PSES 527-10/11 FS
PSES 527-10/11 FS
Award Date:
25 July 2012
Case Number: PSES 527-10/11 FS
Province: Free State
Applicant: Sophonia Leeto
Respondent: Department of Education, Free State
Issue: Unfair Dismissal - Misconduct
Venue: Bloemfontein
Award Date: 25 July 2012
Arbitrator: Dineo Palesa Selelane
Panellist/s: Dineo Palesa Selelane
Case No. : PSES 527-10/11FS
Date of Award: 2012.07.16
In the ARBITRATION between:
SOPHONIA LEETO_________________________________________________________________
(Union / Applicant)
And
DEPARTMENT OF EDUCATION : FREE STATE___________________________________________
(Respondent)
Union/Applicant’s Representative : J.N. LEBEA
Union Applicant’s Address : 2 ETTRICK ROAD
: FOREST TOWN
: JOHANNESBURG
2000
Telephone : (011)-486-3922
Fax : (011)-486-3925
Respondent’s Representative : T. TSUNKE
Respondent’s Address : KATLEHO BUILDING
: BLOEMFONTEIN
Telephone : 051-404-4285
Telefax : 086-604-1462
DETAILS OF THE HEARING AND REPRESENTATION
[1] The matter was set down as an Arbitration process for the 19 January 2012, 23 – 24 February 2012, 18, 21 – 22 May 2012 at 09:00 in accordance with the Education Labour Relations Council rules that regulate the dispute procedures of the Council (the Rules). The arbitration took place at the Xhariep Education District in Bloemfontein, Free State Province.
[2] The referring party is Mr. Mokgothu Sophonia Leeto (the Applicant) and was represented by Mr. JN Lebea an attorney from Lebea & Associates Attorneys/ The Department of Education (the Respondent) was represented by Mr. T. Tsunke, a Labour Relations Practitioner employed by the Respondent. Interpreting services were conducted by Mr. K. Letshabo and Mr. A. Mogopoli respectively. The intermediary services were done by Me M. Seale.
[3] The process conducted an inspection in loco on the 22 May 2012 with all parties present in Mooigenoeg and Ribblesdale.
ISSUE IN DISPUTE
[4] The Applicant is challenging the substantive fairness of his dismissal.
BACKGROUND TO THE DISPUTE
[4] This is an unfair dismissal dispute in terms of the Labour Relations Act, Act 66 of 1995 as amended (the LRA) Section 186 (1). The Applicant was charged with misconduct:-Contravention of section 17(1)(b) of the Employment of Educators Act 76 of 1998, in that during July 2010 he committed an act of sexual assault on a learner, Disemelo Mophethe when he had sexual intercourse with her in his car, the alternative charge was he contravened section 18 (1)(q) of Employment of the Educators Act when he conducted himself in an improper, disgraceful or unacceptable manner when he touched the breast of Disemelo Mophethe who is a learner at his school (Dr. Bethuel Setai Intermediate School) and penetrated her private parts with his finger. The Applicant was not found guilty on the alternative charge.
[5] The Applicant was employed as a Principal from January, 1993 in Dr. Bethuel Setai Intermediate School until his dismissal on the 17 January 2011. The Applicant referred an unfair dismissal dispute to the Council in terms section 191 (5)(a)(ii) of the Labour Relations Act (the Act). The Applicant seeks retrospective reinstatement.
SURVEY OF EVIDENCE & ARGUMENT
[6] The Respondent submitted a bundle of documentary evidence, admitted as Exhibit “A”1-3. The Respondent called three (3) witnesses in support of their case, namely:-Mamohau Suzan Sekoboko (Sekoboto), Keneiloe Constance Mokgobo (Mokgobo) & Disemelo Mophethe (Learner). The following witnesses testified on behalf the Applicant :-Dingilizwe Wilson Ramodupe (Ramodupe), Matsepang Agnes Nonyana (Nonyana) & Mokgothu Sophonia Leeto (Applicant).
Evidence on behalf of the Respondent
Sekoboto testified under oath as follows:
[7] She is an Educator and guardian teacher in Dr. Bethuel Intermediary School. Part of her daily duties involves working with learners with problems and learner needs. A while a go the Leaner ame to and her that the Applicant dropped other learners first and drove off with her. The Applicant went with her to a place where he had sex with her. She further testified that she does not know if the sex was consensual or not. She did not report the incident as she wanted to gather more information pertaining to this incident. One day the stepmother of the Learner came to school to find out why the Applicant took her to the clinic. The Learner told the stepmother that the Applicant took her to the clinic due to heavy menstrual flow.
[8] Under cross examination she testified that she provides assistance to all learners including sexual problems. She further testified that the learner was doing grade 5 upon arrival in Dr. Bethuel Setai Intermediary School. The Applicant promoted her to grade.7. The witness further testified that as a Life Orientation Educator she was teaching her learners about refusing to allow others to touch them in their private parts. The Learner then told her that the Applicant had put his fingers into her private parts. She cannot remember when the incident was reported to her. She further testified that the sexual intercourse incident was mentioned during the investigations. The witness testified that she omitted to mention this during her chief testimony as she only answered what was asked. She did not report this as well as she wanted to gather more information from other learners. The learner did not say the Applicant raped her but she said that the Principal was a rapist.
The witness was then referred to page 113 of “B” which is her written affidavit. She testified the contents of the affidavit are a true reflection though written Afrikaans and dated the 19 August 2010. In brief in the written testimony the witness testified that the stepmother of the Learner came to school inquiring if her stepdaughter is having an affair with the Applicant. The stepmother’s convictions are based on the assumption that she saw the Applicant making signs towards her stepdaughter. Additionally the stepmother alleged that each time the Learner returns home from school her underwear had male sperms. The witness testified that she asked the Learner about these allegations and the Leaner denied them. The witness further testified that the Learner lied to her mother regarding the Applicant.
[9] On re-examination the witness testified that the stepmother approached her regarding with these allegations before the police came to school. The witness further testified that she does not know who reported the matter to the police. She testified that the Learner said she had sexual intercourse with the Applicant. She also testified that she cannot recall how long it took for the matter to be reported to the police station and does not know who is staying with the Learner. She testified that the Learner was in Grade7 for a short period.
Mokgobo testified under oath as follows:
[10] Sometime back one of her learners (Disemelo Mophethe) returned to class crying. She told her that Pitso (a fellow educator) called the Learner and asked her about her relationship with the Applicant. The witness testified that she went to ask Pitso why is she intimidating the Learner. Pitso responded by saying she was sent by the Applicant to stop the Learner from spreading rumours about him. She testified that she does not know the contents of Exhibit “C”of B. The contents of “C” are a meeting held with Rakepa, a Social Worker. The meeting was attended by the Learner’s stepmother,
[11] Under cross-examination she agreed to having had a meeting with Rakepa, the Learner’s stepmother. The meeting was to inquire as to why did the Applicant take the Learner to the clinic. The meeting was not to discuss the sexual harassment procedure. She testified that Sekoboto explained to the stepmother she is the one who took the Learner to the clinic. She further testified that the stepmother did not come to school but phoned her. The witness testified that she did not make recommendations to the mother to report the matter to the police as there was nothing to report. She further testified she is familiar with the contents p.2 of “A”, which is an extract of the Occurrence Book. The Applicant made an entry whereby he said Pitso told him that the witness told her to stop torturing children as the witness is asking learners about the relationship between Learner and the Applicant.
[12] During re-examination the witness testified that the purpose of the meeting between her and the learner’s stepmother was to establish who took the learner to the clinic. She confirmed that p.2 of “A” was an entry as a result of her confronting Pitso & the Applicant.
