Award  Date:

15 August 2021

IN THE ELRC: INQUIRY BY ARBITRATOR BETWEEN:
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer
and
Mlungisi Brilliant Ntombela The First Employee
Thulani Brian Shangase The Second Employee

Inquiry by arbitrator-finding

Case Number: ELRC393/4-20/21KZN

Last date of arbitration: 30 June 2021
Submission of closing arguments: 7 July 2021

Date of award: 15 August 2021
J KIRBY
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The inquiry by arbitrator commenced on 8 April 2021, continued on 13-14 May, 29 June and the hearing of evidence was finalized on 30 June 2021. The hearing took place at the Durban Teachers Centre. The representatives of both parties requested and were granted permission to submit written closing argument by no later than 7 July 2021.

2. The Employees, M B Ntombela and T B SHangase, were both represented by Mr Dlamini, instructed by Bidi Nsele Attorneys. The Employees each testified and called two additional witnesses. A bundle of documents marked exhibit B was handed in as documentary evidence.

3. The Employer, the Head of the KwaZulu-Nata l Department of Education (the Department,) was primarily represented by its employee, Ms M Mtetwa. Six witnesses testified on behalf of the Department including its representative, Ms Mtetwa. When she testified Mr Bejanath, another employee of the Department, was its representative. In addition, a bundle of documents, marked exhibit A, was submitted on behalf of the Employer.

4. The learner referred to in these proceedings is now older than 18. She did not testify but in order to protect her privacy I shall refer to her throughout this award as “the learner.”

5. The proceedings were digitally recorded.

6. The proceedings were interpreted.

PRELIMINARY ISSUES
7. Prior to the charges having been put to the Employees, Mr Dlamini brought an application for the postponement of the hearing. Having heard argument from the parties I refused the request for a postponement and indicated that I would give written reasons for the refusal when I issued this award. I accordingly summarise the arguments of the parties and detail my reasons for my ruling.

8. It was submitted on behalf of the Employees that they were unaware of the charges they faced as they had not been served with the Form E12.

9. Ms Mtetwa submitted on behalf of the Department that she had tried to serve the Form E12 and charge sheets on the Employees but that they had refused to sign the E12 in acknowledgement of receipt. In this regard it was submitted that the Public Servants Association, the Employees’ trade union, had written letters, dated 27 October 2021, on behalf of each Employee stating that it had advised the Employees not to “complete a requested inquiry by the arbitration form (ELRC FORM 12.”) A copy of the letter is at page 24 of the Department’s bundle. In addition, the notice of set down had been issued on 5 March 2021 and the Employees had accordingly had ample time before the hearing to request copies of the E12 forms.

10. In terms of clause 3 of Collective Agreement 3 of 2018 the Department was required to initiate the disciplinary process by completing the E12 forms and attaching thereto proof of service and notification of the alleged misconduct. It is evident from the records of the Council that attached to the respective E12 forms were the charge sheets detailing the alleged misconduct of the Educators. As indicated above the Educators, on the advice of their trade union, refused to sign their respective E12 forms. It is for this reason that proof of service could not be provided to the Council. I am nevertheless satisfied that the Department complied with the provisions of the Collective Agreement in referring the Educators’ cases to the Council and that it had provided them with notices of their alleged misconduct. It is for these reasons that the Educators’ request for the hearing to be postponed was refused.

EXPLANATION OF THE EMPLOYEES’ RIGHTS

11. Both parties confirmed that the services of an intermediary were not required as the complainant was not a child.

12. As already indicated, the employees were represented by an advocate, Mr Dlamini. I nevertheless explained the following rights to the Employees who confirmed that they were aware of and understood these rights:

12.1. Their rights to the services of an interpreter. Both educators initially indicated that they did not require such services. They, however, on the advice of Mr Dlamini changed their minds and the proceedings were interpreted;
12.2. Their rights to question witnesses of the Employer and to dispute any documentary evidence. In particular, the need to ensure that any evidence with which they did not agree was disputed by Mr Dlamini and the need to ensure that their versions was put to each witness was explained;
12.3. Their rights to give evidence in their defence and to call witnesses.

13. It was explained to both parties, who indicated that they understood that:
13.1. A separate hearing in respect of sanction in event of a finding of guilty, would not be held. Evidence in mitigation and aggravation of sentence would be presented prior to a finding on the merits of the case having been given;
13.2. They could make closing arguments after all evidence had been heard; and
13.3. In terms of section 120 of the Children’s Act I, as the arbitrator, acting on my own or on application of the Department may make a finding that the Educators are unsuitable to work with children and that they may make representations in this regard, it was explained to the parties that, if appropriate, a separate hearing in this regard would be held. In this regard, it is notes that both learners and the Department elected to have a second hearing if applicable and I shall leave it up to the Department to make the necessary application, if appropriate.

THE CHARGES AND PLEAS

14. Ntombela was charged as follows:
“It is alleged that during the year 2019 and 2020 you were having a sexual relationship with the learner a grade 12 learner at the school. You thus committed an offence in terms of section 17(1)(c.)
Alternatively
It is alleged that during the year 2019 and 2020 you conducted yourself in an improper, disgraceful manner towards the learner a grade12 learner at the school by touching her inappropriately and kissing her. You thus committed an offence in terms of section 18(1)q) of the Act.”

15. Shangase was charged as follows:
“It is alleged that during the year 2019 you proposed love and sexually groomed the learner a grade 12 learner at the school. You thus committed an offence in terms of section 18(1)(q) of the Act.”

16. Both educators pleaded not guilty to their respective charges and elected not to give plea explanations.

SUMMARY OF EVIDENCE AND ARGUMENTS

The Employer’s case

17. Siyathanda The learner did not testify.

18. Monica Mtetwa (Mtetwa,) the Department’s representative in this case, is employed at the Department’s Umlazi District Office. She had interviewed the learner after she had received a report from the principal of Umlazi Comtech High School (the School.) The report is at page 1 of the Employer’s bundle of documents. The interview had taken place at the principal’s office and the principal and deputy principal of the School were also present.

19. At the interview the learner had alleged that:
19.1. Towards the end of 2019 Ntombela had suggested that they enter into a relationship;
19.2. During the national lockdown in 2020 a “Whatsapp” group had been formed by Ntombela and the learners taking the subject taught by him. Ntombela had sent her messages saying how beautiful she was and that he wanted to have a relationship with her;
19.3. Ntombela had come to her house and they had kissed in his car;
19.4. They had touched and kissed each other in the male toilet at the School library;
19.5. She had had a romantic relationship with Shangase during 2019 but as she had felt uncomfortable she had brought it to an end.

20. A few weeks after having interviewed the learner she was contacted by someone who identified herself as her elder sister and they arranged to meet. At the meeting Mtetwa was informed that the family of the learner did not want to take the matter any further as it had been resolved.

21. Under cross-examination Mtetwa confirmed that she had only learnt of the alleged misconduct after she had received the report from the School principal and that she had not been present on 2 July 2020 when the misconduct had first been reported to the principal. She had not interviewed the teachers who had initially reported the alleged misconduct to the principal. She had met with the principal, Mr Shandu, and deputy principal, Ms Simamane, on 14 July 2020 at the office of the principal. The learner was called to the office. Mtetwa recalled that she had been informed that the learner’s father had been advised of the meeting but he did not attend. The purpose of the meeting was for Mtetwa to hear from the learner herself as to what had transpired between herself, Ntombela and Shangase. It was put to her that she had not interviewed the learner. Mtetwa maintained that she had.

