offences in terms of section 18 of the Act. The Applicant was found guilty of Alternative Count 1 and Count 2.
[50] It was common cause that, at the time of the incidents, the Complainant was 14 (fourteen) years old.
AWARD
[51] Having considered all factors my sanction is as follows, with reasons to follow:
Alternative Count 1 – summary dismissal
Count 2 – summary dismissal
[52] The trust relationship between the Employer and the accused, July, could not be expected to continue, and it is evident that it has irretrievably broken down. July’s lack of remorse and unwillingness to take responsibility for his actions makes a continued employment relationship impossible. I am not convinced that July will refrain from similar conduct in the future.
[53] I am further finding that the Accused, Sobantu Maxwell July, is unsuitable to work with children, and in terms of section 120 of the Children’s Act (Act 38 of 2005) based on the evidence led before me during this arbitration, a finding in this regard is made.
[54] The Accused, Sobantu Maxwell July, is found guilty of the Alternative to Count 1 and Count 2, and not guilty of Count 1 and the Alternative to Count (2).
[55] I find that summary dismissal is the appropriate sanction under the circumstances.
[56] I further order that Sobantu Maxwell July is found unsuitable to work with children in terms of section 120 (4) of the Children’s Act, 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum in order for the Director General to enter his name as contemplated in section 120 in part B of the register.
Minette van der Merwe
ELRC Panelist
Province: Northern Cape
Applicant: SADTU obo Sobantu Maxwell July
Respondent: Department of Education Northern Cape
Issue: Unfair Dismissal - Misconduct
Venue: Colesberg Magistrates Court
Award Date: 14 May 2019
Arbitrator: Minette van der Merwe
Arbitrator: Minette van der Merwe
Case Reference No.: PSES 610-18/19 NC
Date of award: 14 May 2019
In the arbitration between:
SADTU obo Sobantu Maxwell July Employee party/Accused
and
Department of Education – Northern Cape Employer party
Employee’s representative: Mr P Mogopodi (Official)
Tel: 082 967 5382 / 073 273 7757
E-mail: sobantujuly@gmail.com
Employer’s representative: Mr C Dombo (Labour Relations Officer)
Tel: (053) 632 9200
Fax: 086 621 9999
E-mail: cawenid@gmail.com
DETAILS OF HEARING AND REPRESENTATION
[1] The Inquiry by Arbitrator proceedings in terms of section 188A of the Labour Relations Act 66 of 1995 (“LRA”) in this matter was held on 30 November 2018, 31 January 2019, 01 February 2019, 13 & 14 March 2019 and 02 & 03 May 2019. On 31 January 2018 and 01 February 2019, the matter did not proceed due to the failure of the Interpreter, Mr Peacemaker Mbobi, to arrive on both dates.
[2] On 30 November 2018, 31 January 2019, 01 February 2019 and 13 & 14 March 2019 the matter was heard in the Colesberg Magistrates Court in order for the intermediary facilities to be utilized. On 02 & 03 May 2019 the Colesberg Municipal Library was utilized.
[3] Parties were present throughout and represented as per the cover page of this award.
[4] The Arbitration proceedings were digitally recorded, and hand written notes were kept.
[5] Interpretation was conducted by Mr Peacemaker Mbobi, Ms Vuyokazi Tyebela and Mr Brian Banga respectively.
ISSUE TO BE DECIDED
[6] The dispute which has been referred to the ELRC is an Inquiry by Arbitrator in terms of section 188A of the LRA, as amended, read with the ELRC Practice Note: 1 of 2018.
[7] I was required to determine whether the Accused is guilty of the charges as listed below, and if so, determine the appropriate sanction:
Count 1
During July 2017 at or near Noupoort you committed misconduct in term of Section 17(1)(c) of the Employment of Educators Act 76 of 1998 in that you inter alia having or had a sexual relationship with a learner A.M. at the school (Noupoort Combined School) where you are employed, whilst you knew or ought to have known that you were not allowed to do so.