Disemelo Mophethe testified with help of an intermediary testified as follows:
[13] She is doing Gr.6 in Dr. Bethuel Setai Intermediary School. The Applicant used was the Principal the said school. One Friday afternoon after school, she cannot recall the date, the three groups the Applicant ferried were in his car. Her group used to be first too be dropped off. The Applicant changed the drop off pattern and them her group last. When it was her turn to alight the Applicant drove off with her. The Applicant took her to Mooigenoeg where he went outside, locked the car and went outside to urinate. The Applicant took her to Mooigenoeg. He then came inside the car and undressed her. He took her underwear out and put his penis inside her. After finishing having sex with her, the Applicant pushed her outside, laughed at her and drove off. He left her there and she walked home along the trees. She further testified that she stays with her stepmother but cannot recall when she started staying with her.
[14] Under cross-examination she testified that she cannot recall when she started attending Dr. Bethuel Setai Intermediate School. She said she was doing Grade 5 when she came to Dr. Bethuel Setai. The Applicant took her to Grade7. She denied that her stepmother said she is in Gr7 but the Applicant took her to Grade7. She admitted that she cannot recall which year it was and the Applicant is better placed to know. She testified that her report and the transfer in indicated that she is doing Grade5. She further testified that before attending Dr. Bethuel Setai she was in Tebelelo School in the township from Grade 1-5. She did not finish Grade5. She further testified that she can neither recall the date, the month nor the year she started riding the Applicant in his car. She only recalls the time the Applicant said their parents must pay him R50 for the transport.. The witness further testified that she cannot recall the dates when the Applicant had sex with, the only thing she knows is that it was a Friday. She testified that the people who saw the Applicant sleeping with her are Soft (Dingilizwe) and Selloane. The two learners cannot testify as the Applicant intimidated them. She testified that the Applicant promised them R15 000-00 and this incident hurts her. She admitted that his version was not mentioned to these learners during the disciplinary inquiry.
[15] The witness testified that she disputes the contents of her affidavits on pp. of “B”. 24-25, 108-111, 126-128 and the signature attached to these documents. She testified that she cannot recall if she made these affidavits after the Applicant stopped ferrying them or not. She later testified that she recalls the signature on pp. 110-111 but the signature appearing on pp. 24 – 25 is not hers. She testified the police asked her who normally accompanies her she said Selloane. She denied that the contents of the affidavit could have only been made by her. She further testified that she cannot agree with what is written on the documents as some evidence was in Afrikaans and other in English. She further testified it was the first time she saw these documents. The witness testified that the sexual incident with Applicant was not reported to the police. The witness denied that Sekoboto asked to keep quite. The witness further testified that she did not report the sexual assault to her parents as was afraid of them because they are cruel. The only person she could tell about the sexual assault was Sekoboto. She testified that she wanted help but did not know who to talk to.
[16] She admitted that she did not tell Sekoboto about the rape. She emphasised that there are trees in Mooigenoeg and the Applicant raped her in the trees. She denied the version that during the disciplinary inquiry of the Applicant she testified that the Applicant took her home. She denied this version and testified that she recalls other incidents other she does not. She testified that her mother misunderstood the clinic incident as it was Sekoboto who took her to the clinic.
[17] On re-examination the witness testified that she was the last person to alight from the Applicant’s car. The Applicant took her to Mooigenoeg where he slept with her. The witness further testified that Dingilizwe said they (him and Selloane) have been given R15 000-00 by the Applicant in order to keep quiet about the sexual assault. She testified that she is 17 but the sexual assault took place when she was 15. She further testified that Mooigenoeg have many trees which are easily noticed.
Evidence on behalf of the Applicant
Dingilizwe Wilson (Soft) Ramedupe with the help of the intermediary testified as follows:
[18] He is 14 years old. In 2010 he did Grade 6 in Dr. Bethuel Setai Intermediate School. His written testimony in p. 36 of “B” was taken by a male and female who came to school and called all the learners who drove with the Applicant. The two said they are investigating how many learners drove with the Applicant and how was he treated them. The Applicant divided them into three groups. Disemelo. Selloane and him were the first group to be dropped off. There was an instance where the Applicant informed that he is rushing to a meeting in the District Office. On that day he changed his routine and offloaded the last group first. He dropped him, Disemelo and Selloane last. The witness testified that he lied in his testimony in p.36 of “B” as the gentleman who took the statement told him what to say. He intended to say nothing but he was scared that he will be locked up. At the time he made the statement he was 12 years old. He testified that at no stage did he tell Disemelo that the Applicant will pay him and Selloane R15 000-00. Instead Disemelo and Selloane are the ones who said they were taken to a restaurant and they each have R15 000-00. At the time of this statement they were no longer using the Applicant’s car.
[19] Under cross-examination the witness denied that he used part of his R15 000-00 to attend the arbitration. He testified that the gentleman who took his statement as reflected in p. 36 of “B” intimidated him and told him he will lock him up. He further testified that he is currently not afraid. He also testified that if police are called now he will not change his version as his is surrounded by grownups. The witness denied that the Applicant raped Disemelo. He testified that Disemelo is the person who mentioned the R15 000-00 not him. The Applicant dropped them off during school knock off.
[20] In re-examination the witness testified that he does not know who was called in first for the interview between him and Disemelo.
Sophonia Mokgothu Leeto testified under oath as follows:
[21] He was employed as a Principal in Dr. Bethuel Setai Intermediary School from January 1993 until his dismissal on 17 January 2011. In his teaching experience he dealt with vulnerable learners in farm schools. He maintained that the he is not guilty of the charges preferred against him as the allegations were fabrications. He testified that he started ferrying the learners from 13 July 2010 - 29 July 2010. This request was made by one parent, a Mrs. Stefaan. The parent requested the Applicant to ferry her daughter Bonolo to school as her transport was no longer available. The other learners also wanted to be ferried. He instructed them to get permission from their parents first. He started ferrying them from the 14 July 2010. They were to pay R50 a month for the services. On the 20 July 2010 he informed these learners he is going to change his routine as he is a hurry to get to the District Office. He started off by dropping Bonolo and Ziya first. He then proceeded to drop Disemelo, Dingilizwe and Selloane. His car has central locking, he could not lock the car with Learner inside and go outside. He testified that Learner being used by against by her class teachers, namely Mokgobo and Sekoboto.
[22] On the 12 January 2010 he instructed Stompie, Sekoboto, Nhlapo, Ramatsie and Mokgobo to check if the number of stationery he placed in their classes is correct. Mokgobo refused and said her class is locked. On the 13 January 2010 Mokhobo went to the District Office alleging that he dismissed her. He was phoned by Mr. Tladi and he denied the allegations. After that the relationship between him and Mokgobo was sour. He testified despite Mokgobo’s denial about the contents contained in exhibit “C”“, she is the only educator whose surname is Mokgobo in Dr. Bethuel Intermediate School. Secondly she was the class teacher of Disemelo.
[23] The witness testified that on the 14 July 2010 Mokgobo and Skompi left the school without permission. He phoned the Respondent’s Labour Relations section and was advised by Mr. Tladi to charge the two educators with misconduct. There was further an incident where Sekoboto sent the Learner to inform him that her learners will not be writing Arts and Culture. He sent Disemelo back and instructed Sekoboto to come to his office. Instead of heeding the instruction Sekoboto refused to come to the office. He testified that the allegations against him are a fabrications against him. He denied that he ever had a sexual intercourse with Disemelo. The Applicant testified that there was another incident where Mokhobo and Skompie unlawfully dismissed a cook who was responsible for the learners feeding scheme. Mokhobo did not form part of the feeding scheme. He had a meeting with the two educators after the dismissal of the cook in which he explained the terms of the cook’s employment. After the meeting he reinstated the cook.
