PSES964-18/19
PSES964-18/19
Award Date:
30 September 2019
Case Number: PSES964-18/19
Province: KwaZulu-Natal
Applicant: NAPTOSA obo GANAS P
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Durban Dookies Centre and later on at the Durban Teachers Centre, Overport
Award Date: 30 September 2019
Arbitrator: VUYOKAZI NGWENYA
IN THE ELRC ARBITRATION
BETWEEN:
NAPTOSA obo GANAS P Applicant
And
DEPARTMENT OF EDUCATION – KZN PROVINCE Respondent
ARBITRATION AWARD
Case Number: PSES964-18/19
Last date of arbitration: 21 August 2019
Receipt of closing arguments: 30 August 2019
Date of award: 30 September 2019 (extension of time granted by ELRC)
VUYOKAZI NGWENYA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.org.za SelloM@elrc.org.za MatloseM@elrc.org.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was conducted over four days i.e. 17 May, 17 and 30 July and was concluded on 21 August 2019, initially at the Durban Dookies Centre and later on at the Durban Teachers Centre, Overport. The Applicant is Mr. P Ganas, represented by Ms I Dhanook, an executive officer from NAPTOSA. The Respondent is the KwaZulu Natal Department of Education, represented by Ms M Mtetwa. Language practitioners, Mr B A Hadebe and Ms P Mabele provided interpretation services and intermediary, Ms B Khanyile was also present and provided professional services as 8 out of 10 witnesses were minors.
2. Both parties were directed to submit their closing arguments on or before 30 August 2019. Both parties complied. The award was rendered outside the required timeframes because I had requested the extension of time and secondly I encountered some health problems which required regular hospital visits for tests and consultation with medical specialists, details of which are available should the ELRC wish to be provided with same. The case management officer was also updated on a regular basis.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
3. The arbitration takes place in terms of the referral of the dispute by the Applicant. The Applicant was employed by the Respondent as an Educator at Hillgrove Secondary School for about 17 years.
4. He was charged with improper conduct, administering corporal punishment and sexual harassment. He was on paid suspension and upon finalization of the internal process he was dismissed, he unsuccessfully appealed his dismissal. The Appeal outcome was in February 2019.
5. The charges were as follows: Charge 1 ‘On or about 1st school term of 2018 and at or near the school you allegedly conducted yourself in an improper manner by calling Grade 8c learners Nolwazi Buthelezi, Anele Blose and Nokwnda Mthembu with degrading names. You thereby contravened Section 18(1) (q) of the Act. Charge 2 : In that during the 1st school term of 2018 you allegedly, whilst on duty contravened Section 10 of the South African Schools Act 84 of 1996, as amended, in that you administered corporal punishment on Nokwanda Mthembu, grade 8c learner, in so doing you contravened Section 18(1)(a) of the Act. Charge 3: During the first school term 2018 whilst on duty you allegedly committed an act of sexual harassment on Ntombikayise Shange and Kwanele Mholi grade 9A learners by slapping their butt. In so doing you contravened Section 17(1) (b) of the Act. Charge 4: In that around school term 2018 it is alleged that you intimidated Londeka Mbili grade 9A learner by telling her to stop stupid comments about you because she will get into deep trouble. In so doing you contravened Section 18 (1) (u) of the Act. Charge 4 was withdrawn at the internal disciplinary inquiry.
6. The Applicant disputed both the substantive and procedural fairness of the dismissal. The Applicant’s main contention is that he did not commit any sexual harassment and was therefore incorrectly charged under Section 17. He is seeking reinstatement as an appropriate remedy.
PRELIMINARY ISSUES
7. The Applicant’s representative initially sought that the Respondent’s representative should present and limit her defense to sexual harassment charge and nothing else as all other charges carried a lesser sanction than dismissal. The Respondent’s representative disagreed. I had to remind parties that the nature of the matter before me is an unfair dismissal dispute and since dismissal is not in dispute, the onus to prove its fairness rested with the Respondent. It is against this background that I made a ruling granting both parties to present before me any kind of evidence, without any unnecessary curtailment, that they deem appropriate to support their respective cases. Needless to say, my duty is to analyse evidence presented before this council.
8. Parties confirmed that there was a pre arb meeting and the minutes were made available. Both parties also submitted bundles of documents.
9. The Applicant’s representative also raised other preliminary issues that were quite irrelevant and time consuming. For example, she kept on referring to the Respondent’s witnesses who were waiting in one room that they should have been separated to ensure credibility. Strange enough, her very witnesses were also in one waiting room with an adult who transported them and was also one of the witnesses.
10. The Applicant’s representative also made reference to rumours of intimidation of the Applicant’s witnesses but provided nothing tangible except that ‘she had heard’ or ‘there were suspicions’ etc. I have disregarded this information as there was no evidence or even sound and reasonable information presented before me except reference to ‘rumours’ and ‘suspicions’.
SUMMARY OF EVIDENCE AND ARGUMENTS
Respondent’s case
11. The Respondent submitted the documents contained in Bundle A. All of the Respondent’s witnesses are minors and were separated by a partition so that they would not see the Applicant while tendering their testimony. However, they were in full view of other parties,
12. The Respondent’s representative called six witnesses to testify on its behalf.
13. The first witness was Nolwazi Buthelezi. She was sworn in and testified as follows:
14. She is 15 years old and was in the Applicant’s technology class in 2018. She testified that the Applicant used to hit pupils with what appeared to be an electric ‘stick’. He also called learners degrading names. He often referred to her as the girl with balls in her head. The Applicant also told her that she has a ‘spirit of one, spirit of zero’. That meant that she was stupid. He in fact said it out loud that she was stupid and he also said this to another learner, Nokwanda Mthembu. She was in class when the Applicant hit Nokwanda on her butt with his electric stick because she had not done her homework. He mocked Nokwanda that her legs were very masculine, she had ‘calves like those of a man’. Nokwanda was very hurt because she naturally walked badly, with some kind of difficulty. The Applicant had a habit of hitting learners. He also hit her. He also called other learners degrading names e.g he called Anele a black cat and Anele was deeply hurt.
15. Under cross examination she stated that her mother did not go to school when the Applicant asked for her. She also conceded that she was told by other learners that the Applicant called her a girl with balls in her head. She also conceded that the term ‘spirit of one, spirit of zero’ was first said by their school principal but insisted that it had a different meaning and it was not just referring to the company that one keeps ‘spirit of one’ but also referred to stupid people ‘spirit of zero’and that is what the Applicant was in fact referring to when he constantly referred to her as spirit of zero. She also insisted that she heard the Applicant calling Anele a black cat and also mocking Nokwanda by making fun of her legs.
16. The Respondent’s second witness was Anele Blose , a 14 year old learner, who testified as follows:-
17. The Applicant repeatedly humiliated her in full view of others by calling her a black cat because she has a dark skin complexion. Whenever she told the Applicant that she did not like that, the Applicant persisted in calling her a black cat. She also confirmed that the Applicant called Nolwazi Buthelezi the girl with balls in her head. They were the source of ridicule because the Applicant openly called them degrading names. The Applicant also made sexual remarks whenever he heard them speaking in isiZulu, he would ask them if they wanted him to go and sleep with their mothers so that he can have a better understanding of the isiZulu language. This hurt her deeply as her mother was deceased and had died in her presence.
18. Under cross examination, she insisted that it was the Applicant and not other learners who called her black cat and even if the other learners mocked her and called her a black cat it was because the Applicant always persisted in shaming her. She insisted that she had begged the Applicant to stop calling her that as it was very humiliating and painful.