Alternative Count 1
During July 2017 at or near Noupoort you committed misconduct in terms of Section 17(1) (f) of the Employment of Educators Act 76 of 1998 in that you inter alia caused a leaner A.M. to perform a sexual act with you in that; you inter alia chatted on social media (Facebook) sexual utterances and sexually violated her by kissing her in the classroom, whilst you knew or ought to have known that you were not allowed to do so.
Count 2
During July 2017 at or near Noupoort you committed misconduct in terms of Section 18(1) (q) of the Employment of Educators Act 76 of 1998 in that you inter alia while on duty, conducted yourself in an improper, disgraceful or unacceptable manner by putting a learner (A.M.) into a sexual act with you in that; you inter alia sexually violated her by kissing her in the classroom, whilst you knew or ought to have known that you were not allowed to do so.
Alternative count 1 (2)
During July 2017 at or near Noupoort you committed misconduct in terms of Section 18 (1) (dd) of the Employment of Educators Act 76 of 1998 in that, you inter alia committed a common law or statutory offence by causing a learner (A.M.) to perform a sexual act with you in that; you inter alia, whilst chatting with her on social media, (Facebook) exposed or displayed sexual icons or pictures to gain her into your own advantages, whilst you knew or ought to have known that you were not allowed to do so.
PRELIMINARY ISSUES
[8] A point in limine raised on behalf of the Accused, in that the Employer had violated section 32.4.1 of Part 10 of the ELRC Constitution, rendering the disciplinary action flawed, was dismissed, on the basis that the possible sanctions are contained in the Employment of Educators Act (“EEA”) and are therefore well known to the Employee.
BACKGROUND TO THE ISSUE
[9] The Accused (hereinafter referred to as “July”) was informed of the charges against him on 20 September 2018. He was not suspended pending the outcome of this matter.
[10] July pled not guilty to the charges, as well as the alternative charges. July confirmed he had adequate notice of the hearing and time to prepare, had received the charge sheet and were ready to proceed.
[11] July was an Educator at Noupoort Combined School. The minor, only identified as A.M. in this award and who will be referred to as the Complainant hereinafter, used to be a leaner at Noupoort Combined School, but left the school during January 2018. She is currently a learner at Enoch Mthetho High School in Noupoort.
[12] Prior to the testimonies of the minors, through the services of the Intermediary Ms Nolufefe Ntikinta, their competency to testify was determined through the asking of knowledge, comprehension and educational questions. They demonstrated that they could distinguish between the truth and a lie, and that there are consequences for lying in proceedings of this nature. They were both warned to tell the truth, and were not sworn in, by virtue of being minors.
SURVEY OF EVIDENCE AND ARGUMENT
Documentary:
[13] Bundle “A” and “B” submitted into evidence by the Employer (bundle “A” was later replaced by bundle “A2” as the initial bundle was not complete). Bundle “C” was submitted into evidence by the Employee.
EVIDENCE OF THE EMPLOYER PARTY:
[14] The Employer called four witnesses to testify. The testimonies are fully captured on the record of proceedings. I therefore do no deem it necessary to repeat it in this award.
[15] The 1st witness, A.M, being the Complainant and a minor, testified and her evidence was, in essence, that during the time of the incident (2017) she did not have a cellular phone, and used her mother’s or grandmother’s phone. July was known to her as, amongst others, her debate teacher and choir conductor when she was still at Noupoort Combined School. She changed schools because she was uncomfortable around July, amongst other reasons, because he’d told her he loved her. He had called her to his office alone more than once. She was in fear of being raped, but pretended she had the same interest in him as he had in her, so during an incident when he kissed her in his classroom, she kissed him back. July had engaged in text messaging with her via Facebook messenger, and same were contained in “A2”. She had no doubt that it was July that she had been chatting with, as his profile picture was indicated and some chats corresponded with certain incidents at school that had happened between them. Her mother had discovered the chats and sent a message to July, also through her Facebook messenger account. On 01 January 2018 her mother had confronted July. He appeared to be shocked and told her to answer, to which she stated that she had been chatting to July’s son. She said that, because she wanted to protect him, because he was a well-respected Educator and active in the church. That was, however, not the truth, and she confessed soon thereafter that she was chatting with July himself, and not his son, to her aunt. It was her statement as contained on page B4 – B9, which she read into the record. She had told her friends, N and L.T. about the chats, and L.T. (who also testified in these proceedings) informed her that there was a time that July had also chatted with her and told her that he loved her, which actions made her uncomfortable.