[24] On the 3 August 2010 a Social Worker came to the school to investigate and assess the truth in the allegations of the Learner. On the same day a police officer came to investigate these allegations. As her mother was not present the police officer did not take statements. On the 5 August 2010 a certain Dubula came to school and took the Learner to the police station to make statement. The Leaner did not mention rape in her affidavit. On the 20 August 2010 he was arrested following the allegations of the sexual assault with the Learner. He was released on the same day with a bail. On 23 August 2010 he informed the Respondent about his release.
[25] He denied the allegations of touching the Learner and raping her. He said that the place where the alleged rape is said to have taken place, Mooigenoeg is a national road and busy. He denied that there are trees were a car can be parked. He testified that in the statement the Learner said that he was transporting her before June 2010 but he only started transporting learners from the 13 July 2010. He denied all these allegations and testified that due to their seriousness, Sekoboto as a guardian teacher must have reported them to the relevant authorities. After his release he instructed boys to sit aside from girls as he was afraid to give class with both boys and girls amidst the allegations. He denied the allegations that he took the Learner to the clinic for the heavy menstruation.
[26] Under cross-examination the witness testified that the Learner was accepted in Dr. Bethuel Setai Intermediate School in February 2010. Her stepmother came to make a late registration for her and said the Learner came to stay with them recently. He admitted that for a leaner to be transferred successfully to another school, a transfer letter and the report must be attached to the application. However the Respondent instructed them in the absence of these documents, learners can still be provisionally registered. He denied the allegations that he took the Learner to Grade 7 on his own, the Learner and her stepmother are the ones who said the Learner is doing Grade7. He confirmed that he heard allegations that the Learner was having an affair with a Lesotho National and a factory worker.
[27] He testified that he was suspended on the 03 September 2010 and did not hold disciplinary inquiries for Sekoboto and Mokgobo. He was unable to concentrate due to the rape allegations. He denied that he charged the teachers in order to prevent them from pursuing the rape allegations against him. He testified that he does not know what happened to the inquiry as he was suspended. The Applicant testified that during his disciplinary inquiry only two learners were called to testify and he disputed the documentary evidence in pp.36-39 of “B”, which are the statements taken from learners who were transported by the Applicant. He reiterated that he changed his drop off system that day in order to rush to the District Office to collect his letters. He further testified there are no trees at Mooigenoeg.
[28] The Applicant denied the sexual assault allegations and indicated that the Learner was vindictive as he demoted her. He denied the statement by Sekoboto that she demoted the Learner as she does not have powers to demote learners. These powers are vested with the Principal. He testified that even though Arts and Culture is examinable, he was unable to refer this misconduct to the Respondent’s labour relations as he was shortly suspended. The Applicant found out that the learner was not in school in two years when he phoned the learner’s previous school.
[29] On re-examination the Applicant admitted that p. 144 of “B” is corroborated by pp. 112-113, which is an affidavit by Sekoboto. He confirmed that the contents of p. 144 are apparent that both Mokgobo and Kompi visited the District Office requesting to speak to the Mothebe: District Director. As stated in the letter the purpose of their visit was to inform Mothebe that the Applicant abused the Learner and that her stepmother is aware. The Applicant admitted that he made the entry in p.2 of ”A” when he handed the misconduct charges to Skompi and Mokhobo. Sekoboto was absent that day. He confirmed that the teachers who were involved in the expulsion of the cook were Skumpi, Sekoboto and Mokhobo. He further confirmed that during his disciplinary inquiry Dingilizwe testified that he was forced to say statement that the Applicant left with the Learner.
Matsepang Agnes Nonyana testified under oath as follows:
[30] Dingilizwe Ramedupe is his son. In 2010 he was studying in Dr. Bethuel Setai Intermediate School. In an unspecified time in 2010 Dingilizwe told him that he was asked make a statement that the Applicant slept with Learner. Dingilizwe denied the incident. He was 12 years during that time. She was not contacted or informed when the statement was made. During the court case she was not allowed to enter the proceedings. She denied that the Applicant was their family friend. The witness testified that she knew the Learner’s stepmother. The stepmother told her that the learner was staying with a boyfriend before coming to stay with them.
[31] Under cross-examination she denied the fact that her family stood to gain by testifying on behalf of the Applicant. She testified that the Learner told her son that the Applicant will pay them R14 000-00. She testified that she further changed the amount to R25 000-00. She denied allegations that the Applicant was their family friend.
[32] On re-examination the witness testified that the Learner said the Applicant will pay them R14 000-00 in order for their names to be used during the court case. She indicated that she has not seen the person Learner was having an affair with.
[33] On the 23 May 2012 I recalled both Sekoboto and Mokhobo for clarity seeking questions.
Sekoboto testified under oath as follows:
[34] The Learner stepmother came to school to inquire as to who took her stepchild to the clinic. She informed her that she took her to the clinic. She offers life orientation, Economics and Management Sciences and Arts and Culture to learners. She admitted that Mrs. Skompi is her colleague. On the 29 July 2010 she was not in school. In 2010 she was her class teacher in Grade 5.
Mokhobo testified under oath as follows:
[35] She never attended a meeting with a social worker called T.E. Rakepa and the Learner’s stepmother. She was charged with misconduct by the Applicant. She was found not guilty. She confirmed that Skompi is her colleague. She also admitted that she knew Mothebe to be the District Director in 2010. She testified that the reason there were similarities in affidavit in p.129 & p. 144 was because of the incident of the clinic. She denied ever attending a meeting in the District Office. She admitted that she knew a social worker called T.E. Rakepa.
[36] The parties submitted their written arguments on the 05 June 2012as agreed and argued as follows:.
The Respondent’s submissions:
Mr. Tsunke submitted to, inter alia, the following effect:
[41] The evidence led by Sekoboto and Mokhobo [37] Disemelo’s stepmother requested a meeting with the Mokhobo & Sekoboto as the Learner said to her that Mr. Leeto took her to the clinic. The stepmother also wanted to establish the reason why the female educators failed to take the Disemelo to the clinic. Sekoboto testified that Disemelo was taken to Grade7 by Mr. Leeto as he was the person who approved her application.. Mr. Leeto did not identify the learning challenges of the learner. The learner challenged the allegations that she developed hatred against Mr. Leeto for her demotion. The learner insisted that the incident of sexual assault did take place next to Mooigenoeg in the trees. The learner cannot recall the date Mr. Leeto changed his drop off pattern but that is the day he went to the trees /forest to rape her.
[38] Dingilizwe initially wrote a statement indicating what happened on the day of the sexual assault but later changed his version. This could be attributed to the fact that her mother, Matsepang Agnes Nonyane testified that the Learner cannot be raped as she will be the one asking for the rape. During the inspection in loco pertaining to the location where the incident occurred, the manager of the farm indicated that only three have the keys to the gate, viz. the farmer, the farmworker and herself. Mr. Leeto mentioned a Sesotho name where the Learner is alleging the rape incident took place. Mr. Leeto knew the intellectual capacity of the Learner and her sexual history with a Lesotho national and the factory worker. He finally submitted the coincidence between the change of the drop off pattern and the day the learner was sexually assaulted. He pray that the application be dismissed.
The Applicant’s submissions:
Mr. Lebea submitted to the following effect, among other:
.[42] [39] The dismissal was substantively unfair because the alleged misconduct, i.e. the sexual intercourse with the Learner, Disemelo Mophethe, never took place and the allegation that the misconduct took place is a product of a malicious fabrication. The evidence of the alleged victim, Disemelo Mophethe, was improbable and implausible, self-contradictory, incredible and unreliable. It was illogical, inconsistent and unfair for the Chairperson of the disciplinary hearing to acquit the Applicant of the alternative charge based on cautionary rules of evidence and lack of corroboratory evidence but decided to find the Applicant guilty of the main charge when the same cautionary rules and lack of corroboratory evidence held the same application to the main charge as in the alternative charge.
