ELRC644-20/21 EC
Text
ELRC123-21/22KZN
Award Date:
03 December 2021
IN THE ELRC: INQUIRY BY ARBITRATOR BETWEEN:
THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer
and
S Madolo The Employee
Inquiry by arbitrator-finding
Case Number: ELRC123-21/22KZN
Last date of arbitration: 9 November 2021
Submission of closing arguments: 16 November 2021
Date of award: 03 December 2021
J KIRBY
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
1. The inquiry by arbitrator commenced on 11 June 2021and the hearing of evidence was finalized on 9 November 2021. The hearing took place at the KwaDakuza Office of the Employer. The representatives of both parties requested and were granted permission to submit written closing argument by no later than 16 November 2021.
2. The Employee was represented by Ms Zibani, an official of the Employee’s trade union, NATU.
3. The Employer, the Head of the KwaZulu-Nata l Department of Education (the Department,) was represented by Ms Dumisa, an employee of the Department. Three documents marked as exhibits A, B and C respectively were submitted on behalf of the Department.
4. The learner referred to in these proceedings is now older than 18 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.
EXPLANATION OF THE EMPLOYEES’ RIGHTS
7. Both parties confirmed that the services of an intermediary were not required as the complainant was not a child.
8. I explained the following rights to the Employee, who confirmed that they were aware of and understood these rights:
8.1. The right to the services of an interpreter;
8.2. The rights to question witnesses of the Employer and to dispute any documentary evidence. In particular, the need to ensure that any evidence with which the did not agree was disputed by Ms Zibani and the need to ensure that his version was put to each witness; and
8.3. The right to give evidence and to call witnesses.
9. It was explained to both parties, who indicated that they understood that:
9.1. 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;
9.2. They could make closing arguments after all evidence had been heard; and
9.3. 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 Employees 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.
THE CHARGE AND PLEA
10. The Employee was charged as follows:
“In that during the period 2020 at or near Tshelenkosi Secondary School, you committed sexual misconduct against a learner in your school in that you thereby contravened section 17(1)(b) of the Employment of Employees Act.”
11. The Employee pleaded not guilty to the charge and elected not to give a plea explanation.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Employer’s case
12. The biological mother of the Learner has passed away and Zanele Mthembu (Mthembu), her sister, acts as the Learner’s guardian. Mthembu received a report from her neighbour that the Learner was spending time at the cottages on the premises of Tshelenkosi Secondary School (the School.) The Employee, who is known to Mthembu as they train at the same gymnasium, stays at one of these cottages.
13. Mthembu questioned the learner about having been in a sexual relationship with the Employee. The Learner had initially denied the existence of such a relationship but after Mthembu having reassured the Learner that all she wanted to do was act in her best interests, the Learner had admitted that she was in a relationship with the Employee and that they had had sex on approximately 5 occasions. The relationship had started during the national lockdown of 2020 when the Learner had gone to the School for extra lessons. The Employee had given the Learner fried chips or R10 for having sex with him.
14. After the Learner made this report to her she had taken her to the police station and a criminal case had been opened. The Learner was also referred to the hospital where she received anti-retroviral medication and a medical examination was carried out.
15. Sometime after the case had been reported to the police and at approximately 1 am, Mthembu discovered that the Learner was not in her room. She suspected that the Learner had gone to the Employee’s cottage. As they approached the cottages in her car they found the Learner walking with the Employee. The Employee ran away.
16. Under cross-examination Mthembu denied having assaulted or beaten the Learner though she admitted that her daughter had beaten the Learner. She agreed that the Learner had attended extra lessons at the School and she could not dispute that the Learner had got to know the child and wife of the Employee during this period and had developed relationships with them. It was put that the Learner felt safe at the home of the Employee and that’s why she had gone in the middle of the night to inform him that she was being assaulted at her home.
17. John Soni (Soni) is the grandfather of the Learner. He had accompanied Mthembu and others to the cottage of the Employee at approximately 1 am one night. It was during loadshedding so it was very dark. As they approached the cottages someone in the car shouted “here they are.” He saw the Learner walking with the Employee, who immediately ran away. The Learner was stopped and beaten by the others. After Mthembu had left in the car the Employee reappeared.