[16] She maintained her version since the onset, and the statement she made at (pages B4 – B9). She denied the version that she was a problematic learner at school. She maintained that July would call her from class to go to his classroom. She could not speculate as to what her friends noticed about certain incidents. She clarified that there were two specific and distinct incidents when she was called to July’s classroom - one where L.T. accompanied her and he kissed her, and another with N, both which happened during July 2017. In the incident where L.T. accompanied her to July’s classroom, he sent L.T. away to fetch something for him, and she was left alone with July. She was scared of being raped by July during the incident where L.T. accompanied her but was then sent away by July. She played along by responding to July’s texts (“A”). She did not tell her mother about the texts because of fear she might have thought that the Complainant initiated it and would not believe her because of July being such a respected person in the community, and then her fear evolved that July might hurt her if she told her mother. She was not sure if kissing was defined as a sexual act. She did not have sexual intercourse with July. She reluctantly kissed him back. She had a discussion with her friends, and she discovered that July also texted with L.T., which chats had similar contents. She maintained that she proffered the version that she was texting with July’s son (Asawela), when confronted on 01 January 2018 in July’s presence, because she was scared and wanted to protect July. When July left, she confessed the truth. She did not leave the school during 2017, despite being uncomfortable around July throughout, but left early 2018 when an opportunity arose when the school was shut down due to water and electricity having been shut off. She used to trust July and confide in him, but it all changed when he started with the chats and the kiss.
[17] The 2nd witness, Annelisiwe Luphumlo Mfengu, being the Complainant’s mother, testified under oath and her evidence was essentially that she had discovered Facebook messenger chats between her daughter and July on 01 January 2018. Her daughter had been using her cellular phone, and has not logged out of her Facebook account, as such she gained access to the account and chats. She was furious because he had acted inappropriately towards her 14-year old daughter, so she proceeded to write on his Facebook wall. She had trusted July and she was very disappointed in him. She engaged with July through text, whereafter he and his wife visited her at her sister’s house on 01 July 2018. July apologized and indicated that his son had access to his phone, and that it was not his chats she saw. She initially believed him and even apologized. When July and his wife left, her sister confronted her daughter, who then confessed to lying about it being July’s son she was chatting to. She saw the photo July sent of himself to her daughter (page 43 of A2). July denied it again, when she confronted him, and so she referred the matter to the South African Police Service and reported it to the Principal of the school, and further informed the church, as July was a Priest. She confirmed that the SAPS had discovered that her daughter was not the only leaner July had been appropriate towards, and one of the learners was her daughter’s friend, L.T.
[18] She further testified that she initially was not convinced that it was July who had chatted to the Complainant, but as events unfolded, she was convinced it was July (“A2”). The Complainant was visibly uncomfortable in July’s presence on 01 January 2018 when he visited her sister’s house, and her distinct impression was that July wanted her daughter to say it was his son that was chatting with her, and that it was not the Complainant’s initiative to proffer that explanation. She rejected the version that July’s account was hacked at the time (2017). The Complainant left the school (Noupoort Combined) because she was uncomfortable around July, and had the opportunity to do so in early January 2018 when the school was shut down. She confirmed that the Complainant had a closer relationship with her aunt than with her. She delayed in reporting the matter from January 2018 to July 2018 because the family and church intervened and tried to resolve it, and she further wanted to give July an opportunity to confess by himself.