[40] Sekoboto in her chief evidence testified that Disemelo told her that the Principal dropped other learners off where he usually dropped them but did not drop other learners and went somewhere to have sex. But a passage in her affidavit dated 19 August 2010 states that Disemelo had never at any stage told her that she had been raped. Sekoboto retracted her allegation that Disemelo had told her that the Applicant had sexual intercourse with her. Throughout the arbitration Disemelo testimony was that the alleged rape took place on the side of the road in Andries Pretorius road. During the inspection in loco she pointed at the locked gate as the entrance which the Applicant used to enter the property and to drive to the scene of the alleged misconduct.
[41] The lady emphasised that these people do not leave the gate unlocked. It’s their submission that is unlikely and improbable that the Applicant entered the property at any time during the period between 14 and 29 July 2010. No evidence was led to the effect that the Applicant had access to the keys of the gate or that the gate was not locked or closed on the particular day on which the alleged rape took place. There was no explanation why Disemelo or the adults assisting her did not report the alleged rape to the police. The only reported incident ot the police is the alternative charge. The Respondent failed to prove the charge on balance of probability that the Applicant raped or had sexual intercourse with Disemelo as alleged by her. The Applicant seeks reinstatement as a remedy.
ANALYSIS OF EVIDENCE AND ARGUMENT
[42] There was no dispute about the existence of a dismissal. The onus was on the employer to justify the dismissal was substantively fair as preserved in section 188 and section 192 of the Labour Relations Act (the Act as amended).
Substantive Fairness:
[43] The Respondent had to prove on balance of probabilities that the dismissal of the Applicant was for a fair reason related to his conduct by showing that the Applicant was guilty as charged and that the dismissal was an appropriate sanction.
[44] It was a common cause between the parties that the Applicant was dismissed for allegedly contravening provisions of section 17(1)(b) of the Employment of Educators Act, 76 of 1998 in that during July 2010 he committed an act of sexual assault on a learner, Disemelo Mophethe when he had sexual intercourse with her in his car.
[45] The parties during the arbitration process and in their submissions associated sexual assault with rape. I allowed the phrase to be used as I understood it to mean having sexual intercourse or penetration against another person without their consent
[46] Disemelo Mophete was the only witness who could testify directly as to the actuality of the alleged rape. Witnesses who testified repeated what she allegedly told them. She was a single witness pertaining to the rape incident. Disemelo was not a credible witness. Her evidence contained material inconsistencies. From the evidence led it was clear that she did not report the rape incident to her parents. Sekoboto testified that she was teaching life orientation in class one day and Disemelo said the Applicant was a rapist.
[47] Sekoboto testified that she wanted to gather more information regarding the sexual assault allegations. No evidence was led as to whether she eventually gathered the information she sought. Additionally in her written testimony she admitted that the learner’s stepmother came to school and complained to her that the learner’s panty is always full of male sperms. I have no evidence before me indicating that alleged male’s sperms are the Applicant’s.
[48] Mokhobo testified in her chief testimony that she knows nothing about the alleged sexual assault. She denied that she had a meeting with Mothebe in the District Office with the aim of informing him that the Applicant is abusing Disemelo. When recalled for clarity seeking questions on the 23 May 2012 she admitted that the Mokhobo mentioned in the report refers to her. She later changed her version and acknowledged some contents of p.144. In the interest of justice I am inclined to apply my mind on the contents of pp 142 & 143. There is a link and material similarities between Mokhobo’s testimony on p. 129 -130 and these documents. The contents of these pages specified how Mokhobo and Kompi (whom she confirmed as her colleague) visited the Office of District Director with the aim informing him that the Applicant is abusing Disemelo. The same contents are repeated on p.144 by Rakepa (a social worker) wherein she wrote that Mokgobo and her colleague informed the learner’s stepmother that the Applicant is sexually involved with learners and he insisted on taking the learner to the clinic for heavy menstruation flow. Both these documents are dated 10 & 12 May 2010 respectively.
[49] I must point out that both Sekoboto and Mokhobo did not make a good impression as witnesses. Their evidence had inherent improbabilities. Their evidence consisted of general assumptions rather than facts. As educators in the public education they are believed to be the custodians of the constitutionally recognized, paramount interests of the child. As section 28 (2) of the Constitution states, “A child’s best interests are of paramount importance in every matter concerning the child”. I find their actions to be in conflict with this principle.
[50] On the other hand the Applicant has a right to fair labour practices as well. The Respondent had a duty to discharge the onus that the dismissal was for a fair reason. I do not have evidence before me incriminating that the Applicant; Mr. Mokgothu Sophonia Leeto had sexual intercourse or penetrated the Learner, Disemelo Mophete. His evidence that he dropped off Disemelo and other learners was corroborated by Dingilizwe.
[51] Furthermore during the inspection in loco on the 22 May 2010 the Learner (Disemelo) changed the venue of the alleged rape and said it took place in a remote farm in Ribblesdale. Upon arrival on the farm, she pointed towards a gate allegedly used by the Applicant to gain entrance into the farm. However the gate was locked. We inquired with a farm worker who gave us the cell numbers of the people residing on the farm. I phoned & we met a lady called Uli Buchel. She said the gate is never left open. She said the only people who had the keys to the gate are people residing in the farm, the farmer and the farmer leasing the property for his cattle. No evidence was led to challenge this fact.
[52] The date and the venue where the rape is said to have taken place had a direct and material bearing on the case. This was not established and as such renders the allegations of the rape improbable. As a single witness Disemelo Mophethe was the only person who could verify the rape but she appeared to be elusive. I have taken her interests as a child to heart but these must also be balance against the evidence and fact before me. Sexual assault or rape is a degrading and traumatizing offense. I expected her to at least recall the venue of the alleged offence but she did not. She was unable to furnish me with an acceptable explanation about alleged rape incident. I was therefore not satisfied on balance of probabilities that Disemelo was a victim of sexual assault.
[54] The witnesses called in support of the Respondent were not credible and their testimony contained material defects.(see Nienaber JA in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Cie SA and others [2002] ZASCA 98 @ paragraph [5] or 2003(1) SA II (SCA) followed and applied recently by the Labour Court in Sasol Mining (Pty) Ltd v M Ngceleni and others [2010] ZALC 141)“The technique generally employed by courts in resolving factual disputes … may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all facts are equipoised probabilities prevail.
[53] On the basis of the above, I am inclined to find the version of the Applicant, more probable.
[54] I disregarded the testimony of Nonyana as it was based on her opinion about Disemelo. It was mainly about the character of Disemelo and did not assist the proceedings.
[55] Having applied my mind on the evidence before me, I am of the view that the Respondent failed to give me a fair reason for the dismissal of the Applicant. The Applicant requested retrospective reinstatement. There was nothing before me to suggest that continued employment relationship would be intolerable.
AWARD
[56] In the premises the Applicant, Mr. Sophonia Mokgothu Leeto is reinstated retrospectively in the position which he occupied with the Respondent prior to his dismissal without loss of income and benefits;
[57] The Respondent shall pay the Applicant, Mr. Sophonia Mokgothu Leeto in respect of accrued salary as well as benefits from the date of dismissal to the date of resumption of duties by no later 30 September 2012;
[58] The Applicant. Mr. Sophonia Mokgothu Leeto is to resume his duties by no later than 31 August 2012.
[59] I make no order as to costs.