22. It was put to Mtetwa that when she had been approached by the sister of the learner it was said that the allegations were not true. Mtetwa submitted that it had not been said that allegations were not true but rather that the family had resolved the issues. Mtetwa was aware that the learner had attested to an affidavit in which she alleged that she had been coerced to make the written statement implicating Ntombela and Shangase. The said affidavit retracting the allegations is at page 19 of the Department’s bundle. The Department had proceeded with the charges against Ntombela and Shangase despite the retraction as it was unaware of what might have influenced her to make the retraction and thought it best for a decision to be reached after evidence had been heard under oath.

23. Under re-examination Mtetwa testified that at her meeting with the learner on 14 July 2020 she had not said that she had been threatened in any way to implicate the two Employees.

24. Nelisiwe Simamane (Simamane) is the principal of Austerville Primary School. At the time of the alleged misconduct she was the deputy principal of the School. She has been an educator for approximately 21 years.

25. During or about October/November 2019 someone had sent to Simamane “screenshots” of a series of Whatsapp text messages that the sender said were between Shangase and the learner. Printouts of the “screenshots” are at pages 7-12 of exhibit A. She was not able to contact the sender thereafter despite her efforts to do so. At the time she would not have known that messages were being exchanged between Shangase and the learner, if the sender of the “screenshots” had not so alleged.

26. Certain of the “screenshots” include the cellular phone number of one of the participants whereas others identify the participant as Myeni. Shangase admits that the cellular phone number so displayed is his. He also admits, after having examined the profile photograph on Simanane’s computer, which the profile photograph of this participant is of him.

27. She knew Shangase as an educator at the School but their relationship went beyond that as they were both members of the local branch of SADTU and she regarded him as a fellow “comrade.” She had met with him in that spirit of comradeship. She had wanted to establish the authenticity of the “screenshots” as she felt that the content of these messages would be inappropriate if they had been exchanged by Shangase and the learner, as alleged. She met with Shangase. He stated that he knew that the “screenshots” would be sent to her. He further acknowledged that the messages were between the learner and himself but he denied that they had been in a romantic relationship. He further said that he did not realize that the messages were being viewed “otherwise” by the learner and as such he would stop. He went further and said that he had heard that Ntombela was in a relationship with the learner. She had no evidence in support of this allegation but as it had been made, she felt compelled to confront Ntombela, which she did. Ntombela denied any such relationship with the learner. (Shangase denies that any such meeting with him occurred in 2019.) As there was no evidence implicating Ntombela she did not pursue the matter at that stage.

28. After having spoken to Shangase she contacted the learner who stated that she was not at school as she was at home caring for her ailing mother. (The learner was a boarder at the school.) Simamane asked her to come and see her once she returned to school. This did not happen (and no further steps were taken by her in respect of the above) until the events detailed below unfolded.

29. On 2 July 2020 the School was in a somewhat chaotic state as it was closing early due to a positive Covid 19 case. She was in her office when she was approached by Nxumalo, the Head of the Humanities Department, and Nelisiwe Mthethwa and Khunyisile Makhombothi, both of whom are educators, and received the following report from them:
29.1. Makhombothi stated that as she and Mthethwa had seen the learner and Ntombela acting suspiciously whilst the School was closing, they suspected that they had gone to an office together. They had gone to Nxumalo’s office to get the spare keys to the office from her;
29.2. Whilst returning from Nxumalo’s office they had seen the learner exiting the men’s toilet. Ntombela was not seen by them;
29.3. When approached by them, the learner had stated that she did not know that toilet she had used was the men’s toilet. When questioned further she stated that she did not know the whereabouts of Ntombela;
29.4. The educators let the learner go on her way and returned to the office of Nxumalo to report their suspicions that the learner and Ntombela had been together, to her;
29.5. On doing so, Nxumalo had stated that the issue was too serious for her to handle and that it needed to be reported to Simamane as the deputy principal.

30. After the abovementioned report had been given, Nxumalo excused herself as her lift was about to leave and Simamane instructed Sibongile Ntombefuthi Raitta Zulu (Zulu,) an educator, learner-educator liaison officer and boarding hostel assistant at the School to bring the learner to her office.

31. When the learner arrived at her office Mthethwa and Makhombothi shouted at her. They stated that they had warned her in 2019 not to get involved with educators. Makhombothi asked her if she was in a relationship with Ntombela. She denied that she was. Zulu called the learner’s father to the office. He had arrived at the School to take the learner home. In his presence and that of the three educators, Simamane reminded the learner that she had still not come to see her about the “screenshots’” incident. The learner acknowledged that she had been aware that the “screenshots” had been sent to her. She suspected that a fellow boarder had done so as she had access to her phone. The learner further acknowledged that the messages recorded on the “screenshots” were between her and Shangase. The father was livid on hearing this. On him calming down they left the office on the understanding that the matter would be taken further on the return to school.

32. A short while later, however, the learner returned to her office as she required her “permission to leave” form to be signed by Zulu, who had remained behind. Simamane had then said to the learner that she was in the position of the learner’s mother and that she could talk to her. The learner had then said that she had not wanted to speak in front of her father out of fear and respect. She then acknowledged that she had been in the men’s toilet with Ntombela on that day, Thursday, 2 July 2020. They had kissed in the toilet and had previously done so in Ntombela’s car when he had come to her home. With regards to Shangase, the learner stated that she had had a “cozy relationship” with him but that she realized that it was not right and had ended it. She denied having had sex with either Ntombela or Shangase. Simamane had told her that she did not believe her and that she believed that she had left Shangase for Ntombela after he had arrived at the School.

33. Simamane had then reported the abovementioned happenings to the School principal, Shandu. On the following Monday he had called all the educators to his office and asked them to write statements recording what had happened on 2 July 2020. After he had done so, Makhombothi and Mthethwa said that they would not do so as they had just wanted Ntombela to be spoken to and feared that if they gave statements he would lose his job. She later learnt that they had made affidavits contradicting the version that they had relayed to her when they had come to her office on 2 July 2020. The statement of Simamane is at page 3 of exhibit A and she confirms the correctness of its content, which is consistent with her evidence.

34. On 7 July 2020 the learner and her father arrived at the School. The father was still very angry. He accused the School of letting him down after he had entrusted his daughter to its care. He further addressed the learner stating that he still had big plans for her and that if the School has rotten educators, she must speak up. The learner had then written the statement at page 4 of exhibit A in the presence of her father, Shandu and Simamane. The statement is consistent with the oral version the learner had given to her on 2 July 2020. The written statement includes the following:
“…I am reporting a relationship between Mr Shangase 2019 last year October …he approached me and said that he has feelings for me and complimented me. We talked for some time up until I felt as if what I was doing was wrong and felt uncomfortable. I stopped talking to him and during the late stages of 2019 Mr Ntombela contacted me and asked me that am I dating Mr Shangase. I said no then he said that he want to say something but he won’t. Screenshots were sent to Mrs Simamane regarding my conversations with Mr Shangase and allegations that said I am in a relationship with Mr Ntombela which was not true by then Mrs Simamane called to me I denied those allegations. Due to National Lockdown …he (Ntombela) texted me he greeted me and complimented me and said I was brilliant and beautiful. He would like for us to date…we have never had sexual intercourse but we have kissed twice. He has offered to come to my house and I first refused and he came and we have kissed an then on 2nd of July 2020 after the staff meeting I went to the library to look for Mrs Gwensa and he went to the mens and called me in and I told him that I do not want to have feelings for him he then kissed me and left me there and that’s when Mrs Mthethwa and Miss Macombothi saw me.”
The statement is signed by the learner and her father.

