ELRC644-20/21 EC
Text
ELRC 308-21/22MP
Award Date:
25 January 2022
Case No ELRC 308-21/22MP
In the matter between
MPUMALANGA DEPT OF EDUCATION EMPLOYER
and
TSHEPO SETHUSHA EMPLOYEE
ARBITRATOR: Monde Boyce
HEARD: 28 October 2021 & 06 and 07 December 2021
CLOSING ARGUMENTS: 11 December 2021
DATE OF AWARD: 25 January 2022
AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION:
[1] The ELRC scheduled the matter for a hearing in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and the inquiry was held at the Highveld Dept of Education Circuit offices in Secunda on 28 October 2021 and on 06 and 07 December 2021. Both parties attended the inquiry on all the above dates and Mr Tsiu, a trade union official, appeared for the employee while Mr Mahlangu appeared for the employer.
[2] The employer called five witnesses, two of whom were learners while the employee called two witnesses. The hearing was digitally recorded, and typed notes were taken. The two learners gave their testimony with the assistance of an intermediary and, to protect them and avoid contact with the employee, testified from an adjacent room. The learners are aged 13 and 14 respectively. As such it became necessary that their identity be protected and are referred to as learner A and B.
THE ISSUE TO BE DECIDED:
[3] Whether the employee is guilty or not of the charges preferred against him by the department, and I am required to make the appropriate award.
THE BACKGROUND TO THE DISPUTE:
[4] The employee is currently employed as an educator at Sidingulwazi Senior Primary School. In this inquiry, the employee is facing the charges of having sexually assaulted two learners Grade 7A learners at the abovementioned school.
The employee pleaded “Not Guilty” to the charges.
SURVEY OF EVIDENCE AND ARGUMENT:
Employer’s Evidence
[5] Learner A, testified that she is a learner at Sidingulwazi Primary School and is doing Grade 7. She knows the employee Mr Sethushe as he is her Social Science teacher at Grade 7 and was teaching her English at Grade 6. On 07 April 2021, the employee asked her to collect social science textbooks from his office. After she left the classroom to fetch the textbooks, the employee followed her to the office. She had gone to the employee’s office with another leaner, leaner B and had just taken the textbooks when the employee entered the office, hugged her and touched her breasts and told her that he had dreamt of her. She had asked the employee what he dreamt about her doing and the employee told her to come to him during the short break so that he could give her the full details. When she left the office, the employee did not immediately follow her and stayed in the office.
[6] When she went to the classroom, she gave the textbooks out but did not go to the employee’s office during the short break but went to another educator, Miss Maredi. Miss Maredi then informed another educator, Miss Cesibe about the incident. She was not called to the offices to discuss the incident with the employee. On 13 April 2021 she was next to the water tap after school and after cleaning the classrooms that the employee came from the classroom and stood behind her while cleaning the mop and touched her buttocks and told her to come to his office when done what she was doing there. She never went to the employee’s office as he had asked her to. She instead went to Miss Cesibe to tell her about the incident. Miss Cesibe had then reported the incident to the principal.
[7] She, Miss Cesibe, Miss Maredi and leaner B went to the principal’s office. Upon arrival at the principal’s office, the principal asked her about what happened, and she gave full account of what happened. After having detailed what happened, the principal had then called her and learner B’s parents to the school. The principal had separate meetings with the parents and after the principal had met the parents, called her to the office and commended her for having reported the incident immediately after it happened. After a few days, the principal had called both her and learner B and informed them that there would be taken to a venue where they would be testifying about what happened and that there was another gentleman, a Mr Mahlangu that he wanted them to speak to first. They met Mr Mahlangu and had a conversation with him and he had told them to come to testify at the enquiry.
[8] The two incidents made her feel sad. After the incident, the relationship between the employee and her and learner B was bad because he (employee) would give them bad looks and jump them when distributing papers to other learners.
[9] The second witness, leaner B, testified that she is a Grade 7A learner at Sidungulwazi Primary School and she is currently thirteen (13) years old. The employee was her science teacher. She recalls an incident where the employee touched her breasts and buttocks in his office. The incident occurred on 07 April 2021. The employee arrived at her classroom during his period and asked her and another learner, learner A to go and fetch textbooks that were going to be used in the classroom. They went to the employee’s office but within 5 minutes, the employee came into the office, and he came between her and learner A and touched her breasts and her buttocks and told her that he dreamnt of them. She ran out of the office and left leaner A in the office.