19. The Respondent’s third witness is Ntombikayise Shange a 15 year old pupil, she testified as follows:
20. She is currently in grade 10. The Applicant was her technology teacher in 2018. She testified that the Applicant used to openly humiliate her by saying that she would break the chair because she is huge. The Applicant also administered corporal punishment. There was one particular occasion where the Applicant asked them to do 3D shapes but she made a mistake and did a 2D shape. The Applicant was walking around the class inspecting the learners’ work. He came behind her and noticed that she had done the wrong thing. She was seated on a high chair (photo/exhibit part of the Respondent’s bundle), the kind of chair that ‘exposes’/does not ‘cover’ the upper part of the butt. The Applicant squeezed and hit her on her butt with his hand. The class exclaimed in shock and she felt extremely violated and humiliated.
21. The Applicant was often rude to leaners. He used to humiliate and belittle them. Under cross examination, she maintained that she was hit on the butt by the Applicant and that she reported the incident to her mother who, in turn, went to the school and spoke to the principal about the incident.
22. The Respondent’s fourth witness was Fatima Cele, a 16 year old learner, who testified as follows:-
23. She saw the Applicant hitting Ntombikayise’s butt, it was wrong and embarrassing. The other learners in class who saw it exclaimed in shock. It was wrong for him to do that.
24. The Applicant once hit her with his electrical cord like stick. His conduct was abusive and he found pleasure in humiliating learners, at one point he made on the learners, Londeka, to take off her shoes and run around outside in the school assembly area. He also used to make comments about her eyes. The Applicant also made her feel very uncomfortable. He once poked her on the side in a very uncomfortable manner. He once commented on the length of her skirt and made girls to stand in front of the class and demanded that one of them, Sinegugu, to bend. That was beyond humiliating. On one occasion he asked her, Fatima Cele, to bend next to his desk to pick up something and when she did, he kicked her ‘very softly’ she exclaimed ‘sir!’ to which he responded ‘what’ in a very uneasy tone. When she said she would report the incident to her mother, the Applicant’s response was a direct question ‘is your mommy slim or fat?’ He was also in a habit of saying to the learners ‘do you want me to sleep with your mothers?’ whenever he caught any of them speaking Zulu.
25. Under cross examination, when it was put to him that the Applicant is going to deny that he ever hit Ntombikayise on her butt, Fatima blurted out ‘wamupantsa! I saw him!’ (this is a Zulu way of describing an act by a man hitting a woman’s butt in a very sexual way, it is more like hitting firmly and squeezing the butt’) and everyone in class was talking about it. When asked if they, as the Respondent’s witnesses discussed this matter when it was at the disciplinary hearing stage, her response was ‘we were not really allowed to talk about it. When asked if other teachers at school hit other learners, her response was in the affirmative.
26. The Respondent’s fifth witness was Amogelang Mpoko, a 15 year old learner. In summary, she gave the following testimony:
27. She confirmed that she saw the Applicant hit Ntombikayise in her butt. It made a sound and the class exclaimed in shock. It was inappropriate. The Applicant would at times ridicule Londeka because of her eye condition. He would sometimes remark ‘are you looking at me or that side or outside’
28. Under cross examination, she was asked if she knew anything about the video showing one of their teachers hitting a learner. She confirmed and also stated that the teacher is still at the school. She was also asked if a member of the School governing body did ask them anything about the Applicant and her response was that the issue was once raised.
29. The Respondent’s sixth and last witness was Londeka Mbili, a 15 year old learner. This is the summary of her testimony:-
30. She had an accident when she was young and if affected her eyes. The Applicant used to painfully tease and ridicule her about her eyes. His comments were deeply hurtful and at times he would tell him that, despite that, the Applicant would not cease making hurtful remarks. At times he called her stupid idiot. Some learners referred to her as ‘cocked eye’ because they heard the ugly remarks from the Applicant. He once made her take off her shoes and run around the assembly area for about 20 times. She was humiliated and told one Mrs Mfusi about it. Mrs Mfusi, assured her that she would inform the school principal.
31. As a girl scout she would sometimes arrive late in class from scouting sessions. The Applicant would demand a letter from the scout master/teacher and she would comply. She used to sit in front but the Applicant instructed her to go and sit at the back because she was stupid. This hurt her deeply because the Applicant knew that she had a vision and hearing problem. Her command of the English language was not so good and whenever the Applicant caught them speaking isiZulu he would say to them “do you want me to sleep with your mothers? Or I will go to your homes and sleep with your sisters and mothers!” The Applicant is no longer teaching at the school but she is still mocked because of the comments he used to make.
32. She also stated that she saw the Applicant hitting Ntombikayise with a stick, his electrical cord like stick.
33. Under cross examination, she confirmed that she gave the Applicant the letters that her mother wrote, one of those letters advised the Applicant of her vision and hearing challenges. She also stated that her mother used to phone the school because she was concerned about her, Londeka’s, daily struggle to go to school.
Applicant’s case
34. The Applicant’s representative made preliminary remarks. Firstly she stated that she had heard that some of her witnesses were intimidated. When I asked her to provide details, her response was that, it was a rumour. She then said in addition to the Applicant testifying she had three other witnesses, two learners and an educator. The Applicant’s representative also stated that she preferred to have the Applicant in the room when his witnesses are testifying. The Respondent’s representative objected. I made an interlocutory ruling that the Applicant may sit in if he so wishes and if he believes that his presence will enable his representative to sufficiently prepare for cross examination. I did however state that, depending on the content of his witnesses’ evidence, his corroboration may be weakened when his turn to testify came.
35. The Applicant’s first witness was Lihle Qekenya, a 14 year old learner, he testified as follows:
36. He was in the same class with Nolwazi, Anele and Nokwanda. Nolwazi and Nokwanda behaved badly They were loud, ate in class and generally misbehaved. The Applicant had to separate them. The Applicant never referred to them or anyone by degrading names. He has never heard anything about the phrase’ spirit of one and spirit of zero’. The Applicant used a ruler and not a white stick to hit them. After the internal disciplinary hearing the girls told him they lied.
37. Under cross examination, he conceded that Nolwazi and Nokwanda were not the only ones who were loud in class. When asked who referred to Nolwazi as the girl with a deformed head/ ‘balls in the head’ his response was that it was the class altogether. He confirmed that the Applicant did hit the learners.
38. The Applicant’s second witness was Nomonde Mngadi, a 15 year old learner, whose testimony was as follows:-
39. She captured the video of one their educators beating up a learner. The video went viral and other learners shared it because she had it on her WhatsApp status. The school principal pressurized her to delete the video. The said educator, Ms Ngcobo, is still teaching at their school. She recorded the video because she was tired of that teacher’s behavior. She knew that she was not supposed to bring the phone at school. She confirmed that she knew educator Mfusi and that Mfusi used to call Fatima, Londeka and others to talk about the Applicant’s case.
40. Under cross examination, she was asked why was she called to testify and her response was that she was there to differentiate between the Applicant’s and Ms Ngcobo’s case. She was also asked if she had heard what Ms Mfusi discussed with Fatima, Londeka and others. Her response was that she was not concentrating and ‘did not listen carefully’.
41. The Applicant’s third witness was Krivashni Morris, an Educator at Hillgrove who is also a NAPTOSA member. Her testimony was as follows:
42. The principal once called a briefing and informed teachers that they are not allowed to speak to the learners about the Applicant’s case. But she, the witness, suspected that Njapha and Mfusi were discussing the Applicant’s matter with the learners and therefore assumed that the girls were then couched by these teachers how they should present their case. She also testified that the educator who was caught on video hitting a learner is still teaching at school, nothing was ever done about the incident.