35. Simamane is aware that a meeting was then held at the office of the circuit manager but she had not been at that meeting. On 14 July 2020 Mtetwa had arrived at the School to interview the learner. The learner had repeated her version as set out in her statement at page 4 of exhibit A.

36. On 4 August 2020 the learner’s father and two others who identified themselves as her sisters had arrived at the School. They were very angry. It became apparent to Simamane that their anger was caused by a newspaper article that had alleged that two educators had seen another educator kissing a learner. They said that they would give affidavits to the Department alleging that the learner had been assaulted prior to her making her statement (at page 4 of exhibit A) and that the two educators (Makhombothi and Mthethwa) would also make affidavits. The School was given copies of these affidavits. Simamane was also provided by a sister with another “screenshot” of two Whatsapp messages that had been sent to the learner. They had wanted to know if the “screenshots” that had previously been sent to her were sent from the same phone number. The latest “screenshot” of two messages sent on 3 and 8 November 2019 respectively, is at page 33 of exhibit A and it includes the following:
“Siyathanda this is Amanda from grade 12D. Stay away from Ntombela he is my man … still going to show the deputy your conversation with Mlu and MaUrban…”
She understood that Mlu was a reference to Ntombela and MaUrban was a reference to Shangase.

37. Shangase and Ntombela had been given opportunities to give statements but they had refused to do so.

38. Simamane was extensively cross-examined, as were all the Department’s witnesses.

39. Simamane agreed that “Myeni” is a surname but stated that it can also mean husband.

40. When it was put to her that Shangase denied having met with her during 2019 with regards to the “screenshots,” Simamane maintained that they had met and that the school logbook would record that such a meeting had taken place.

41. With regards to the “screenshots” Simamane found the conversations to be inappropriate, given that it was purportedly between a learner and educator for the following reasons:
41.1. Certain of them took place in the early hours of the morning; such as 2:29 as recorded on page 10 of exhibit A;
41.2. Page 10 of exhibit A also records that during a conversation Shangase said that the learner “could do better,” to which she had replied “hmmm an in birthday suit.” The response of Shangase was “send it now.” This conversation was inappropriate.
41.3. At approximately 7:40 just after the learner had said that she was in bed, Shangase had said that they had been due to meet and the learner had responded that she had not found the time-at page 9 of exhibit A. Simamane found it inappropriate for an educator to arrange or discuss a meeting with a learner in this manner. The screenshot does not indicate the date of this conversation;
41.4. The use of slang by the purported educator was wrong;
41.5. At pages 11 and 13 it is recorded that from approximately 14:50 until approximately 14:57 a conversation including the following took place:
“The learner: That’s how I lost the photographs on my phone.
Shangase: You can relax I have them.
The learner: You looked good yesterday.
Shangase: Thnks
Shangase: You played me yesterday.
The learner: No it didn’t really clear up plus where are we going at admin?
Shangase: Right. Make a plan I am waiting.
The learner: Well I can’t decide we are at risk.”

42. Simamane had not initially known who the participants were in the abovementioned conversations until Shangase had identified them as having been the learner and himself.

43. It was put to Simamane that the “Amanda” referred to in the “screenshot” at page 33 of exhibit A had been a boarder at the School who had continued stay in the hostel with Zulu after she had matriculated. It was further put to her that she and Amanda had conspired to falsely implicate the learner, Ntombela and Shangase. Simamane response was that she did not know the Amanda and that she had no vendetta against the educators.

44. With regards to Ntombela, Simamane confirmed her evidence in chief that the educators had not reported to her that they had seen him and the learner kissing. It was put to her that Makhombothi and Mthethwa would deny having reported to her that they suspected that Ntombela might have been in the toilet with the learner. They had simply reported that the learner had used the men’s toilets. Simamane maintained that they had reported their suspicions of Ntombela and the learner having been in a relationship and that he might have been in the toilets with the learner.

45. On 28 August 2020 Simanane had received a copy of a letter that the learner’s father had addressed to the Department. The letter is a page 51 of exhibit B. it includes the following:
“My daughter being assaulted by an Educator and repercussion of media release (as the heading)
…
Miss Makhombothi assaulted my Daughter on the 2nd of July 2020. She assaulted my daughter while I was present at the school premises but not in the office with them.
…
This being reported a month later because of matters the family is dealing with which also needs attention as this matter.

The repercussion of the media release has cause me to be unwell because of the manner it was published because it is a different story then what I have been told. This has tarnished my family …This has emotionally and mentally abused me and my family …”

46. The first time Simamane had heard of any alleged assault of the learner was on receipt of this letter. It was put to Simamane that she and Zulu and not Makhombothi had assaulted the learner. Simamane maintained that no assault whatsoever had taken place.

47. Sibongile Ntombefuthi Raitta Zulu (Zulu) is an educator, learner-educator liaison officer and boarding hostel assistant at the School. On 2 July 2020 she had been instructed by Simamane to bring the learner to her office. When they arrived at the office she found two other educators, Mthethwa and Makhombothi, there. They shouted at the learner that they had warned her but she would not listen. Mthethwa had then said that they had seen the learner exiting the male toilets at the library and that they had suspected that she had been with a male educator in the toilets. When asked who it had been, the learner had answered that it had been Ntombela and that they had been kissing. When asked whether Ntombela had been the first educator with whom she had had a relationship, the learner replied that she had earlier had a relationship with Shangase. The learner would not answer when asked whether she had had sexual intercourse with the educators but she looked embarrassed and looked down. The learner’s father had arrived at the office.

48. Under cross-examination Zulu stated that on the request of the principal, she had written a statement six days after the meeting at Simamane’s office.

49. She reiterated that the learner had not given a definitive answer when asked whether she had had sexual intercourse with the educators. Mthethwa and Makhombothi had said that they suspected that the learner had been in the toilets with Ntombela. They did not explain their suspicion.

50. It was put to Zulu that Mthethwa would deny having seen Ntombela and the learner in the toilets. She replied that she did not know.

51. It was further put to Zulu that both Mthethwa and Makhombothi will testify that their initial report to the deputy principal had been changed by Zulu and another educator so as to implicate the two educators. This was denied by Zulu.

52. Under re-examination Zulu stated that both Mthethwa and Makhombothi had given their version of events in the presence of the learner and her father. She was unaware of any duress having been placed on the learner to implicate the educators.

53. Dr Venugopaul Naidoo (Dr Naidoo) is the circuit manager for the Umlazi District. On 8 July 2020 he had received a report from Nkosinathi Shandu (Shandu,) the school principal. The report included a statement by the learner that indicated that she might have been a victim of “sexual grooming” by Shangase and might have had a sexual relationship with Ntombela. The following day he met with Shandu, The learner and her farther at his office. The father was highly agitated and angry. When Dr Naidoo had tried to question the learner in respect of her statement, her father had stated that she was still highly traumatized and he did not want her to be questioned. Dr Naidoo had then asked the learner whether she had given the statement voluntarily and the learner had confirmed that she had. He then asked her and her father to sign the statement. Later that day he had met with Shangase and Ntombela at 11 am and 11:30 am respectively. Both had been asked whether they wanted to respond to the allegations and make a statement. Both had indicated that they elected to remain silent. Dr Naidoo had thereafter submitted his report to the Labour Relations section of the Department.