18. On being asked by Soni how many times he had slept with the Learner, the Employee had replied that he did not want to reply to that question. Under cross-examination Soni testified that the Employee had stated that he did not want to say how many times he had slept with her.
19. Under cross-examination he had initially stated that on the night that they had gone looking for the Learner, Mthembu’s daughter had beaten the learner when the Employee had run away. He later stated that as he had gone to look for the Employee he could not say who had beaten the Learner.
20. The Learner testified that in 2020 she was in grade 10 at Stanger Secondary School. She knew the Employee as their homes are nearby but she got to know him better after she started attending extra lessons at the School. She and her friends went to play at his cottage with his child. She also developed a relationship with the child’s mother who was also staying at the cottage. Although people in the neighbourhood were saying that she was in a relationship with the Employee, this was not true.
21. The Learner is the author of exhibit C. She had not wanted to write it but she was forced to do so by Mthembu and her daughter. She was told that the Department had requested it.
22. Exhibit C is signed by the Learner and includes the following:
“…Last year I was attending extra classes at Tshelenkosi …I was already dating Madolo. My first day attending extra classes at Tshelenkosi, Mr Madolo was very shocked that I am still at school…I then decided to stop having extra classes and this led Mr Madolo and I to see each other during weekends and whenever I go to him at Tshelenkosi or when he sees me by my home…So Mr Madolo and I decided to break up because I didn’t want to destroy anyone’s life.”
23. After the Learner had read the last sentence of exhibit C into the record, the Department’s representative declared that her evidence should be rejected as she was acting like a hostile witness.
24. Under cross-examination the Learner stated that she had not been in a sexual relationship with the Employee. She had a relationship with him, his child and his partner. She regarded the Employee as a fatherlike figure.
25. She had not been telling the truth when she had said in exhibit C that she had hod a relationship with the Employee. She did not know why Mthembu and her daughter wanted her to admit to having been in a relationship but once she had admitted to a relationship, however, the assaults on her stopped. Mthembu and her daughter had been present when she had written exhibit C. She did this sometime after the late-night incident near the cottage of the Employee. When Mthembu had taken her to the police station she had made a statement that she believes was similar to the content of exhibit C.
26. Exhibit B is a “statement by suspect” made by the Employee in respect of the case opened by Mthembu. In her evidence in chief she testified that she did not know why the Employee had admitted to a sexual relationship. Under cross-examination It was put to the Learner that she had told him what to say. The Learner then stated that she had told him that she had stated in her statement that they had been in a sexual relationship and that they had had sex on about 3-4 occasions. She had asked him to give a statement that was consistent with hers. She was being threatened by her family and had thought that the threats would stop if she did what they wanted; namely, that she admitted to having been in a sexual relationship with the Employee.
The Employee’s case
27. The Employee denies the charge.
28. He previously enjoyed a good relationship with Mthembu. He had heard from a common friend that Mthembu had laid a complaint with the police and that there were rumours that he was in a relationship with the Learner.
29. He had been contacted by the police whilst he was driving to the Eastern Cape. On his return he reported to the police station. He was informed that a complaint of rape had been laid against him. He dealt with Sergeant Mbalane (Mbalane) who advised him that it would be in his interests to make a statement and to not procure the services of an attorney. Mbalane indicated that he would guide the Employee in the drafting of the statement which would then be placed before a prosecutor for a decision on the prosecution of the case to be made. Mbalane also indicated that if he agreed in his statement to having had a sexual relationship with the learner, this would calm down Mthembu. The Employee agreed to go along with the plan of Mbalane.
30. Exhibit B includes the following:
“I understand the allegation against me. I deny the allegations….The relationship between the complainant and I became serious around October 2020 and we began to date. During that period we engaged in consensual sexual intercourse about three (3) times…”
31. On 6 January 2021 the Learner had come to his cottage at approximately 2 am. She said that she had heard a rumour that they were still seeing each other. The Employee had responded by saying that this made no sense and that he would walk her home. She never entered the cottage. Whilst walking the Learner home he had seen Mthembu’s car approaching them. The occupants were shouting and swearing and he had decided to run away. He heard the Learner crying as she was being beaten. The Employee had remained in hiding until dawn. He had then approached Soni and the others and explained what the Learner had said to him as being the reason for her visit that night. Soni had said to him that he could see that he had had sex with the Learner as she was losing weight. The Employee’s response was that he could not answer to that. In re-examination he stated that he had given this answer as he could not comment on the reason for her weight loss.