[10] After a while, learner A came to the classroom while the employee remained in his office. When the employee’s period was about to end, the employee came back and asked them to take the textbooks back to his office. They refused and the employee asked the boys to take the textbooks to his office. The boys took the textbooks to the employee’s office after which they went on a break. After school, she told learner A that the employee had improperly touched her and that she did not like what the employee did, and learner A also told her that the employee had touched her as well. She told learner A that they needed to report the employee. They then went to report the incident to Miss Mareki who in turn told Miss Cesibe and Miss Seleke and Mr Seramane.
[11] Miss Cesibe called them the following day and asked about what happened. They told her about the whole incident. Miss Cesibe sent them to Mr Seramane. They told Mr Seramane what happened. He told them that he could not talk to them about the matter because they were female learners and referred them to Miss Seleke. They stated what happened to Miss Seleke and Miss Seleke gave them certain documents to give to their parents. She however cannot recall when that was. There was thereafter a parents’ meeting where the incident was discussed, and they were told they would be informed of what would happen. She felt bad about the incident so much that she had cried. Her relationship with the employee became worse after the incident. He stopped talking to her and passed threatening looks at her. The employee did not teach her the social sciences after the incident.
[12) On a version put to her during cross examination to the effect that the employee will testify that it was actually learner C that he touched and that learner C would come and testify to that effect and that the employee will deny that any incident involving her (learner B) occurred, learner B responded that the employee would not be telling the truth and that the incident involving learner C did not happen in her presence.
[13] The third witness called by the employer was Miss Yvone Maphefu Maredi, and she testified that she is employed by the employer as an educator at Sidingulwazi Primary School and has been employed at the school for 35 years. She knows the employee and was working with him at the school. She knows learner A and learner B and the two learners are learners at her school. The two learners reported an incident that occurred around the 7th of April 2021. The learners came to her office looking for their class teacher whose office was next to hers. One leaner, learner B, was crying and he asked the learner why she was crying and they told her that they had a problem with “Sir” who was touching them on their buttocks. She asked who “Sir” was and they told her it was Mr Sethusha. It was learner A who narrated the incident since learner B was crying all the time. She then decided to call another teacher so she could be present when the learners narrated the incident. She called Miss Siyaya and asked the learners to explain what happened in Miss Siyaya’s presence.
[14] The leaners told her in Miss Siyaya’s presence that the employee was touching their buttocks. After the learners narrated the incident, they decided to escalate the incident to their superiors, Mr Malaka and Mr Dlamini. They both were in a meeting but after the meeting, they asked her what had happened. She told them that the learners reported to her that the employee was touching their buttocks. She left after having reported the incident. The learner who was crying was leaner B. indicated that they first wanted to talk to their teacher but that their teacher was not in her class.
[15] Miss Sizeni Petunia Cesibe was called as the employer’s fourth witness. She testified that she is employed as an educator at Sidingulwazi Primary School and has been employed at the school for seven (07) years. She knows learner A and Learner B and is aware of an incident reported to her involving the two learners. Around the 8th of April 2021, Miss Maredi had told her that her learners, learner A and B reported an incident to her that the employee touched them in an improper manner. Miss Maredi told her that her learners had come looking for her the previous day. She had already left the school when the leaners came looking for her. Miss Maredi also indicated that she had reported the matter to the Heads of Department (HOD). She also reported the incident to the HOD, Miss Malaka who advised her that she should report the matter to the Deputy Principal, Miss Seleke. She went to report the incident to Miss Seleke.
[16] The employer called a fifth witness, Miss Meriam Johanna Seleke. She is currently employed at Sidingulwazi Primary School as the Deputy Principal. She knows the employee and has worked as an educator at the school. She recalls an incident where Miss Cesibe, on the 15th of April 2021, reported an incident where the employee had touched them. She, after having received the report from Miss Cesibe, escalated the matter to the principal. The principal however told her that since the incident involved female learners, she (Seleke) should interview the learners.
[17] She had interviewed the two leaners who told her that the employee had touched their breasts and buttocks. She did not engage the learners any further because they had already reported the incident to the teachers. A meeting of parents was convened by the principal.
Employee’s Evidence
[18] The employee, Mr Tshepo Christian Sethusha, testified that he is currently employed as an educator at Sidingulwazi Primary School and has been at the school since February 2012. He received a notice of suspension on 25 May 2021. The notice was however not signed, and Mr Mahlangu had said it would be signed on 26 May 2021. He was not given an opportunity to make representations or respond to the notice. Mr Magagula signed the charge sheet on 10 May 2021 and he read the charge sheet for the first time on 25 May 2021 and signed it on 26 May 2021. There was no need for the suspension because an investigation had already been concluded on 10 May 2021. He however accepted the situation as he is a layperson. He is currently still on suspension.