54. Dr Naidoo was unaware of the statement made by the learner to SAPS retracting her initial statement. When he had interviewed her she had stated that she had not been forced to make the statement.

55. Under cross-examination it was put to Dr Naidoo that his involvement in the case was contrary to the provisions of item 4 of the Disciplinary Code, which did not provide for the involvement of a circuit manager. Dr Naidoo responded by stating that item 4 do not preclude his involvement.

56. After confirming with the learner that she had written the statement, Dr Naidoo had gone through the statement with her. When he had wanted to question her with regards to the statement, her father had prevented him from doing so as he felt that his daughter had suffered enough trauma. The father did not state that his daughter had been assaulted on 2 July 2020.

57. As with the statement by the learner retracting her initial statement, Dr Naidoo had no knowledge of a letter written to the Department by her father.

58. Princess Nxumalo (Nxumalo) is the Head of the Humanities Department at the school, at which she has taught for approximately 30 years. The two educators and the learner are known to her.

59. On 2 July 2020 she had been approached by two fellow educators, Makhombothi and Mthethwa. Makhombothi had stated that they suspected that a learner and an educator were inside a room at the library. They had checked the door and it was locked. Nxumalo had given them a spare key to the room. On their return Makhombothi had stated that they had seen the learner coming out of the males’ rest room. When Makhombothi had questioned the learner, she had stated that she was unaware that the room was the males’ rest room. She had accompanied the learner, Makhombothi and Mthethwa to the office of the deputy principal, Simamane. She left them at the office with Simamane.

60. Under cross-examination Nxumalo stated that when she left the office of Simamane, Zulu had not yet arrived.

61. Nkosinathi Shandu (Shandu) is the school principal. The report at page 1 of exhibit A was compiled by him after he had received a report about the learner having had a sexual relationship with Ntombela. Prior to writing his report, on 7 July 2020 he had interviewed the learner in the presence of her father. The learner had confirmed that she was in a “love relationship” with Ntombela and had been a “cozy” relationship with Shangase. The handwritten statement at page 4 of exhibit A was written by the learner in the presence of Simamane, the learner’s father and himself. Nobody had compelled the learner to write the statement and Simamane was the only other female in his office when she did so.

62. The statement, at page 19 of exhibit A, retracting the statement at page 4 of exhibit A, was handed to Shandu by the father and sister of the learner. Prior to handing over this statement, the father had never complained to Shandu that an educator had assaulted the learner. Similarly, when they had met with Dr Naidoo no allegation concerning an assault had been made.

63. The cellular phone number, 0638447084, at page 7 of exhibit A is that of Shangase. Pages 7-13 of exhibit A consist of a series of so called “screenshots” of a cellular phone reflecting a copy of a “profile photograph” on page 8 and a series text messages on the remaining pages.

64. The profile photograph at page 8 is associated with the person “Myeni” and Shandu recognized that photograph as being that of Shangase.

65. A portion of the exchange of messages between “Myeni” and another at page 10 was read into the record:
“Just showing you not giving you”
“M sure you can do better”
“Hmmmm and in birthday suit”
“Even now”
“What I am in not”
“Now”
“Yes”
“I can’t undress now”

66. Copies of the screenshots had been given to Shandu by Simamane. Shandu could not remember when this had been but he believed that it was the meeting with the learner and her father in his office on 7 July 2020.

67. Under cross-examination Shandu submitted that his report to Dr Naidoo (at page 1 of exhibit A) was based upon the reports that he had received from the educators and the statement by the learner. He had asked for written reports from those three educators who had taken the learner to Simamane’s office. He had, however, not received reports from Mkhombothi and Mthethwa. He regarded their failure to do so as insubordination.

68. Shandu conceded that paragraph 4 of his report was incorrect insofar as it states that Ntombela had been “caught kissing” a learner. He had not been caught. Any reference to kissing was based on the statement by the learner.

69. On 7 July 2020 he had called the learner and her father to his office. Simamane was also present. He would not have questioned a learner in respect of a matter of this type without a parent being present. He had wanted to get the learner’s version of the events that had been reported to him by the educators.

70. Shandu was questioned extensively on the content of the learner’s “retraction” affidavit, which includes the following:
“I …wish to make correction of the statement that I wrote on the 7th of July 2020 which had false information. I wish to state that I was never in a romantic relationship with any educator in my school. Allegation that are made against me are false that I was kissing a teacher in the toilet on 2nd of July 2020. I wrote a statement fearing for my life after a female educator whom made these false allegations against me mistreated me and one of them physically assaulted me. When I was writing my statement I felt threatened…”

71. It was put to Shandu that in this affidavit the learner refers to the meeting held on 2 July 2020 as the meeting at which she was assaulted and mistreated. This was disputed by Shandu who maintained that the affidavit refers to the incident that allegedly occurred on 2 July 2020 and the subsequent meeting at which the learner had written her statement and which had been held on 7 July 2020, attended by the learner, her father, Simamane and himself. The first time that he had learnt of any alleged assault was on receipt of the letter from the father (exhibit B51) and which he had received sometime later. The issues of mistreatment and assault were not raised at his meeting with them on 7 July 2020. Similarly, when they had met with Dr Naidoo the father was still very angry but no mention was made of his daughter having been mistreated or assaulted. It was put to Shandu that Makhombothi would testify that Zulu had assaulted the learner on 2 July 2020 after she (Makhombothi) had left the meeting. Shandu could not comment on this.

72. With regards to the “screenshots” at pages 8-13 of exhibit A Shandu testified that he had first become aware of their existence after the case involving Shangase and Ntombela had already been opened. Simamane had said that she had received them from an unknown source. He had viewed them on the computer of Simamane and had identified the “profile photograph” as being that of Shangase. He, however, conceded that the “profile photograph” purportedly of Shangase could have been taken from a different cellular phone to that from which the various messages originated. He further agreed that the phone number of Shangase only appears at page 7 of exhibit A and on which page there are no associated messages. Shandu further identified the background photograph on page 9 of exhibit A as being that of the learner. (Elsewhere in evidence it emerged that the learner had said that it was of her sister.)

73. Shandu submitted that the language used in the screenshots generally was improper. Educators are required to communicate in a professional manner. Certain of the conversations (at page 10 of exhibit A) are recorded as having occurred at 2 am. It would be improper for an educator and learner to be communicating at this time. The conversation recorded at page 13 of exhibit A is inappropriate. It includes the following:
“That’s how I lost my pictures on my other phone”
“You can relax”…
“You played me yesterday”
“Where did you want us to go”
“Make a plan m waiting”
“I cannot decide we are at risk.”

74. It was put to Shandu that these were trumped up charges that had been laid against the two educators as they did not belong to his camp. This was denied. In this regard it was put that Shangase was a site steward who was critical of Shandu and that he and other educators had initiated a petition against him. Shandu maintained that there was no such petition before Shangase and Ntombela had been charged. Further in this regard it was put that he favoured Zulu over other educators. This was also denied.

