PSES 503-21/22WC

Panelist : Alta Reynolds

Case Number : PSES 503-21/22WC

Date of Award : 19 January 2022


In the ARBITRATION between:


SALIPSWU obo Dlwathi, Bongani
(Union/Applicant)

and

Department of Education – Western Cape
(Respondent)


DETAILS OF HEARING AND REPRESENTATION

1. The matter was referred for arbitration to the Education Labour Relations Council (ELRC) for a dispute relating to an alleged unfair dismissal for misconduct referred in terms of section 191(5)(a)(i) of the Labour Relations Act 66 of 1995 as amended (the LRA) and was completed over four sittings on 1 December 2021, 7 December 2021, 10 December 2021 and 15 December 2021 virtually via Zoom video conferencing.

2. The Applicant, Mr Bongani Dlwathi, was represented by Mr Vusi Ntlahla, a SALIPSWU (South African Liberated Public Sector Workers Union) Shop Steward, and the the Respondent, Department of Education – Western Cape (WCED), was represented by Mr Lazola Mbotoloshi, a Labour Relations Officer.

3. The proceedings were conducted in English with digital, Zoom and handwritten recordings made.

4. The parties did not require an explanation of the arbitration proceedings.

5. Reference was made to the Pre-Arbitration Minutes dated 27 October 2021 concluded privately between the parties, which were confirmed by the parties after certain amendments were made, with the relevant extracts included in the award.

6. The following preliminary issues required to be addressed:

7. Both parties disputed the English translations made by one another relating to WhatsApp voice recordings in IsiXhosa between the Respondent’s one witness Ms Zikhona Sigenu and two other Educators at Sonwabo Primary Shool, Ms Thandeka Varoyi and Ms Noluthando Mshudulu, which conversations were captured on 1 and/or 2 February 2021. They requested that the ELRC be approached for a verified independent translation of these recordings, which was duly arranged and the translation provided to the parties on 3 December 2021.

8. The Respondent requested to hand in an audio recording of the Applicant’s disciplinary hearing to highlight differences in the Appllicant’s version then and later in the dispute referral form to the ELRC. The Applicant enquired whether this can be allowed in the proceedings. I informed the parties that although this is a de novo hearing there was case law that supported that a Panellist/Commissioner should not unreasonably disallow the record of a disciplinary hearing and that the parties may argue the relevance and evidentiary value of such a record.

9. Written closing arguments were requested by the parites and agreed to at the last sitting of the arbitration due to time constraints. The parties elected not to follow the normal procedure for the submission of closing arguments but requested, and agreed, to submit their closing arguments simultaneously at 16h00 on 22 December 2021 via e-mail to the ELRC’s Case Management Officer, the Panellist and one another via e-mail. The written closing arguments were received at the due date.

ISSUE TO BE DECIDED

10. The purpose of this arbitration is to determine whether the dismissal of the Applicant, Mr Bongani Dlwathi, by the Respondent, the Department of Education – Western Cape, for alleged misconduct was fair on both procedural and substantive grounds, as well as the appropriate relief if unfairness is found. It was confirmed that the onus of proof would be on the Respondent in this matter. The relief sought by the Applicant was reinstatement, with retrospective back-pay, in the post of Principal that he had previously occupied at Sonwabo Primary School.

BACKGROUND TO THE DISPUTE

The following facts were established as common cause:

11. The Applicant joined the Respondent in 1997 with Bongolethu Primary School in Phillippi and was appointed as Deputy Principal at that school in 2013. He applied for and was appointed as Principal at Sonwabo Primary School in Gugulethu in January 2015.

12. The Applicant received a notification on 27 May 2021 to attend a disciplinary hearing to be held on 17, 18 and 21 June 2021 in order to respond to the following charges of alleged misconduct:

CHARGE 1
It is alleged that you are guilty of misconduct in terms of Section 18(1) (dd) of the Employment of Educators Act, no 76 of 1998 (hereinafter referred to as the Act), in that during fourth term of School in 2020, you committed a statutory offence in terms of Section 3(a) and Section 4(a) of the Prevention of Corrupt Activities Act No 12 of 2004, by requesting a former educator, Ms Z Sigenu to pay you an amount of R2000 in your CAPITEC Bank account, as a thank you for appointing her at the school and/or in turn for securing her a post level 1 postiion and or nominating her for a post at said school in 2021.

ALTERNATIVE 1 TO CHARGE 1
It is alleged that you are guilty of misconduct in terms of Section 18(1)(f) of the Act, in that during the fourth term of school in 2020, you unjustifiably prejudiced the administration, discipline or efficiency of the Western Cape Education Department and Sonwabo Primary School, by requesting a former educator, Ms Z Sigenu to pay you an amount of R2000 in your CAPITEC Bank Account, as a thank you for appointing her at the school and/or in turn for securing her a post level 1 postiion and or nominating her for a post at said school in 2021.

ALTERNATIVE 2 TO CHARGE 1
It is alleged that you are guilty of misconduct in terms of Section 18(1)(g) of the Act, in that during the last term of 2020, you misused your position as principal at Sonwabo Primary School and prejudiced the interest of Ms Z Sigenu, a former educator by requesting her to pay you an amount of R2000 in your CAPITEC Bank Account, as a thank you for appointing her at the school and/or in turn for securing her a post level 1 position and or nominating her for a post.


CHARGE 2
It is alleged that you are guilty of misconduct in terms of Section 18(1)(a) of the Act, in that during second and/or third term of School in 2016, you failed to comply with Section 36(4)(a)(i) of South African Schools Act 84 of 1996 by converting a toilet at Sonwabo Primary School without proper approval from the Member of the Executive Acouncil or his/her delegated authority.

CHARGE 3
It is alleged that you are guilty of misconduct in terms of Section 18(1)(a) of the Act, in that during second and/or third term of School in 2019, you failed to comply with Section 36(4)(a)(i) of South African Schools Act 84 of 1996 by erecting urinals outside the boys toilets at Sonwabo Primary School without proper approval from the Member of the Executive Acouncil or his/her delegated authority.

13. The Applicant was represented in his disciplinary hearing by Mr Nathan Cottle of SALIPSWU. The charges were formulated by Mr Lazola Mbotoloshi, the Respondent’s Representative in the arbitration proceedings. The hearing was chaired by Mr Kobus Esterhuizen, an external independent Presiding Officer. The Applicant was found not guilty of Charge 1 and Alternative 2 to Charge 1, but was found guilty of Alternative 1 to Charge 1, Charge 2 and Charge 3. The sanction of dismissal was handed down effective from 16 September 2021.

14. The Applicant was paid up till end September 2021, his PERSAL number was 54032083 and he earned R51390.33 per month at the time of his dismissal. This was the first reported alleged transgression for the Applicant since he joined the Respondent’s service.

The following facts were in dispute:

15. The reasons for the dismissal were in dispute for the following reasons:

• Whether the Applicant had committed the offences that he was found guilty of and dismissed for as formulated in Alternative 1 to Charge 1, Charge 2 and Charge 3.

• Whether the School Governing Body (SGB) approved the erection of the external urinals in 2019 as an emergency response to the crisis surrounding the existing toilets.

• Whether the SGB approved the renovation of the old building on the school premises in 2016, not for toilets, but to be used by the school for storage and Head of Department (HOD) offices, which was at no cost to the Respondent.

• Whether the Applicant had demanded R2000.00 from Ms Z Sigenu and had promised her any post at the school.

• Whether the Applicant gave the R2000.00 to Ms Sigenu in November 2020 as an advance against her December 2020 salary, which was repaid to the Applicant by Ms Sigenu in December 2020.

• Whether the money exchanged was in exchange for a position for Ms Sigenu in 2021 for her contract to be renewed.

• Whether the MEC or delegated authority approved the building conversion and erection of urinals at the school buildings.

• Whether the Principal as SGB member is required to guide the SGB on what approvals need to be obtained to make changes to school buildings and is therefore responsible for what had happened.

16. The procedure was in dispute for the following reasons:

It is noted that it was stated in the pre-arbitration minute concluded between the parties on 27 October 2021 that the procedure leading to the Applicant’s dismissal was not in dispute. However, the Applicant party in their statement of case had alleged that the procedure was now also in dispute since the charges on which the Applicant was dismissed for were not clear and open to different interpretations.

SURVEY OF EVIDENCE AND ARGUMENT

17. Mr Garth Engel, Control Works Inspector WCED Infrastructure Department, Ms Zikhona Sigenu, former Educator at Sonwabo Primary School, Ms Bukiwe Mgidi, Educator at Sonwabo Primary School, Ms Thandeka Varoyi, Educator at Sonwabo Primary School and Ms Noluthando Mshudulu, Educator at Sonwabo Primary School, testified under oath for the Respondent.

18. The Applicant, Mr Bongani Dlwathi, testified under oath. Mr Christopher Simphiwe Dyasi, the former Principal of Sonwabo Primary School and Mr Eric Pumso Potwana, former SGB Chairperson of Sonwabo Primary School, also testified under oath for the Applicant.

19. Documents were handed in by both parties, as well as an audio recording of the Applicant’s disciplinary hearing, audio WhatsApp conversations between the Respondent’s witness Ms Zikhona Sigenu and two other Educators at Sonwabo Primary School, supported by the ELRC’s English translation from the IsiXhosa of these conversations, and photographs of the building that the Applicant allegedly renovated or changed without the required consent of the Respondent. The documents and recordings were admitted by the parties, except for the audio recording of the Applicant’s disciplinary hearing and the parties’ individual translations of the WhatsApp conversations, with the ELRC translation of these conversations accepted.

20. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, were relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.

THE RESPONDENT’S EVIDENCE

21. The respondent’s case was that the Applicant had committed very serious offences, with gross misconduct if Alternative 1 of Charge 1 is considered when he requested a struggling teacher on a contract at his school to pay him R2000.00 and promised her a post at the school, hence the trust releationship was completedly broken. Other Educators at the school were talking about what he had done, with WhatsApp messages that it was no right what he had done and that the complainant needed to report him. With respect to Charges 2 and 3, he needed to request approval from the MEC to convert toilets and to erect additional urinals outside the boys’ toilets. By doing the latter he had trampled on the rights of learners because they had to urinate outside. They therefore felt that the Applicant’s dismissal was substantively fair. The Applicant’s previous position was still vacant and would be advertised in 2022, with someone acting in the position. They would also lead evidence that the Applicant’s version in the disciplinary hearing was that Ms Sigenu volunteered to give the Applicant R2000.00 for a “drink”, with his version now that Ms Sigenu borrowed R2000.00 from him and had paid it back to him.

22. Mr Garth Engel testified as follows under oath in his evidence in chief: He was employed as a Control Works Inspector in the Infrastructure Delivery Directorate of the Respondent and had commenced service with the Respondent in September 2013. He did not personally know the Applicant, but only as Principal of Sonwabo Primary School, and had testified in the Applicant’s disciplinary hearing. Sonwabo Primary School was identified for scheduled maintenance in 2021, whereafter a team professionals tasked by the Department of Public Works was sent out to perform a feasibility study and report on the condition of the school at the time. After Public Works submitted their report and the feasibility study was approved a tender process was initiated. When they went to hand over to the appointed contractor they discovered that the original toilets were in a different state, with outside urinals installed and one of the previous ablution facilities had been changed to an office to accommodation a HOD staff member. This had a cost implication since the budget had already been allocated and a contractor had been appointed to perform the work. He explained the procedure to be followed if a Principal or SGB wanted to convert of change school buildings. When they reported the matter to the Property Department to ask if approval had been obtained for the changes made at the school, they confirmed that no formal written request had been made and approval given for the work. There was a process for emergency requests on the CEMIS (Central Education Management Information System), of which an example for the school was contained in the Respondent’s bundle of documents, in which case the Applicant had made an application for windows, but did not do so in 2019 for the toilet problem. Circulars are sent to all staff employed by the Respondent of the processes to be followed, but he could not comment if the Applicant did or did not receive these circulars. Although Action SA, a sponsor, had funded the work the work at the school, extra labour was required to, for example, remove the external urinals and install them internally. Even if the work was going to be sponsored, application must still be made to the Respondent for any changes or improvements to school buildings.

23. Mr Engel testified as follows under cross-examination: Even if a Principal anticipated the same response as previously to a CEMIS submission and it was part of planned maintenance, every incident must nevertheless be reported since they are not all of the same in nature and it must not be assumed that the same response will be received from the Respondent. Ablutions fall under the Respondent’s scheduled maintenance project. Since he joined the Respondent in 2013 he had not been able to familiarise himself with the infrastructure challenges of Sonwabo Primary school since they oversaw 2000 schools in the region. He responded to the question whether he after he had gone to the school and identified something was done which was not authorised and had checked on the school’s file where this was coming from, that his job was to go to sites, to monitor what is happening and record that, but not to get into the politics and what is happening behind the scenes, with his role to only report on what is seen. He was not aware that new toilets were built at Sonwabo Primary School in 2014 since he was appointed as a Works Inspector in the West Coast Education District when he joined the Respondent in 2013, whilst Sonwabo fell under the Metro South Education District. Sonwabo was scheduled for maintenance in 2020/2021, with the focus of the scheduled maintenance project being on the most critical items at a school for it to remain operational. During this project period the ablutions for Sonwabo Primary School were upgraded.