32. In April the Employee had been contacted by the police and advised that the prosecutor had declined to prosecute.
33. Under cross-examination the Employee maintained that he agreed to make a statement falsely stating that he and the Learner had engaged in sexual intercourse as he was simply following the advice of the police. It was put to him further that he had admitted to consensual sex as such would be a defence of having raped an adult. The response of the Employee was that Mbalane had advised that they needed to show Mthembu that the case was making progress and his admission would assist in doing so. The statement had been written on his behalf by Mbalane.
34. Nkosinathi Mthutu is related to the Employee and a work colleague of Mthembu.
35. On an occasion Mthembu had collected him from his home in the middle of the night. They had driven back to Mthembu’s house and she had shown him the open window through which it was claimed the Learner had escaped to go and visit the Employee. They had then driven to the Employee’s cottage. On approaching the cottage they saw the Employee and Learner under a tree. The Employee had run away. The Learner had been caught and was beaten by Mthembu and others present. While they were hitting the Learner they were asking whether she had slept with the Employee. She had stated that she had not and that she had not even entered the house. When the Employee had reappeared sometime later he had also denied having had sex with the Learner.
36. Under cross-examination Mthutu agreed that given the rumours, Mthembu was justified in being angry with the Employee. When Mthembu had first indicated that the Employee and Learner were in a relationship he had spoken to the Employee who had explained that they were not in a relationship and they had met after the Learner had attended the School for afternoon classes and to exercise. He had not spoken to the Employee about their relationship after the late-night incident.
37. Fanizeni Khosa also testified but he gave no evidence relevant to the charge.
SUMMARY OF ARGUMENTS
The Employer
42. The Department submitted that in his statement to the police the Employee had admitted to having had a sexual relationship with the Learner. This statement was the truth and had been made voluntarily by him.
43. Exhibit C contains the Learner’s true version of events. In this version she admits to having had sex with the Employee. She had recanted this version when she had testified and reliance should not be placed on her oral evidence.
The Employee
44. It was submitted that the Learner was not at the same school at which the Employee taught.
45. Mthembu had testified that when initially confronted by her, the Learner had initially denied that she was in a sexual relationship with the Employee. Mthembu’s evidence was in any event hearsay and her evidence could not establish that the Employee and Learner were in a sexual relationship.
46. The Learner had written exhibit C (in which she admits to a relationship) as she was being assaulted by Mthembu and her daughter. She had admitted to a sexual relationship as she thought that this would bring the assaults to an end.
47. The Employee denies having had a sexual relationship with the learner. He had only admitted to one in his police statement as he had been advised to do so by the police.
ANALYSIS OF EVIDENCE AND ARGUMENT
48. The Department is required to prove on a balance of probabilities that the Employee is guilty of the alleged misconduct with which he has been charged.
49. The Employee is charged with “having committed sexual misconduct against a learner in your school you thereby contravened section 17(1)(b) of the Employment of Employees Act.” The said section 17(1)(b) provides that an Employee must be dismissed if he is found to be guilty of “committing an act of sexual assault on a learner, student or other employee.”
50. It is evident from the provisions of section 17(1)(b) of the Employment of Employees Act that an essential element of the alleged misconduct of the Employer is that he committed an act of sexual assault. As such it was required of the Department to establish that the Employee committed an act of a sexual nature against the consent of the Learner.
51. Whilst the charge states that the Learner was at the School of the Employee, it was not disputed that this is incorrect. The Learner was at Stanger Secondary School whereas the Employee is employed at Tshelenkosi Secondary School. The Employee was thus correctly not charged with having contravened section 17(1)(c) of the Employment of Employees Act.