_________________
DPP SELELANE
ELRC PANELLIST
25 JULY 2012 .
Province: Free State
Applicant: Sophonia Leeto
Respondent: Department of Education, Free State
Issue: Unfair Dismissal - Misconduct
Venue: Bloemfontein
Award Date: 25 July 2012
Arbitrator: Dineo Palesa Selelane
Panellist/s: Dineo Palesa Selelane
Case No. : PSES 527-10/11FS
Date of Award: 2012.07.16
In the ARBITRATION between:
SOPHONIA LEETO_________________________________________________________________
(Union / Applicant)
And
DEPARTMENT OF EDUCATION : FREE STATE___________________________________________
(Respondent)
Union/Applicant’s Representative : J.N. LEBEA
Union Applicant’s Address : 2 ETTRICK ROAD
: FOREST TOWN
: JOHANNESBURG
2000
Telephone : (011)-486-3922
Fax : (011)-486-3925
Respondent’s Representative : T. TSUNKE
Respondent’s Address : KATLEHO BUILDING
: BLOEMFONTEIN
Telephone : 051-404-4285
Telefax : 086-604-1462
DETAILS OF THE HEARING AND REPRESENTATION
[1] The matter was set down as an Arbitration process for the 19 January 2012, 23 – 24 February 2012, 18, 21 – 22 May 2012 at 09:00 in accordance with the Education Labour Relations Council rules that regulate the dispute procedures of the Council (the Rules). The arbitration took place at the Xhariep Education District in Bloemfontein, Free State Province.
[2] The referring party is Mr. Mokgothu Sophonia Leeto (the Applicant) and was represented by Mr. JN Lebea an attorney from Lebea & Associates Attorneys/ The Department of Education (the Respondent) was represented by Mr. T. Tsunke, a Labour Relations Practitioner employed by the Respondent. Interpreting services were conducted by Mr. K. Letshabo and Mr. A. Mogopoli respectively. The intermediary services were done by Me M. Seale.
[3] The process conducted an inspection in loco on the 22 May 2012 with all parties present in Mooigenoeg and Ribblesdale.
ISSUE IN DISPUTE
[4] The Applicant is challenging the substantive fairness of his dismissal.
BACKGROUND TO THE DISPUTE
[4] This is an unfair dismissal dispute in terms of the Labour Relations Act, Act 66 of 1995 as amended (the LRA) Section 186 (1). The Applicant was charged with misconduct:-Contravention of section 17(1)(b) of the Employment of Educators Act 76 of 1998, in that during July 2010 he committed an act of sexual assault on a learner, Disemelo Mophethe when he had sexual intercourse with her in his car, the alternative charge was he contravened section 18 (1)(q) of Employment of the Educators Act when he conducted himself in an improper, disgraceful or unacceptable manner when he touched the breast of Disemelo Mophethe who is a learner at his school (Dr. Bethuel Setai Intermediate School) and penetrated her private parts with his finger. The Applicant was not found guilty on the alternative charge.
[5] The Applicant was employed as a Principal from January, 1993 in Dr. Bethuel Setai Intermediate School until his dismissal on the 17 January 2011. The Applicant referred an unfair dismissal dispute to the Council in terms section 191 (5)(a)(ii) of the Labour Relations Act (the Act). The Applicant seeks retrospective reinstatement.
SURVEY OF EVIDENCE & ARGUMENT
[6] The Respondent submitted a bundle of documentary evidence, admitted as Exhibit “A”1-3. The Respondent called three (3) witnesses in support of their case, namely:-Mamohau Suzan Sekoboko (Sekoboto), Keneiloe Constance Mokgobo (Mokgobo) & Disemelo Mophethe (Learner). The following witnesses testified on behalf the Applicant :-Dingilizwe Wilson Ramodupe (Ramodupe), Matsepang Agnes Nonyana (Nonyana) & Mokgothu Sophonia Leeto (Applicant).
Evidence on behalf of the Respondent
Sekoboto testified under oath as follows:
[7] She is an Educator and guardian teacher in Dr. Bethuel Intermediary School. Part of her daily duties involves working with learners with problems and learner needs. A while a go the Leaner ame to and her that the Applicant dropped other learners first and drove off with her. The Applicant went with her to a place where he had sex with her. She further testified that she does not know if the sex was consensual or not. She did not report the incident as she wanted to gather more information pertaining to this incident. One day the stepmother of the Learner came to school to find out why the Applicant took her to the clinic. The Learner told the stepmother that the Applicant took her to the clinic due to heavy menstrual flow.
[8] Under cross examination she testified that she provides assistance to all learners including sexual problems. She further testified that the learner was doing grade 5 upon arrival in Dr. Bethuel Setai Intermediary School. The Applicant promoted her to grade.7. The witness further testified that as a Life Orientation Educator she was teaching her learners about refusing to allow others to touch them in their private parts. The Learner then told her that the Applicant had put his fingers into her private parts. She cannot remember when the incident was reported to her. She further testified that the sexual intercourse incident was mentioned during the investigations. The witness testified that she omitted to mention this during her chief testimony as she only answered what was asked. She did not report this as well as she wanted to gather more information from other learners. The learner did not say the Applicant raped her but she said that the Principal was a rapist.
The witness was then referred to page 113 of “B” which is her written affidavit. She testified the contents of the affidavit are a true reflection though written Afrikaans and dated the 19 August 2010. In brief in the written testimony the witness testified that the stepmother of the Learner came to school inquiring if her stepdaughter is having an affair with the Applicant. The stepmother’s convictions are based on the assumption that she saw the Applicant making signs towards her stepdaughter. Additionally the stepmother alleged that each time the Learner returns home from school her underwear had male sperms. The witness testified that she asked the Learner about these allegations and the Leaner denied them. The witness further testified that the Learner lied to her mother regarding the Applicant.
[9] On re-examination the witness testified that the stepmother approached her regarding with these allegations before the police came to school. The witness further testified that she does not know who reported the matter to the police. She testified that the Learner said she had sexual intercourse with the Applicant. She also testified that she cannot recall how long it took for the matter to be reported to the police station and does not know who is staying with the Learner. She testified that the Learner was in Grade7 for a short period.
Mokgobo testified under oath as follows:
[10] Sometime back one of her learners (Disemelo Mophethe) returned to class crying. She told her that Pitso (a fellow educator) called the Learner and asked her about her relationship with the Applicant. The witness testified that she went to ask Pitso why is she intimidating the Learner. Pitso responded by saying she was sent by the Applicant to stop the Learner from spreading rumours about him. She testified that she does not know the contents of Exhibit “C”of B. The contents of “C” are a meeting held with Rakepa, a Social Worker. The meeting was attended by the Learner’s stepmother,
[11] Under cross-examination she agreed to having had a meeting with Rakepa, the Learner’s stepmother. The meeting was to inquire as to why did the Applicant take the Learner to the clinic. The meeting was not to discuss the sexual harassment procedure. She testified that Sekoboto explained to the stepmother she is the one who took the Learner to the clinic. She further testified that the stepmother did not come to school but phoned her. The witness testified that she did not make recommendations to the mother to report the matter to the police as there was nothing to report. She further testified she is familiar with the contents p.2 of “A”, which is an extract of the Occurrence Book. The Applicant made an entry whereby he said Pitso told him that the witness told her to stop torturing children as the witness is asking learners about the relationship between Learner and the Applicant.
[12] During re-examination the witness testified that the purpose of the meeting between her and the learner’s stepmother was to establish who took the learner to the clinic. She confirmed that p.2 of “A” was an entry as a result of her confronting Pitso & the Applicant.