43. Under cross examination, she confirmed that she did not teach any of the affected learners and that she was unable to comment on the charges against the Applicant. She came to the hearing because she transported the Applicant’s witnesses and was also present when the Principal spoke to educators about the Applicant’s case.
44. The Applicant’s testimony was as follows:-
45. He has been an educator for over 18 years and has taught various subjects including English, Life Orientation and Technology. In 2018 he taught Technology to grade 8c learners. He denied that he ever called Anele ‘black cat’ or even referred to Nolwazi as a girl with balls on her head. He heard learners referring to them like that. Nokwanda was rude and always late Nolwazi did not do her work and was ‘chatty’ and disruptive, Anele was cheeky and very defensive. They all lied about him because he was strict and he openly reprimanded them. He did not have an electric chord like stick that he hit learners with and the first time he ever heard about these allegations when the Respondent’s representative came to the school to inform him of the allegations and thereafter asked him to leave immediately.
46. He also denied that slapped Ntombikayise on her butt. Fatima Cele and others lied, in fact Fatima is an attention seeker. She misunderstood him when he once asked all the girls who wore short skirts to stand in front of the class and simply asked them if they would be comfortable if he asked them to end and the girls said no. He did all of this to highlight the school rule that the girls’ skirts should not be shorter than 10cm.
47. His representative then asked him about his understanding of sexual harassment and his response was that it was an unwelcome sexual conduct done alone and in private. He then said he was never alone with Ntombikayise. He also explained that the phrase ‘spirit of one and spirit of zero’ was said by the student leader and it meant that ‘spirit of one’ you are with people who are progressing in life, taking you forward and ‘the spirit of zero’ meant the opposite.
48. Under cross examination he denied that he ever said to girl learners ‘ do you want me to sleep with your mothers’ whenever he caught them speaking in isiZulu. When shown the photo of Ntombikayise seated on a high chair with the upper part of her butt i.e from waist down, he argued that it was not the butt but the thigh. When asked again to define sexual harassment, he ‘repeatedly said ‘alone’ ‘when the offender and the victim are alone’ He also said he was a disciplinarian and there were no learners who were disrespectful towards him. He said his intention was to make the girls to be proud of their bodies and not entice people out there. He said he asked the girls what would be exposed if they bend and the girls responded that their underwear would show.
SUMMARY OF ARGUMENTS
49. In a very brief summary, the Applicant’s dismissal was fair. His defense was weak and he in fact indirectly admitted that he was guilty of wrong doing. The Respondent’s witnesses were credible. The Council should uphold the Respondent’s decision to dismiss him.
50. In essence, the crux of the Applicant’s representative argument was that the Applicant was not guilty of sexual harassment and even if he was guilty of other charges other than sexual harassment he ought not to have been dismissed as those were not dismissible offences. There was sufficient proof, in a form of a video, that other educators did hit learners but were neither disciplined nor dismissed. Therefore, the Applicant was only disputing the categorization of section 17 charge. The specific charge was ‘during the first school term 2018 whilst on duty you allegedly committed an act of sexual harassment on Ntombikayise Shange and Kwanele Mhlohi grade 9a learners by slapping their butt. In so doing you contravened section 17(1) (b) of the Act’. The Applicant was victimized and targeted. Nolwazi Buthelezi was a weak learner who had failed a class. Fatima Cele was dramatic and was coached. It was Ms Njapha who told witnesses to lie and say that the Applicant often asked them whether they wanted him to sleep with their mothers.
ANALYSIS OF EVIDENCE AND ARGUMENT
51. As stated earlier, the dismissal of the Applicant is not in dispute, therefore the onus is on the Respondent to prove that it was both substantively and procedurally fair.
52. The Applicant disputed the substantive and procedural fairness of the dismissal, and the Respondent has the duty to prove the fairness thereof.
53. Before I deal with the merits of the case it is important for me to briefly touch on the following information pertaining to this matter. 8 out of 10 witnesses who testified before me were children. Section 28 of the Bill of Rights provides for specific rights of children and in particular, subsection 2 directs the courts to treat a child as somebody with attributes, qualities and sensibilities and vulnerabilities which make them different from adults. In dealing with this matter I also kept in mind the provisions of Section 170A of the Criminal Procedure Act which deals with the legislative framework for an intermediary. It is against this background that prior to the commencement of the case I asked both representatives to accompany me to the rooms where the child witnesses were seated. I introduced myself and others, briefly explained the proceedings and the intermediary’s role, I also provided a brief summary in simple terms about their role and why it is always important to tell the truth. Furthermore, in the hearing room I explained to both parties the importance of asking child witnesses simple questions in short easy to understand sentences adopting a simple vocabulary and avoiding a very formalistic approach, for example saying to a child witness ‘you told us earlier’ instead of saying ‘ I put it to you, you testified earlier’ etc. I commend both representatives for conducting themselves professionally especially when cross examining the opponent’s child witness.
54. The provisions of both sections 17 and 18 of the Employment of Educators Act are very clear. Whether it is prior or after the amendments, the crux of Section 17 is that an educator shall be guilty of misconduct if he or she behaves in a disgraceful, improper or unbecoming manner or commits sexual act or any other form of sexual harassment. Section 18 touches on the breakdown of employment relationship if the educator commits any of the misconduct deemed to be serious and negatively impacting on the continued harmonious employment relationship.
55. My task is to weigh the evidence placed before me by the respective witnesses, consider the probable version and decide whether the dismissal of the Applicant was fair or not. I have considered both versions and without necessarily repeating their testimonies, I now provide an analysis. Nolwazi Buthelezi conceded that she heard from others that the Applicant referred to her as the girl with the balls in her head but insisted that the Applicant did call her ‘spirit of zero’ meaning she was stupid and that the Applicant ridiculed and called Nokwanda a girl with legs/calves of a man and Anele a yum yum black cat. Her evidence was corroborated by Anele. She further testified that the Applicant was rude, humiliated learners and regularly administered corporal punishment. The Applicant’s representative cross examination was mainly that Nolwazi was a failure, she repeated a grade and that Nokwanda (who was not present to testify) was a mentally disturbed child who even attempted to commit suicide. Even in the written closing argument the Applicant referred to Nolwazi as a weak learner with a distorted self-image.
56. Anele Blose’s testimony was largely similar to Nolwazi but she also added that the Applicant had a habit of asking them if they wanted him to sleep with their mothers whenever he caught them speaking isiZulu. This version was corroborated by Londeka and Fatima. The Applicant’s defense was a bare denial.
57. Ntombikayise Shange testified that the Applicant made fun of her weight, he was rude to her and other learners. The Applicant openly violated and impaired her dignity by hitting her on her bum. She was seated on a high chair (photo shown as part of the bundle) with her upper butt exposed. Others in class saw it and exclaimed in shock. The Applicant at first denied it and when cross examined the Applicant then said the back part that was exposed was not the butt but part of the thigh area. The Applicant then insisted that for an act to be sexual it must be done ‘alone’ by this he said he meant it had to be between the perpetrator and the victim in the absence of others. So convinced of this belief was the Applicant so much so that in his closing arguments it is written ‘there can never be any sexual connotation attached to hitting a child in a class full of learners’, the Applicant’s representative also insinuated that the witnesses especially those who testified that they witnessed the Applicant slapping Ntombikayise in the butt were prepared/coerced by Mrs Njapha to say so. The Applicant did not present any sound evidence or any kind of proof except that ‘they strongly suspected so’ because Mrs Njapha ‘discussed the matter with them’ and also transported them to the hearing. Strangely enough, the Applicant’s witnesses were also transported by an educator who was also a witness in this case. The Applicant’s witnesses, Nomonde Mngadi and Krivashni Morris, conceded under cross examination that they had no proof that Ms Mfusi and Mrs Njapha coerced or coached the Respondent’s witnesses. Nomonde said she assumed/ she never heard them / she was not listening carefully. Krivashni’s said she suspected so because the principal had said they, educators, should not interfere and when she saw them with the learners she then assumed that they were talking about the Applicant’s case coercing them.