[19] Regarding the charges, no date was reflected on the charges and the sexual assault referred to was not explained or detailed in the charges. He accordingly did not have enough chance to properly prepare. He still has questions as to what happened. The charges also do not state that incidents happened in his office or somewhere else. His recollection of the two incidents as testified by the learners differs with his in that on 07 April 2021, he never sent the learners to his office and is not aware of any such incident happening. He carries textbooks to his class and does not pick any particular learner to assist him. He at no stage asked learners to collect textbooks at his class. He did not have any lessons in the class on 07 April 2021 and thus never went to the class. The allegations were brought to his attention on 01 April 2021 by four of her colleagues, Miss Malaka, Miss Nkosi, Mr Dlamini and Miss Cesibe, the class teacher in a meeting called on that very day. Three leaners: learner A, learner B and learner C, who were in the same class, were called into the meeting a few minutes later.
[20] He acknowledged receipt of the charges on 26 May 2021, which was 54 days after the date he was made aware of the allegations. On 01 April 2021, he was called by Miss Malaka who was already with the other teachers. He went to Miss Malaka who took him to Mr Ramatlo’s office. Inside Mr Ramatlo’s office, Miss Malaka handed over to Miss Cesibe who told him about the allegations. He had responded that he knew nothing about the allegations. The learners were called about ten minutes later. Before the learners spoke, Miss Malaka addressed the learners in vernacular saying “bantwana bam ngicela nikhulume iqiniso” (children, please tell the truth). Learner A and learner C stated that he had touched them on their breasts and buttocks. Learner B however did not say much because she was emotional and was crying most of the time. Miss Malaka then went on about the allegations being raised as early as 2018 and Mr Dlamini, who was part of the meeting, also said in vernacular “wena Sethusha uzoboshwa because every year uthatha izinto zabantwana” (You Sethusha will be arrested because every year you touch children). He had then apologised to the learners for anything he may have done wrong. And the meeting ended on that note.
[21] Regarding the second charge, he knows nothing about the incident referred to by learner B and only got to know about the incident during the enquiry. He denies having touched learner A at the taps. From 01 April 2021 he never went back to the class until the 13th of April 2021 because he was not comfortable being with the learners. Because he had a good relationship with Miss Cesibe, the learners’ class teacher, she (Cesibe) offered to assist with any work that he needed to provide or give to the learners. He went to Grade 7A class to collect activity sheets on 13 April 2021, and learner A and learner B had left the classroom by then. While handing out the activity sheets, he was called out of the class and was told by the class teacher, Miss Cesibe, Miss Malaka and Miss Nkosi that the learners were not comfortable with his presence in class. In the brief meeting he had with the three teachers, it was agreed that the classes be rescheduled in such a manner that he did not have to teach the class. He never went back to the class thereafter.
[22] After 13 April 2021, he never interacted with the leaners. Learner A’s testimony to the effect that he touched her on 13 April 2021 was not true. The taps are in front of Miss Maredi’s class and she had a full view of what happened at the taps and there was no way he could do anything to learner A and not be seen by other people unless everybody else had already left the school premises. Except during the meeting of 01 April 2021, the allegations were never brought to his attention. The principal had called him on 22 April 2021 and asked him about the allegations and he had denied the allegations. The principal had told him that he was going to file a report regarding the allegations. He did not understand why the learners would not be comfortable with him since he had never had any problems with them. He had never had any problems with learners in the schools he previously worked for.
[23] It would be unfortunate for him to lose his job for something he never did. He had assisted other learners before and had bought shoes for one particular male learner who was in need, and the manager of the store he bought the shoes from had also given him two pairs of socks and a shirt. He cared about the learners’ wellbeing and did not understand why when girl learners were involved, her colleagues thought that there was something untoward going on. He still has good relations with the parents. The outcome he is seeking is that he should be absolved of the allegations and return to the job he is currently doing. No one at the school has anything against him. If he were to be dismissed, he would suffer prejudice because he has four children he is supporting.
[24] The employee called a witness, Miss Khabonina Nkosi, who testified that she is employed as an educator at Sidingulwazi Senior Primary School. She, along with other teachers, had been asked to give a statement regarding an incident involving two learners had reported that the employee had touched them on their buttocks and that they were unhappy with how he looked at them and that he often ask them to go to his office and that they had decided that where the employee asked them to go to his office, they would have others accompanying them because they felt unsafe. In that meeting, it resolved that the employee be asked not to send children from his class and that he should deal with the learners in the presence of female teachers. The employee had then offered an apology.