24. Mr Engel testified as follows in re-examination: With respect to Charge 2 relating to the issue of the a toilet being converted into an office he became aware that approval for this had not been granted after he had conducted an investigation and communicated with his colleagues, with the same applying to Charge 3 relating to the urinals being erected outside the ablution block. Property Department would have been in possession of the information if approval had been granted, not himself personally. He would only have been privy to the information if a query had come through and he had attended at the site and found that something was not in the plan and made an enquiry in this regard.

25. Ms Zikhona Sigenu testified as follows under oath in her evidence in chief: Her current profession was that of Educator and she knew the Applicant as Principal of Sonwabo Primary School when she was employed there. She was employed three times at the school, the first time in January 2020 for two weeks during the first term as a substitute for an Educator who was on bereavement and whose leave was extended and she got a contract for one month, the second time in March 2020 to relieve for an Educator who was on sick leave and the third time for the last term from August 2020 to December 2020 on a contract as substitute Educator to relieve an Educator who was on sick leave and subsequently retired. The Applicant had done a follow up for her when she was not paid her salary for October 2020. When she received her pay she went to his office to thank him for doing the follow up for her, and the Applicant said to her she must not just thank in words and give something up front, with the example of a “drink”. She gave the “drink” of R300.00 in a white envelope the following day to the Applicant in the office. He asked if the other “drink” is still coming. She knew this did not refer to an actual drink and that he meant for more money to come. She never volunteered to give the Applicant the “drink” money, but he requested it from her. She went to a colleague Ms Varoyi and told her about the “drink” payment of R300.00 that she made to the Applicant. Ms Varoyi told her the post is vacant with no one substituting in it and suggested that she give R2000.00 instead to the Applicant, like a bribe to get the vacant post. The next day, a Friday in October 2020 after she was paid, she withdrew R2000.00 cash and gave the Applicant the R2000.00 in cash. The last payment of R2000.00 was paid into the Applicant’s CAPITEC bank account on 3 December 2020 to make up the total of R4300.00 that she paid to the Applicant. A “drink” was another term for a bribe. By paying the Applicant this money he in a way had promised her that she would have a position in 2021, because when she went to his office on 15 December 2020 and she asked him what will happen, he had said to her “Zikhona your space is there, you must come back”. She had gone to the Applicant to request his bank account for the last payment of R2000.00 on the advice of another colleague Ms Mgidi so that she had proof of the payment made. At the time of the school closure in December 2020 she was informed in a staff meeting what subjects she would teach in 2021 and that she would teach the 4B class. The Applicant did not deliver on his promise to give her a position in 2021. On the first day at school on 1 February 2021 the Applicant told her he could not renew her contract because she was not qualified for Foundation Phase, that is why she begged him and offered to increase the “drink” money as she thought it was not enough since she was desperate for a job. She was referred to the Applicant’s dispute referral form and the special features provided there. What was written there was a lie since she had never borrowed R2000.00 from the Applicant which she repaid into his Capitec Bank Account as her salary did not take long to come through at the time, as confirmed by her payslips. She had written the letter of 16 June 2021 in which she stated that she would not testify in the Applicant’s disciplinary hearing scheduled for 17 June 2021. The reason why she wrote it is because she had a small baby and was under a lot of stress being unemployed and also did not want the Applicant to lose his job. She had called the Applicant, who had referred her to Mr Nathan Cottle, his Union Representative, to tell him that she wanted to drop the charges and did not want to testify. They arranged to meet at Sable Square Centre in Milnerton in the parking lot and Mr Cottle told her what to write. The Applicant was not present at the meeting but was in his car. Mr Cottle e-mailed the letter on her behalf. The Applicant paid back the R4300.00 that she paid to him. Mr Cottle gave her R3000.00 at that meeting on 16 June 2021 and later the balance of R1300.00 in cash the following week at Sable Square on 26 June 2021. The money was provided in a money bag. Mr Cottle had also asked her to bring her CV on 16 June 2021 and he told her that he would talk to other Principals to find her another job. When she reported what the Applicant did, it was not for him to be dismissed, but for her to get her job back. She felt the Applicant had taken advantage of her because she was young and inexperienced by taking her money and promising to get her a post since the Applicant did tell her on 15 December 2020 that her space would be there. She had refused other work since she knew she was going back to Sonwabo. The Applicant’s dismissal was not due to her doing and she had received threatening messages via FaceBook in this regard. She confirmed the content and translations of the WhatsApp messages between herself, her colleagues Ms Mgidi, her HOD Ms Varoyi, Ms Mshudulu and the Applicant on 1 and 2 February 2021 after the Applicant had informed her that there was no post for her in 2021. Ms Mshudulu had recommended that she report the Applicant, and offered to assist her with the drafting of the complaint letter.

26. Ms Sigenu testified as follows under cross-examination: She confirmed that Alternative 1 to Charge 1 is what happened between her and the Applicant. She could only confirm that she paid R2000.00 into the Applicant’s Capitec bank account, not that he requested her to pay that amount into his account but clarified as to what was the truth, confirming that on 7 October 2020 when she went to the Applicant’s office he had requested “drink” money of R2000.00 which she paid into his bank account. She also confirmed that the money was to “thank” the Applicant and that it was for a post in 2021. The Applicant was not specific about the “drink” money and after she gave him the R300.00 she went to Ms Varoyi the HOD to tell her about the “drink” money and Ms Varoyi asked why she did not give the Applicant R2000.00 instead of R300.00. The Applicant had not mentioned R2000.00 but Ms Varoyi had suggested she pay the Applicant R2000.00. She confirmed that she had worked at the school three times in 2020, but could not remember the exact dates, and recalled that she was in a SGB post for two weeks during September 2020 and was paid by the SGB, whereafter she was on a contract with the Respondent, which ended on 15 December 2020. She confirmed she paid a total amount of R4300.00 to the Applicant. She confirmed the circumstances under which the three amounts of money were paid to the Applicant. On the second occasion when she dropped the R2000.00 cash in the Applicant’s office, which she thought was in November 2020, the Applicant had asked if she had got paid and she said she had not yet, he informed that he had received her money from his side and he said she must not forget, but there was no rush as he was going to the Eastern Cape. She did not take a loan of R2000.00 from the Applicant since the second time her salary did not take long to be paid, and it was only the first time that she thanked the Applicant for the follow up that her money was dragging. She heard that the person who she was substituting was going to resign before it was officially announced at the school. The last day of school in 2020 she went to the Applicant and he said she must not worry her space and that class was there for her and she must come back, which is why she was there at the opening of the school in 2021. She was not aware that somebody else had been converted into that vacant post already on 18 November 2020 because that person had qualified in terms of the Respondent’s conversion procedure. This did not make sense to her if the Applicant had told her on 15 December 2020 that there would be a space for her if another teacher was already converted into that post. When the Applicant called her into the office on 1 Februrary 2021 and informed her that he cannot renew her contract he said to her he could not do anything since she does not qualify for Foundation Phase since the vacancy is in Foundation Phase. She did not argue about this because he had promised the post to her and was not angry about the Applicant’s response, just disappointed and went home and told the other teachers that her contract had not been renewed. She did not say that she had a sense of entitlement because she had acted in the post that became vacant, but it was because the Applicant had made a promise which he did not deliver to her. A meeting was held when the school finished in 2020 at which the HODs, the two Deputy Principals and all the teachers from grade 4 to 7 were present when she was allocated subjects and class 4B to teach for 2021 by the HODS, which allocations were confirmed on paper, of which she did not have a copy as proof. The Principal was not present at this meeting and she did not know if the Principal allocated classes. She did not know the relationship between the Applicant and Ms Varoyi the HOD who suggested she give the R2000.00 to the Applicant. With reference to the WhatsApp conversations with Ms Mgidi, Ms Varoyi and Ms Mshudulu, and the comment from Ms Mgidi made that they must not use her to fight their battles, she did not know if there was a bad relationship between Ms Varoyi and the Applicant, but everybody knew that Ms Mshudulu did not have a good relationship with the Applicant. She confirmed again that in their culture if someone asked for a drink it passed as a bribe. When she stated in the letter of 16 June 2021 that she was withdrawing the charges against the Applicant she was not only withdrawing them for the disciplinary hearing of 17 June 2021 with the intention to re-instate them again afterwards, but was withdrawing the charges completely. She was never forced to withdraw the charges, but withdrew them voluntarily. She came to testify at the arbitration because she received an e-mail that the case had been revisited and was called to testify. She had followed orders to come, was not forced to do so, did not know why the charges were brought up again and came to find out. She had called the Applicant on she thought 15 June 2021 when she received the notice to attend the Applicant’s disciplinary hearing. She had made the call to the Applicant because she was under a lot of stress at the time and did not want to go through with the charges, when the Applicant advised her to call Mr Nathan Cottle. She wrote a letter in front of Mr Cottle who e-mailed it to the Respondent. She knew Mr Mbotoloshi of the Respondent, but saw no need to contact him to inform that she was withdrawing the charges against the Applicant and was not willing to testify at the Applicant’s disciplinary hearing. She never wanted the Applicant to be fired and to lose his job. She confirmed the meetings and discussions with Mr Cottle at Sable Centre and did not see the need to record these conversations since she thought it would be the end of that. She received a threatening message after the Applicant was dismissed and did not know the person who sent it and could not say that it was not coming from the Applicant. She was in the Eastern Cape at the time and could not press charges, although she had information about that. She was referred again to the translated WhatsApp voice recordings. Ms Varoyi was the one who said that she should give R2000.00 to the Applicant. Ms Mgidi in her conversation said that Ms Varoyi would be furious if she heard that the Applicant asked her, Ms Sigenu, to pay another R2000.00. She wrote the letter of complaint in February 2021 via e-mail. Ms Mshudulu provided her with an example to use, who she had testified had a bad relationship with the Applicant. She had contacted Ms Mshudulu for help, not because Ms Mshudulu had a bad relationship with the Applicant. The advice given to her in the one clip by Ms Mshudulu that she can even write that others are doing the same, with R5000.00 mentioned, did not mean to her that she must fabricate stories and she only wrote what actually happened between her and the Applicant. The Applicant would be lying if he testified that she requested an advance from him since she needed assistance. She never went to his office to ask for a loan or borrowed money from the school as she had received her money on time in November 2020. She questioned why he would give the money back to her if she has asked him for a loan. She had no proof of the R4300.00 that was paid back to her, but Mr Cottle would know and the Applicant was not dismissed yet at the time that she dropped the charges. Nobody had used her to fight their battles and she did not say that the Applicant had used her, but had only taken advantage of her.

27. Ms Sigenu testified as follows under re-examination: She confirmed her previous evidence, which is not repeated here, adding the following: Since the Applicant was not satisfied with the R300.00, she gave the Applicant R2000.00 in cash as suggested by Ms Varoyi. The Applicant was happy and satisfied with the R2000.00. She put the second R2000.00 in the Applicant’s bank account since he asked for it in November 2020. His exact words were that he came to her in the staff room and asked if she had received her salary. She was not expecting her salary that time and said that she had not received a notification yet from Capitec Bank. The Applicant said that he had processed her salary from his side and that she must wait for it anytime now, to which she replied that she would wait. The Applicant had then said she must know that she must not forget and it was no rush because he was going to the Eastern Cape. She was shocked and she expected that she must pay another bribe, which is why she texted Ms Mgidi. She had paid in the second R2000.00 because the Applicant was happy with the first R2000.00. She would not have given the money to the Applicant if he had not requested her to bribe him, which is why she spoke to Ms Mgidi as she did not know the Applicant would keep on asking for money and asked Ms Mgidi what the remaining amount would be. The Applicant had not said to her to not forget the loan money, but the “drink” money. She had not struggled that month that she had to borrow money. She said in the WhatsApp message to the Applicant that she would increase the drink money, since he was expecting more. She did not give more, which is why the Applicant did not renew her contract. She did not construct Alternate 1 to Charge 1, but the Respondent, and she was not an employee of the Respondent when the charges against the Applicant were drafted, hence she could not withdraw the charge, which could only have been done by the Respondent. She did not take the advice from the persons relating the complaint letter. The other teachers told her that the teacher she was relieving for would be retiring. When the Applicant did not renew her contract she thought he may be sincere and let her come back to school. She refused offers from other schools and did not apply for any other jobs, whilst she was also pregnant at the time. A Principal should not be allowed to act in the manner that the Applicant had.