58. Fatima Cele’s evidence was very clear, she was adamant that the Applicant hit Ntombikayise’s but in a sexual way. When cornered during cross examination she blutered out ‘wamupantsa!’ T meaning was explained above This is a Zulu one word that describes a very sexual way of hitting someone especially the butt. Fatima’s evidence was crisp and clear and she remained unshaken during cross examination, She narrated her own account of being subjected to the Applicant’s unbecoming conduct e.g being kicked softly in a very uncomfortable way in the butt and also the Applicant instructing female learners to stand in front and bend etc. The Applicant seriously contradicted himself which clearly demonstrated to me that he was being untruthful. At first he denied it and then later on said he asked the girls if they would be comfortable if he asked them to bend, he said he posed this question because he wanted them to seriously think about their appearance and the length of their skirts which ‘would entice people’ those were his words. His other version was that he had asked them what would show if they were to bend. I found the Applicant to be unreliable and untruthful. He also stated that the Applicant’s witnesses version that he called learners names was untrue, he simply heard other learners referring to them as such i.e girl with balls in her head, yum yum black cat etc. What is baffling and is really sad about the Applicant’s version, assuming it is true, is that not even once did he testify that he reprimanded the other learners from calling other learners with such degrading names. An educator is an adult, learners are children. In the school environment an educator is in loco parentis, he has a responsibility of promoting a safe environment that totally discourages impairment of dignity and/or shameful acts directed at other learners. In his testimony, the Applicant also contradicted himself over and over again. He described learners Nolwazi as rude, disruptive, chatty and seldom did her homework, and Nokwanda as being rude, disrespectful and always late, Anele was cheeky, she talked back and was very defensive and Fatima as being dramatic and an attention seeker. Yet he also testified that no learner was ever disrespectful or rude to him because he was a serious disciplinarian. Comparing this to what he said earlier that the witnesses were openly rude and disrespectful to him in class made it clear that the Applicant’s version was improbable and that he was creating his defense as he moved along. This again was apparent in how he handled his case, though his representative of course who was seated next to him throughout the proceedings When the Respondent’s witnesses were cross examined it was either a bare denial or a brief explanation aimed at justifying an otherwise questionable conduct. Whereas when he was testifying he would usually provide a version which was never put to the Respondent’s witness e.g. Ntombikayise’s matter regarding the upper back and the back being part of the thigh, whatever that meant.
59. The Applicant’s witness, Lihle Qekenya was untruthful. Firstly the Applicant himself admitted that the ‘spirit of one, spirit of zero’ phrase was originally stated by one student leader in the assembly and was widely known and used in the school to mean ‘ spirit of one’ is about togetherness, working well with your team, good influence etc and spirit of zero meant the opposite. Lihle testified that he never heard of it, he did not know it yet he was actively involved in student matters. Secondly, Lihle conceded that Nolwazi and Nokwanda were not the only ones who were loud, noisy in class. He also testified that ‘the girls’ came to him after the internal disciplinary hearing and confessed that they had lied. If that was indeed the case, why did he not report that especially given his leadership role in the learner/student matters? One thing he confirmed though was that the Applicant did hit learners especially if they had not done their work. Nomonde Mngadi’s evidence centered on the video that she recorded, the rest of her testimony, she even conceded, was based on her suspicions and nothing concrete. It is not clear why Krivashni was called as a witness. It makes perfect sense that the principal, as the accounting authority of the school, would call a meeting to brief the educators and caution them on how to deal with a matter so sensitive affecting one of their own. Krivashni and other Applicant’s witnesses did not provide any clear evidence that Njapha and Mfusi were coaching/coercing the Respondent’s witnesses. They admitted that their utterances were based on suspicions.
60. The Applicant’s failure to grasp what conduct entails sexual conduct is seriously disturbing. He said sexual harassment/ violation can never occur in public. This implies that he does not consider what he did to Ntombikayise to be sexually inappropriate because it was in full view of other learners. At first he denied that he slapped/ hit Ntombikayise on the butt saying that it impossible to do so as she was seated. When shown the exhibit he changed tune and said the upper back part is in fact part of the thigh he could not have hit her on her thigh. The witnesses were clear in their testimonies. They saw him hit Ntombikayise’s butt with his hand. Londeka Mbili said it was with a stick. In addition, Nolwazi said the Applicant once hit Nokwanda with a stick on her bum, Fatima also testified that the Applicant once kicked her on her butt after asking her to bend. His own witnesses testified that he did hit learners. Londeka is the one with who testified that the Applicant ridiculed her because of her eyes. She said she had a vision and a hearing problem (caused by an accident that happened in her early childhood) and the Applicant was well aware of her eye problem. It is quite possible and I accept it as probable that Londeka did see the Applicant hit Ntombikayise but testified that it was with a stick and not the hand as others had said. This does not in any way discredit her as a witness nor does it nullify her evidence. If anything at all it depicted a picture of a very young girl who was constantly verbally abused and humiliated by someone in authority and also witnessed the very same person inflicting pain, harm and repeatedly violating others so much so that she could have easily confused two separate incidents which both involved the Applicant behaving improperly by hitting other learners on their butts. Communication, cognitive competence and to some extent, accurate information storage of a child under stress may be compromised but that does not mean that the child is lying.
61. Enquiring from girl learners if they wanted the educator to sleep with their mothers, asking a girl child to bend and then kick her in a slow but uncomfortable (as described by the witness) at the bum and when she says she would tell her parent, then asking her if her mom is fat or slim, clearly constitute improper behavior of a sexual nature.
62. Ridiculing a girl child and humiliating her because she is overweight, mocking a child with a vision problem and ‘cocked eye’ making fun of a child and commenting that her legs look like those of a man is one of the worst forms of emotional abuse and in the educator-learner relationship that is gross misconduct. Nokwanda was not present to testify but those who tendered evidence did describe under oath the Applicant’s improper conduct towards her. The Applicant’s defense was that Nokwanda was a child with a troubled background and she once attempted to harm/kill herself. The other allegations were just bare denial.
63. The evidence place before me clearly demonstrated that the Applicant abused his position of authority, his improper conduct including sexual undertones negatively affected learners. The Applicant’s version was full of contradictions and assumptions.
64. The Respondent has a duty to discipline and if needs be dismiss educators who behave improperly. The assertion that corporal punishment can never amount to dismissal is untrue. Each case is dealt with on its own merits and the severity of the acts can never be viewed in isolation. The Applicant also committed disgraceful and serious acts of sexual nature as outlined above. I therefore find that the dismissal of the Applicant was both substantively and procedurally fair.
FINDING
65. I uphold the Respondent’s decision. I find that dismissal was an appropriate sanction. Therefore, the dismissal of the Applicant was both substantively and procedurally fair.