[25] The other witness called by the employee was Miss Sesi Joyce Dlamini who testified that she is a mother to Learner C. Her daughter, learner C had told her that she had been asked to be a witness about an incident that happened but that she did not know anything about the incidents that happened when leaner A and learner B went to the employee’s office. What her daughter told her was that they would ask for chips from the employee and he would tell them to fetch the chips from his office. She (learner C) never told her about the incident involving the other two learners.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
[26] I have taken into account evidence led and closing arguments advanced by both the employer and the employee. I need mention from the onset that when dealing with any hearing involving alleged sexual misconduct by an educator against a learner, such allegations, when proven, need to be viewed in a very serious light. This is primarily because an educator is no ordinary employee. He or she is charged with the duty to care and to look after the wellbeing of the learners. Learners and society alike look upon educators to provide as such care and guidance as would result in the learners becoming better and responsible leaders of society and better and responsibly future citizens. Just about every leader of society is a result of work put in by teachers. It is therefore not uncommon for leaders of society to always refer to that one teacher or teachers who made them what they are.
[27] Furthermore, for the better part of their learning life, leaners are with teachers. As such, the principle of in loco parentis finds application. Educators become parents and have a duty to ensure that learners’ interests take paramount importance, including protecting learners against all forms of not only violence but sexual assault whilst at schools. This is generally accepted as a non-negotiable requirement for any individual who aspires to be a teacher or an educator. By the very nature of their positions, educators assume a very powerful and influential role which, if abused, has very devastating consequences, not only for the leaners but for the society at large. Furthermore, any form of sexual assault on a learner usually have long lasting consequences that stay with them through their adult life and long after they have left school. It is with these considerations in mind that allegations of sexual assault against learners should be approached. Such considerations are also in keeping with Section 28 of the Constitution which provides, among other things, that:
“Every child has a right –
“to be protected from maltreatment, neglect, abuse or degradation ”
Furthermore, the above Section also provides that:
“A child’s best interests are of paramount importance in every matter concerning the child”
[28] Having heard evidence, I had no reason to doubt the testimony of the two learners. The two learners are both young, with learner A aged 14 years while learner B is 13 years old. Both learners gave a detailed account of what happened and learner A in particular and as part of her testimony, drew a catch The testimony they gave While they are both young, with both of them having not yet sketch of the position she, learner B and the employee were when the sexual assault occurred in the employee’s office. The employee, although he denied having sexually assaulted the learners by touching their breasts and buttocks, denied having had any contact with the two learners on 07 April 2021. Events that appear to have unfolded by all the witnesses and the by the employee’s own account, strongly point to the likelihood of the sexual assault on the two learners having occurred.
[29] While the employee denied the allegations and while he denied having had any contact with the two learners on 07 April 2021, the employee’s representative, during cross questioning, spent a considerable amount of time questioning the learners about what transpired in the employee’s office and went on to suggest that it was not possible for the two learners to have seen what the employee could have done to either of them. The representative also went on to engage learner A on the sketch she drew and sought to pour cold water to her testimony that learner B could not have seen what the employee was doing. Throughout their testimony, the two learners, except for the incident that occurred on 13 April 2021 involving learner A, corroborated each other insofar as the events that occurred leading up to and after the sexual assault that occurred on 07 April 2021.
[30] For an example, they both testified that they had gone to the employee’s office to fetch textbooks, that the employee arrived shortly after, that the employee had touched their breasts and buttocks and told them that he had dreamnt of them, that one of the learners ran out of the class, that the employee returned to the class a short while later. They also corroborated each other on their having reported the incident and their later having been called into a meeting with the teachers and the principal. I thus could not find that their evidence was manufactured or a mere fabrication. In my considered view, the learners had no reason to falsely allege that they were sexually assaulted by the employee. There does not appear to have been any motive for them to so do. No evidence was led as to any history of animosity between the employee and the tow learners. The employee’s colleagues that gave evidence pointed to no history of animosity between themselves and the employee. They in fact all stated that they had a good relationship with the employee. The employee himself did attest to his having a good relationship with the educators who testified. That being the case, I was only left to conclude that the employee did sexually assault the two learners as alleged.