28. Ms Bukiwe Mgidi testified as follows under oath in her evidence in chief: She had been an Educator at Sonwabo Primary School since 2017 and knew the Applicant as the school’s Principal, as well as Ms Sigenu, when Ms Sigenu was a substitute teacher at the school in 2020. She was referred to WhatsApp conversations between Ms Sigenu and herself from October to November 2020, in particular the conversation of 26 November 2020. Based on these messages the Applicant did not promise Ms Sigenu a post in exchange for a bribe, since the Applicant did not say it was for a post. Ms Sigenu had told her that she paid R2000.00 into the Applicant’s bank account and that the Applicant had asked her for a drink and never said that the Applicant spoke about a post. It was Ms Varoyi who said it was for a post. She was not lying when she responded to Ms Sigenu in the message of 26 November 2020 that the Applicant was corrupt and would be in trouble one day, since Ms Sigenu had said it was money for a drink and Ms Varoyi said it was money for a post, as it was not right to pay at the school to be hired. Ms Sigenu was not being honest with her in that conversation that Ms Varoyi said she must give the Applicant R2000.00 and the same person, Ms Varoyi, reported the Applicant to the Respondent. Ms Sigenu used to ask her for a lift and explained everything to her, with the WhatsApp conversation being a continuation of what they had spoken about in the car and was not written there. It was not according to her that the money was for a drink, but according to what she heard from Ms Sigenu, since she was not there when it all happened. She responded to the statement that she made in the WhatsApp conversation that the Applicant is not going to give Ms Sigenu his bank account and that he is too corrupt, that the Applicant had not done any corruption at the school and the only corrupt thing he had done was about the R2000.00. She had advised Ms Sigenu to get the Applicant’s bank account so that she could have evidence. She knew that a corrupt person would not give out their bank details, but the Applicant gave his bank account to Ms Sigenu. Ms Sigenu never told her that she borrowed money from the school or that the Applicant had given her money at the school. The reason why she provided the audio clips to the Respondent was because Ms Sigenu was supposed to have supplied everything if she was honest. As to why the WhatsApp messages were not also supplied to the Applicant, she questioned why such messages would be given to him if they insulted him. By the time she gave those audios she knew Ms Sigenu had already forwarded them to the Respondent. She responded to the statement that Ms Sigenu never forwarded the audio clips to the Respondent, that Ms Sigenu had told her that she had done so. She did not agree that asking for a drink was wanting a bribe. She could not say that there was no drink that cost R2000.00 since there are a lot of drinks. She believed Ms Sigenu when she said she paid R2000.00 to the Applicant and expected to be hired, until Ms Sigenu started sending the voice messages. Ms Varoyi was her HOD and they had a good working relationship, but she had no choice and had to tell the truth now as she knew it and not what the Respondent wants to know. She was not trying to protect the Applicant and she was not close to the Applicant or friends with him. According to her own perspective the Applicant was an honest Principal. She responded to the statement that the Applicant was not honest since he had changed his version from the disciplinary hearing to the Arbitration about the R2000.00, that she could not remember a day when the Applicant lied to her or the staff, hence she had never been in a situation that she could say that he lied.

29. Ms Mgidi testified as follows under cross-examination: The Applicant was already at the school when she joined there in 2017. She was not aware of other teachers also paying money to the Applicant for appointments. She heard for the first time from Ms Sigenu that she paid money to the Applicant for a drink. She had first believed what Ms Sigenu told her and later did not believe her because Ms Sigenu started sending voice messages from Ms Mshudulu and Ms Varoyi who said Ms Sigenu must report the Applicant, the same people who told her to pay the Applicant R2000.00. She felt it was a trap and warned Ms Sigenu as she started to get suspicious about the whole thing. Ms Sigenu did not tell her about the total amount of money she paid to the Applicant, only the separate amounts of R300.00, R2000.00 and R2000.00. The day Ms Sigenu got paid her first salary after the delay and the Applicant did a follow up, she was very excited and said that the Applicant deserved the “drink”. She remembered that day because Ms Sigenu had asked her again for a lift home. Ms Mshudulu did not hide that she did not have a good relationship with the Applicant and she could not say what Ms Varoyi’s relationship with the Applicant was. She did not want to be part of those people and Ms Sigenu was just a substitute teacher who would fall for anything. They were in the same meeting end 2020 and she was not aware that Ms Sigenu was given a timetable for 2021 since she was concentrating on her own grade of grade 5. Ms Sigenu never told her about the Applicant promising her a post and they only spoke about a “drink”. Ms Sigenu was a substitute in grade 4 for Ms Titi and she knew that Mr Saziwa, who got the vacant post, was a temporary teacher already at the school. She did not see Ms Sigenu the day she left the school (1 February 2021) but Ms Sigenu sent her, Ms Mgidi, a message since they had become close and she could see Ms Sigenu was in need of things and was desperate for a job. It did not make sense that the Applicant would promise a post to Ms Sigenu if the post was already taken. Mr Saziwa was close to the Applicant and was never asked for a drink, therefore she questioned why the Applicant would ask a substitute teacher for a drink. She responded to the proposition that Ms Sigenu had requested the Applicant to be considered in the Foundation Phase and was prepared to increase the drink when the Applicant responded that it was not about the drink and that it was possible that a corrupt person would have opted to instead employ the person and continue to milk the person, that it did not make sense. This showed that the Applicant was not selling the post and if he was he would have taken the offer of money.

30. There was no re-examination of this witness, who the Respondent pointed out presented as a hostile witness since they did not wish to subpoena her to attend the proceedings.

31. Ms Thandeka Varoyi testified as follows under oath in her evidence in chief: She had been teaching for 29 years as an Educator at Sonwabo Primary School and knew both the Applicant as the Principal and Ms Sigenu as a substitute Educator at the school. She explained what she knew about the R2000.00 that Ms Sigenu paid to the Applicant as referred to in Alternate 1 of Charge 1 that the Applicant was found guilty of and that she had suggested to Ms Sigenu why she did not make the amount R2000.00 after Ms Sigenu told her that the Applicant had called her to the office to ask for a drink and she gave the Applicant R200 (actual R300) and that he did not say he was happy when he accepted it. This happened sometime in October 2020. She only knew that Ms Sigenu had taken her advice when Ms Sigenu told her the opening day of 2021, she thought about 25 January 2021, when Ms Sigenu phoned her, Ms Varoyi, and told her that she would not be coming back after the Applicant told her there was no post for her. She had suggested to Ms Sigenu to pay R2000.00 since she knew for a fact that most Principals are doing this and asking for a drink, which they knew was a bribe, which is why she suggested Ms Sigenu to give R2000.00 so that she can get a post. She was not aware that the Applicant had asked for another drink in November 2020 and that Ms Sigenu had paid another R2000.00 into his bank account in December 2020, and had therefore paid the Applicant twice. She had not advised Ms Sigenu to pay that R2000.00 into the Applicant’s bank account in December 2020 and had only advised her to pay the amount in October 2020. She knew that when a Principal asked for a drink it is is considered to be a bribe. She would not have advised Ms Sigenu to pay the Applicant R2000.00 if he had not requested a drink from her. Ms Mgidi was not telling the truth if she said that they all suggested to Ms Sigenu to pay R2000.00 to the Applicant in November 2020. There were no problems between herself and Ms Mgidi and they were very close and worked in the same Phase. She would say that Ms Mgidi and Ms Sigenu were very close, but not close friends. She was referred to the WhatsApp audio translations and at first did not recognise herself on the clips because they might not have been translated exactly the way she spoke in IsiXhosa. She recalled that she had spoken to her colleagues and she did nothing wrong by advising Ms Sigenu to report the case. After Ms Sigenu told her that the Applicant did not want to renew her contract because she was not qualified she said to Ms Sigenu that she, Ms Varoyi, would go to the Applicant the next day, which he did. The Applicant confirmed to her what he had told Ms Sigenu. She asked the Applicant to remove her, Ms Varoyi, from Intermediate Phase and place her in Foundation Phase and for him to take Ms Sigenu in Intermediate Phase, which she was qualified for, but the Applicant said he could not do that. In her conversation with the Applicant she did not ask him about the R2000.00 he received from Ms Sigenu. It was after this conversation that she had said in the WhatsApp audio message that the Applicant was hard headed and had refused. She did not know Ms Sigenu quite well but in the time that she was at the school she had observed that Ms Sigenu was an honest person and would not lie about such a big thing. With respect to the Applicant’s version that Ms Sigenu had borrowed R2000.00 and was repaying it, she questioned why Ms Sigenu would borrow money if she had got paid and did not recall the Applicant ever lending money to anybody, which was unheard of and in her perception not true. Ms Sigenu was regarded as a very shy child and would not approach the Principal for money, and instead could have come to her as her HOD to borrow money.

32. Ms Varoyi testified as follows under cross-examination: It was not true that the Applicant would lend money to an Educator without her knowing since as teachers they interacted and talked if they had problems and needed money and they would have known if someone was advised to go to the Principal to borrow money. She did not say that the Applicant was not an honest person when she said that Ms Sigenu was an honest person. When put to her that the Applicant is an honest person she responded that he is not an honest person and cited an example of what happended relating to a project in 2020, of which the details are not repeated here, in which the Applicant had alleged that she had organised a protest and that there was a video trending, when there was no such video. She was part of the meeting as HOD in December 2020 when timetables and classes were given to everyone present, including Ms Sigenu. The School Management Team (SMT) did the allocations, of which she was part. They did the allocations for 2021 and the Principal (Applicant) was part of the meeting. It was not raised in this meeting that Mr Saziwa was converted into the vacant Intermediate Phase post and she thought the Applicant only told them about this in January 2021, not 2020, but was not certain of the time. She thought that it was not possible for the Applicant as Principal to tell Ms Sigenu to report for a post in 2021 if there was no post for her and that Ms Sigenu was not told that at the meeting end 2020. It was not possible for a Principal to bring an Educator back to a post if there was no post available. As to why she suggested to Ms Sigenu to pay a bribe of R2000.00 to the Applicant, it had just come to her. Ms Sigenu had not said to her that the Applicant had promised her a post in the school. Wth reference to the audio WhatsApp messages, there was not a meeting, they were talking in the staff room and they advised Ms Sigenu what to do since they were shocked about what Ms Sigenu had told her that the Applicant had refused to renew her contract after she had given him money, although she had not mentioned money for a post. She responded to the question on why she as a member of the SMT did not take this up and report it to put an end to the “drink” thing as gross misconduct to demand money from an Educator, which is why she advised Ms Sigenu to report it as she, Ms Varoyi, was not there and did not see Ms Sigenu give the Applicant the money and could not report it herself since she was not part of that. She did not deny that she suggested to Ms Sigenu to pay R2000.00 to the Applicant but she was not there in the office to see Ms Sigenu paid the money to the Applicant.

33. Ms Varoyi testified as follows under re-examination: The time that Ms Sigenu came to her class and she suggested she give the Applicant a “drink” she understood it to be a thank you “drink” and not for a position. When Ms Sigenu paid the other money she took it as a bribe since you cannot ask money continuously.

34. Ms Noluthando Mshudulu testified as follows under oath in her evidence in chief: She had been an Educator at Sonwabo Primary School for 24 years since 3 August 1997 and knew Ms Sigenu and the Applicant. She was on leave with the Applicant was dismissed and only heard about it on 23 September 2021. Ms Sigenu had told her that she had paid the Applicant R2000.00 for “drink” money and that a promise was made to her by the Applicant the day before the school closed that she can report on 24 January 2021 when the school opened on 25 January 2021, but that she was then told that there was no post for her. It was not normal for a Principal to request drink money from a teacher, but she only knew what Ms Sigenu told her. Ms Mgidi had told her that they could not be friends since the Applicant had told her that she must not be friends with her (Ms Mshudulu) and also that other Educators told her that they would be fired if they let her into a room because the Applicant said she was a bad person. That was why Ms Mgidi said she and the Applicant were not on good terms. Ms Sigenu told her about the R2000.00 paid into the Applicant’s bank account after she was told that there was no post for her in 2021 and that she wanted to expose the Applicant and tell that she paid the Principal and that there was no post for her. She told Ms Sigenu that if there was no evidence that there was nothing that she could do and Ms Sigenu sent her the bank statement to show the payment made on about 3 December 2020 to the Applicant. She confirmed the Whats App audio clip in which she gave Ms Sigenu advice, since Ms Sigenu asked for help to report the case. Ms Sigenu said that she was advised to report it to the SAPS, but she told Ms Sigenu to rather go to the Respondent and not the SAPS and gave her advice on how to lodge a complaint and what to say in this case. She confirmed the content of the WhatsApp audio clip in which she spoke to Ms Sigenu. She had suggested Ms Sigenu also write that it is possible that even others are doing it because she, Ms Mshubulu, was angry, worried and sympathetic towards Ms Sigenu, not as it was translated there, and she did not mean others in the school, but maybe elsewhere and was angry but not furious. The translation did not capture what she meant correctly and she never said to Ms Sigenu that she must lie as there is no word in IsiXhosa for “lie”. Ms Sigenu was not forced to say things that she will be uncomfortable with. Her professional relationship with the Applicant was average and they did not get along at all since 2016 and she had gone to the Applicant’s office several times to ask what made him not to like her and she had also addressed the issue with the then Circuit Manager Mr Naidoo, which case was taken over by the next IMG Ms Kay Spiers. An example that the Applicant disliked her was that she once found her leave forms in the smoking area next to the school. She did not come to testify at the Applicant’s disciplinary hearing and at the arbitration out of revenge or spite, which she would never do to get a person dismissed. She had not called Ms Sigenu that day but Ms Sigenu had called her, Ms Mshudulu, and she had spoken to Ms Sigenu as if she was her child to calm her down. Ms Sigenu was not the type of person who would have lied about what happened. She would not say that the Applicant was an honest person based on what she had experienced with him. As to why the Applicant had testified in his disciplinary hearing that the money he had received from Ms Sigenu on 3 December 2020 was for a “drink” which she had volunteered herself and that he is now saying that the money she gave him was what she had borrowed from him, she, Ms Mshubulu, questioned how Ms Sigenu could have taken the matter further if she knew it was a loan and put them all in this situation. Ms Sigenu had only said the one word, “drink”, to her. When a Principal requests a “drink” from an Educator it is interpreted as being a bribe and it was the first time she heard a bribe being called a “drink”. It was not right for a Principal to request a “drink” of R2000.00 from an Educator, and one could be dismissed in other sectors for accepting a bribe. In her opinion it was cruel of the Applicant to ask drink money of R2000.00 from Ms Sigenu, who came from a disadvantaged background. She questioned what drink would cost R2000.00. It would still have been wrong even if it was R50.00. The Applicant should not have accepted the R2000.00 if Ms Sigenu had offered it, since Government employees may not accept bribes, which this was.