The Employees’ case

75. Ntombela had taught at the School since January 2018 and had been the learner’s grade 12 mathematics’ educator in 2020.

76. He had initially had a good relationship with Shandu but it had deteriorated over time as he was viewed as a friend of Shangase who was a critic of Shandu. The educators at the School were divided into camps and due to his friendship with Shangase he was viewed as being in the camp opposed to Shandu. He denied that he was guilty of the misconduct for which he had been charged.

77. On 2 July 2020 he had left the School at approximately 12 noon.

78. Under cross-examination he stated that there were approximately 10 male educators at the School. He does not know why he would have been targeted by the learner. He was first told on 6 July 2020 by Shandu of the allegations against him. Shandu had told him that it was alleged that he was in a love relationship with the learner. He had not asked who had brought the alleged relationship to Shandu’s attention as he did not think that it was important. He also said that he did not do so, he was possibly in shock. He had been shown the statement made by the learner (page 4 of exhibit A) by Dr Naidoo. He has never spoken to the learner about the allegations. He had not made a written statement when invited by Shandu and later Dr Naidoo to do so as he did not know what to say as he knew nothing of the allegations.

79. Shangase teaches accountancy, business studies and EMS at the School. He was elected by SADTU as a convenor in February 2019. He had many meetings with Simamane as she was the chairperson of the local SADTU branch. (He was represented by the PSA at this hearing as he was a member of both the PSA and SADTU.) He initially stated that as a result of all these meetings, he did not recall having met with Simamane in respect of the “screenshots.” He then corrected himself and said that no such meeting had taken place during 2019. He had only become aware of the allegations when he had been called to the boardroom by Shandu. Shandu had informed him that Simamane had told him that she had met with him (Shangase) in 2019 about his alleged relationship with the learner. It was only at this meeting that Simamane had told him of the ‘screenshots.” He had denied any knowledge of the allegation.

80. At the meeting with Shandu and Simamane on 6 July 2020 Shandu had said that the screenshots had been deleted. He was shocked when he received printouts of them from Advocate Dlamini in November 2020. With regards to the so called profile photograph of him, while admitting that it was a photograph of him he denied that it was his profile photograph. He suspected that someone had lifted it from his Facebook page. He had not communicated with the learner by way of Whatsapp. He had not taught her.

81. He had together with his union representative seen Dr Naidoo on 9 July 2020. Dr Naidoo had informed him that he had received a statement in which it was stated that he had been involved in a relationship with a learner.

82. Shangase stated that his relationship with Shandu had soured in 2018 after he had testified at a disciplinary hearing on behalf of the employee and against the (perceived) interests of Shandu.

83. Under cross-examination he conceded that his photograph and cellular phone number appeared in the “screenshots” and that the phone number for Myeni was his. This could have been done by manipulation.

84. Shangase maintained that at the meeting on 6 July 2020 with Shandu and Simamane she had stated that the “screenshots” had been deleted. He could not explain why this version had not been put to Shandu and Simamane.

85. It was further put to Shangase that Mtetwa’s evidence that the learner had told Simamane that she had had a relationship with him had gone unchallenged. Shangase had no comment.

86. Other employees whose relationships with Shandu had soured, had not been subjected to disciplinary hearings.

87. Nelisiwe Mthethwa has been an educator at the School since 2007.

88. On 2 July 2020 she and Makhombothi had been walking together when the noticed the learner leaving the male toilets. They called her to them to question her. She had said that she was unaware that she had been in the male toilets. While speaking to her Nxumalo had arrived and enquired what was happening. While explaining the situation to Nxumalo, the learner had walked away. Nxumalo decided that the matter needed to be reported to Simamane. Simamane had decided that the learner needed to be called to her office. When Zulu arrived with her, she was shouting at the learner. Nxumalo then left and the learner apologized for having used the male toilets. Makhombothi and she had then also left. The learner remained behind in the presence of Zulu and Simamane.

89. She had refused to give a statement when asked to do so by Shandu as he had instructed the educators to falsely implicate Shangase and Ntombela in having sexual relationships with the learner. Sometime later she had consulted with Advocate Dlamini, Shangase and Ntombela’s representative, and on receiving advice she and Makhombothi had attested to affidavits at the police station. Mthethwa’s affidavit is at pages 60-63 of exhibit B and it includes the following:
“I deny the allegations that I observed the female learner and male teacher kissing each other in the library male toilet.
I further deny that there was a time when I suspected that a female learner was in one of the room in the school library with a teacher.”

90. Mthethwa submitted that she had made the affidavit to counter the newspaper article that had falsely reported that educators had seen a male educator kissing a female learner. She testified that it did not occur to her to also record in her affidavit that Shandu, the School principal, had given instructions to her to falsely implicate the educators. She and Makhombothi gave their affidavits to Advocate Dlamini. She knew that Advocate Dlamini was acting for Shangase and Ntombela. Under re-examination Mthethwa stated that the principal purpose of making the affidavit was to state that the newspaper report indicating that they had seen an educator and learner kissing was false.

91. When questioned by me she stated that she was not in Shandu’s camp and did not know why he would ask her to falsely implicate Ntombela.

92. Khanyisile Sheila Makhombothi has been an educator at the School since 2003. Her evidence in chief was similar to that of Mthethwa in all material respects. Her affidavit is at pages 64-65 of exhibit B. the affidavit includes the following:
“On the 2nd July 2020 at around 14h00, Miss NP Mthethwa and I were at the library toilet when we observed a female learner coming from the male toilet.
…
We explained to Ms Nxumalo that we were disciplining the learner for having used the male toilet instead of the female toilet.

Ms Nxumalo then ordered us to report the matter to the deputy principal. The learner was summoned from the hostel …

I deny the allegation that I observe a female learner and the male teacher kissing each other in the library male toilet.

I further deny that there was a time when I suspected that the female learner and the teacher was in one of the rooms inside the library.”

93. The affidavits of both Makhombothi and Mthethwa are dated 2 August 2020.

94. She had not suspected on 2 July 2020 that an educator and learner were together in the toilets.

95. Makhombothi denies having assaulted the learner as alleged in the letter written by her father (at page 51 of exhibit B.)

SUMMARY OF ARGUMENTS
The Employer

96. The Department had informed the hearing at its commencement that it would not call the learner as a witness and the Employees’ representative did not object to the leading of hearsay evidence.

97. Having regard to the provisions of section 3 of the Law of Evidence Amendment Act 45 of 1988 and the provisions of section 28(2) of the Constitution, 1996, which provides that a “child's best interests are of paramount importance in every matter concerning the child” it was submitted that it was in the interests of justice for the hearsay evidence in respect of the learner’s statement to be admitted.

98. It was submitted that the evidence established that Ntombela was guilty as charged in the main count of having contravened section 17(1)(c) of the Employment of Educators Act 76 of 1998. Such a guilty finding carries a mandatory sanction of dismissal. With regards to Shangase it was submitted that he was guilty as charged of contravening section 18(1)(q) of the said Act and that I should exercise my discretion and impose a sanction of dismissal given the prevalence of offences of this type.

The Employees

99. It was submitted that the Department’s case is wholly dependent upon hearsay evidence.

100. The learner had not lodged a complaint with the Department and the School management had acted as complainant and driven the prosecution of both educators. The true position is set out in the learner’s “retraction” affidavit.