52. In her oral evidence the Learner denied having had a sexual relationship with the Employee. It was submitted on behalf of the Department that I should reject the Learner’s oral evidence and instead rely upon the content of exhibit C, which is a written statement by the Learner. In this statement she states that she had had a relationship with the Employee. The insurmountable difficulty the Department has, however, even if I were to adopt this approach, is that it is clear from her written statement the Learner indicates that it was a consensual relationship. Similarly in his oral evidence the Employee denied having had a sexual relationship with the Learner but admitted to a consensual sexual relationship in his police statement. Further, Mthembu, the guardian of the Learner, testified that the learner after initially having denied having been in a sexual relationship with the Employee, had admitted to her that they had been in such a relationship. It is clear, however, even from this hearsay evidence of Mthembu that the alleged relationship was consensual.
53. There is no evidence before me that the Employee assaulted the Learner in anyway or caused her to act against her own volition. As such, the Department has failed to establish a key element of his alleged misconduct that the Employee had sexually assaulted the Learner.
54. I now need to determine whether the evidence establishes that the Employee is guilty of another act of misconduct.
55. In her oral evidence the Learner denies having had a sexual relationship of any sort with the Employee. On the other hand, Mthembu testified that after initially having denied such a relationship when confronted by her, the Learner had thereafter admitted that she had been in such a relationship.
56. The Learner admits that she is the author of exhibit C, in which she states that she and the Employee had “dated.” She does not elaborate on what this dating entailed. She, however, testified that she did not tell the truth in exhibit C. She testified that Mthembu and her daughter had forced her to make the statement and that they had been present while she wrote it. The Learner did not know why Mthembu and her daughter wanted her to admit to having been in a sexual relationship, but once she had written the statement, the assaults had stopped. Whilst Mthembu denied the evidence of the Learner that she had assaulted the Learner, she did admit that the Learner had been assaulted by her daughter. No evidence other than that of the Learner was led on behalf of the Employer in respect of exhibit C. Hers is thus the only evidence before me in respect of the circumstances giving rise to the admission of her having “dated” the Employee. Her evidence is that she made this admission in order to give Mthembu something that she was looking for; namely an admission to having had a relationship with the Employee.
57. It was not disputed that exhibit C had been written in the presence of Mthembu and her daughter. In light of evidence of the Learner that she had been assaulted having been corroborated, in part at least, by Mthembu, I find that there is no reason for me to accept the evidence contained in exhibit C that she and the Employee had “dated” over her oral evidence that no such relationship existed and that she had felt compelled to make this admission in exhibit C.
58. The last evidence relevant to an alleged relationship between the Learner and the Employee that needs to be considered is that contained in exhibit B. No evidence was led by the Employer in respect of this exhibit, save for the Learner having been asked to comment on its content that the Employee had admitted to having had a sexual relationship with her. The Learner was not present when the statement was made but she did give two contradictory statements when asked to comment on it. In her evidence in chief she stated that she did not know why he would make such an admission whereas under cross-examination she stated that she had told him to admit to a sexual relationship in his statement to make it consistent with her statement. The evidence of the Employee was in contradiction with both these versions. While he admits to having signed the statement, his version was that it was written by the policeman who advised him that it would be in his interests to admit to a consensual sexual relationship. Whilst this was not the truth, the Employee had decided to go along with the policeman’s advice and he had signed the statement written by the policeman. (By the way, it was submitted on behalf of the Employer in closing that the Employee had made such an admission as he was aware that consent would be a defence to a charge of rape.) The admission of such a relationship, well knowing that the Learner was in fact a learner, might expose the Employee to being found guilty of an act of misconduct as provided for in section 17 of the Employment of Educators Act. I need to decide whether I can base such a finding on the content of exhibit B. I have decided that I cannot. As already stated, no evidence was led by the Employer in respect of this statement. In particular, the policeman responsible for the statement did not testify. As such, the only evidence before me in respect of the statement is that of the Employee and he denies that the version recorded in the statement is his version or the truth. He agreed to sign the statement in the circumstances described above. I accordingly find that I cannot rely upon the content of exhibit B.