Disemelo Mophethe testified with help of an intermediary testified as follows:
[13] She is doing Gr.6 in Dr. Bethuel Setai Intermediary School. The Applicant used was the Principal the said school. One Friday afternoon after school, she cannot recall the date, the three groups the Applicant ferried were in his car. Her group used to be first too be dropped off. The Applicant changed the drop off pattern and them her group last. When it was her turn to alight the Applicant drove off with her. The Applicant took her to Mooigenoeg where he went outside, locked the car and went outside to urinate. The Applicant took her to Mooigenoeg. He then came inside the car and undressed her. He took her underwear out and put his penis inside her. After finishing having sex with her, the Applicant pushed her outside, laughed at her and drove off. He left her there and she walked home along the trees. She further testified that she stays with her stepmother but cannot recall when she started staying with her.
[14] Under cross-examination she testified that she cannot recall when she started attending Dr. Bethuel Setai Intermediate School. She said she was doing Grade 5 when she came to Dr. Bethuel Setai. The Applicant took her to Grade7. She denied that her stepmother said she is in Gr7 but the Applicant took her to Grade7. She admitted that she cannot recall which year it was and the Applicant is better placed to know. She testified that her report and the transfer in indicated that she is doing Grade5. She further testified that before attending Dr. Bethuel Setai she was in Tebelelo School in the township from Grade 1-5. She did not finish Grade5. She further testified that she can neither recall the date, the month nor the year she started riding the Applicant in his car. She only recalls the time the Applicant said their parents must pay him R50 for the transport.. The witness further testified that she cannot recall the dates when the Applicant had sex with, the only thing she knows is that it was a Friday. She testified that the people who saw the Applicant sleeping with her are Soft (Dingilizwe) and Selloane. The two learners cannot testify as the Applicant intimidated them. She testified that the Applicant promised them R15 000-00 and this incident hurts her. She admitted that his version was not mentioned to these learners during the disciplinary inquiry.
[15] The witness testified that she disputes the contents of her affidavits on pp. of “B”. 24-25, 108-111, 126-128 and the signature attached to these documents. She testified that she cannot recall if she made these affidavits after the Applicant stopped ferrying them or not. She later testified that she recalls the signature on pp. 110-111 but the signature appearing on pp. 24 – 25 is not hers. She testified the police asked her who normally accompanies her she said Selloane. She denied that the contents of the affidavit could have only been made by her. She further testified that she cannot agree with what is written on the documents as some evidence was in Afrikaans and other in English. She further testified it was the first time she saw these documents. The witness testified that the sexual incident with Applicant was not reported to the police. The witness denied that Sekoboto asked to keep quite. The witness further testified that she did not report the sexual assault to her parents as was afraid of them because they are cruel. The only person she could tell about the sexual assault was Sekoboto. She testified that she wanted help but did not know who to talk to.
[16] She admitted that she did not tell Sekoboto about the rape. She emphasised that there are trees in Mooigenoeg and the Applicant raped her in the trees. She denied the version that during the disciplinary inquiry of the Applicant she testified that the Applicant took her home. She denied this version and testified that she recalls other incidents other she does not. She testified that her mother misunderstood the clinic incident as it was Sekoboto who took her to the clinic.
[17] On re-examination the witness testified that she was the last person to alight from the Applicant’s car. The Applicant took her to Mooigenoeg where he slept with her. The witness further testified that Dingilizwe said they (him and Selloane) have been given R15 000-00 by the Applicant in order to keep quiet about the sexual assault. She testified that she is 17 but the sexual assault took place when she was 15. She further testified that Mooigenoeg have many trees which are easily noticed.
Evidence on behalf of the Applicant
Dingilizwe Wilson (Soft) Ramedupe with the help of the intermediary testified as follows:
[18] He is 14 years old. In 2010 he did Grade 6 in Dr. Bethuel Setai Intermediate School. His written testimony in p. 36 of “B” was taken by a male and female who came to school and called all the learners who drove with the Applicant. The two said they are investigating how many learners drove with the Applicant and how was he treated them. The Applicant divided them into three groups. Disemelo. Selloane and him were the first group to be dropped off. There was an instance where the Applicant informed that he is rushing to a meeting in the District Office. On that day he changed his routine and offloaded the last group first. He dropped him, Disemelo and Selloane last. The witness testified that he lied in his testimony in p.36 of “B” as the gentleman who took the statement told him what to say. He intended to say nothing but he was scared that he will be locked up. At the time he made the statement he was 12 years old. He testified that at no stage did he tell Disemelo that the Applicant will pay him and Selloane R15 000-00. Instead Disemelo and Selloane are the ones who said they were taken to a restaurant and they each have R15 000-00. At the time of this statement they were no longer using the Applicant’s car.
[19] Under cross-examination the witness denied that he used part of his R15 000-00 to attend the arbitration. He testified that the gentleman who took his statement as reflected in p. 36 of “B” intimidated him and told him he will lock him up. He further testified that he is currently not afraid. He also testified that if police are called now he will not change his version as his is surrounded by grownups. The witness denied that the Applicant raped Disemelo. He testified that Disemelo is the person who mentioned the R15 000-00 not him. The Applicant dropped them off during school knock off.
[20] In re-examination the witness testified that he does not know who was called in first for the interview between him and Disemelo.
Sophonia Mokgothu Leeto testified under oath as follows:
[21] He was employed as a Principal in Dr. Bethuel Setai Intermediary School from January 1993 until his dismissal on 17 January 2011. In his teaching experience he dealt with vulnerable learners in farm schools. He maintained that the he is not guilty of the charges preferred against him as the allegations were fabrications. He testified that he started ferrying the learners from 13 July 2010 - 29 July 2010. This request was made by one parent, a Mrs. Stefaan. The parent requested the Applicant to ferry her daughter Bonolo to school as her transport was no longer available. The other learners also wanted to be ferried. He instructed them to get permission from their parents first. He started ferrying them from the 14 July 2010. They were to pay R50 a month for the services. On the 20 July 2010 he informed these learners he is going to change his routine as he is a hurry to get to the District Office. He started off by dropping Bonolo and Ziya first. He then proceeded to drop Disemelo, Dingilizwe and Selloane. His car has central locking, he could not lock the car with Learner inside and go outside. He testified that Learner being used by against by her class teachers, namely Mokgobo and Sekoboto.
[22] On the 12 January 2010 he instructed Stompie, Sekoboto, Nhlapo, Ramatsie and Mokgobo to check if the number of stationery he placed in their classes is correct. Mokgobo refused and said her class is locked. On the 13 January 2010 Mokhobo went to the District Office alleging that he dismissed her. He was phoned by Mr. Tladi and he denied the allegations. After that the relationship between him and Mokgobo was sour. He testified despite Mokgobo’s denial about the contents contained in exhibit “C”“, she is the only educator whose surname is Mokgobo in Dr. Bethuel Intermediate School. Secondly she was the class teacher of Disemelo.
[23] The witness testified that on the 14 July 2010 Mokgobo and Skompi left the school without permission. He phoned the Respondent’s Labour Relations section and was advised by Mr. Tladi to charge the two educators with misconduct. There was further an incident where Sekoboto sent the Learner to inform him that her learners will not be writing Arts and Culture. He sent Disemelo back and instructed Sekoboto to come to his office. Instead of heeding the instruction Sekoboto refused to come to the office. He testified that the allegations against him are a fabrications against him. He denied that he ever had a sexual intercourse with Disemelo. The Applicant testified that there was another incident where Mokhobo and Skompie unlawfully dismissed a cook who was responsible for the learners feeding scheme. Mokhobo did not form part of the feeding scheme. He had a meeting with the two educators after the dismissal of the cook in which he explained the terms of the cook’s employment. After the meeting he reinstated the cook.