[19] The 3rd witness, Fuzile Ezechiel Tom, being the Principal of Noupoort Combined School, testified under oath. His evidence did not take the Employer’s case further, save for the confirmation that the Complainant’s mother had reported the incident involving July and the Complainant to him on 03 August 2018. The complaint was escalated to the Department of Education for action.
[20] The 4th witness, L.T., a minor, testified and her evidence was essentially that she was the friend of the Complainant and that they had classes together during 2017. During 2017, as class had adjourned, July called her and said he had a message for her. He got very close to her and said he loved her and missed her. She confirmed that it was her statement on B11 – B13. July had obtained her cellular number because of a church choir WhatsApp group they were both part of, and he had started to send her inappropriate texts. She no longer used that number, which caused the messages from July to stop. There had been an incident during 2017 where July called both her and the Complainant to his class. Upon their arrival July sent her out of the class to fetch boiled water for him, and so the Complainant was left alone with July. When she returned, the Complainant told her July had said he meant everything he told (texted) her, but she found out that he had kissed her only in 2018. She had told the Complainant of July’s behaviour towards her.
[21] She further testified that July’s conduct had made her uncomfortable, and she told her friends, including the Complainant. The texts between July and she continued only for a short while, being one to two months. By September 2017 they had not longer been texting, but at that time only did she confide in her friends about it, when the topic came up that other learners were also being harassed by July. She made her statement (B11-B13) only as a result of the Complainant having lodged a formal complaint. She was still at Noupoort Combined School, and the interaction between her and July has normalized, however, she quit debate class which was taught by July in 2017.
EVIDENCE OF THE EMPLOYEE:
[22] Only the Accused, Sobantu Maxwell July, testified in his defense. The testimony is fully captured on the record of proceedings. I therefore do no deem it necessary to repeat it in this award.
[23] In essence, his evidence was that he had consulted with the church on the allegations against him, and had gone to meet the Complainant’s mother on 01 January 2018 as a result of her post on his Facebook wall, and their subsequent Facebook messenger chats. During the meeting on 01 January 2018 the Complainant indicated that she was chatting with his son, Asavela, and not him. His son had used his phone from time to time, and when he confronted him about the messages, his son stated that it was not he who chatted with her. He confirmed that he had sent a Facebook messenger chat in response to the messages on 01 January 2018 at 07h55, but that it was not him that had sent the Facebook messenger chat at 02h22 the same morning (A45). He was informed during July 2018 that the Complainant had pursued a case against him, and during August 2018 the Principal informed him of a formal complaint and the allegations. He did not understand why he was charged for incidents during July 2017, yet the statement of the Complainant mentioned September 2018. He did not chat with L.T. directly on WhatsApp, but they were on the same church choir WhatsApp group. Learners did not have free periods, therefore the debate group met after school with him. He would not meet with the Complainant alone, other than one-on-one discussions. He did not approach the Complainant for a sexual relationship and he did not tell her that he loved her. The Complainant did not return to Noupoort Combined School after she spent time at Enoch Mthetho High School due to the shut-down. He did not believe the Applicant’s version that she was traumatized and uncomfortable around him, as she had achieved good grades throughout and continued the chats in Facebook messenger. The evidence of the Employer’s 1st, 2nd and 4th witness could not be trusted.
[24] He further testified that debate class was after school. He did not know who wrote to the Complainant from his Facebook messenger account, especially page A44, as it was not him, and not his son. He confirmed that his phone was in his possession 31 December 2017 and 01 January 2018. He did not have an expert witness to testify on his version that he believed his account was hacked. He denied the Complainant and L.T.’s versions that an incident took place where they were both called to his classroom and L.T. sent away for him to be alone with the Complainant and then subsequently kissed her. He did not understand why the allegations were made against him. He did not know why a photo of him was sent to the Complainant during some of the texts (A34) and who sent it, but believed a photo of him was easily obtainable, and further that the photo in question was not inappropriate. During September 2018 he also believed his Facebook account was hacked for a single day. He denied ever telling L.T that he loved her over the phone, and she further was not able to provide such proof to substantiate her allegation. He never saw the chats with the Complainant on his Facebook messenger account. He did not respond as to the plausibility of his version when the chats showed multiple times that the Complainant was asked to delete the chats. He initially testified that he received g-mail alerts when there is a notification from his account, and later stated that he is only alerted when he accesses Facebook.