FINDING
59. The Employee, S Madolo, is found not guilty.
J Kirby
Arbitrator 03 December 2021
ELRC123-20/21 KZN
THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer
and
S Madolo The Employee
Inquiry by arbitrator-finding
Case Number: ELRC123-21/22KZN
Last date of arbitration: 9 November 2021
Submission of closing arguments: 16 November 2021
Date of award: 03 December 2021
J KIRBY
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
1. The inquiry by arbitrator commenced on 11 June 2021and the hearing of evidence was finalized on 9 November 2021. The hearing took place at the KwaDakuza Office of the Employer. The representatives of both parties requested and were granted permission to submit written closing argument by no later than 16 November 2021.
2. The Employee was represented by Ms Zibani, an official of the Employee’s trade union, NATU.
3. The Employer, the Head of the KwaZulu-Nata l Department of Education (the Department,) was represented by Ms Dumisa, an employee of the Department. Three documents marked as exhibits A, B and C respectively were submitted on behalf of the Department.
4. The learner referred to in these proceedings is now older than 18 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.
EXPLANATION OF THE EMPLOYEES’ RIGHTS
7. Both parties confirmed that the services of an intermediary were not required as the complainant was not a child.
8. I explained the following rights to the Employee, who confirmed that they were aware of and understood these rights:
8.1. The right to the services of an interpreter;
8.2. The rights to question witnesses of the Employer and to dispute any documentary evidence. In particular, the need to ensure that any evidence with which the did not agree was disputed by Ms Zibani and the need to ensure that his version was put to each witness; and
8.3. The right to give evidence and to call witnesses.
9. It was explained to both parties, who indicated that they understood that:
9.1. 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;
9.2. They could make closing arguments after all evidence had been heard; and
9.3. 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 Employees 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.
THE CHARGE AND PLEA
10. The Employee was charged as follows:
“In that during the period 2020 at or near Tshelenkosi Secondary School, you committed sexual misconduct against a learner in your school in that you thereby contravened section 17(1)(b) of the Employment of Employees Act.”
11. The Employee pleaded not guilty to the charge and elected not to give a plea explanation.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Employer’s case
12. The biological mother of the Learner has passed away and Zanele Mthembu (Mthembu), her sister, acts as the Learner’s guardian. Mthembu received a report from her neighbour that the Learner was spending time at the cottages on the premises of Tshelenkosi Secondary School (the School.) The Employee, who is known to Mthembu as they train at the same gymnasium, stays at one of these cottages.
13. Mthembu questioned the learner about having been in a sexual relationship with the Employee. The Learner had initially denied the existence of such a relationship but after Mthembu having reassured the Learner that all she wanted to do was act in her best interests, the Learner had admitted that she was in a relationship with the Employee and that they had had sex on approximately 5 occasions. The relationship had started during the national lockdown of 2020 when the Learner had gone to the School for extra lessons. The Employee had given the Learner fried chips or R10 for having sex with him.
14. After the Learner made this report to her she had taken her to the police station and a criminal case had been opened. The Learner was also referred to the hospital where she received anti-retroviral medication and a medical examination was carried out.
15. Sometime after the case had been reported to the police and at approximately 1 am, Mthembu discovered that the Learner was not in her room. She suspected that the Learner had gone to the Employee’s cottage. As they approached the cottages in her car they found the Learner walking with the Employee. The Employee ran away.
16. Under cross-examination Mthembu denied having assaulted or beaten the Learner though she admitted that her daughter had beaten the Learner. She agreed that the Learner had attended extra lessons at the School and she could not dispute that the Learner had got to know the child and wife of the Employee during this period and had developed relationships with them. It was put that the Learner felt safe at the home of the Employee and that’s why she had gone in the middle of the night to inform him that she was being assaulted at her home.
17. John Soni (Soni) is the grandfather of the Learner. He had accompanied Mthembu and others to the cottage of the Employee at approximately 1 am one night. It was during loadshedding so it was very dark. As they approached the cottages someone in the car shouted “here they are.” He saw the Learner walking with the Employee, who immediately ran away. The Learner was stopped and beaten by the others. After Mthembu had left in the car the Employee reappeared.