35. Ms Mshudulu testified as follows under cross-examination: She was aware that her testimony was hearsay. She had said that the Applicant was a dishonest person since in an incident a HOD gave a version and the Applicant gave another version. The Applicant should never have said to Ms Mgidi that she, Ms Mshudulu, was a bad influence and should have shown Ms Mgidi the good side of her. She was a socialising person and never had issues at the school since 1997. Since the Applicant started in 2016 he was the one who had issues against her, whilst she had done nothing to him. Although Ms Mgidi had said that she and the Applicant did not see eye to eye, everybody at the school could see that because of the way the Applicant acted towards her, Ms Mshudulu. She knew that the Applicant requested money from the Applicant because Ms Sigenu told her, and from seeing Ms Sigenu’s bank account. Ms Sigenu never told her that the R2000.00 was loan money that she was paying back to the Applicant. If the Applicant now says it was for a loan then he would be lying under oath since he said in the disciplinary hearing it was drink money. Ms Sigenu told them at the time that she had withdrawn the charges against the Applicant and explained that she was afraid to tell her, Ms Mshudulu, and Ms Varoyi of the withdrawal since she had never consulted with them. Ms Sigenu told her that Mr Cottle had told her to bring her CV and that would give clothes for her small child. Ms Sigenu had sent her a WhatsApp about the CV which she, Ms Mshudulu, replied to that her CV may be at the school, and she also asked Mr Cottle about this after she received Ms Sigenu’s WhatsApp. She responded to the statement that Ms Sigenu had testified that there was no record of her conversations with Mr Cottle and that she, Ms Mshudulu, was now claiming that there was such a record, that Ms Sigenu had told her that her phone had a problem. Ms Sigenu may not have testified that she had a telephone problem and that messages were wiped out. Ms Sigenu may not have known that she, Ms Mshudulu, had kept the WhatsApp message that was lost on her, Ms Sigenu’s, phone. She did not know Ms Varoyi’s character to be surprised or not that she suggested to Ms Sigenu to pay R2000.00 to the Applicant since she could not testify to somebody that she did not know, but could testify to Ms Sigenu’s and the Applicant’s characters. With reference to the WhatsApp audio clips, although she was not in a good state of mind at the time, she had no motive to give that advice to Ms Sigenu and to take advantage of her when she was confused and sought help, but gave options to Ms Sigenu to choose from and did not insist or force that she follow the advice, which was for her, Ms Sigenu, to decide. She responded to the statement that her testimony was not credible based on what she said to Ms Sigenu in the WhatsApp audio, that they had not taken this seriously and were laughing at these things as evidenced by the original laughing emoji faces at the end of the original messages, which were not captured in the documents.

36. Ms Mshudulu testified as follows under re-examination: The question relating to the content of the WhatsApp message from Ms Sigenu to her relating to the conversation with Mr Cottle was retracted. She however added that it was in response to her asking Ms Sigenu why she had dropped the charges against the Applicant and Ms Sigenu had trusted her by sending that message to her.

THE APPLICANT’S EVIDENCE

37. The Applicant’s case was that they disputed that the Applicant was guilty of Alternative 1 to Charge 1 in that he had not requested Ms Sigenu to pay him the amount of R2000 in exchange for a post at the school. With respect to Charge 2 that alleged that the Applicant had renovated a toilet without approval, there was no toilet to be converted and the building in question was dilapidated and needed to be used by the school. Regarding Charge 3 they disputed the fact that the urinals were not erected for no reason since it was a response to challenges as an interim measure while the Respondent was in the process of providing the school with mobile toilets. They were therefore of the view that the Applicant was unfairly dismissed substantively as the facts of the matter were not dealt with. Procedural unfairness was alleged on the basis that the charges levelled against the Applicang were not clear as there were different interpretations of what had transpired, which charges the Applicant was dismissed for. The relief sought was the the Applicant be reinstated in his post as school Principal, with retrospective back-pay from the date of dismissal of 16 September 2021, since the Applicant had unemployed since then with no income.

38. Mr Bongani Dlwathi, the applicant, testified as follows under oath in his evidence in chief: He had been employed by the Respondent for 23 years at the time of his dismissal and was the former Principal of Sonwabo Primary School since February 2015. He was referred to Alternate 1 to Charge 1 which he was found guilty of. He completely disputed the contents of that charge, which was false. He had never requested a drink from Ms Sigenu for that purpose. He also disputed that he requested that to secure Ms Sigenu a Level 1 post. He had never promised anybody a post. He confirmed the WhatsApp conversation of 1 December 2020 with Ms Sigenu after he had lent her R2000.00 in November 2020 and in which he told Ms Sigenu that she must give back the R2000.00 as it will serve as a drink for him when he socialises in December. He referred to “drink” in that conversation with respect to her paying him back the money loaned to her. He did not know why Ms Sigenu would dispute his version that he lent her money. Ms Sigenu lent the money from him since she did not get paid during the period from 16 October 2020 to 15 December 2020 when she was employed in a substitute post by the Respondent after her nomination was done on 16 October 2020 and she needed money for travel etcetera. Ms Sigenu then approached him in November for help and he told her he will assist her and when she repaid him it will serve as part of his drinks in December. This contradicted the evidence of the Respondent’s witnesses such as that he never saw Ms Sigenu as a shy person and she was never afraid to come to him after first going through the Secretary, and continuously came to his office. It was not only Ms Sigenu, but the other novice Educators, who came to him for help and he had to help them. As to his testimony in the disciplinary hearing when he stated that Ms Sigenu had given him the R2000.00 as a gift, he had never been charged before and was in a bad state of mind then. He had got a lot of advice and could not recall much of what was said in the hearing. He had lost all the assets in his life and his children now did not have Christmas presents in 23 years, with him and his family currently undergoing counselling as a result of his dismissal. He was referred to the WhatsApp conversation between Ms Sigenu and himself on 2 February 2021 in which the term “drink” was also mentioned. He explained how the vacant post arose end 2020 due to the resignation of the incumbent and how an existing Educator, Mr Saziwa, who was already qualified for that post, was converted into the post. When the Educators came back on 1 February 2021 and he saw Ms Sigenu in the staff room he thought she was present for the handover. He called her to his office and explained that the post (which she had previously substituted in) was converted and that Mr Saziwa was appointed in the post, hence it was not available to her. Ms Sigenu had cried and said that her parents would be disappointed and he then picked up that she thought promises had been made to her. Ms Sigenu then left the school and he got that WhatsApp message from her on 2 February 2021. He had told her that three Educators in the Foundation Phase had resigned and she begged him to place her in the Foundation Phase, but there was no way that an Intermediate Phase Educator could be appointed in a Foundation Phase post. In his understanding a drink was not a bribe and he would have then told her that she was bribing him. Nowhere had she stated in these conversations that he, the Applicant, owed her after she in her version had paid him R4300.00, or that he had promised her a post. If an Educator is nominated for a post occupied by a substitute, he would thank the substitute in public, therefore they would know that Ms Sigenu’s substitution would end, hence it was not true that Ms Varoyi said she did not know that Mr Saziwa will be converted in that post. He explained how vacancies are filled and conversion takes place, which is not repeated here, and that substituting in a post does not mean that one would automatically be appointed in the post when it becomes vacant. It was not true that Ms Sigenu was issued with a timetable for 2021 since a person could not be allocated if there was no post. He never gave her a timetable, since he as Principal must decide on and sign off allocations, based on the needs of the school. Ms Sigenu did not call him about the withdrawal of the charges in which conversation he had allegedly advised her to speak to Mr Cottle, since he was advised not to interact with Ms Sigenu. He never spoke to her and there was no meeting at Sable Square. He confirmed that Mr Cottle was his Representative in his disciplinary hearing and he did not know what Mr Cottle did behind his back, since he cannot testify to what he did not know about. He was an honest person and Ms Mshudulu’s version was not relevant since she made up the reference to her leave forms that were found in the smoking area, while he did not even smoke, and he knew she wanted him to go from the school. He was referred to the WhatsApp audio clips and that Ms Varoyi had also testified that he was not an honest person and he was the one who had mobilised the protest at the school, whereas Ms Varoyi was implicated with other leaders from amongst the parents, which was a matter that was referred to Labour Relations and of which the details are not repeated here. Ms Varoyi had testified that she promised to Ms Sigenu that she would speak to the Principal after she informed her, Ms Varoyi, that he had told Ms Sigenu on 1 February 2021 that her contract would not be renewed. Ms Varoyi had convened a meeting with the HOD’s and Deputy Principals for him to explain why Ms Sigenu could not be employed and they requested that she be employed in the Foundation Phase, which he had told them he could not do. Ms Varoyi had never approached him with the proposal that she, Ms Varoyi, be removed from Intermediate Phase and be appointed in Foundation Phase to create an opening for Ms Sigenu in Intermediate Phase. He found the advice that Ms Mshudulu gave to Ms Sigenu in the second WhatsApp audio clip very scarey and that it was a document already written for Ms Sigenu to fill in. It also suggested that Ms Sigenu must lie and that Ms Mshudulu was trying by all means to implicate him in something which was not there. As to how long it took the Respondent to process Ms Sigenu’s salary payment for the contract which commenced 16 October 2020, it could take up to six weeks due to the process that had to be followed once the nomination was made on 16 October 2020. There was proof in the bundle of documents of Ms Titi’s resignation and that the post which became vacant was in the Intermediate Phase. The conversion document signed for Mr Saziwa was also proof that his conversion was already confirmed in November 2020. You would not give out your bank account details if you were a corrupt person and if you knew it was a chargeable offence. With respect to Charge 2, he did not convert a toilet at Sonwabo Primary School in 2016 as described in the charge, but an old building. When he arrived in 2015 and was handed over he was informed that new toilets were built in 2014 by the Department of Public Works. There was an old building on the premises which the SGB informed used to be old toilets, with which there were problems with the plumbing. They viewed the old building as a threat to health and safey since it was being used by people to smoke drugs etc. The SGB requested NGO’s to assist the school to convert the building. The Adopt a School Foundation built the new toilets in 2014 and two extra classrooms in 2015, with the Respondent through the Department of Public Works also building another two classrooms in 2015. The state of the infrastructure at the school was very bad when he joined in 2015 since the school was built in 1972 and had no maintenance done since then, with maintenance only scheduled for 2021. He never got the permission of the Respondent to convert that building in terms of applying to the MEC, which is the unfortunate part of what happened and he had acted on the verbal confirmation of the SGB. He was not informed or aware of Cicular 32 of 2012 which was sent to all Pincipals, since he was acting as HOD at Bongolethu Primary School at the time and was not in a senior position. He was also not made aware of this circular when he took over as Principal at Sonwabo Primary School. He did attend an induction but there was no reference made to these circulars. When he was appointed at Sonwabo he was instructed not to deal directly with Head Office, but at District Office level, which he did. He notified the District through the school improvement and monitoring plan of the ablution facilities at the school and had complied and reported this to the then Circuit Manager Ms Lynn Primo in 2015 and Mr Nicholas Sutcliffe at the District Office, with the infrastructure growth plan also being part of his evaluation as Principal on the Integrated Quality Management System (IQMS). With respect to Charge 3 and the erection of the external urinals, he explained what had transpired there, which resulted from a severe sewage spillage and mobile toilets being provided in 2019. The SGB tried to divert the sewage, which is when it was agreed that the external urinals be installed, of which the District Officals were aware. Additional toilets were to be erected in 2020 but the school had to be closed in March 2020 due to COVID regulations. They had not applied to the MEC for the erection of the urinals, and it was not the intention to disrespect authority but the collective decision between the SGB and the District Officials to respond to the sewage crisis, which also raised complaints from the local community. With respect to the human rights of the learners, if one comes to the school in the morning and finds the entire school vandalised, with no electricity and stinking and leaking sewage, as well as gates that do not close and gas leaking in the kitchen, one does not think of applying to the MEC, but does what needs to be done with the SGB and District Officials in the context of a crisis. He had reported problems to the Respondent in the SEMMIS (School Emergency Maintenance Management Information System) request of 29 July 2019 in which the windows which would not open but the toilets were not mentioned, which was declined and they were advised on 30 July 2019 by Mr Nicholas Sutcliffe the Works Inspector that the nature of work was not an emergency and part of scheduled maintence for the school in 2020/21. He did not refer the ablutions problem in the same manner to the Respondent since the ablutions were part of the scheduled maintenance for the school and had already been reported, but he did not have access to the school e-mails to prove that he had reported it. He dealt with the Respondent and not Public Works regarding the toilets. He felt very betrayed when he was dismissed since all they did at Sonwabo Primary School was to improve the conditions there. 90 percent of the children came from informal settlements, the school had no fee policy and relied on NGO’s for funding, but still achieved good results. He wanted Ms Lynn Primo the District Official to tell exactly what happened, but she was not here at the arbitration to do so. He was charged by the Labour Relations Officials with no proper information at hand, had worked very hard for the Respondent, with no warnings ever issued to him during his 23 years of service.