[24] On the 3 August 2010 a Social Worker came to the school to investigate and assess the truth in the allegations of the Learner. On the same day a police officer came to investigate these allegations. As her mother was not present the police officer did not take statements. On the 5 August 2010 a certain Dubula came to school and took the Learner to the police station to make statement. The Leaner did not mention rape in her affidavit. On the 20 August 2010 he was arrested following the allegations of the sexual assault with the Learner. He was released on the same day with a bail. On 23 August 2010 he informed the Respondent about his release.
[25] He denied the allegations of touching the Learner and raping her. He said that the place where the alleged rape is said to have taken place, Mooigenoeg is a national road and busy. He denied that there are trees were a car can be parked. He testified that in the statement the Learner said that he was transporting her before June 2010 but he only started transporting learners from the 13 July 2010. He denied all these allegations and testified that due to their seriousness, Sekoboto as a guardian teacher must have reported them to the relevant authorities. After his release he instructed boys to sit aside from girls as he was afraid to give class with both boys and girls amidst the allegations. He denied the allegations that he took the Learner to the clinic for the heavy menstruation.
[26] Under cross-examination the witness testified that the Learner was accepted in Dr. Bethuel Setai Intermediate School in February 2010. Her stepmother came to make a late registration for her and said the Learner came to stay with them recently. He admitted that for a leaner to be transferred successfully to another school, a transfer letter and the report must be attached to the application. However the Respondent instructed them in the absence of these documents, learners can still be provisionally registered. He denied the allegations that he took the Learner to Grade 7 on his own, the Learner and her stepmother are the ones who said the Learner is doing Grade7. He confirmed that he heard allegations that the Learner was having an affair with a Lesotho National and a factory worker.
[27] He testified that he was suspended on the 03 September 2010 and did not hold disciplinary inquiries for Sekoboto and Mokgobo. He was unable to concentrate due to the rape allegations. He denied that he charged the teachers in order to prevent them from pursuing the rape allegations against him. He testified that he does not know what happened to the inquiry as he was suspended. The Applicant testified that during his disciplinary inquiry only two learners were called to testify and he disputed the documentary evidence in pp.36-39 of “B”, which are the statements taken from learners who were transported by the Applicant. He reiterated that he changed his drop off system that day in order to rush to the District Office to collect his letters. He further testified there are no trees at Mooigenoeg.
[28] The Applicant denied the sexual assault allegations and indicated that the Learner was vindictive as he demoted her. He denied the statement by Sekoboto that she demoted the Learner as she does not have powers to demote learners. These powers are vested with the Principal. He testified that even though Arts and Culture is examinable, he was unable to refer this misconduct to the Respondent’s labour relations as he was shortly suspended. The Applicant found out that the learner was not in school in two years when he phoned the learner’s previous school.
[29] On re-examination the Applicant admitted that p. 144 of “B” is corroborated by pp. 112-113, which is an affidavit by Sekoboto. He confirmed that the contents of p. 144 are apparent that both Mokgobo and Kompi visited the District Office requesting to speak to the Mothebe: District Director. As stated in the letter the purpose of their visit was to inform Mothebe that the Applicant abused the Learner and that her stepmother is aware. The Applicant admitted that he made the entry in p.2 of ”A” when he handed the misconduct charges to Skompi and Mokhobo. Sekoboto was absent that day. He confirmed that the teachers who were involved in the expulsion of the cook were Skumpi, Sekoboto and Mokhobo. He further confirmed that during his disciplinary inquiry Dingilizwe testified that he was forced to say statement that the Applicant left with the Learner.
Matsepang Agnes Nonyana testified under oath as follows:
[30] Dingilizwe Ramedupe is his son. In 2010 he was studying in Dr. Bethuel Setai Intermediate School. In an unspecified time in 2010 Dingilizwe told him that he was asked make a statement that the Applicant slept with Learner. Dingilizwe denied the incident. He was 12 years during that time. She was not contacted or informed when the statement was made. During the court case she was not allowed to enter the proceedings. She denied that the Applicant was their family friend. The witness testified that she knew the Learner’s stepmother. The stepmother told her that the learner was staying with a boyfriend before coming to stay with them.
[31] Under cross-examination she denied the fact that her family stood to gain by testifying on behalf of the Applicant. She testified that the Learner told her son that the Applicant will pay them R14 000-00. She testified that she further changed the amount to R25 000-00. She denied allegations that the Applicant was their family friend.
[32] On re-examination the witness testified that the Learner said the Applicant will pay them R14 000-00 in order for their names to be used during the court case. She indicated that she has not seen the person Learner was having an affair with.
[33] On the 23 May 2012 I recalled both Sekoboto and Mokhobo for clarity seeking questions.
Sekoboto testified under oath as follows:
[34] The Learner stepmother came to school to inquire as to who took her stepchild to the clinic. She informed her that she took her to the clinic. She offers life orientation, Economics and Management Sciences and Arts and Culture to learners. She admitted that Mrs. Skompi is her colleague. On the 29 July 2010 she was not in school. In 2010 she was her class teacher in Grade 5.
Mokhobo testified under oath as follows:
[35] She never attended a meeting with a social worker called T.E. Rakepa and the Learner’s stepmother. She was charged with misconduct by the Applicant. She was found not guilty. She confirmed that Skompi is her colleague. She also admitted that she knew Mothebe to be the District Director in 2010. She testified that the reason there were similarities in affidavit in p.129 & p. 144 was because of the incident of the clinic. She denied ever attending a meeting in the District Office. She admitted that she knew a social worker called T.E. Rakepa.
[36] The parties submitted their written arguments on the 05 June 2012as agreed and argued as follows:.
The Respondent’s submissions:
Mr. Tsunke submitted to, inter alia, the following effect:
[41] The evidence led by Sekoboto and Mokhobo [37] Disemelo’s stepmother requested a meeting with the Mokhobo & Sekoboto as the Learner said to her that Mr. Leeto took her to the clinic. The stepmother also wanted to establish the reason why the female educators failed to take the Disemelo to the clinic. Sekoboto testified that Disemelo was taken to Grade7 by Mr. Leeto as he was the person who approved her application.. Mr. Leeto did not identify the learning challenges of the learner. The learner challenged the allegations that she developed hatred against Mr. Leeto for her demotion. The learner insisted that the incident of sexual assault did take place next to Mooigenoeg in the trees. The learner cannot recall the date Mr. Leeto changed his drop off pattern but that is the day he went to the trees /forest to rape her.
[38] Dingilizwe initially wrote a statement indicating what happened on the day of the sexual assault but later changed his version. This could be attributed to the fact that her mother, Matsepang Agnes Nonyane testified that the Learner cannot be raped as she will be the one asking for the rape. During the inspection in loco pertaining to the location where the incident occurred, the manager of the farm indicated that only three have the keys to the gate, viz. the farmer, the farmworker and herself. Mr. Leeto mentioned a Sesotho name where the Learner is alleging the rape incident took place. Mr. Leeto knew the intellectual capacity of the Learner and her sexual history with a Lesotho national and the factory worker. He finally submitted the coincidence between the change of the drop off pattern and the day the learner was sexually assaulted. He pray that the application be dismissed.
The Applicant’s submissions:
Mr. Lebea submitted to the following effect, among other:
.[42] [39] The dismissal was substantively unfair because the alleged misconduct, i.e. the sexual intercourse with the Learner, Disemelo Mophethe, never took place and the allegation that the misconduct took place is a product of a malicious fabrication. The evidence of the alleged victim, Disemelo Mophethe, was improbable and implausible, self-contradictory, incredible and unreliable. It was illogical, inconsistent and unfair for the Chairperson of the disciplinary hearing to acquit the Applicant of the alternative charge based on cautionary rules of evidence and lack of corroboratory evidence but decided to find the Applicant guilty of the main charge when the same cautionary rules and lack of corroboratory evidence held the same application to the main charge as in the alternative charge.