18. On being asked by Soni how many times he had slept with the Learner, the Employee had replied that he did not want to reply to that question. Under cross-examination Soni testified that the Employee had stated that he did not want to say how many times he had slept with her.
19. Under cross-examination he had initially stated that on the night that they had gone looking for the Learner, Mthembu’s daughter had beaten the learner when the Employee had run away. He later stated that as he had gone to look for the Employee he could not say who had beaten the Learner.
20. The Learner testified that in 2020 she was in grade 10 at Stanger Secondary School. She knew the Employee as their homes are nearby but she got to know him better after she started attending extra lessons at the School. She and her friends went to play at his cottage with his child. She also developed a relationship with the child’s mother who was also staying at the cottage. Although people in the neighbourhood were saying that she was in a relationship with the Employee, this was not true.
21. The Learner is the author of exhibit C. She had not wanted to write it but she was forced to do so by Mthembu and her daughter. She was told that the Department had requested it.
22. Exhibit C is signed by the Learner and includes the following:
“…Last year I was attending extra classes at Tshelenkosi …I was already dating Madolo. My first day attending extra classes at Tshelenkosi, Mr Madolo was very shocked that I am still at school…I then decided to stop having extra classes and this led Mr Madolo and I to see each other during weekends and whenever I go to him at Tshelenkosi or when he sees me by my home…So Mr Madolo and I decided to break up because I didn’t want to destroy anyone’s life.”
23. After the Learner had read the last sentence of exhibit C into the record, the Department’s representative declared that her evidence should be rejected as she was acting like a hostile witness.
24. Under cross-examination the Learner stated that she had not been in a sexual relationship with the Employee. She had a relationship with him, his child and his partner. She regarded the Employee as a fatherlike figure.
25. She had not been telling the truth when she had said in exhibit C that she had hod a relationship with the Employee. She did not know why Mthembu and her daughter wanted her to admit to having been in a relationship but once she had admitted to a relationship, however, the assaults on her stopped. Mthembu and her daughter had been present when she had written exhibit C. She did this sometime after the late-night incident near the cottage of the Employee. When Mthembu had taken her to the police station she had made a statement that she believes was similar to the content of exhibit C.
26. Exhibit B is a “statement by suspect” made by the Employee in respect of the case opened by Mthembu. In her evidence in chief she testified that she did not know why the Employee had admitted to a sexual relationship. Under cross-examination It was put to the Learner that she had told him what to say. The Learner then stated that she had told him that she had stated in her statement that they had been in a sexual relationship and that they had had sex on about 3-4 occasions. She had asked him to give a statement that was consistent with hers. She was being threatened by her family and had thought that the threats would stop if she did what they wanted; namely, that she admitted to having been in a sexual relationship with the Employee.
The Employee’s case
27. The Employee denies the charge.
28. He previously enjoyed a good relationship with Mthembu. He had heard from a common friend that Mthembu had laid a complaint with the police and that there were rumours that he was in a relationship with the Learner.
29. He had been contacted by the police whilst he was driving to the Eastern Cape. On his return he reported to the police station. He was informed that a complaint of rape had been laid against him. He dealt with Sergeant Mbalane (Mbalane) who advised him that it would be in his interests to make a statement and to not procure the services of an attorney. Mbalane indicated that he would guide the Employee in the drafting of the statement which would then be placed before a prosecutor for a decision on the prosecution of the case to be made. Mbalane also indicated that if he agreed in his statement to having had a sexual relationship with the learner, this would calm down Mthembu. The Employee agreed to go along with the plan of Mbalane.
30. Exhibit B includes the following:
“I understand the allegation against me. I deny the allegations….The relationship between the complainant and I became serious around October 2020 and we began to date. During that period we engaged in consensual sexual intercourse about three (3) times…”
31. On 6 January 2021 the Learner had come to his cottage at approximately 2 am. She said that she had heard a rumour that they were still seeing each other. The Employee had responded by saying that this made no sense and that he would walk her home. She never entered the cottage. Whilst walking the Learner home he had seen Mthembu’s car approaching them. The occupants were shouting and swearing and he had decided to run away. He heard the Learner crying as she was being beaten. The Employee had remained in hiding until dawn. He had then approached Soni and the others and explained what the Learner had said to him as being the reason for her visit that night. Soni had said to him that he could see that he had had sex with the Learner as she was losing weight. The Employee’s response was that he could not answer to that. In re-examination he stated that he had given this answer as he could not comment on the reason for her weight loss.