39. Mr Dlwathi testified as follows under cross-examination: He could not confirm that he testified on 17 June 2021 (at the disciplinary hearing) that the amount of R2000.00 paid by Ms Sigenu into his personal bank account was a “drink” as he was not in a good state then and said a lot of things which he could not recall, had been advised by a lot of people and was very stressed in the hearing. The extract of the recording of the disciplinary hearing was played and he confirmed it was his voice which said that Zikhane (Ms Sigenu) came to his office and offered him R2000.00 for a drink. He was not advised by people to lie in the disciplinary hearing. He was represented in the disciplinary hearing by a fellow colleague but would not say that his Representative was seasoned in labour law. He confirmed that he now had a different version at the arbitration in that he had lent the R2000.00 to Ms Sigenu. He was referred to the WhatsApp conversation between himself and Ms Sigenu on 1 December 2020 in which Ms Sigenu had referred to a drink, to which he explained that the context was that when she repaid him the money lent it would be a drink for him. He was also referred to the WhatsApp message from Ms Sigenu on 2 February 2021 and put to him that it proved that Ms Sigenu said that she would increase the drink (bribe) and it was questioned why she would increase on the amount which in his version was borrowed, to which he responded that it did not make sense to him and that he did not accept bribes and when he had said to her to not be hard on herself that he referred to the post in the Foundation Phase. He was a very busy man and disagreed that he knew exactly what she was talking about, which was that she would increase the drink for a post at the school. He did not understand why he must be remorseful about what happened to Ms Sigenu and he had reported to the Respondent that his life was also in danger as the Principal relating to incidents which had happened at the school. The ten days’ notice given to him on 27 May 2021 of the disciplinary hearing was not sufficient time to prepare his defence. He had never been charged before, his whole life was at stake and it was a very stressful situation for him. He did not tell his Representative Mr Cottle at the time about the version that he had lent the R2000.00 to Ms Sigenu. As to whether this version was raised in his appeal after he was dismissed, Mr Cottle did the appeal on his behalf on his own and he did not see what was said in the appeal, but afterwards confirmed that he never said that in the appeal. The money that he gave Ms Sigenu as a loan was taken from his wife at home. He could not produce physical evidence of the loan such as an IOU from Ms Sigenu. He had not promised Ms Sigenu a post at the school as the reason to why she reported at the school on 1 February 2021. He was shocked to hear that Ms Sigenu was given a 2021 timetable by the HODs, which did not come from him as the school Principal, with only Principals allowed to issue timetables. Ms Sigenu reported at the school not because she had bribed him for a post, but because she was given a timetable at the meeting before the school closed in 2020 by the HODs. It was put to the Applicant why Ms Sigenu’s version about the R4300.00 being repaid via Mr Cottle at the Sable Square meetings was not disputed when she testified, to which he responded that this version was not true, since he had strict instructions not to interfere with any witnesses and that he was not there. He did not want to comment as to why he and his Representative had not asked for postponement of the hearing on 17 June 2021 if he was not in a right state of mind at the time. He had never asked Ms Sigenu money for a post in 2021 and it would be wrong for a school Principal to ask money for a drink from an Educator and that the Respondent could dismiss Educators and Principals for such transgressions. He however regarded his process as a set up, with the Respondent’s witnesses having told Ms Sigenu what to say, with the witnesses not having good relationships with him and the evidence presented by them cooked up. He had brought the WhatsApp audio recordings after he was called by Labour Relations in March 2021 to account for the allegations made by Ms Sigenu to show that it was a manipulated thing. That telephone call he received from Labour Relations was a judgemental and threatening call and he was never given the right that what he said would implicate him. He did not tell the Respondent when he received the notice of the disciplinary hearing on 27 May 2021 that the money received in December 2020 was money that Ms Sigenu had borrowed, since he was not given his rights and threatened in that call and meeting. He was familiar with both the Employment of Educators Act (EEA) and the South African Schools Act (SASA), which the Respondent supplies to all schools and SGBs. Not a single Principal or Educator knows the the full content of the SASA and they are assisted by circulars which are interpreted by the Respondent’s lawyers. He did not deny that he did not comply with the prescripts in the SASA for converting a building into an office, which was not deliberate and not to undermine anyone since not everybody interprets the SASA or are experts in it. It was unfortunate that his Institutional Management and Governance Manager (IMG)/Circuit Manager was not available to testify as to what had happened. As Principal he was part of the SGB and a decision was taken collectively to make the renovations. He was very remorseful that he had failed to implement the SASA requirements. He agreed that the building renovated used to be a toilet and was not in a state to be used. With the approval of the SGB he made it into an office for a HOD to do administrative work. As to why he pleaded not guilty to this charge in the disciplinary hearing but pleaded guilty now, it was a collective decision of the SGB and the handover was already decided. Some of the SGB members were qualified and educated, the state of the school buildings was in the SGB’s jurisdiction and as Principal he advised the SGB on property issues. They did not work alone and the Circuit Manager was also aware of the problems. In relation to both charges 2 and 3, he had no knowledge that the SGB had to apply for approval. He confirmed that the urinals were also erected without the MEC’s approval, but it was a crisis and nobody advised him that he also had to apply to the MEC for approval in the event of a crisis. They did not convert toilets but made alterations to an old building which was not utilised and had been written off by Public Works. These were not toilets before and new toilets were built next to that building. He was referred to the reasons in the SASA why he needed to received permission from the MEC, with which statements he agreed and agreed that he had not complied with the relevant Sections of the SASA.

40. Mr Dlwathi testified as follows under re-examination: He confirmed that he did not request Ms Sigenu to pay R2000.00 into his bank account for a post and that the reference to drink was that it will be like drinks for him in December when she pays him back. When he explained to Ms Sigenu on 1 February 2021 when she reported for duty that the substitute post which she filled was no longer there, her reaction was that she had already told her parents and she was very upset. It was a shock to him as he had never told her that she had got a post. The same or next day he received a call from Ms Sigenu about the Presidential Employment project. He informed her that they were happy with her CV and that he would do something for her if she had the skills and that she would be the first to know if something could be found for her. He had checked the bundles of documents and nowhere was it recorded or in a meeting minute that he had promised Ms Sigenu a post. It was only in the audio recordings that mention was made of that. He was not in a good state of mind in the disciplinary hearing but had now fully recovered after he got emotional help and was in a better state of mind, although it would be a Black Christmas for him as no institution wanted to lend him money. When he started as a new Principal he got a lot of information at induction, was not aware of the circulars relating to the SASA and it was not deliberate that he did not advise the SGB that they had to apply to the MEC for the building work.

41. Mr Christopher Simphiwe Dyasi testified as follows under oath in his evidence in chief: He had commenced as the former Principal of Sonwabo Primary School in 2000 until he retired in 2014, had joined the Respondent as an Educator in 1978 and had spent 75% of his life as an Educator. He was referred to Charges 2 and 3 and that the Applicant was dismissed for not obtaining the required permissions from the MEC and was requested to explain the handover that took place when the Applicant took over as Principal. In 2014 before he left he handed over some documents, which included the school improvement plan about infrastructure which was a problem at Sonwabo Primary School. The major problem at the school was infrastructure, with the toilets condemned by the Department of Public Works as being unhealthy and the middle block which was not properly built and had also been condemned. The school had started in 1970 as a Lower Primary School and because of an influx of learners there was a shortage of classrooms. The Edgars Trust had funded the building of classrooms at Gugulethu schools. The situation at Sonwabo Primary School was known at the District and the Department of Public Works. At the time of the World Cup in 2010 a fund was established by businessmen when President Ramaphosa was still a businessman and Sonwabo was one of the first schools to be adopted by that fund, which led to new toilets being built. The Department of Public Works had accepted that the school had a problem. The SGB had proposed in their business plan that an old structure of old toilets be converted since the external structure was still good, to provide a facility where learners could be consulted and HODs could perform their administrative work. This proposal was signed by the Chairperson and Secretary of the SGB, the IMG and with the minutes of the SGB meeting, were delivered by him to the District, the Department of Public Works and the Respondent. In their reply he was informed that they could demolish the interior of the building and that Public Works will draw up an internal plan for the HOD offices and a sick room for learners with barriers, which is the project that the Applicant had to implement from 2015 onwards. After the new toilets were finished the donors also built two classrooms which were approved by the Respondent and the Department of Public Works. He did not live far from the school and was happy with the progress made in Mathematics and English, as well as discipline, at the school. Donors were welcomed by the Applicant and he did not sit down and wait for the Respondent, for which one could wait until you died, and worked close with the SGB and parents. As to whether the school was given approval at the time to convert the building which was no longer used as a toilet, there were files in which they were given the go ahead in writing to convert the building with the assistance of Public Works and given authority to fund raise for this. When he left the school the submissions had been made but the drawings had not been received yet and the interior had to be demolished first, but sometimes things cannot be tolerated and one would try and save the situation. The Respondent was aware of the state of the school’s infrastructure as a result of records of burglary and the issue of fencing. He confirmed that the application had been made for the conversion of that building in terms of the circulars and the procedure that needed to be followed. With respect to Mr Engel’s testimony that there were no records to confirm that permission was granted in 2016 or before that by the Respondent or the Department of Public Works, he queried whether permission was granted for the four classrooms to be built at the school by donors. The Respondent was supposed to have those records and he felt that his time was being wasted to be called to the arbitration during his pension time.

42. Mr Dyasi testified as follows under cross-examination: The toilets that were supposed to be converted to an office, sick room and consulting room for children with HIV and alcoholic parents, were condemned by the Respondent and the Department of Public Works. The approval to convert the building was in a letter signed by an Official, which stated that they could go ahead with demolishing the interior of the building. The conversion was done in 2016 after he had left in 2014. This was explained to the Applicant during the handover and when the the school improvement plans were given to the District. The SGB was also advised that the new Principal will carry out that work. He had also explained to the Applicant that the donors could also help to convert the old toilets. It was put to him that the Applicant had testified that he did not get approval to convert that structure, whilst he had stated that approval had been obtained, hence who was telling the truth, that when he left his office he told the Applicant what must be done and that he needed to consult with the Department of Public Works and the Respondent for the interior drawings, but that he in the meantime must first demolish the interior and close the windows which the boys entered through and remove the copper piping which the boys also take to the scrapyard. The Respondent should have consulted him as the previous Principal before they charged the Applicant. As a human being the Applicant could have forgotten what he was told by him and he should be apologetic for this since it may not have been clear to him since he was not a Principal at his previous school but a HOD and would not have been exposed to this. As to Mr Engel’s testimony that he had checked and found no approval for the work, he had been with the school since 2000 and all the previous Principals’ records were there at the school. Mr Engel should have got his information from Sonwabo Primary School.

43. Mr Dyasi testified as follows under re-examination: When he did his handover to the Applicant he mentioned things verbally and also written in minutes. He did state to the Applicant that permission was granted, that he must get the assistance of the Department of Public Works for the internal structure drawings, with his first task being to demolish the inside of the building and to also seek the advice of the Respondent’s person in charge of Infrastructure and Public Works. He had come to update everybody on what had happened and the Respondent’s Representative should have obtained the information before such drastic setps were taken (against the Applicant).

44. Mr Eric Pumso Potwana testified as follows under oath in his evidence in chief: He was the former Chairperson of the Sonwabo Primary School SGB, in which he had served for two consecutive terms from 2013 to 2018 and was part of the SGB, similar to the Applicant. He explained his understanding of the school’s infrastructure challenges and the toilets. When the Applicant joined the school as Principal there was already a plan to convert those toilets into offices and they were very happy that at least something was going to be done with that structure, which was being used to smoke drugs and they as parents saw the Applicant as a man with a vision. The Applicant had to make a plan with the urinals which were erected next to the toilets to stop the spilling and stench of sewage and he could not bear it if a child came back from school and reported that the toilets were stinking. He believed that permission was requested by the SGB to convert the old toilets since Mr Dyasi, the previous Principal, was working with the Officials of the Respondent and Department of Public Works and a group from Public Works came to evaluate the building, which he believed was part of the permission to convert it. He himself did not ask if permission was obtained since he was not versed in that. They did not see the township schools as part of the Respondent, since it was not assisting the township schools enough, hence the improvements under the leadership of the Applicant were welcomed. With respect to the Respondent dismissing the Applicant for not advising the SGB to seek permission for these changes to the buildings, the Respondent should be grateful to the Applicant for what was done at the school since it was funded by a donor and the Respondent did not have to spend a cent on the conversion. There was no point in the SGB asking the Applicant if permission had been obtained, since there was a donor and the donor saw how the money was being utilised and the school was been improved. Should something have happened at the school due to a building posing a threat to learners, the community would have rioted against the SGB and the Applicant if he had not done anything, which is why he stated that the Respondent was not being grateful towards the Applicant.

45. Mr Potwana testified as follows under cross-examination: He agreed that rules were important to govern any situation or person. He had never asked the Applicant if permission was granted by the Respondent and did not know if permission was needed or granted for the Applicant to erect the urinals. He responded to Mr Engel’s evidence that no permission was granted to convert the old toilets or erect additional urinals, that when the situation was dire and they were not well versed in the policies of the Respondent, with their own SGB policies, they understood it was dealt with at the time of Mr Dyasi. He agreed that it was the Applicant’s duty to inform the SGB of the Respondent’s policies since they were working as a unit in the SGB.