101. Shangase had first become aware of the “screenshots” in November 2020 when they were received from SACE. In terms of the provisions of the Regulation of Interception of Communication-Related Information Act, 2002 a person other than a law enforcement office, may only intercept any communication if he is a party to the communication.

102. With regards to the hearsay provisions of the Law of Evidence Amendment Act 45 of 1988 it was submitted that the Department had not established grounds for the hearsay evidence to be allowed.

103. In that with the disallowance of the hearsay evidence, there is no evidence against either learner, the educators should both be found not guilty.

ANALYSIS OF EVIDENCE AND ARGUMENT

104. The Department is required to prove on a balance of probabilities that the two educators, Ntombela and Shangase, are guilty of the alleged misconduct with which they have been charged.

105. The defence of both educators is a bare denial coupled with claims that they are victims of a conspiracy between Shandu, the School principal, and the educators who testified on behalf of the Department, to falsely implicate them in wrongdoing. Before I deal with the evidence led in respect of the alleged misconduct, I first deal with the issue of whether there is any evidence of a conspiracy. If there is any evidence of such a conspiracy, it would obviously taint the reliability and credibility of the evidence submitted on behalf of the Department.

106. I find that there is no evidence of such a conspiracy as:
106.1. The educators, save for the Deputy Principal, Simamane, who testified on behalf of the Department did not implicate either educator in respect of the alleged misconduct with which they have been charged. No witness testified (or at any stage alleged) that they had seen Ntombela kiss the learner on 2 July 2020. Similarly, the only witness who implicated Shangase was Simamane;
106.2. Simamane testified that the learner had denied having been involved in sexual relationships with the educators. This is not the evidence of someone who, in carrying out a conspiracy, wants to falsely implicate others;
106.3. It was put to Simamane that she and the Amanda mentioned in “screenshot” at page 33 of exhibit A, had conspired to implicate the educators and the learner. The “screenshot” had, however, not been sent to the School but a copy of it had only come into Simamane’s possession after she had been given it by the learner’s sister at a stage when the learner’s family had indicated that they did not want the investigation to proceed. This evidence is not indicative of a conspiracy aimed at the educators and/or the learner as the Department would not have known of its existence had it not been provided by the learner’s sister; and
106.4. Both Mthethwa and Makhombothi testified that they had been instructed by Shandu to falsely implicate the educators yet they both failed to mention this when they attested to affidavits at the police.

107. The learner and the originator of the “screenshots” did not testify and the original electronic messages portrayed in the screenshots, were not presented as evidence by the Department. As such, I need to consider whether the evidence in respect of the learner’s version as relayed to Simamane and Mtetwa and recorded in the written statement (at page 4 of exhibit A) as well as that in respect of the ‘screenshots” is hearsay. If so, such evidence may only be relied upon if the provisions of section 3 of the Law of Evidence Amendment Act 45 of 1988 are met. The said section includes the following:
“ (1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless –
(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or
(c) the court, having regard to –
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interests of justice.
(4) For purposes of this section –
“hearsay evidence” means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence;
“party” means the accused or party against whom hearsay evidence is to be adduced, including the prosecution.”

108. With regards to the “screenshots” it is the evidence of Simamane that when she interviewed Shangase he had admitted to her that the conversations portrayed in the screenshots were between himself and the learner. I accordingly find that the evidence relating to the “screenshots” is not hearsay as its probative value depends upon the credibility of a person who gave evidence; namely, Simamane and is admissible. The reliability and credibility of such evidence are different issues and I shall deal further with them later in this award.

109. The learner did not testify. The probative value of the evidence in respect of the oral and written statements of her is accordingly dependent upon the credibility of a witness who did not testify. The oral and written statements are accordingly hearsay evidence and may only be admitted after having regard to the provisions specified in section 3(c) above. In this regard:
109.1. The hearsay evidence is prejudicial to the educators; in particular Ntombela as it is the only evidence relied upon by the Department to prove its case against him;
109.2. It is evident that the learner had retracted her oral and written statements implicating the educators by way of an affidavit dated 3 August 2020 (page 19 of exhibit A.) In this affidavit the learner avers that she made the written statement on 7 July 2020 as she was “mistreated” by a female educator and physically assaulted by another. When she made the written statement Simamane, Shandu and her father were present. Simamane was the only female educator present and thus the educator could not have been mistreated by one and assaulted by another. If she was at the police station complaining of an assault, it begs the question as to why she did not name her assailant who would have been known to her. The letter of her father (at page 51 of exhibit B) alleges that Makhombothi was one of the assailants but she was not present on 7 July 2020 when the learner wrote her statement. The learner and her father further did not complain of an assault when they met with Shandu on 7 July 2020 or with Dr Naidoo on 9 July 2020. On both occasions the learner confirmed the correctness of her written statement. The learner did not complain of an assault when she met with Mtetwa on 14 July 2020. Mtetwa is not connected to the School but instead of raising the issue of her having been compelled to make a false statement, she confirms its correctness. When Mtetwa was approached sometime later by a sister of the learner she did not say that the case should be withdrawn as the learner had falsely implicated the educators. She instead stated that the family had resolved the dispute. In such circumstances it is clear why the Department did not place any reliance on the affidavit retracting her claims and chose not to call the learner as its witness;
109.3. The purpose for which the evidence is submitted is to establish the guilt of the educators. With regards to Ntombela it is the only evidence submitted by the Department. It accordingly has high probative value;
109.4. The nature of the evidence is both oral and written. The learner confirmed the correctness of the written statement firstly when she met with Dr Naidoo on 9 July 2020 in the presence of her father and secondly when she was interviewed by Mtetwa on 14 July 2020;
109.5. In terms of section 138 of the Labour Relations Act 66 of 1995 (LRA) I am required to “deal with the substantial merits of the dispute with the minimum of legal formalities.” This does not mean, however, that I may simply ignore the laws of evidence and I am required to consider the law insofar as it relates to hearsay evidence.

110. In a case of this nature it is not just the interests of the main protagonists, such as the two educators and the learner, that must be considered but also those of the broader community of learners that need to be considered and, if need be, protected. Having regard to this factor, the factors detailed above and that it was not submitted at any stage that the learner had a motive to falsely implicate the educators, I have decided to admit the hearsay evidence contained in the statement of the learner. I am satisfied that the circumstances in which the statement was made in the presence of the father and the subsequent confirmation of its correctness indicate to me that despite the prejudicial effect its admission may have for the educators, it is in the interests of justice to allow the hearsay evidence.

111. I shall now turn to the credibility and reliability of the witnesses.

112. It is the version of the Department that the investigation into the alleged misconduct arose pursuant to an initial report made by Mthethwa and Makhombothi, the educators’ witnesses, to Nxumalo, the Head of the Humanities Department, and a witness for the Department. In this regard, it is the version of Nxumalo that:
112.1. Mthethwa and Makhombothi initially reported to her that they had seen the learner and Ntombela acting suspiciously near the administration section of the School and that they suspected that the learner and Ntombela were together in a locked room at the library. They had requested the spare key for the room so that they could open it;
112.2. She gave them the spare key;
112.3. They later returned shortly thereafter saying that on their way to the library area they had seen the learner walking away from the male toilets. They did not see Ntombela;
112.4. In light of the suspicions of Makhombothi and Mthethwa that the learner and Ntombela may have been together in a locked room and them then seeing the learner walking away from the male toilets, she decided that the issue needed to be reported to the Deputy Principal, Simamane; and
112.5. The three of them had then reported to Simamane who had then called for the learner to be brought to her office.