32. In April the Employee had been contacted by the police and advised that the prosecutor had declined to prosecute.
33. Under cross-examination the Employee maintained that he agreed to make a statement falsely stating that he and the Learner had engaged in sexual intercourse as he was simply following the advice of the police. It was put to him further that he had admitted to consensual sex as such would be a defence of having raped an adult. The response of the Employee was that Mbalane had advised that they needed to show Mthembu that the case was making progress and his admission would assist in doing so. The statement had been written on his behalf by Mbalane.
34. Nkosinathi Mthutu is related to the Employee and a work colleague of Mthembu.
35. On an occasion Mthembu had collected him from his home in the middle of the night. They had driven back to Mthembu’s house and she had shown him the open window through which it was claimed the Learner had escaped to go and visit the Employee. They had then driven to the Employee’s cottage. On approaching the cottage they saw the Employee and Learner under a tree. The Employee had run away. The Learner had been caught and was beaten by Mthembu and others present. While they were hitting the Learner they were asking whether she had slept with the Employee. She had stated that she had not and that she had not even entered the house. When the Employee had reappeared sometime later he had also denied having had sex with the Learner.
36. Under cross-examination Mthutu agreed that given the rumours, Mthembu was justified in being angry with the Employee. When Mthembu had first indicated that the Employee and Learner were in a relationship he had spoken to the Employee who had explained that they were not in a relationship and they had met after the Learner had attended the School for afternoon classes and to exercise. He had not spoken to the Employee about their relationship after the late-night incident.
37. Fanizeni Khosa also testified but he gave no evidence relevant to the charge.
SUMMARY OF ARGUMENTS
The Employer
42. The Department submitted that in his statement to the police the Employee had admitted to having had a sexual relationship with the Learner. This statement was the truth and had been made voluntarily by him.
43. Exhibit C contains the Learner’s true version of events. In this version she admits to having had sex with the Employee. She had recanted this version when she had testified and reliance should not be placed on her oral evidence.
The Employee
44. It was submitted that the Learner was not at the same school at which the Employee taught.
45. Mthembu had testified that when initially confronted by her, the Learner had initially denied that she was in a sexual relationship with the Employee. Mthembu’s evidence was in any event hearsay and her evidence could not establish that the Employee and Learner were in a sexual relationship.
46. The Learner had written exhibit C (in which she admits to a relationship) as she was being assaulted by Mthembu and her daughter. She had admitted to a sexual relationship as she thought that this would bring the assaults to an end.
47. The Employee denies having had a sexual relationship with the learner. He had only admitted to one in his police statement as he had been advised to do so by the police.
ANALYSIS OF EVIDENCE AND ARGUMENT
48. The Department is required to prove on a balance of probabilities that the Employee is guilty of the alleged misconduct with which he has been charged.
49. The Employee is charged with “having committed sexual misconduct against a learner in your school you thereby contravened section 17(1)(b) of the Employment of Employees Act.” The said section 17(1)(b) provides that an Employee must be dismissed if he is found to be guilty of “committing an act of sexual assault on a learner, student or other employee.”
50. It is evident from the provisions of section 17(1)(b) of the Employment of Employees Act that an essential element of the alleged misconduct of the Employer is that he committed an act of sexual assault. As such it was required of the Department to establish that the Employee committed an act of a sexual nature against the consent of the Learner.
51. Whilst the charge states that the Learner was at the School of the Employee, it was not disputed that this is incorrect. The Learner was at Stanger Secondary School whereas the Employee is employed at Tshelenkosi Secondary School. The Employee was thus correctly not charged with having contravened section 17(1)(c) of the Employment of Employees Act.