46. No re-examination was required of this witness.

CLOSING ARGUMENTS

47. Written closing arguments were presented by the parties as agreed to at the conclusion of the arbitration. These closing arguments are not repeated here for the sake of brevity, but have been taken into account in arriving at the award.

ANALYSIS OF EVIDENCE AND ARGUMENT

48. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the dismissal of the applicant, Mr Bongani Dlwathi, by the respondent, the Department of Education - Western Cape, for alleged misconduct was fair on both procedural and substantive grounds and to grant the appropriate relief if unfairness is found.

49. I refer again, for ease of reference, to the facts which were established and agreed as being in dispute in the pre-arbitration minute and confirmed at the commencement of the arbitration, which are as follows:

The following facts were in dispute:

The reasons for the dismissal were in dispute for the following reasons:

Whether the Applicant had committed the offences that he was found guilty of and dismissed for as formulated in Alternative 1 to Charge 1, Charge 2 and Charge 3.

Whether the School Governing Body (SGB) approved the erection of the external urinals in 2019 as an emergency response to the crisis surrounding the existing toilets.

Whether the SGB approved the renovation of the old building on the school premises in 2016, not for toilets, but to be used by the school for storage and Head of Department (HOD) offices, which was at no cost to the Respondent.

Whether the Applicant had demanded R2000.00 from Ms Z Sigenu and had promised her any post at the school.

Whether the Applicant gave the R2000.00 to Ms Sigenu in November 2020 as an advance against her December 2020 salary, which was repaid to the Applicant by Ms Sigenu in December 2020.

Whether the money exchanged was in exchange for a position for Ms Sigenu in 2021 for her contract to be renewed.

Whether the MEC or delegated authority approved the building conversion and erection of urinals at the school buildings.

Whether the Principal as SGB member is required to guide the SGB on what approvals need to be obtained to make changes to school buildings and is therefore responsible for what had happened.

The procedure was in dispute for the following reasons:

It is noted that it was stated in the pre-arbitration minute concluded between the parties on 27 October 2021 that the procedure leading to the Applicant’s dismissal was not in dispute. However, the Applicant party in their statement of case had alleged that the procedure was now also in dispute since the charges on which the Applicant was dismissed for were not clear and open to different interpretations.

50. I am also mindful of the charges brought against the Applicant and of which he was found guilty of in his disciplinary hearing and led to his dismissal, which are also repeated here for ease of reference:

ALTERNATIVE 1 TO CHARGE 1
It is alleged that you are guilty of misconduct in terms of Section 18(1)(f) of the Act, in that during the fourth term of school in 2020, you unjustifiably prejudiced the administration, discipline or efficiency of the Western Cape Education Department and Sonwabo Primary School, by requesting a former educator, Ms Z Sigenu to pay you an amount of R2000 in your CAPITEC Bank Account, as a thank you for appointing her at the school and/or in turn for securing her a post level 1 postiion and or nominating her for a post at said school in 2021.

CHARGE 2
It is alleged that you are guilty of misconduct in terms of Section 18(1)(a) of the Act, in that during second and/or third term of School in 2016, you failed to comply with Section 36(4)(a)(i) of South African Schools Act 84 of 1996 by converting a toilet at Sonwabo Primary School without proper approval from the Member of the Executive Acouncil or his/her delegated authority.

CHARGE 3
It is alleged that you are guilty of misconduct in terms of Section 18(1)(a) of the Act, in that during second and/or third term of School in 2019, you failed to comply with Section 36(4)(a)(i) of South African Schools Act 84 of 1996 by erecting urinals outside the boys toilets at Sonwabo Primary School without proper approval from the Member of the Executive Acouncil or his/her delegated authority.

51. The Respondent’s version and argument is summarised as follows: The Respondent referred to the evidence of the parties’ witnesses, which are not repeated here, save to highlight certain aspects. With respect to Alternative 1 to Charge 1 and Ms Sigenu’s evidence, the Respondent noted that the Applicant through his Representative in the arbitration did not dispute the version of Ms Sigenu when she testified surrounding the meeting with Mr Nathan Cottle when money was repaid to her and in which she testified the Applicant was present in or at his car in the Sable Centre parking lot. Since he did not deny this version when it was presented by Ms Sigenu, it could only mean that she was telling the truth about that meeting. It was also noted that Ms Varoyi only advised Ms Sigenu to give the Applicant R2000.00 in October/November 2020. When the Applicant requested another “drink” from Ms Sigenu in December 2020 it was on him and not on Ms Varoyi.

52. With respect to Charge 2 and Charge 3, Mr Engel had testified that the Applicant had failed to comply with Section 36(4)(a)(i) of the SASA and the two circulars issued by the Respondent because he never requested permission from the MEC to alter the school buildings. The Applicant should or ought to have known that he needed approval from the MEC before he could alter the immovable assets of the school. Principals also received circulars which updated them about legislation and the Respondent’s processes. The Applicant had claimed that he did not know about Section 36 of the SASA which required him to seek approval from the MEC even though he receives circulars and conceded that he had a copy of the SASA in his possession. In terms of Section 16A of the SASA the Principal represents the Head of Department on the School Governing Body (SGB) and should inform the SGB about policy and legislation. Mr Dyasi the former Principal had claimed that approval was granted by the Respondent for an old abandoned toilet to be converted into an office and that the Applicant was supposed to carry out the conversion in 2016. The Respondent had noted that both the Applicant and Mr Engel had testified that there was no approval to convert that building, which meant that Mr Dyasi’s version was untrue when he stated that approval had been granted during his tenure. Mr Dyasi had also testified that during his handover as Principal he had informed the Applicant of the process to be followed when he wanted to alter the building structure, which meant that the Applicant was aware or should have been aware to first obtain approval from the MEC before he converted the old toilet building into an office and erected the additional urinals outside the boys’ toilet. The WhatsApp messages between the Applicant and Ms Sigenu on 1 December 2020, 3 December 2020 and 2 February 2021 provided proof that the Applicant had requested and received a drink (bribe) from Ms Sigenu in exchange for a teaching position at the school for the year 2021. On 2 February 2021 Ms Sigenu had offered to the Applicant to increase the drink, if needs be, to get a post. It was questioned how someone could increase the money they had borrowed and already paid back on 3 December 2020 and that the Applicant did not ask Ms Sigenu why she wanted to increase the so called drink that she had already paid.

53. The Arbitrator was requested to find the Applicant guilty of misconduct on Charges 1 to 3 and believed that the sanction of dismissal was appropriate for the gross misconduct that the Applicant had committed and would send a strong message that the Respondent will not tolerate non-compliant employees who deliberately ignore the rules and regulations of the Respondent and to Principals who request bribes from other employees as a thank you for appointing them at a school and/or in exchange for a teaching position and are therefore not fit to represent the Respondent. With respect to Charges 2 and 3, reference was made in closing to the prescripts in the SASA which the Applicant had not complied with, which are not repeated again. Case law was referred to in support of the Respondent’s recommendation to have the Applicant’s application dismissed for the serious misconducts that he had committed, which is also not repeated here. This case law was to highlight the following aggravating circumstances: That ignorance of the law was not an excuse, that the Applicant had shown no remorse for requesting/extorting bribe money from and inconveniencing Ms Sigenu because of an empty promise for a job as a result of which she did not apply for another position and was still out of work. The actions of the Applicant had also in their view brought the teaching profession in disrepute when he unjustifiably prejudiced the administration, discipline and efficiency of the Respondent, with reference to Schedule 8(3)(4) Code of Good Practice: Dismissal of the LRA which states as follows:
Generally it is not appropriate to dismiss an employee for the first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.

54. The Applicant’s version and argument in turn is summarised as follows: The Applicant was found guilty on Alternative 1 to Charge 1 in the disciplinary hearing based on hearsay evidence since Ms Sigenu the complainant had withdrawn the charges against the Applicant prior to the hearing on 16 June 2021. The Presiding Officer of the disciplinary hearing had therefore erred in basing his finding on hearsay evidence. Reference was made to the Section 3(4) of the Law of Evidence Amendment Act 45 of 1998 (the LEAA), with the general rule regarding hearsay evidence being that it is inadmissibile, or if admissible, is given very little weight in considering the merits of the matter, with the reason that the original source of the evidence cannot be cross-examined by the party against whom the evidence is presented.

55. The hearsay evidence relating to Alternative 1 to Charge 1 should therefore not have been admitted, or any weight attached to it. The only weight that could be attached to any of the witnesses who testified in relation to that charge, would have been attached to the evidence of the Respondent’s third witness Ms Mgidi who testified that the complainant Ms Sigenu was untruthful, lying and tells the same story differently to different people and could basically not be trusted. If a matter is withdrawn and the complainant testifies that she was not forced or threatened but withdrew voluntarily, then the matter is declared closed. The Respondent had argued that it was not in the hands of Ms Sigenu to withdraw the charges, as she was no longer in the employ of the Respondent. The Respondent had argued further that the withdrawal only referred to 17 June 2021 and suggested that the complainant had reinstated the complaint against the Applicant from 18 June 2021. In their view Ms Sigenu had withdrawn her initial complaint because she came to realise that the complaint was baseless or came as a result of undue influence by the other interested parties, being Ms Varoyi and Ms Mshudulu.

56. The testimony of the parties’ witnesses was referred to surrounding Alternative 1 to Charge 1, which is not repeated here save to also highlight certain aspects. It was pointed out that both Ms Varoyi and Ms Mshudulu testified that the Applicant was a dishonest person with reference to their personal experiences, which proved to be irrelevant to the charges levelled against the Applicant. Ms Mshudulu had also testified that she never advised Ms Sigenu to make false accusations against the Applicant as the one voice recording suggested. The Applicant’s version was supported that Ms Sigenu came to request an advance payment of R2500.00 from the Applicant as she was battling with transport and had faced financial difficulties at the time due to the delay of approximately six weeks for the Respondent to process substitute and contract nominations. Since the school does not give advance payments to employees he offered to assist her the next day and could only provide her with an amount of R2000.00 in cash which he raised with his wife. He had advised her to pay it back in December and it would be like Christmas money for his drinks. This R2000.00 paid into his bank account was therefore for a loan repayment and not a bribe. The Applicant had never requested an amount of R2000.00 from Ms Sigenu, whose own testimony corroborated that of the Applicant by confirming that the Applicant never asked her for R2000.00. It was false for Ms Sigenu to claim that the Applicant had promised her a post for 2021 since it was already offered to Mr Saziwa before the end of 2020. The Applicant was also not part of the meeting in which classes were allocated for 2021, which could not be done without the approval of the Principal. Ms Mgidi had confirmed that Ms Sigenu’s claim was false that she was promised a post when she got allocated a class for 2021 since Ms Mgidi, who was in the same Phase as Ms Sigenu, testified that she had no knowledge of such a meeting. Ms Sigenu in the messages between herself and Ms Mgidi and the Applicant had also not made any mention of a post being promised to her. When the Applicant had informed Ms Sigenu that she did not qualify for a post in the Foundation Phase, it again nullified the allegation that the Applicant was demanding money from Ms Sigenu. During those exchanges Ms Sigenu had not expressed her frustration and had not reminded the Applicant that she had already paid R4300.00 for the post and that he owed her.

57. An objection was raised against the use of the disciplinary hearing recordings as evidence by the Respondent in the arbitration on the understanding that the arbitration is a de novo process. The Applicant had testified that he was traumatised by the charges levelled against him and that it was his first disciplinary hearing in his 25 years with the Respondent and that he has no total recollection of what he had testified at the disciplinary hearing and was confused, hence the different version testified at the arbitration. The Applicant also had no knowledge of the call from Ms Sigenu and that that he was in the area where she allegedly had a meeting with Mr Nathan Cottle. Ms Sigenu, Ms Mgidi and Ms Mshudulu testified that there was a bad relationship between Ms Mshudulu and the Applicant and the Applicant suspected that Ms Sigenu may have chosen the Applicant’s enemies to fight for the post she felt entitled to, with Ms Mshudulu also using the opportunity to settle her scores with the Applicant through Ms Sigenu. They accordingly submitted that the Alternative 1 to Charge 1 lacked substance that that the Respondent had failed on the balance of probabilities to prove that the Applicant demanded R2000.00 from Ms Sigenu as a thank you for appointing her at Sonwabo Primary School or in turn nominating her in 2021, with the charge to be dismissed due to insufficient evidence since it revolved around the insinuation of a bribe which was proven to be baseless.

58. With respect to Charge 2 and Charge 3, the Applicant had testified that he never sought or advised the SGB to seek permission for the alterations done to the school buildings and that Charge 2 was misplaced since it made reference to converting a toilet at the school, whilst it was a dilapidated building that was posing a health and safety hazard to learners. With respect to Charge 3 the Applicant was aware that the ablutions for the school were part of the scheduled maintenance for 2020/2021 and that the erection of the urinals was an interim measure until then. What he had done was in the best interest of the school and the learners and that he, as newly appointed Principal, was not aware that he needed to seek permission from the MEC, with Mr Dyasi the previous Principal being adamant that approval was granted for the use of the old building to benefit the school.