ANALYSIS OF EVIDENCE AND ARGUMENT:
[25] Parties had to submit written closing arguments by no later than 09 May 2019. An extension on the date of submission was sought, and granted until 12 May 2019.
[26] The Employer must prove on a balance of probabilities that the Accused is guilty of the charges levelled against him. The LRA provides in the Code of Good Practice: Dismissal in Schedule 8, Article 7, that a person considering the fairness of a dismissal for misconduct must consider the following:
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) If a rule or standard was contravened, whether or not –
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, or the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal is an appropriate sanction for the contravention of the rule or standard.
[27] Notwithstanding the fact that this is an Inquiry by Arbitrator, I will apply the same criteria when deciding whether the Accused, July, has made himself guilty of the charges against him, and if so, on the appropriate sanction.
Did the Employee Contravene The Rule?
[28] July was charged as follows:
Count 1
During July 2017 at or near Noupoort you committed misconduct in term of Section 17(1) (c) of the Employment of Educators Act 76 of 1998 in that you inter alia having or had a sexual relationship with a learner A.M. at the school (Noupoort Combined School) where you are employed, whilst you knew or ought to have known that you were not allowed to do so.
Alternative Count 1
During July 2017 at or near Noupoort you committed misconduct in terms of Section 17(1) (f) of the Employment of Educators Act 76 of 1998 in that you inter alia caused a leaner A.M. to perform a sexual act with you in that; you inter alia chatted on social media (Facebook) sexual utterances and sexually violated her by kissing her in the classroom, whilst you knew or ought to have known that you were not allowed to do so.
Count 2
During July 2017 at or near Noupoort you committed misconduct in terms of Section 18(1) (q) of the Employment of Educators Act 76 of 1998 in that you inter alia while on duty, conducted yourself in an improper, disgraceful or unacceptable manner by putting a learner (A.M.) into a sexual act with you in that; you inter alia sexually violated her by kissing her in the classroom, whilst you knew or ought to have known that you were not allowed to do so.
Alternative count 1 (2)
During July 2017 at or near Noupoort you committed misconduct in terms of Section 18 (1) (dd) of the Employment of Educators Act 76 of 1998 in that, you inter alia committed a common law or statutory offence by causing a learner (A.M.) to perform a sexual act with you in that; you inter alia, whilst chatting with her on social media, (Facebook) exposed or displayed sexual icons or pictures to gain her into your own advantages, whilst you knew or ought to have known that you were not allowed to do so.
[29] The Criminal Procedure Act, Act 51 of 1977, read with the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007; also referred to as the Sexual Offences Act) provides the following definitions:
1) Child grooming is befriending and establishing an emotional connection with a child, and sometimes the family, to lower the child's inhibitions with the objective of sexual abuse
2) Child sexual abuse, also called child molestation, is a form of child abuse in which an adult or older adolescent uses a child for sexual stimulation. Forms of child sexual abuse include engaging in sexual activities with a child (whether by asking or pressuring, or by other means), indecent exposure (of the genitals, female nipples, etc.), child grooming, child sexual exploitation or using a child to produce child pornography.
3) Sexual assault is an act in which a person intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence which includes rape (forced vaginal, anal or oral penetration or drug facilitated sexual assault), groping, child sexual abuse or the torture of the person in a sexual manner.
4) The term groping is used to define the touching or fondling of another person in a sexual way without the person's consent. Groping may occur under or over clothing.
5) Sexual acts are offences (crimes) if they are committed without the consent (permission) of one of the people involved in the sexual act.