52. In her oral evidence the Learner denied having had a sexual relationship with the Employee. It was submitted on behalf of the Department that I should reject the Learner’s oral evidence and instead rely upon the content of exhibit C, which is a written statement by the Learner. In this statement she states that she had had a relationship with the Employee. The insurmountable difficulty the Department has, however, even if I were to adopt this approach, is that it is clear from her written statement the Learner indicates that it was a consensual relationship. Similarly in his oral evidence the Employee denied having had a sexual relationship with the Learner but admitted to a consensual sexual relationship in his police statement. Further, Mthembu, the guardian of the Learner, testified that the learner after initially having denied having been in a sexual relationship with the Employee, had admitted to her that they had been in such a relationship. It is clear, however, even from this hearsay evidence of Mthembu that the alleged relationship was consensual.
53. There is no evidence before me that the Employee assaulted the Learner in anyway or caused her to act against her own volition. As such, the Department has failed to establish a key element of his alleged misconduct that the Employee had sexually assaulted the Learner.
54. I now need to determine whether the evidence establishes that the Employee is guilty of another act of misconduct.
55. In her oral evidence the Learner denies having had a sexual relationship of any sort with the Employee. On the other hand, Mthembu testified that after initially having denied such a relationship when confronted by her, the Learner had thereafter admitted that she had been in such a relationship.
56. The Learner admits that she is the author of exhibit C, in which she states that she and the Employee had “dated.” She does not elaborate on what this dating entailed. She, however, testified that she did not tell the truth in exhibit C. She testified that Mthembu and her daughter had forced her to make the statement and that they had been present while she wrote it. The Learner did not know why Mthembu and her daughter wanted her to admit to having been in a sexual relationship, but once she had written the statement, the assaults had stopped. Whilst Mthembu denied the evidence of the Learner that she had assaulted the Learner, she did admit that the Learner had been assaulted by her daughter. No evidence other than that of the Learner was led on behalf of the Employer in respect of exhibit C. Hers is thus the only evidence before me in respect of the circumstances giving rise to the admission of her having “dated” the Employee. Her evidence is that she made this admission in order to give Mthembu something that she was looking for; namely an admission to having had a relationship with the Employee.
57. It was not disputed that exhibit C had been written in the presence of Mthembu and her daughter. In light of evidence of the Learner that she had been assaulted having been corroborated, in part at least, by Mthembu, I find that there is no reason for me to accept the evidence contained in exhibit C that she and the Employee had “dated” over her oral evidence that no such relationship existed and that she had felt compelled to make this admission in exhibit C.
58. The last evidence relevant to an alleged relationship between the Learner and the Employee that needs to be considered is that contained in exhibit B. No evidence was led by the Employer in respect of this exhibit, save for the Learner having been asked to comment on its content that the Employee had admitted to having had a sexual relationship with her. The Learner was not present when the statement was made but she did give two contradictory statements when asked to comment on it. In her evidence in chief she stated that she did not know why he would make such an admission whereas under cross-examination she stated that she had told him to admit to a sexual relationship in his statement to make it consistent with her statement. The evidence of the Employee was in contradiction with both these versions. While he admits to having signed the statement, his version was that it was written by the policeman who advised him that it would be in his interests to admit to a consensual sexual relationship. Whilst this was not the truth, the Employee had decided to go along with the policeman’s advice and he had signed the statement written by the policeman. (By the way, it was submitted on behalf of the Employer in closing that the Employee had made such an admission as he was aware that consent would be a defence to a charge of rape.) The admission of such a relationship, well knowing that the Learner was in fact a learner, might expose the Employee to being found guilty of an act of misconduct as provided for in section 17 of the Employment of Educators Act. I need to decide whether I can base such a finding on the content of exhibit B. I have decided that I cannot. As already stated, no evidence was led by the Employer in respect of this statement. In particular, the policeman responsible for the statement did not testify. As such, the only evidence before me in respect of the statement is that of the Employee and he denies that the version recorded in the statement is his version or the truth. He agreed to sign the statement in the circumstances described above. I accordingly find that I cannot rely upon the content of exhibit B.
FINDING
59. The Employee, S Madolo, is found not guilty.
J Kirby
Arbitrator 03 December 2021
ELRC123-20/21 KZN