59. Extensive reference was made by the Applicant to a document relating to the dual role of the Principal as employee of the Respondent and ex officio member of the SGB, of which the comprehensive details are not repeated here, and were introduced to illustrate from Court cases and disciplinary hearings how Principals seem to be caught between their role as employee of the Department of Education and as member of their school’s governing body, with the SASA distinguishing between the governance (through the SGB) and professional management (through the Principal) of public schools. They were of the view that what was cited in that document applied in this matter, in which it was stated as follows in the concluding comments:

The abovementioned cases demonstrate the difficult position of the principal as ex officio member of the governing body and as employee of the Department of Education. The parent members on the governing body may have the expectation that the principal must promote and protect with them the best interests of the school and the learners of the school while officials of the Department of Education expect the principal to carry out their instructions whether such instructions are lawful or not…..

60. The Applicant in closing stated that incidents should not be looked at in isolation and that the circumstances under which any transgression took place should also be considered. With respect to Charges 2 and 3, the Applicant as the Principal and the SGB did what was in the best interest of the learners, staff, community and the entire school and it was a transgression that neither the SGB nor the Principal stood anything to gain by materially or financially, but was done to create a safe and better schooling environment.

61. With respect to the parties’ aforementioned averments and the case at hand, I refer to the following extracts from the Employment of Educators Act 76 of 1998 (the EEA), the Circulars referred to, the South African Schools Act 84 of 1996 (the SASA) and the South African Council for Educators Act 31 of 2000 (the SACEA), which are deemed as relevant to this dispute:

62. Sections 18(1)(a) and 18(1)(f) of the EEA as referred to in the charges brought against the Applicant, to which are added Sections 18(1)(h) and 18(1)(n) as being regarded as also relevant to this case, read as follows:

18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she-
(a) fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employment relationship;
(f) unjustifiably prejudices the administration, discipline or efficiency of the Department of Basic Education, an office of the State or a school or adult learning centre;
(h) accepts any compensation in cash or otherwise from a member of the public or another employee for performing his or her duties without written approval from the employer;
(n) without prior permission of the employer accepts or demands in respect of the carrying out of or the failure to carry out the educator’s duties, any commission, fee, pecuniary or other reqard to which the educator is not entitled by virtue of the educator’s office, or fails to report to the employer the offer of any such commission, fee or reward.

63. Circular 0032/3012 of the Directorate Institutional Management and Governance Planning of the Western Cape Education Department issued on 17 August 2012 relating to amendments to the SASA granting usage rights to SGBs with respect to a school’s immovable property which highlights the authority of the Provincial Minister for Education as the approving authority for the purpose of implementation of Section 36(4) of the SASA which limits the powers of the governing body to lease, burden, convert or alter immovable property of a school and explains how application is to be made to the Provincial Minister in terms of Section 36(4) to lease, burden, convert or alter immovable property at a school.

64. Circular 0038/2017 of the Directorate: Infrastructure Delivery Management of the Western Cape Education Department issued on 28 September 2017 which introduces the School Emergency Maintenance Management Information System (SEMMIS) which is an online system and replaces the Central Education Management Information System (CEMIS) through which schools can report and capture emergency maintenance repairs.

65. Circular 0008/2019 of the Directorate: Physical Resource Planning and Property Management of the Western Cape Education Department issued on 20 February 2019 relating to amendments to the SASA granting usage rights to governing bodies in respect of a school’s immovable property and reminding SGBs about the provisions of Section 36 of the SASA and the authority of the Provincial Minister for Education in this regard and the procedure in accordance with which application must be made to the Provincial Minister to lease, burden, convert or alter immovable property at a school.

66. Section 16A Functions and responsibilities of principal of public school of the SASA with particular reference to selected extracts from Section 16A (1), (2), and 3, which state as follows:


(1)(a) The principal of a public school represents the Head of Department in the governing body when acting in an official capacity as contemplated in sections 23(1)(b) and 24(1)(j).
(2) The principal must –
(b) attend and participate in all meetings of the governing body;
(f) inform the governing body about policy and legislation;
(3) The principal must assist the governing body in the performance of its functions and responsibilities, but such assistance or participation may not be in conflict with –
a) instructions of the Head of Department;
b) legislation or policy;
c) an obligation that he or she has towards the Head of Department, the Member of the Executive Council or the Minister; or
d) a provision of the Employment of Educators Act (Act 76 of 1998), and the Personnel Administration Measures determined in terms thereof.

67. Section 36(4)(a) Responsibility of governing body of the SASA, which states as follows:
(4)(a) A governing body may, with the approval of the Member of the Executive Council –
(i) lease, burden, convert or alter immovable property of the school to provide for school activities or to supplement the school fund of that school; and
(ii) allow any person to conduct any business on school property to supplement the school fund.

68. To first address procedural fairness as it relates to the disciplinary process. It was noted that procedural unfairness was not raised in the pre-arbitration minute concluded between the parties on 27 October 2021, but was later added in the Applicant’s statement of case at the commencement of the arbitration on the basis that the charges brought against the Applicant which he was dismissed for were not clear and open to different interpretations. No specific evidence was led by the Applicant that supported grounds on which to allege procedural unfairness, other than the Applicant’s testimony that the ten days’ notice of the disciplinary hearing was insufficient time to prepare his defence. The allegation that Charge 2 was unclear since the building renovated did not previously house toilets but was a dilapidated and unused building, was conceded in the Applicant’s own evidence as indeed previously being used as toilets. The Applicant had testified that he was in a bad state of mind and traumatised at the time of the disciplinary hearing since it was the first time he had been charged, had been ill advised and had made statements in the hearing that he did not recall while he was in that state. As pointed out by the Respondent, the Applicant, who was represented by a Union Official, could have requested a postponement of the disciplinary hearing if he was not fit to continue with it, which was not done at the time.

69. To next turn to substantive fairness and firstly the Alternate 1 to Charge 1. The key issue which this charge turns on relates to the probability of the opposing versions of the Applicant and Ms Sigenu regarding the purpose of the R2000.00 which Ms Sigenu deposited into the Applicant’s Capitec bank account on 3 December 2020. In the Applicant’s version at the arbitration this was to repay a personal loan that he made to assist Ms Sigenu and in the Respondent’s version it was for a “drink” (bribe) paid by Ms Sigenu to the Applicant either to thank him for an appointment or to nominate her for a post in 2021. The amount, as well as that it was paid into the Applicant’s bank account, was not disputed.

70. In deciding this matter it is therefore also necessary for me to address the issue of credibility, since material factual disputes emerged during the arbitration between the parties.

71. In Marapula & Others v Consteen (Pty) Ltd [1999] 8 BLLR 829 (LC) at 837 C – F the Court said the following in relation to the evaluation of evidence and the discharge of the onus by an employer:

“The onus is on the employer to prove that the dismissal was fair (section 192 of the LRA) on a preponderance of probability. In my opinion, the onus is discharged if the employer can show, by credible evidence, that its version is the more probable and acceptable version. The credibility of witnesses and the probability or improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the employer’s version, an investigation where questions of demeanour and impression are measured against the content of the witnesses’ evidence, where the importance of any discrepancies or contradictions are assessed and where a particular story is tested against facts which cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety.”

72. Assessing credibility is however not a matter of comparing the number of witnesses on one side with the number presenting an opposing version. I have to weigh up all the evidence in order to decide whether it was reliable or not and whether the truth was told, despite any shortcomings. In order to reach a just verdict based on the truth, I must be able to consider all the relevant admissible evidence. For this reason the basic principle in evaluating evidence is that evidence must be weighed in its totality. In this regard Navsa JA in S v Trainor 2003(1) SACR 35(SCA) at 41b-c said the following:

“A conspectus of all evidence is required. Evidence that is reliable should be weighed alongside such as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable, the quality of the evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of course; must be evaluated against the onus on any particular issue or in respect of the case in its entirety....”

73. When evaluating or assessing evidence, it is therefore imperative to evaluate all the evidence, and not to be selective in determining what evidence to consider. As Nugent J (as he then was) in S v Van der Meyden 1999 (1) SACR 447 (W) stated at 450:

“What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored.”

74. From the aforementioned it is therefore clear that the evidence must be assessed in its totality in order to arrive at a meaningful conclusion. Bearing the foregoing principles, opinions and cautions in mind, I will attempt to apply these principles, rules and guidelines to assess the evidence of the parties’ witnesses, as relevant to the main facts in dispute, without going into the detail of all the evidence of the parties’ witnesses as has been already set out in this award under the Respondent’s and Applicant’s evidence and their submissions in argument. With respect to the evidence which was presented, the following is noted, in summary:

75. Ms Sigenu was the initiator of the complaint that was referred to the Respondent’s Labour Relations Directorate and resulted in the disciplinary investigation into and the subsequent levelling of charges against the Applicant by the Respondent. It is noteworthy, and not disputed, that Ms Sigenu had a change of heart and in writing withdrew her complaint/charge against the Applicant on 16 June 2021 and informed that she would not be testifying at the Applicant’s disciplinary hearing, which in the Respondent’s version was e-mailed to the Respondent with the assistance of Mr Nathan Cottle, who was to represent the Applicant in his disciplinary hearing that was to commence the following day on 17 June 2021. The Respondent however elected to continue with the Applicant’s disciplinary hearing based on the evidence that was at their disposal at the time, as well as the Applicant’s own evidence, which excluded the in person evidence of Ms Sigenu, who would have been the Respondent’s key witness in the proceedings. This resulted in the allegation by the Applicant that the Presiding Officer of the disciplinary hearing had relied on hearsay evidence when making a finding of guilt on that charge. This must have also been included in the appeal directed to the MEC by Mr Nathan Cottle on behalf of the Applicant (which appeal was not included in the documents), in which the MEC’s outcome upholding the Applicant’s dismissal dated 16 September 2021 stated that the hearsay evidence was not taken into consideration by the Presiding Officer because it could not be corroborated.

76. The Applicant had also objected to the admissibility of the disciplinary hearing recording that the Respondent sought to refer to with respect to the credibility of the Applicant in that he in the hearing had testified that Ms Sigenu had paid R2000.00 into his bank account on 3 December 2020 as a “drink” and in the arbitration had submitted that this payment was not in respect of a “drink” (bribe) but for a personal loan that he made to Ms Sigenu in November 2020, which she was repaying to him. I had admitted the disciplinary hearing recording as evidence based on case law in this regard and informed the parties at the outset of the arbitration that they could present argument surrounding this and the weight that I should attach to this evidence. It was noted that in the Applicant’s referral to arbitration dated 27 September 2021 he had under the Special Features section set out the version that he presented at the arbitration, which was of a loan that he had granted to Ms Sigenu.

77. It was pointed out, and accepted by the parties, that arbitration is a de novo process. Ms Sigenu had elected to testify at the arbitration and the Applicant had elected to change his version at arbitration. This primarily impacts on the reliability and credibility of their evidence at the arbitration proceedings as well as the applicable aggravating and mitigating circumstances once findings have been made.

78. The WhatsApp conversations between Ms Sigenu and the Applicant on 1 December 2020, 3 December 2020 and 2 February 2021 as contained in the admitted documents are in particular referred to with respect to the probabilities of their respective versions, which are repeated below due to the importance of these conversations:

On 1 December 2020
Sigenu: Good morning Principal, regarding that drink, I haven’t forgotten about it, but since I didn’t receive my full salary and I had already made many financial plans for my parents. So when I receive the second salary ill sort you out. The reason im approaching you here today like this is because I get scared speaking to you face to face.
Mr Dlwathi: Evening no problem its okay.

3 December 2020
Capitec Account Dlwathi
Sigenu: Good Afternoon… I did it Principal
Dlwathi: sure thanks. May you have more where you receive from.


2 February 2021
Sigenu: Morning Principal
I would like to ask you, can’t you put me at foundation phase since there will be a vacant post there. I will work hard and learn. I know im not qualified for the said post, but I will give it all in my powers. Its not easy now to look for work especially now there are Assistant teachers in schools. If needs be Ill increasing the drink. Im really desperate my parents are dependent on me. I don’t know what im going to tell them when I say I won’t be able to go back to school because they were hopeful.
Mr Dlwathi: Afternoon Sigenu. Don’t be too hard on yourself, an opportunity will come again. The education department is very strict on the issue of qualifications. It is not about the drink. Your chance will come soon. You will be the first to know trust me.

79. To turn to Charge 2 and Charge 3, which will be dealt with simultaneously, since the alleged transgressions are in essence the same, namely that the Applicant did not obtain the approval of the MEC or delegated authority to implement the changes to the school’s building structures. Although this was not raised by either party, in particular the Applicant, it was curious that these charges related to incidents in 2016 and 2019 and were only actioned in May 2021. With respect to Charge 2 ,it is supported that there may have been some confusion relating to the status of that project to renovate the building which previously served as toilets and the way forward for the Applicant in implementing that project after the handover from the previous school Principal end 2014, as testified to by both the Applicant and Mr Dyasi, the previous Principal. There was no such uncertainty however relating to the erection of the urinals since the school ablutions were scheduled for maintenance in 2020/2021 and the Applicant’s version was that an emergency response was required in the interim because of the community complaints and the health and environmental hazards to learners, staff and the school associated with the sewage problem. Without going in too much detail surrounding this evidence, the Applicant had admitted that he had not obtained the approval from the MEC for the work that was to be done or had checked that it had been approved in the past. The Applicant had also apologised profusely for that unintentional oversight and for not being aware of the requirements in this regard as a newly appointed Principal at the time.