6) A child under the age of 12 is too young to give permission to any sexual act (section 57). A sexual act with a child under 12 is automatically a crime and is defined as rape or sexual assault. The age of consent over which individuals can give permission to a sexual act is 16 years for both girls and boys.
7) Consensual sexual violation with a child between 12 and 16 is a fairly new crime. This crime is committed when an adult commits an act of sexual violation with a child with that child’s ‘consent’. Because of the wide definition of sexual violation this particular provision has been referred to as the “kissing law”, as it includes kissing.
[30] From the definitions above, it is clear that kissing a child younger than 16 years of age, would constitute a sexual act. This is further confirmed in ELRC Practice Note: 1 of 2018 which states at paragraph 19 that misconduct in terms of section 18 of the EEA may include kissing a learner.
[31] The evidence of the Complainant and L.T. were corroborative. They were further excellent witness, led credible and consistent evidence and were unwavering under cross-examination. The Complainant’s mother, Mfengu, was a good witness who gave chronological, factual and consistent testimony.
[32] The Applicant was evasive during his testimony, and very elaborate/exaggerated in the giving of his version, creating the impression he had meticulously planned it. He talked a lot but said very little, and overall did not create a good impression.
[33] Insofar as Count 1 is concerned, no evidence was led on a sexual relationship between the Complainant and July, and as such a finding of guilty cannot follows.
[34] Insofar as Alternative Count 1 is concerned, it has been established that a sexual act includes kissing. The Complainant led consistent evidence on the incident during which July had kissed her, when L.T. had accompanied her to his classroom. L.T. has corroborated the Complainant’s version, save for the part where she was not present, and the kissing happened. I have already dealt with the credibility of the respective witnesses, and the version of the Complainant is more probable than the version, being a bare denial, of July.
[35] At this stage the Facebook messenger chats need to be analyzed, as it has bearing on my finding. It was the Complainant’s evidence that she had chatted with July, and that she was certain thereof as some of the chats were relevant to incidents that had taken place at school. She explained that she had initially, when the chats were discovered by her mother, told her that it was July’s son whom she had been chatting to in order to protect him, but had later confessed the truth. July’s defense is that his Facebook account was hacked, and that the messages were neither sent by him nor his son. July did not secure the services of an expert witness to confirm the plausibility of his version. July’s version stands to be rejected for a number of reasons: (i) on his own version he was alerted by notifications of activity on his account. As such he would have known if an identified third person was using his account; (ii) the unidentified third person chatted with the Complainant at 02h22 yet he was chatting with the Complainant’s mother at 07h55 on the same day, using the same account; (iii) the likelihood of an unidentified third person sending a photo of July to the Complaint was improbable; (iv) the Facebook messenger chats with the Complainant’s account stopped immediately upon its discovery by her mother; (iv) July had not provided proof that he reported such alleged hacking of his Facebook account to Facebook in an attempt to prove his version.
[36] It is therefore my finding that the chats contained in “A2” were between the Complainant and July.
[37] The chats include the following, sent by July to the Complainant:
a) I Love You emoticons
b) Kissing emoticons
c) “Delete plz after viewing”
d) Ok ke dear….jst hope you keep Roxy in the dark nhe”
e) “Mhhh….can I join plz?” (after Complainant indicated she was Lib – lying in bed)
f) “Mwaaaa”
g) “I wanted to kiss you then yaz”
h) “Especially when u were so close to me”
i) “Nakanjani…and can’t wait to hold u in mu arms looking at yr eyes and kissing you”
j) “Who’s phone is this? Ok pls dnt forget to delete bbs nhe”
[38] The relevance of the messages is its inappropriateness and apparent grooming of the Complainant. Further, questions posed to the Complainant on this aspect amounted to an indirect admission of guilt of July.
[39] In light of the above, the Applicant is guilty of Alternative Count 1 in terms of section 17(1) (f) of the EEA.