REMEDY
66. There is none.
AWARD
I make the following award:-
67. The application is dismissed.
VUYOKAZI NGWENYA
Arbitrator
30 September 2019
PSES964- 18/19 KZN
Province: KwaZulu-Natal
Applicant: NAPTOSA obo GANAS P
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Durban Dookies Centre and later on at the Durban Teachers Centre, Overport
Award Date: 30 September 2019
Arbitrator: VUYOKAZI NGWENYA
IN THE ELRC ARBITRATION
BETWEEN:
NAPTOSA obo GANAS P Applicant
And
DEPARTMENT OF EDUCATION – KZN PROVINCE Respondent
ARBITRATION AWARD
Case Number: PSES964-18/19
Last date of arbitration: 21 August 2019
Receipt of closing arguments: 30 August 2019
Date of award: 30 September 2019 (extension of time granted by ELRC)
VUYOKAZI NGWENYA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.org.za SelloM@elrc.org.za MatloseM@elrc.org.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was conducted over four days i.e. 17 May, 17 and 30 July and was concluded on 21 August 2019, initially at the Durban Dookies Centre and later on at the Durban Teachers Centre, Overport. The Applicant is Mr. P Ganas, represented by Ms I Dhanook, an executive officer from NAPTOSA. The Respondent is the KwaZulu Natal Department of Education, represented by Ms M Mtetwa. Language practitioners, Mr B A Hadebe and Ms P Mabele provided interpretation services and intermediary, Ms B Khanyile was also present and provided professional services as 8 out of 10 witnesses were minors.
2. Both parties were directed to submit their closing arguments on or before 30 August 2019. Both parties complied. The award was rendered outside the required timeframes because I had requested the extension of time and secondly I encountered some health problems which required regular hospital visits for tests and consultation with medical specialists, details of which are available should the ELRC wish to be provided with same. The case management officer was also updated on a regular basis.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
3. The arbitration takes place in terms of the referral of the dispute by the Applicant. The Applicant was employed by the Respondent as an Educator at Hillgrove Secondary School for about 17 years.
4. He was charged with improper conduct, administering corporal punishment and sexual harassment. He was on paid suspension and upon finalization of the internal process he was dismissed, he unsuccessfully appealed his dismissal. The Appeal outcome was in February 2019.
5. The charges were as follows: Charge 1 ‘On or about 1st school term of 2018 and at or near the school you allegedly conducted yourself in an improper manner by calling Grade 8c learners Nolwazi Buthelezi, Anele Blose and Nokwnda Mthembu with degrading names. You thereby contravened Section 18(1) (q) of the Act. Charge 2 : In that during the 1st school term of 2018 you allegedly, whilst on duty contravened Section 10 of the South African Schools Act 84 of 1996, as amended, in that you administered corporal punishment on Nokwanda Mthembu, grade 8c learner, in so doing you contravened Section 18(1)(a) of the Act. Charge 3: During the first school term 2018 whilst on duty you allegedly committed an act of sexual harassment on Ntombikayise Shange and Kwanele Mholi grade 9A learners by slapping their butt. In so doing you contravened Section 17(1) (b) of the Act. Charge 4: In that around school term 2018 it is alleged that you intimidated Londeka Mbili grade 9A learner by telling her to stop stupid comments about you because she will get into deep trouble. In so doing you contravened Section 18 (1) (u) of the Act. Charge 4 was withdrawn at the internal disciplinary inquiry.
6. The Applicant disputed both the substantive and procedural fairness of the dismissal. The Applicant’s main contention is that he did not commit any sexual harassment and was therefore incorrectly charged under Section 17. He is seeking reinstatement as an appropriate remedy.
PRELIMINARY ISSUES
7. The Applicant’s representative initially sought that the Respondent’s representative should present and limit her defense to sexual harassment charge and nothing else as all other charges carried a lesser sanction than dismissal. The Respondent’s representative disagreed. I had to remind parties that the nature of the matter before me is an unfair dismissal dispute and since dismissal is not in dispute, the onus to prove its fairness rested with the Respondent. It is against this background that I made a ruling granting both parties to present before me any kind of evidence, without any unnecessary curtailment, that they deem appropriate to support their respective cases. Needless to say, my duty is to analyse evidence presented before this council.
8. Parties confirmed that there was a pre arb meeting and the minutes were made available. Both parties also submitted bundles of documents.
9. The Applicant’s representative also raised other preliminary issues that were quite irrelevant and time consuming. For example, she kept on referring to the Respondent’s witnesses who were waiting in one room that they should have been separated to ensure credibility. Strange enough, her very witnesses were also in one waiting room with an adult who transported them and was also one of the witnesses.
10. The Applicant’s representative also made reference to rumours of intimidation of the Applicant’s witnesses but provided nothing tangible except that ‘she had heard’ or ‘there were suspicions’ etc. I have disregarded this information as there was no evidence or even sound and reasonable information presented before me except reference to ‘rumours’ and ‘suspicions’.
SUMMARY OF EVIDENCE AND ARGUMENTS
Respondent’s case
11. The Respondent submitted the documents contained in Bundle A. All of the Respondent’s witnesses are minors and were separated by a partition so that they would not see the Applicant while tendering their testimony. However, they were in full view of other parties,
12. The Respondent’s representative called six witnesses to testify on its behalf.
13. The first witness was Nolwazi Buthelezi. She was sworn in and testified as follows:
14. She is 15 years old and was in the Applicant’s technology class in 2018. She testified that the Applicant used to hit pupils with what appeared to be an electric ‘stick’. He also called learners degrading names. He often referred to her as the girl with balls in her head. The Applicant also told her that she has a ‘spirit of one, spirit of zero’. That meant that she was stupid. He in fact said it out loud that she was stupid and he also said this to another learner, Nokwanda Mthembu. She was in class when the Applicant hit Nokwanda on her butt with his electric stick because she had not done her homework. He mocked Nokwanda that her legs were very masculine, she had ‘calves like those of a man’. Nokwanda was very hurt because she naturally walked badly, with some kind of difficulty. The Applicant had a habit of hitting learners. He also hit her. He also called other learners degrading names e.g he called Anele a black cat and Anele was deeply hurt.
15. Under cross examination she stated that her mother did not go to school when the Applicant asked for her. She also conceded that she was told by other learners that the Applicant called her a girl with balls in her head. She also conceded that the term ‘spirit of one, spirit of zero’ was first said by their school principal but insisted that it had a different meaning and it was not just referring to the company that one keeps ‘spirit of one’ but also referred to stupid people ‘spirit of zero’and that is what the Applicant was in fact referring to when he constantly referred to her as spirit of zero. She also insisted that she heard the Applicant calling Anele a black cat and also mocking Nokwanda by making fun of her legs.
16. The Respondent’s second witness was Anele Blose , a 14 year old learner, who testified as follows:-
17. The Applicant repeatedly humiliated her in full view of others by calling her a black cat because she has a dark skin complexion. Whenever she told the Applicant that she did not like that, the Applicant persisted in calling her a black cat. She also confirmed that the Applicant called Nolwazi Buthelezi the girl with balls in her head. They were the source of ridicule because the Applicant openly called them degrading names. The Applicant also made sexual remarks whenever he heard them speaking in isiZulu, he would ask them if they wanted him to go and sleep with their mothers so that he can have a better understanding of the isiZulu language. This hurt her deeply as her mother was deceased and had died in her presence.
18. Under cross examination, she insisted that it was the Applicant and not other learners who called her black cat and even if the other learners mocked her and called her a black cat it was because the Applicant always persisted in shaming her. She insisted that she had begged the Applicant to stop calling her that as it was very humiliating and painful.