80. In the face of the two opposing versions relating to Alternative 1 to Charge 1, the following has to be considered with respect to factors such as the reliability and credibility of the parties’ witnesses and the probabilities of their respective versions:

81. Ms Sigenu had provided the reasons why she decided to not testify at the Applicant’s disciplinary hearing and why she later decided to testify at the arbitration. The Respondent’s witnesses, regardless of the issues that they may or may not have had with the Applicant, basically corroborated Ms Sigenu’s version that a “drink’ or bribe was involved. It is also questioned why Ms Sigenu, a novice Educator, as described by the Applicant, and shy child as described by Ms Mshudulu, would have fabricated such a sequence of events. It was apparent too that Ms Mgidi was a reluctant or hostile witness for the Respondent and seemingly attended the proceedings under duress, hence her evidence should be approached with caution, unless where it could be corroborated by other evidence.

82. It is of particular concern that Mr Nathan Cottle, who was party to the key Sable Square transactions relating to Ms Sigenu’s withdrawal of the dispute and the CV and money exchanges, was not called to testify in the proceedings to confirm the version of either Ms Sigenu or the Applicant, who had denied that any such incident had taken place. It is also noted that the Applicant’s version that the telephone call from Ms Sigenu to him about her withdrawing the charges and referring her to Mr Cottle and that the Sable Square meeting(s) never took place were not put to Ms Sigenu to respond to when she testified. It is also questioned how Mr Cottle, who Ms Sigenu had testified had assisted her with the withdrawal letter and e-mailed it on her behalf to Mr Mbotoloshi of the Respondent on 16 June 2021, could have done this if the Applicant had not referred her to Mr Cottle and if such a meeting had not taken place. It was noted from the documents that the e-mail to which Ms Sigenu’s withdrawal letter was attached was not sent from Mr Cottle’s personal e-mail address that was on record, but at 14h44 on 16 June 2021 from Westgate iClick, a digital business centre/printing service at Westgate Mall in Mitchells Plain, which is a considerable distance from Sable Square in Milnerton, and supported that it was e-mailed by Mr Cottle after the letter had been scanned as an attachment. It is also improbable that Mr Cottle would have acted without the Applicant’s knowledge and of his own accord in this matter. This opens up the speculation of the possibility that Ms Sigenu was approached by the Applicant, or Mr Cottle on his behalf, to withdraw the charges on the basis that the money that she in her version had paid to the Applicant would be repaid to her and that other schools would be approached for work for her if she provided her CV. However neither party had testified to such an eventuality, although Ms Sigenu had testified that she had received a threatening message after the Applicant was dismissed while she was in the Eastern Cape and could not press charges then, although she had information surrounding that, with no further details elicited from her by the parties during her testimony.

83. The withdrawal letter signed by Ms Sigenu stated as follows:

I Zikhona Sigenu hereby freely withdraw the charges and evidence of the case of Bongwani Dlwathi on this day of 16 June 2021. 95051166089.
And I will not be testifying on 17th June 2021.


FINDING

84. I have considered all the evidence and argument, but because Section 138(7) of the LRA requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute, with such findings made on the balance of probabilities. The following is accordingly found, on the balance of probabilities and in the circumstances of this case:

85. Firstly, with respect to procedural fairness, I refer to Item 4 Fair Procedure of the Code of Good Practice: Dismissal of Schedule 8 of the LRA (the LRA Code of Good Practice) which contains the basic elements of a fair procedure as set out as follows in sub-item 4(1):

Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and do the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision
taken, and preferably furnish the employee with written notification of that decision.
.
86. Insufficient evidence was led to support that the Respondent had not complied with these prescripts in the disciplinary action taken against the Applicant. The Applicant was given ten days’ notice of the disciplinary hearing and had the assistance of a Union Representative of his choice. As a Principal he as a professional person would understand the main content of the charges brought against him, even if he did not agree with the exact wording. If he was in a very stressed and traumatised state of mind at the time of the disciplinary hearing and made statements that he now regrets, he or his Representative should have requested a postponement of the hearing, which there is no record of them having done. The fact that Ms Sigenu did not testify in person at the disciplinary hearing did not deny the Applicant the opportunity to state his case and there is no record that he or his Representative objected to the absence of Ms Sigenu at the hearing. The MEC in the appeal outcome of 16 September 2021 had stated that the hearsay evidence that must have been referred to in the Applicant’s appeal application (which as already pointed out was not provided in the parties’ bundles of documents to refer to) was not taken into consideration by the Presiding Officer because it could not be corroborated.

87. In the circumstances I have to find, with respect to the allegations of procedural unfairness, that the Respondent has been able to discharge the onus to prove that procedural fairness had been complied with.

88. With respect to the allegations of substantive fairness, I refer to Item 7 of the LRA Code of Good Practice which provides the following guidelines in cases of dismissal for misconduct, as in this matter:

Any person who is determining whether a dismissal for misconduct is unfair should consider –
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not –
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.

89. Without regurgitating all the evidence, the parties’ arguments and the analysis of evidence already presented, I firstly find as follows with respect to Alternative 1 to Charge 1:

90. The Respondent’s version of what had transpired between Ms Sigenu and the Applicant is found to be the more credible and probable, in that Ms Sigenu had offered the Applicant based on her interpretation of what a “drink” is and that something more substantial than a “thank you” was required from her for the Applicant assisting her with following up the payment of her first salary payment and then subsequently offering him more on advice and on the understanding that he required more money from her to secure a post for her in 2021. Although the Applicant may not have directly requested this money from Ms Sigenu and what the purpose was, whether for a “thank you” of for securing a future post, it was implied and supported by Ms Sigenu’s subsequent actions and the nature of the WhatsApp communications between Ms Sigenu, Ms Mgidi and the Applicant, that this related to either a past appointment or future post at the school. In Ms Sigenu’s WhatsApp conversation with Ms Mgidi on 26 November 2020 both of them made specific mention to the Applicant delivering a post or position to Ms Sigenu, which supports Ms Sigenu’s understanding that the money paid to the Applicant related to a post. If this was money that Ms Sigenu had volunteered based on her interpretation of a “thank you” or “drink” and was not directly requested from her by the Applicant, he should have nevertheless refused it as it could still be regarded as misconduct in terms of the provisions of Section 18(1) of the EEA. The Applicant’s version that it was a personal loan that was repaid by Ms Sigenu is not found to be probable since no evidence in the form of an IOU or anything else could be provided by the Applicant to support his version, or that any mention of a loan was made in the communications between Ms Sigenu, the Applicant and her colleagues. In the circumstances I find that a rule or standard relevant to the workplace was contravened relating to Section 18(1)(f) of the EEA in that by the Applicant’s actions he had incurred the prejudice in the way described there, that it was a reasonable and valid rule or standard and that the Applicant in his position as Principal should have been reasonably expected to be aware of the rule or standard. No evidence was presented that this rule or standard was inconsistently applied by the Respondent, hence the final decision remains whether dismissal is the appropriate sanction for this transgression.

91. As to the appropriate sanction, the extenuating or mitigating circumstances to be considered in this matter are that the Applicant had lengthy service with the Respondent and that this was his first (albeit reported) transgression during his 25 years’ tenure with the Respondent. The following aggravating circumstances are also to be considered:

92. The Applicant in his position is required to set an example to Educators and to be circumspect in his conduct, the nature of which is greatly frowned upon in the Public Service and undermines the fundamental trust relationship between the parties. Accepting or requesting a bribe is categorised as serious misconduct in terms of Section 17 of the EEA, which states as follows at Section 17(1)(a):

(1) An educator must be dismissed if he or she is found guilty of –
(a) Theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;

93. Section 18(5) with respect to the remedies for other forms of misconduct, which the Applicant was charged for, states as follows at Section 18(5)(a):

(5) An educator may be dismissed if he or she is found guilty of –
(a) dishonesty, as contemplated in subsection (1)(ee);

However, it must be pointed out that the Applicant was not charged in terms of Section 17(1)(a) serious misconduct of the EEA for bribery, nor for dishonesty, but in terms of section 18(1)(f) of the EEA, which states as follows:

(1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she -
(f) unjustifiably prejudices the administration, discipline or efficiency of the Department of Basic Education, an office of the State or a school or adult learning centre;

94. The detail of this charge is repeated again for ease of reference, being as follows:

ALTERNATIVE 1 TO CHARGE 1
It is alleged that you are guilty of misconduct in terms of Section 18(1)(f) of the Act, in that during the fourth term of school in 2020, you unjustifiably prejudiced the administration, discipline or efficiency of the Western Cape Education Department and Sonwabo Primary School, by requesting a former educator, Ms Z Sigenu to pay you an amount of R2000 in your CAPITEC Bank Account, as a thank you for appointing her at the school and/or in turn for securing her a post level 1 postiion and or nominating her for a post at said school in 2021.

95. Although the Applicant had denied that this incident ever occurred, evidence was presented that the Applicant had never requested Ms Sigenu to pay the amount(s) of money to him and that she in her version had volunteered the money, whilst it was supported that such exchanges took place through hint and suggestion and allusions to a “drink”.

96. As to whether the narrow categorisation of the charge in terms of the applicable Subsection of the EEA and the exact wording of the charge should be sufficient to set aside the finding of guilt and the appropriate sanction for this charge, the totality of the evidence presented in the arbitration, as well as the provisions of the EEA with respect to appropriate sanctions for various forms of misconduct, and in particular the overriding guidelines provided in Item 3(4) dismissals for misconduct of Schedule 8 Code of Good Practice: Dismissal of the LRA have to be considered. Items 3(4) and 3(5) are specifically referred to in this regard:

(4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.
(5) When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.

97. To assist in making this finding, I also need to refer to the Code of Professional Ethics of the South African Council of Educators as provided for in Section 5 (c) Powers and duties of council of the South African Council for Educators Act 31 of 2000 (the SACEA). In their Code published on 8 February 2017 it it is stated that educators who are registered or provisionally registered with the South African Council for Educators, must inter alia act in a proper and becoming way such that their behavior does not bring the teaching profession in disrepute and that breaches of the code may attract disciplinary action in terms of this Code.

98. Therefore taking into account all the foregoing considerations, the nature of the Applicant’s transgression, the nature of his position as Principal at Sonwabo Primary School and that the trust relationship has been seriously tarnished as a result of his conduct, I find that the aggravating circumstances have in the circumstances outweighed the extenuating or mitigating circumstances and that that there are insufficient grounds to set aside the Respondent’s sanction of dismissal, with the Respondent having discharged the onus to prove that the Applicant’s dismissal on this charge to be substantively fair.

99. With respect to Charge 2 and Charge 3 I find as follows: The Applicant had admitted that he had not complied with Section 36(4) of the SASA in not obtaining or ensuring that proper approval from the MEC or his/her delegated authority had been obtained for the conversions and alterations made to the two school buildings on behalf of the SGB, expressing remorse for that oversight on the grounds that he was still a newly appointed Principal at the time and was not aware of the relevant circulars and statutoryrequirements. He had also acted with the approval of the SGB, of which he was part, to address health and safety emergencies at the school when he implemented these changes. However, Section 16A(3) of the SASA stated that a Principal when assisting the SGB may not act in conflict with any legislation or policy, which was the case in this matter.

100. The Applicant had therefore transgressed a valid and reasonable rule of the Respondent, of which he should reasonably have been aware of as school Principal since he did not dispute that he had access to the SASA and the relevant circulars. He is therefore found guilty on the balance of probabilities in terms of Section 18(1)(a) of the EEA in that he had failed to comply with another statute, regulation or legal obligation relating to education and the employment relationship. No evidence was again presented that the Respondent had not applied this rule or standard inconsistently.

101. What remains then if these were dismissible offences. Aggravating and mitigating circumstances again need to be considered. In aggravation it is important that Principals, and other Educators, comply with the prescripts of the applicable legislation and the rules of the Respondent. In mitigation the evidence supported that the Applicant had not intentionally ignored these prescripts and had acted in good faith with the support of the SGB and in the interest of the learners, the school and the community when he had implemented the alterations to the buildings, which were primarily funded by donors and had a limited cost outlay to the Respondent, except where the Department of Public Works had to change some of the alterations made to the ablution block. It is also noted that these charges were also leveled against the Applicant a considerable time after the alleged transgressions had taken place, being in 2016 and 2019. In the circumstances the sanction of dismissal is considered as being too harsh for these two transgression and lesser sanctions than dismissal should have applied in terms of the provisions of Section 18(3) of the EEA.

102. I accordingly find that the Applicant was guilty on Alternative 1 to Charge 1, Charge 2 and Charge 3, but that the Respondent had only discharged the onus to prove that the Applicant’s dismissal was fair in respect of Alternative 1 to Charge 1, with lesser sanctions to have applied with respect to Charge 2 and Charge 3.

103. With respect to procedural unfairness, I have already referred to this and found that the dismissal of the Applicant was procedurally fair, for the reasons already cited.

AWARD

104. The dismissal of the Applicant, Mr Bongani Dlwathi, by the Respondent, the Department of Education - Western Cape, is found to be fair on both procedural and substantive grounds.

105. The application is accordingly dismissed.

106. No order as to costs is made.



Panellist: Alta Reynolds