[40] Insofar as Count 2 is concerned, I have already found that the July had kissed the Complainant, on a balance of probabilities. As such, July is guilty of Count 2 in terms of section 18(1) (q).
[41] Insofar as Alternative Count 1 (2) is concerned, there was insufficient evidence led to prove the allegation that sexual icons or pictures were shown to her on Facebook messenger chats. As such, he cannot be found guilty on this alternative charge, with the emphasis on icons/pictures of a sexual nature.
IS THE RULE VALID AND REASONABLE?
[42] This aspect was not placed in dispute by July. It is worth mentioning that a rule against any sexual act between an Educator and Learner is reasonable in the education environment, for the protection of both Leaners and Educators.
WAS THE EMPLOYEE AWARE OF THE RULE?
[43] This aspect was not placed in dispute by July. Further the EEA is very clear in section 17 and section 18 as to the existence of the rule. July was appointed as an Educator in terms of the EEA, and reasonably ought to have been aware of the rule.
HAS THE EMPLOYER APPLIED THE RULE CONSISTENTLY?
[44] I had no evidence to the contrary.
APPROPRIATE SANCTION?
[45] Aside from physical traumas, rape and other sexual assault often result in long-term emotional effects, particularly in child victims. These can include: denial, learned helplessness, genophobia, anger, self-blame, anxiety, shame, nightmares, fear, depression, flashbacks, guilt, rationalization, mood swings, numbness, promiscuity, loneliness, social anxiety, difficulty trusting oneself or others, difficulty concentrating. Being the victim of sexual assault may lead to the development of post-traumatic stress disorder, addiction, major depressive disorder or other psychopathologies. Family and friends experience emotional scarring including a strong desire for revenge, a desire to "fix" the problem and/or move on, and a rationalization that "it wasn't that bad".
[46] Both the Complainant and L.T. testified they were uncomfortable around July during his unwanted advances, and the Complainant testified about her fear of being either raped by July, or victimized by him, and further she testified to her fear of not being believed. These actions of the Complainant are typical of an abused child, and explain her hesitance to report July’s actions.
[47] From the evidence it is clear that the Complainant was not July’s only victim, confirmed with the testimony of L.T. of her own experiences with July.
[48] In considering whether dismissal is the appropriate sanction, I considered the mitigating circumstances submitted by the Accused in his closing arguments. No arguments were received by from the Employer at the time this award was issued, despite the extension on submission having been granted until 13 May 2019.
[49] I am further guided by the EEA that stipulates that an educator must be dismissed if found guilty of offences in terms of section 17 of the Act, and may be dismissed if found guilty of offences in terms of section 18 of the Act. The Applicant was found guilty of Alternative Count 1 and Count 2.
[50] It was common cause that, at the time of the incidents, the Complainant was 14 (fourteen) years old.
AWARD
[51] Having considered all factors my sanction is as follows, with reasons to follow:
Alternative Count 1 – summary dismissal
Count 2 – summary dismissal
[52] The trust relationship between the Employer and the accused, July, could not be expected to continue, and it is evident that it has irretrievably broken down. July’s lack of remorse and unwillingness to take responsibility for his actions makes a continued employment relationship impossible. I am not convinced that July will refrain from similar conduct in the future.
[53] I am further finding that the Accused, Sobantu Maxwell July, is unsuitable to work with children, and in terms of section 120 of the Children’s Act (Act 38 of 2005) based on the evidence led before me during this arbitration, a finding in this regard is made.
[54] The Accused, Sobantu Maxwell July, is found guilty of the Alternative to Count 1 and Count 2, and not guilty of Count 1 and the Alternative to Count (2).
[55] I find that summary dismissal is the appropriate sanction under the circumstances.
[56] I further order that Sobantu Maxwell July is found unsuitable to work with children in terms of section 120 (4) of the Children’s Act, 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum in order for the Director General to enter his name as contemplated in section 120 in part B of the register.
Minette van der Merwe
ELRC Panelist