19. The Respondent’s third witness is Ntombikayise Shange a 15 year old pupil, she testified as follows:
20. She is currently in grade 10. The Applicant was her technology teacher in 2018. She testified that the Applicant used to openly humiliate her by saying that she would break the chair because she is huge. The Applicant also administered corporal punishment. There was one particular occasion where the Applicant asked them to do 3D shapes but she made a mistake and did a 2D shape. The Applicant was walking around the class inspecting the learners’ work. He came behind her and noticed that she had done the wrong thing. She was seated on a high chair (photo/exhibit part of the Respondent’s bundle), the kind of chair that ‘exposes’/does not ‘cover’ the upper part of the butt. The Applicant squeezed and hit her on her butt with his hand. The class exclaimed in shock and she felt extremely violated and humiliated.
21. The Applicant was often rude to leaners. He used to humiliate and belittle them. Under cross examination, she maintained that she was hit on the butt by the Applicant and that she reported the incident to her mother who, in turn, went to the school and spoke to the principal about the incident.
22. The Respondent’s fourth witness was Fatima Cele, a 16 year old learner, who testified as follows:-
23. She saw the Applicant hitting Ntombikayise’s butt, it was wrong and embarrassing. The other learners in class who saw it exclaimed in shock. It was wrong for him to do that.
24. The Applicant once hit her with his electrical cord like stick. His conduct was abusive and he found pleasure in humiliating learners, at one point he made on the learners, Londeka, to take off her shoes and run around outside in the school assembly area. He also used to make comments about her eyes. The Applicant also made her feel very uncomfortable. He once poked her on the side in a very uncomfortable manner. He once commented on the length of her skirt and made girls to stand in front of the class and demanded that one of them, Sinegugu, to bend. That was beyond humiliating. On one occasion he asked her, Fatima Cele, to bend next to his desk to pick up something and when she did, he kicked her ‘very softly’ she exclaimed ‘sir!’ to which he responded ‘what’ in a very uneasy tone. When she said she would report the incident to her mother, the Applicant’s response was a direct question ‘is your mommy slim or fat?’ He was also in a habit of saying to the learners ‘do you want me to sleep with your mothers?’ whenever he caught any of them speaking Zulu.
25. Under cross examination, when it was put to him that the Applicant is going to deny that he ever hit Ntombikayise on her butt, Fatima blurted out ‘wamupantsa! I saw him!’ (this is a Zulu way of describing an act by a man hitting a woman’s butt in a very sexual way, it is more like hitting firmly and squeezing the butt’) and everyone in class was talking about it. When asked if they, as the Respondent’s witnesses discussed this matter when it was at the disciplinary hearing stage, her response was ‘we were not really allowed to talk about it. When asked if other teachers at school hit other learners, her response was in the affirmative.
26. The Respondent’s fifth witness was Amogelang Mpoko, a 15 year old learner. In summary, she gave the following testimony:
27. She confirmed that she saw the Applicant hit Ntombikayise in her butt. It made a sound and the class exclaimed in shock. It was inappropriate. The Applicant would at times ridicule Londeka because of her eye condition. He would sometimes remark ‘are you looking at me or that side or outside’
28. Under cross examination, she was asked if she knew anything about the video showing one of their teachers hitting a learner. She confirmed and also stated that the teacher is still at the school. She was also asked if a member of the School governing body did ask them anything about the Applicant and her response was that the issue was once raised.
29. The Respondent’s sixth and last witness was Londeka Mbili, a 15 year old learner. This is the summary of her testimony:-
30. She had an accident when she was young and if affected her eyes. The Applicant used to painfully tease and ridicule her about her eyes. His comments were deeply hurtful and at times he would tell him that, despite that, the Applicant would not cease making hurtful remarks. At times he called her stupid idiot. Some learners referred to her as ‘cocked eye’ because they heard the ugly remarks from the Applicant. He once made her take off her shoes and run around the assembly area for about 20 times. She was humiliated and told one Mrs Mfusi about it. Mrs Mfusi, assured her that she would inform the school principal.
31. As a girl scout she would sometimes arrive late in class from scouting sessions. The Applicant would demand a letter from the scout master/teacher and she would comply. She used to sit in front but the Applicant instructed her to go and sit at the back because she was stupid. This hurt her deeply because the Applicant knew that she had a vision and hearing problem. Her command of the English language was not so good and whenever the Applicant caught them speaking isiZulu he would say to them “do you want me to sleep with your mothers? Or I will go to your homes and sleep with your sisters and mothers!” The Applicant is no longer teaching at the school but she is still mocked because of the comments he used to make.
32. She also stated that she saw the Applicant hitting Ntombikayise with a stick, his electrical cord like stick.
33. Under cross examination, she confirmed that she gave the Applicant the letters that her mother wrote, one of those letters advised the Applicant of her vision and hearing challenges. She also stated that her mother used to phone the school because she was concerned about her, Londeka’s, daily struggle to go to school.
Applicant’s case
34. The Applicant’s representative made preliminary remarks. Firstly she stated that she had heard that some of her witnesses were intimidated. When I asked her to provide details, her response was that, it was a rumour. She then said in addition to the Applicant testifying she had three other witnesses, two learners and an educator. The Applicant’s representative also stated that she preferred to have the Applicant in the room when his witnesses are testifying. The Respondent’s representative objected. I made an interlocutory ruling that the Applicant may sit in if he so wishes and if he believes that his presence will enable his representative to sufficiently prepare for cross examination. I did however state that, depending on the content of his witnesses’ evidence, his corroboration may be weakened when his turn to testify came.
35. The Applicant’s first witness was Lihle Qekenya, a 14 year old learner, he testified as follows:
36. He was in the same class with Nolwazi, Anele and Nokwanda. Nolwazi and Nokwanda behaved badly They were loud, ate in class and generally misbehaved. The Applicant had to separate them. The Applicant never referred to them or anyone by degrading names. He has never heard anything about the phrase’ spirit of one and spirit of zero’. The Applicant used a ruler and not a white stick to hit them. After the internal disciplinary hearing the girls told him they lied.
37. Under cross examination, he conceded that Nolwazi and Nokwanda were not the only ones who were loud in class. When asked who referred to Nolwazi as the girl with a deformed head/ ‘balls in the head’ his response was that it was the class altogether. He confirmed that the Applicant did hit the learners.
38. The Applicant’s second witness was Nomonde Mngadi, a 15 year old learner, whose testimony was as follows:-
39. She captured the video of one their educators beating up a learner. The video went viral and other learners shared it because she had it on her WhatsApp status. The school principal pressurized her to delete the video. The said educator, Ms Ngcobo, is still teaching at their school. She recorded the video because she was tired of that teacher’s behavior. She knew that she was not supposed to bring the phone at school. She confirmed that she knew educator Mfusi and that Mfusi used to call Fatima, Londeka and others to talk about the Applicant’s case.
40. Under cross examination, she was asked why was she called to testify and her response was that she was there to differentiate between the Applicant’s and Ms Ngcobo’s case. She was also asked if she had heard what Ms Mfusi discussed with Fatima, Londeka and others. Her response was that she was not concentrating and ‘did not listen carefully’.
41. The Applicant’s third witness was Krivashni Morris, an Educator at Hillgrove who is also a NAPTOSA member. Her testimony was as follows:
42. The principal once called a briefing and informed teachers that they are not allowed to speak to the learners about the Applicant’s case. But she, the witness, suspected that Njapha and Mfusi were discussing the Applicant’s matter with the learners and therefore assumed that the girls were then couched by these teachers how they should present their case. She also testified that the educator who was caught on video hitting a learner is still teaching at school, nothing was ever done about the incident.