113. Makhombothi and Mthethwa dispute the abovementioned version of Nxumalo. Their version is that:
113.1. They never entertained any suspicion that a learner and educator might be together in a locked room and no such suspicion was reported to Nxumalo;
113.2. Whilst walking in the vicinity of the library they had seen the learner exiting the male toilets;
113.3. They had called her over and asked why she had been in the male toilets. The learner had responded that she had not known that they were the male toilets;
113.4. Whilst speaking to the learner they had been approached by Nxumalo who had enquired as to what was happening. While explaining the situation to her, the learner had walked away; and
113.5. On hearing their explanation, Nxumalo had decided that the matter needed to be reported to the Deputy Principal.

114. These are two mutually destructive versions as to what led to the investigation. I favour the version of the Department’s witnesses for the following reasons:
114.1. I find it improbable that three educators would allow a learner to simply walk away whilst she was being disciplined. I find it probable that Makhombothi and Mthethwa had seen the learner exiting the male toilets and, in light of their earlier suspicions, they had returned to the office of Nxumalo for further guidance. This is why the learner had had to be called from the hostel to Simamane’s office and not because she had been allowed to walk away whilst being spoken to by the educators;
114.2. If Makhombothi and Mthethwa had not entertained suspicions of possible misconduct by an educator there would have been no need for Nxumalo to have reported the incident to Simamane;
114.3. Similarly, if it had not been reported to Simamane that the incident possibly involved misconduct by an educator and the learner, there would have been need to call the learner’s father to her office on 2 July 2020, when the learner was first questioned by her; and
114.4. It is probable that, as testified to Simamane, they elected to withdraw themselves from the case once they realized the serious implications that it might have for the educators.

115. As already indicated above when dealing with the alleged conspiracy against the educators, both Mthethwa and Makhombothi testified that they had been instructed by Shandu to falsely implicate the educators by stating that they had been involved in sexual relationships with the learner, yet they both failed to mention this when they attested to affidavits at the police. If Makhombothi and Mthethwa’s real purpose for attesting to the affidavits was to correct misconceptions created by the newspaper article, I would have then expected them to highlight the instructions that they had allegedly received from Shandu. Their affidavits are, however, silent in this regard.
116. In light of the above, I find that Makhombothi and Mthethwa are not reliable or credible witnesses and where their versions differ to those of the Department’s witnesses, I favour the Department’s version.

117. The principal witness for the Department was Simamane. She was the deputy principal of the School at time of the alleged misconduct but has since been promoted and is now the principal of another school. Her evidence was that:
117.1. During 2019 she had received a series of “screenshots” of Whatsapp conversations from an anonymous source. From the “screenshots” she was unable to identify the participants but the anonymous source had stated in a message that they were Shangase and the learner;
117.2. She had thereafter met with Shangase, whom she knew as a work colleague and as a fellow member of the local SADTU branch. They were “comrades” In his evidence Shangase admitted that he and Simamane had attended many meetings of SADTU together;
117.3. She had told him of the screenshots that had been sent to her and he had stated that he had known that the screenshots” would be sent to her and that the conversations recorded on the “screenshots” were between the learner and himself. He did not expect the learner to see the messages in the “wrong” way. He had denied being involved in a sexual relationship with her but mentioned that he had heard that Ntombela might be in a relationship with her;
117.4. She had contacted Ntombela who had denied the allegation. She had not pursued the matter as there was no evidence linking Ntombela to the learner other than Shangase’s allegation;
117.5. She had contacted the learner who was not at the School at the time. She had told the learner to come and see her on her return. This did not happen until the events of 2 July 2020 unfolded;
117.6. The learner had stated that the “screenshots” captured conversations between herself and Shangase, with whom she had had a “cozy relationship.” As she felt uncomfortable with the relationship she had called it off. This was said in her father’s presence;
117.7. When the learner had returned to her office and her father was not present, the learner had said that she had kissed Ntombela on two occasions. She had repeated this allegation on 7 July 2020 in the presence of Shandu, her father and Simamane;
117.8. The learner had always maintained that she had not had a sexual relationship with either of the educators;
117.9. She denied that the statements of the learner were induced by threats or assaults of any kind;
117.10. The content of the conversations captured on the “screenshots” were inappropriate given the times at which certain of them occurred and their content. They were contrary to the ethical guidelines of educators.

118. Simamane testified for an entire day. There are no inconsistencies in her evidence. She did not embellish her evidence in anyway. She readily admits that initially she did not know who the participants in the conversations were and would not have known if the anonymous source had not reported that they were Shangase and the learner. She further admitted in her evidence in chief that, despite her expressed doubts, the learner had maintained that she had not been involved in a sexual relationship with either of the educators. I find her evidence to be reliable and credible. Insofar as her evidence relates to the meeting on 7 July 2020 when the learner, her father, Simamane and Shandu were present and the learner wrote her written statement, her evidence is supported in every material respect by Shandu, whose evidence I also accept.

119. The statement relied upon by the Department is hearsay. I need to determine how much weight I can attach to it. In this regard, the learner was not a complainant in the sense that she had alleged misconduct by the learners against her. She accordingly had no motive to falsely implicate the educators. She was thrust into the arena by the anonymous sender of the “screenshots” and by being seen leaving the male toilets. There was no need to state that Ntombela had been in the toilets with her and she could have denied that she was a participant in the “screenshot” conversations as she is not identified in them. She had opportunities to correct or withdraw her statement when she and her father met Dr Naidoo on 9 July 2020 and when she met Mtetwa on 14 July 2020. A further opportunity presented itself when the learner’s sister met Mtetwa and informed her that the family had resolved the dispute. At no stage was it alleged that the statement had been induced through an assault. The learner had only alleged an assault in her police affidavit, which is dated 3 August 2020, which is a day after Makhombothi and Mthethwa had attested to affidavits provided to the educators’ representative. With regards to the allegation made in the “retraction affidavit” that she had been assaulted and mistreated by educators before she wrote her statement implicating the educators, I find it highly improbable given that the educators well knew that her father would be attending the meeting. It would appear from the letter written by the learner’s father (at page 51 of exhibit B) that it might have been the publicity the case had attracted that brought about the decision to attempt to terminate her involvement, which she had not sought in the first place. It was never alleged by the educators that the learner was a party to the scheme to falsely implicate the educators. The opposite was in fact alleged; namely, that she only wrote the statement on 7 July 2020 as a result of having been assaulted and mistreated. I find, having regard to the totality of the evidence that no weight can be given to the retraction affidavit of the learner and that I can place reliance on the written statement made by her on 7 July 2020.