[40] Sekoboto in her chief evidence testified that Disemelo told her that the Principal dropped other learners off where he usually dropped them but did not drop other learners and went somewhere to have sex. But a passage in her affidavit dated 19 August 2010 states that Disemelo had never at any stage told her that she had been raped. Sekoboto retracted her allegation that Disemelo had told her that the Applicant had sexual intercourse with her. Throughout the arbitration Disemelo testimony was that the alleged rape took place on the side of the road in Andries Pretorius road. During the inspection in loco she pointed at the locked gate as the entrance which the Applicant used to enter the property and to drive to the scene of the alleged misconduct.
[41] The lady emphasised that these people do not leave the gate unlocked. It’s their submission that is unlikely and improbable that the Applicant entered the property at any time during the period between 14 and 29 July 2010. No evidence was led to the effect that the Applicant had access to the keys of the gate or that the gate was not locked or closed on the particular day on which the alleged rape took place. There was no explanation why Disemelo or the adults assisting her did not report the alleged rape to the police. The only reported incident ot the police is the alternative charge. The Respondent failed to prove the charge on balance of probability that the Applicant raped or had sexual intercourse with Disemelo as alleged by her. The Applicant seeks reinstatement as a remedy.
ANALYSIS OF EVIDENCE AND ARGUMENT
[42] There was no dispute about the existence of a dismissal. The onus was on the employer to justify the dismissal was substantively fair as preserved in section 188 and section 192 of the Labour Relations Act (the Act as amended).
Substantive Fairness:
[43] The Respondent had to prove on balance of probabilities that the dismissal of the Applicant was for a fair reason related to his conduct by showing that the Applicant was guilty as charged and that the dismissal was an appropriate sanction.
[44] It was a common cause between the parties that the Applicant was dismissed for allegedly contravening provisions of section 17(1)(b) of the Employment of Educators Act, 76 of 1998 in that during July 2010 he committed an act of sexual assault on a learner, Disemelo Mophethe when he had sexual intercourse with her in his car.
[45] The parties during the arbitration process and in their submissions associated sexual assault with rape. I allowed the phrase to be used as I understood it to mean having sexual intercourse or penetration against another person without their consent
[46] Disemelo Mophete was the only witness who could testify directly as to the actuality of the alleged rape. Witnesses who testified repeated what she allegedly told them. She was a single witness pertaining to the rape incident. Disemelo was not a credible witness. Her evidence contained material inconsistencies. From the evidence led it was clear that she did not report the rape incident to her parents. Sekoboto testified that she was teaching life orientation in class one day and Disemelo said the Applicant was a rapist.
[47] Sekoboto testified that she wanted to gather more information regarding the sexual assault allegations. No evidence was led as to whether she eventually gathered the information she sought. Additionally in her written testimony she admitted that the learner’s stepmother came to school and complained to her that the learner’s panty is always full of male sperms. I have no evidence before me indicating that alleged male’s sperms are the Applicant’s.
[48] Mokhobo testified in her chief testimony that she knows nothing about the alleged sexual assault. She denied that she had a meeting with Mothebe in the District Office with the aim of informing him that the Applicant is abusing Disemelo. When recalled for clarity seeking questions on the 23 May 2012 she admitted that the Mokhobo mentioned in the report refers to her. She later changed her version and acknowledged some contents of p.144. In the interest of justice I am inclined to apply my mind on the contents of pp 142 & 143. There is a link and material similarities between Mokhobo’s testimony on p. 129 -130 and these documents. The contents of these pages specified how Mokhobo and Kompi (whom she confirmed as her colleague) visited the Office of District Director with the aim informing him that the Applicant is abusing Disemelo. The same contents are repeated on p.144 by Rakepa (a social worker) wherein she wrote that Mokgobo and her colleague informed the learner’s stepmother that the Applicant is sexually involved with learners and he insisted on taking the learner to the clinic for heavy menstruation flow. Both these documents are dated 10 & 12 May 2010 respectively.
[49] I must point out that both Sekoboto and Mokhobo did not make a good impression as witnesses. Their evidence had inherent improbabilities. Their evidence consisted of general assumptions rather than facts. As educators in the public education they are believed to be the custodians of the constitutionally recognized, paramount interests of the child. As section 28 (2) of the Constitution states, “A child’s best interests are of paramount importance in every matter concerning the child”. I find their actions to be in conflict with this principle.
[50] On the other hand the Applicant has a right to fair labour practices as well. The Respondent had a duty to discharge the onus that the dismissal was for a fair reason. I do not have evidence before me incriminating that the Applicant; Mr. Mokgothu Sophonia Leeto had sexual intercourse or penetrated the Learner, Disemelo Mophete. His evidence that he dropped off Disemelo and other learners was corroborated by Dingilizwe.
[51] Furthermore during the inspection in loco on the 22 May 2010 the Learner (Disemelo) changed the venue of the alleged rape and said it took place in a remote farm in Ribblesdale. Upon arrival on the farm, she pointed towards a gate allegedly used by the Applicant to gain entrance into the farm. However the gate was locked. We inquired with a farm worker who gave us the cell numbers of the people residing on the farm. I phoned & we met a lady called Uli Buchel. She said the gate is never left open. She said the only people who had the keys to the gate are people residing in the farm, the farmer and the farmer leasing the property for his cattle. No evidence was led to challenge this fact.
[52] The date and the venue where the rape is said to have taken place had a direct and material bearing on the case. This was not established and as such renders the allegations of the rape improbable. As a single witness Disemelo Mophethe was the only person who could verify the rape but she appeared to be elusive. I have taken her interests as a child to heart but these must also be balance against the evidence and fact before me. Sexual assault or rape is a degrading and traumatizing offense. I expected her to at least recall the venue of the alleged offence but she did not. She was unable to furnish me with an acceptable explanation about alleged rape incident. I was therefore not satisfied on balance of probabilities that Disemelo was a victim of sexual assault.
[54] The witnesses called in support of the Respondent were not credible and their testimony contained material defects.(see Nienaber JA in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Cie SA and others [2002] ZASCA 98 @ paragraph [5] or 2003(1) SA II (SCA) followed and applied recently by the Labour Court in Sasol Mining (Pty) Ltd v M Ngceleni and others [2010] ZALC 141)“The technique generally employed by courts in resolving factual disputes … may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all facts are equipoised probabilities prevail.
[53] On the basis of the above, I am inclined to find the version of the Applicant, more probable.
[54] I disregarded the testimony of Nonyana as it was based on her opinion about Disemelo. It was mainly about the character of Disemelo and did not assist the proceedings.
[55] Having applied my mind on the evidence before me, I am of the view that the Respondent failed to give me a fair reason for the dismissal of the Applicant. The Applicant requested retrospective reinstatement. There was nothing before me to suggest that continued employment relationship would be intolerable.
AWARD
[56] In the premises the Applicant, Mr. Sophonia Mokgothu Leeto is reinstated retrospectively in the position which he occupied with the Respondent prior to his dismissal without loss of income and benefits;
[57] The Respondent shall pay the Applicant, Mr. Sophonia Mokgothu Leeto in respect of accrued salary as well as benefits from the date of dismissal to the date of resumption of duties by no later 30 September 2012;
[58] The Applicant. Mr. Sophonia Mokgothu Leeto is to resume his duties by no later than 31 August 2012.
[59] I make no order as to costs.
_________________
DPP SELELANE
ELRC PANELLIST
25 JULY 2012 .