43. Under cross examination, she confirmed that she did not teach any of the affected learners and that she was unable to comment on the charges against the Applicant. She came to the hearing because she transported the Applicant’s witnesses and was also present when the Principal spoke to educators about the Applicant’s case.
44. The Applicant’s testimony was as follows:-
45. He has been an educator for over 18 years and has taught various subjects including English, Life Orientation and Technology. In 2018 he taught Technology to grade 8c learners. He denied that he ever called Anele ‘black cat’ or even referred to Nolwazi as a girl with balls on her head. He heard learners referring to them like that. Nokwanda was rude and always late Nolwazi did not do her work and was ‘chatty’ and disruptive, Anele was cheeky and very defensive. They all lied about him because he was strict and he openly reprimanded them. He did not have an electric chord like stick that he hit learners with and the first time he ever heard about these allegations when the Respondent’s representative came to the school to inform him of the allegations and thereafter asked him to leave immediately.
46. He also denied that slapped Ntombikayise on her butt. Fatima Cele and others lied, in fact Fatima is an attention seeker. She misunderstood him when he once asked all the girls who wore short skirts to stand in front of the class and simply asked them if they would be comfortable if he asked them to end and the girls said no. He did all of this to highlight the school rule that the girls’ skirts should not be shorter than 10cm.
47. His representative then asked him about his understanding of sexual harassment and his response was that it was an unwelcome sexual conduct done alone and in private. He then said he was never alone with Ntombikayise. He also explained that the phrase ‘spirit of one and spirit of zero’ was said by the student leader and it meant that ‘spirit of one’ you are with people who are progressing in life, taking you forward and ‘the spirit of zero’ meant the opposite.
48. Under cross examination he denied that he ever said to girl learners ‘ do you want me to sleep with your mothers’ whenever he caught them speaking in isiZulu. When shown the photo of Ntombikayise seated on a high chair with the upper part of her butt i.e from waist down, he argued that it was not the butt but the thigh. When asked again to define sexual harassment, he ‘repeatedly said ‘alone’ ‘when the offender and the victim are alone’ He also said he was a disciplinarian and there were no learners who were disrespectful towards him. He said his intention was to make the girls to be proud of their bodies and not entice people out there. He said he asked the girls what would be exposed if they bend and the girls responded that their underwear would show.
SUMMARY OF ARGUMENTS
49. In a very brief summary, the Applicant’s dismissal was fair. His defense was weak and he in fact indirectly admitted that he was guilty of wrong doing. The Respondent’s witnesses were credible. The Council should uphold the Respondent’s decision to dismiss him.
50. In essence, the crux of the Applicant’s representative argument was that the Applicant was not guilty of sexual harassment and even if he was guilty of other charges other than sexual harassment he ought not to have been dismissed as those were not dismissible offences. There was sufficient proof, in a form of a video, that other educators did hit learners but were neither disciplined nor dismissed. Therefore, the Applicant was only disputing the categorization of section 17 charge. The specific charge was ‘during the first school term 2018 whilst on duty you allegedly committed an act of sexual harassment on Ntombikayise Shange and Kwanele Mhlohi grade 9a learners by slapping their butt. In so doing you contravened section 17(1) (b) of the Act’. The Applicant was victimized and targeted. Nolwazi Buthelezi was a weak learner who had failed a class. Fatima Cele was dramatic and was coached. It was Ms Njapha who told witnesses to lie and say that the Applicant often asked them whether they wanted him to sleep with their mothers.
ANALYSIS OF EVIDENCE AND ARGUMENT
51. As stated earlier, the dismissal of the Applicant is not in dispute, therefore the onus is on the Respondent to prove that it was both substantively and procedurally fair.
52. The Applicant disputed the substantive and procedural fairness of the dismissal, and the Respondent has the duty to prove the fairness thereof.
53. Before I deal with the merits of the case it is important for me to briefly touch on the following information pertaining to this matter. 8 out of 10 witnesses who testified before me were children. Section 28 of the Bill of Rights provides for specific rights of children and in particular, subsection 2 directs the courts to treat a child as somebody with attributes, qualities and sensibilities and vulnerabilities which make them different from adults. In dealing with this matter I also kept in mind the provisions of Section 170A of the Criminal Procedure Act which deals with the legislative framework for an intermediary. It is against this background that prior to the commencement of the case I asked both representatives to accompany me to the rooms where the child witnesses were seated. I introduced myself and others, briefly explained the proceedings and the intermediary’s role, I also provided a brief summary in simple terms about their role and why it is always important to tell the truth. Furthermore, in the hearing room I explained to both parties the importance of asking child witnesses simple questions in short easy to understand sentences adopting a simple vocabulary and avoiding a very formalistic approach, for example saying to a child witness ‘you told us earlier’ instead of saying ‘ I put it to you, you testified earlier’ etc. I commend both representatives for conducting themselves professionally especially when cross examining the opponent’s child witness.
54. The provisions of both sections 17 and 18 of the Employment of Educators Act are very clear. Whether it is prior or after the amendments, the crux of Section 17 is that an educator shall be guilty of misconduct if he or she behaves in a disgraceful, improper or unbecoming manner or commits sexual act or any other form of sexual harassment. Section 18 touches on the breakdown of employment relationship if the educator commits any of the misconduct deemed to be serious and negatively impacting on the continued harmonious employment relationship.
55. My task is to weigh the evidence placed before me by the respective witnesses, consider the probable version and decide whether the dismissal of the Applicant was fair or not. I have considered both versions and without necessarily repeating their testimonies, I now provide an analysis. Nolwazi Buthelezi conceded that she heard from others that the Applicant referred to her as the girl with the balls in her head but insisted that the Applicant did call her ‘spirit of zero’ meaning she was stupid and that the Applicant ridiculed and called Nokwanda a girl with legs/calves of a man and Anele a yum yum black cat. Her evidence was corroborated by Anele. She further testified that the Applicant was rude, humiliated learners and regularly administered corporal punishment. The Applicant’s representative cross examination was mainly that Nolwazi was a failure, she repeated a grade and that Nokwanda (who was not present to testify) was a mentally disturbed child who even attempted to commit suicide. Even in the written closing argument the Applicant referred to Nolwazi as a weak learner with a distorted self-image.
56. Anele Blose’s testimony was largely similar to Nolwazi but she also added that the Applicant had a habit of asking them if they wanted him to sleep with their mothers whenever he caught them speaking isiZulu. This version was corroborated by Londeka and Fatima. The Applicant’s defense was a bare denial.
57. Ntombikayise Shange testified that the Applicant made fun of her weight, he was rude to her and other learners. The Applicant openly violated and impaired her dignity by hitting her on her bum. She was seated on a high chair (photo shown as part of the bundle) with her upper butt exposed. Others in class saw it and exclaimed in shock. The Applicant at first denied it and when cross examined the Applicant then said the back part that was exposed was not the butt but part of the thigh area. The Applicant then insisted that for an act to be sexual it must be done ‘alone’ by this he said he meant it had to be between the perpetrator and the victim in the absence of others. So convinced of this belief was the Applicant so much so that in his closing arguments it is written ‘there can never be any sexual connotation attached to hitting a child in a class full of learners’, the Applicant’s representative also insinuated that the witnesses especially those who testified that they witnessed the Applicant slapping Ntombikayise in the butt were prepared/coerced by Mrs Njapha to say so. The Applicant did not present any sound evidence or any kind of proof except that ‘they strongly suspected so’ because Mrs Njapha ‘discussed the matter with them’ and also transported them to the hearing. Strangely enough, the Applicant’s witnesses were also transported by an educator who was also a witness in this case. The Applicant’s witnesses, Nomonde Mngadi and Krivashni Morris, conceded under cross examination that they had no proof that Ms Mfusi and Mrs Njapha coerced or coached the Respondent’s witnesses. Nomonde said she assumed/ she never heard them / she was not listening carefully. Krivashni’s said she suspected so because the principal had said they, educators, should not interfere and when she saw them with the learners she then assumed that they were talking about the Applicant’s case coercing them.