120. As already indicated the defence of each educator is a bare denial.

121. Shangase denies that the meeting in 2019 with Simamane at which he allegedly agreed that the participants in the “screenshot” conversation were the learner and himself, took place. When he testified, however, he initially stated that he could not remember this particular meeting as he had attended so many with her before correcting himself and stating that the meeting did not take place. The evidence of Simamane that she and he were both colleagues and comrades was unchallenged. He gave no possible explanation for Simamane to falsely implicate him. They were on his admission colleagues and members of the local branch of SADTU who without incident participated in union affairs; Simanane had since been promoted and left the School and she accordingly had nothing to gain by falsely implicating him. Much was made in cross-examination of the Department’s witnesses that the conversations allegedly between Shangase and the learner could have been manipulated so as to implicate Shangase. If this were true, however, the manipulators would have included Shangase’s name as a participant instead of the obtuse reference to Myeni or “husband.” Having regard to all of the evidence, I reject that of Shangase and accept that of Simamane. I accordingly find that Shangase acknowledged to Simanane that he had participated with the learner in the conversations recorded in the screenshots.

122. The only evidence against Ntombela is the hearsay evidence contained in the learner’s written statement that they had kissed on two occasions. He denies any improper conduct with the learner. Ntombela could not cross-examine the learner to test the reliability and credibility of the evidence contained in the statement. On the other hand, the learner initially implicated Ntombela on the day of the alleged incident and confirmed her oral statement in writing mere days later. Further she could have retracted or corrected her statement when she was interviewed by Dr Naidoo and Mtetwa, both of whom are not employed at the School. She did not do so and instead had maintained that the content of her statement was true and correct. It was not disputed that the learner had continued to stand by her statement at these meetings. It was also not disputed that the sister of the learner had not mentioned mistreatment of the learner as a reason for her family wanting to have case dropped. In such circumstances I find that I can attach considerable weight to the hearsay evidence contained in the written statement of the learner and I find that the Department has established that Ntombela had kissed the learner on 2 July 2020 at the School premises and previously at her home. Consistent with this finding I also find that he had not had a sexual relationship with the learner.

123. Having arrived at the abovementioned factual findings, I need to determine whether the Department has proven that the educators are guilty of the acts of misconduct with which they have been charged.

124. Ntombela is charged as follows:
“Charge 1
It is alleged that during the year 2019 & 2020 you were having a sexual relationship with [the learner] a grade 12 learner at the school. You thus committed an offence in terms of Section 17(1)(c.)
Alternatively
It is alleged that during the year 2019 & 2020 you conducted yourself in an improper, disgraceful manner towards [the learner] a grade 12 learner at the school by touching her inappropriately and kissing her. You thus committed an offence in terms of Section 18(1)(q) of the Act.

125. With regards to the main count, the Department is required to establish that Ntombela had a sexual relationship with the learner. The learner denies that there ever was such a relationship. I am also not prepared to find that a kiss at her home followed by a kiss some months later constitutes a sexual relationship. I accordingly find that Ntombela is not guilty of the main count.

126. Section 18(1)(q) of the Employment of Educators Act 76 of 1998 provides that an educator commits an act of misconduct if he or she while “ on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner.”

127. The evidence of the learner is that after the School had been dismissed Ntombela had kissed the learner in the male toilets. The Department is required, firstly, to establish that Ntombela was on duty at the relevant time. No direct evidence in this regard was led by either party. I nevertheless find that an educator on a school’s premises while learners are present is on duty as required by this section. (I find that the earlier kiss that occurred at the learner’s home occurred when Ntombela was not on duty) Secondly, the Department is required to establish that Ntombela conducted himself in an improper, disgraceful or unacceptable manner. It was not argued on behalf of Ntombela that an educator kissing a learner in the toilet does not amount to improper, disgraceful or unacceptable conduct. It was correct not to do so as there can be no doubt that an educator kissing a learner in the manner described amounts to improper, disgraceful or unacceptable conduct. I accordingly find Ntombela guilty of the alternative count.

128. Shangase is charged as follows:
“It is alleged that during the year 2019 you proposed love and sexually groomed the learner a grade 12 learner at the school. You thus committed an offence in terms of section 18(1)(q) of the Act.”

129. As already indicated above, an essential element of the alleged act of misconduct is that it is committed whilst the educator is on duty. As with Ntombela neither party led evidence in this regard. Simamane and Shandu for instance testified in respect of the inappropriateness of an educator communicating with a learner in the early hours of the morning (as recorded on page 10 of exhibit A,) however, no evidence was led and no inference can be drawn to establish that Shangase was then on duty. An essential element of the alleged misconduct has accordingly not been established by the Department with regards to this particular conduct.
130. On the other hand it is recorded at pages 11 and 13 of exhibit A that from approximately 14:50 until approximately 14:57 a conversation including the following took place:
“The learner: That’s how I lost the photographs on my phone.
Shangase: You can relax I have them.
The learner: You looked good yesterday.
Shangase: Thnks
Shangase: You played me yesterday.
The learner: No it didn’t really clear up plus where are we going at admin?
Shangase: Right. Make a plan I am waiting.
The learner: Well I can’t decide we are at risk.”

131. It is evident from the above exchange that the learner and Shangase had been due to meet the previous day at “admin,” which I take to be a reference to the administration block at the School and that Shangase was again asking her to “make a plan” to meet up with him. The learner indicates that she is unsure as it might be too risky to do so.

132. It is evident from the conversation at pages 11 and 13 of exhibit A that the learner is concerned about photographs that she has lost. Shangase consoles her by stating that she needn’t worry as he has them. This begs the question as to why he has the learner’s photographs. Secondly, it is evident Shangase is attempting to coax the learner into meeting with him secretively at the School for the second time in two days. Shangase testified that he had not taught the learner and there can be no legitimate reason anyway for him to meet the learner secretively. The Department alleged that Shangase was guilty of misconduct amounting to sexual grooming. I am not sure whether the conduct shown on pages 11 and 13 of exhibit A amounts to sexual grooming, I am, however, satisfied that the Department has established that he is guilty of improper, disgraceful, or unacceptable conduct. I am accordingly satisfied that the Department has established that Shangase is guilty of having contravened section 18(1)(q) of the Employment of Educators Act 76 of 1998.

133. The Department has called for the dismissal of both Ntombela and Shangase. No submissions in this regard were made on behalf of the educators.

134. The misconduct of which both educators have been found guilty does not involve an assault of any kind. It is further evident that in respect of both educators, the learner was a willing participant in her relationships with them. These factors may be considered as mitigatory. On the other hand, it is evident that the acts for which they have been found guilty are single acts in ongoing unacceptable conduct. In this regard, Ntombela had travelled to the home of the learner and kissed her in his car sometime earlier and Shangase had been engaged in a conversation of a sexual nature with the learner in the early hours of the morning. Further, Shangase’s relationship with the learner was described by her as “cozy” and it had been her who had realized that it was wrong and had ended it. Educators are entrusted with the care of learners and must always act with the utmost good faith in their conduct towards them. Any conduct of a sexual or romantic nature (which is how I would describe the conduct of each educator) is a breach of this duty of good faith. The horror with which the father reacted to the revelations of the educators’ relationships with his daughter is indicative of how society finds breaches of this type of an educator’s duty of good faith towards learners. Having regard to these factors, I find that dismissal is an appropriate sanction for each of Ntombela and Shangase.

FINDING

135. The Employee, Mlungisi Brilliant Ntombela, is guilty of having contravened section 18(1)(q) of the Employment of Educators Act 76 of 1998 and is dismissed.

136. The Employee, Thulani Brian Shangase, is guilty of having contravened section 18(1)(q) of the Employment of Educators Act 76 of 1998 and is dismissed.


J Kirby
Arbitrator 15 August 2021
ELRC393/4-20/21 KZN

ELRC 302 -20 /21 NW