58. Fatima Cele’s evidence was very clear, she was adamant that the Applicant hit Ntombikayise’s but in a sexual way. When cornered during cross examination she blutered out ‘wamupantsa!’ T meaning was explained above This is a Zulu one word that describes a very sexual way of hitting someone especially the butt. Fatima’s evidence was crisp and clear and she remained unshaken during cross examination, She narrated her own account of being subjected to the Applicant’s unbecoming conduct e.g being kicked softly in a very uncomfortable way in the butt and also the Applicant instructing female learners to stand in front and bend etc. The Applicant seriously contradicted himself which clearly demonstrated to me that he was being untruthful. At first he denied it and then later on said he asked the girls if they would be comfortable if he asked them to bend, he said he posed this question because he wanted them to seriously think about their appearance and the length of their skirts which ‘would entice people’ those were his words. His other version was that he had asked them what would show if they were to bend. I found the Applicant to be unreliable and untruthful. He also stated that the Applicant’s witnesses version that he called learners names was untrue, he simply heard other learners referring to them as such i.e girl with balls in her head, yum yum black cat etc. What is baffling and is really sad about the Applicant’s version, assuming it is true, is that not even once did he testify that he reprimanded the other learners from calling other learners with such degrading names. An educator is an adult, learners are children. In the school environment an educator is in loco parentis, he has a responsibility of promoting a safe environment that totally discourages impairment of dignity and/or shameful acts directed at other learners. In his testimony, the Applicant also contradicted himself over and over again. He described learners Nolwazi as rude, disruptive, chatty and seldom did her homework, and Nokwanda as being rude, disrespectful and always late, Anele was cheeky, she talked back and was very defensive and Fatima as being dramatic and an attention seeker. Yet he also testified that no learner was ever disrespectful or rude to him because he was a serious disciplinarian. Comparing this to what he said earlier that the witnesses were openly rude and disrespectful to him in class made it clear that the Applicant’s version was improbable and that he was creating his defense as he moved along. This again was apparent in how he handled his case, though his representative of course who was seated next to him throughout the proceedings When the Respondent’s witnesses were cross examined it was either a bare denial or a brief explanation aimed at justifying an otherwise questionable conduct. Whereas when he was testifying he would usually provide a version which was never put to the Respondent’s witness e.g. Ntombikayise’s matter regarding the upper back and the back being part of the thigh, whatever that meant.
59. The Applicant’s witness, Lihle Qekenya was untruthful. Firstly the Applicant himself admitted that the ‘spirit of one, spirit of zero’ phrase was originally stated by one student leader in the assembly and was widely known and used in the school to mean ‘ spirit of one’ is about togetherness, working well with your team, good influence etc and spirit of zero meant the opposite. Lihle testified that he never heard of it, he did not know it yet he was actively involved in student matters. Secondly, Lihle conceded that Nolwazi and Nokwanda were not the only ones who were loud, noisy in class. He also testified that ‘the girls’ came to him after the internal disciplinary hearing and confessed that they had lied. If that was indeed the case, why did he not report that especially given his leadership role in the learner/student matters? One thing he confirmed though was that the Applicant did hit learners especially if they had not done their work. Nomonde Mngadi’s evidence centered on the video that she recorded, the rest of her testimony, she even conceded, was based on her suspicions and nothing concrete. It is not clear why Krivashni was called as a witness. It makes perfect sense that the principal, as the accounting authority of the school, would call a meeting to brief the educators and caution them on how to deal with a matter so sensitive affecting one of their own. Krivashni and other Applicant’s witnesses did not provide any clear evidence that Njapha and Mfusi were coaching/coercing the Respondent’s witnesses. They admitted that their utterances were based on suspicions.
60. The Applicant’s failure to grasp what conduct entails sexual conduct is seriously disturbing. He said sexual harassment/ violation can never occur in public. This implies that he does not consider what he did to Ntombikayise to be sexually inappropriate because it was in full view of other learners. At first he denied that he slapped/ hit Ntombikayise on the butt saying that it impossible to do so as she was seated. When shown the exhibit he changed tune and said the upper back part is in fact part of the thigh he could not have hit her on her thigh. The witnesses were clear in their testimonies. They saw him hit Ntombikayise’s butt with his hand. Londeka Mbili said it was with a stick. In addition, Nolwazi said the Applicant once hit Nokwanda with a stick on her bum, Fatima also testified that the Applicant once kicked her on her butt after asking her to bend. His own witnesses testified that he did hit learners. Londeka is the one with who testified that the Applicant ridiculed her because of her eyes. She said she had a vision and a hearing problem (caused by an accident that happened in her early childhood) and the Applicant was well aware of her eye problem. It is quite possible and I accept it as probable that Londeka did see the Applicant hit Ntombikayise but testified that it was with a stick and not the hand as others had said. This does not in any way discredit her as a witness nor does it nullify her evidence. If anything at all it depicted a picture of a very young girl who was constantly verbally abused and humiliated by someone in authority and also witnessed the very same person inflicting pain, harm and repeatedly violating others so much so that she could have easily confused two separate incidents which both involved the Applicant behaving improperly by hitting other learners on their butts. Communication, cognitive competence and to some extent, accurate information storage of a child under stress may be compromised but that does not mean that the child is lying.
61. Enquiring from girl learners if they wanted the educator to sleep with their mothers, asking a girl child to bend and then kick her in a slow but uncomfortable (as described by the witness) at the bum and when she says she would tell her parent, then asking her if her mom is fat or slim, clearly constitute improper behavior of a sexual nature.
62. Ridiculing a girl child and humiliating her because she is overweight, mocking a child with a vision problem and ‘cocked eye’ making fun of a child and commenting that her legs look like those of a man is one of the worst forms of emotional abuse and in the educator-learner relationship that is gross misconduct. Nokwanda was not present to testify but those who tendered evidence did describe under oath the Applicant’s improper conduct towards her. The Applicant’s defense was that Nokwanda was a child with a troubled background and she once attempted to harm/kill herself. The other allegations were just bare denial.
63. The evidence place before me clearly demonstrated that the Applicant abused his position of authority, his improper conduct including sexual undertones negatively affected learners. The Applicant’s version was full of contradictions and assumptions.
64. The Respondent has a duty to discipline and if needs be dismiss educators who behave improperly. The assertion that corporal punishment can never amount to dismissal is untrue. Each case is dealt with on its own merits and the severity of the acts can never be viewed in isolation. The Applicant also committed disgraceful and serious acts of sexual nature as outlined above. I therefore find that the dismissal of the Applicant was both substantively and procedurally fair.
FINDING
65. I uphold the Respondent’s decision. I find that dismissal was an appropriate sanction. Therefore, the dismissal of the Applicant was both substantively and procedurally fair.
REMEDY
66. There is none.
AWARD
I make the following award:-
67. The application is dismissed.
VUYOKAZI NGWENYA
Arbitrator
30 September 2019
PSES964- 18/19 KZN