[31] Another strong indication that the sexual assault on the leaners did take place is the meeting that appears to have taken place where the allegations were first discussed. All of the witnesses, the employee included, testified that a meeting did take place where the allegations were discussed and where the two learners were called. In that meeting, the employee himself stated that the allegations were raised and made reference to utterances by Mr Dlamini who appeared to admonish him about his conduct and the possibility that his touching the learners might result in him being arrested. What I also paid attention to was the employee’s own reference of the state of the learners during the said meeting. His testimony was that one of the learners, learner B was crying most of the time and was in an emotional state while learner A did most of the talking. This version is consistent, not only with learner B’s testimony that she had cried after the incident but is also consistent with the version of some of the educators who testified that the learners were emotional and that learner B was crying most of the time.
[32] While the employee testified that the said meeting was held on 01 April 2021, he was the only one to attest to same. All the other witnesses testified that the meeting occurred well after the 7th of April 2021. One of the employee’s witnesses, Miss Nkosi, could not give the exact date that the meeting was held on but remembered that it occurred a week after the sexual assault incident had been reported. In the absence of the employee furnishing proof of his claim that the meeting occurred on 01 April 2021, I am left to conclude that the meeting occurred after the 7th of April 2021. Of importance is that all the witnesses, including the employee, testified that the employee had apologised. The employee’s having apologised during the meeting leaves me to find that he committed the misconduct and that it was for this conduct that he was apologising. It was not the employee’s case that he had registered his protest when Mr Dlamini made utterances to the effect that his touching of the leaners may result in him being arrested. At no stage did the employee, in support of his contention that he did not sexually assault the learners, sought to put up a defense during the meeting. He appears to have accepted that he did sexually assault the learners as alleged. He did not explain what he was apologising for. It appears from evidence led that the discussions in the meeting centred around the sexual assault reported by the two learners and there was no evidence led that the meetings was called for any other purpose other than that of discussing the complaints of sexual assault of the learners. It is my finding that the employee is guilty of both charges preferred against him.
[33] There is a provision in terms of the South African Council of Educators (SACE) Code of Professional Ethics that educators: “respect the dignity, beliefs and constitutional rights of learners and in particular children” and that educator must: “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school.”
[34] The employee’s conduct was inconsistent with the obligation placed on him to respect the dignity, beliefs and constitutional rights of learners. The misconduct committed by the employee is of such severity that any sanction short of dismissal would serve no purpose. The two learners are aged 13 and 14 respectively. They are accordingly still very young and the sexual assault on them is likely to negatively affect them. Evidence before me is that the learners, in particular learner B, was so traumatized after the assault that she cried in class after the incident, cried when both learners reported the incident and also during the meeting they were called into. It is therefore highly likely that the sexual assault will scar the learner for a longer period.
[35] On the question of the three issues raised by the employee before and during the arbitration process, it is my finding that the employer did not err as to the process leading up to the employee being charged. The first issue raised was that the employer took longer to prefer charges against the employee. But evidence led do not point to the employer having taken any longer to charge the employee than required. Another issue raised was that the charges preferred against the employee were vague and did not make reference to dates that the alleged incidents occurred. This argument falls to be rejected. By employee’s own admission, a meeting had been held where the allegations were discussed. If the employee’s assertion that the meeting happened on 01 April 2021, the employee then had amply opportunity to prepare for the hearing. In advancing this argument, the employee did not refer to any steps he took to alert the employer that the charges were vague. He was served with a notice of suspension and the charges well before the date of the inquiry. I can thus not find that he was in any way prejudiced. As at the date of the hearing, the employee was on suspension on full pay and thus suffered no prejudice.
[36] In the circumstances, I make the following award:
AWARD
[37] I find the employee guilty of both charges preferred against him and I, as a consequence, impose a sanction of summary dismissal effective from 22 December 2021.
[38] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE.
[39] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and must do so within the prescribed timeframe should he so wish.
Monde Boyce
Panelist: ELRC
In the matter between
MPUMALANGA DEPT OF EDUCATION EMPLOYER
and
TSHEPO SETHUSHA EMPLOYEE
ARBITRATOR: Monde Boyce
HEARD: 28 October 2021 & 06 and 07 December 2021
CLOSING ARGUMENTS: 11 December 2021
DATE OF AWARD: 25 January 2022
AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION:
[1] The ELRC scheduled the matter for a hearing in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and the inquiry was held at the Highveld Dept of Education Circuit offices in Secunda on 28 October 2021 and on 06 and 07 December 2021. Both parties attended the inquiry on all the above dates and Mr Tsiu, a trade union official, appeared for the employee while Mr Mahlangu appeared for the employer.
[2] The employer called five witnesses, two of whom were learners while the employee called two witnesses. The hearing was digitally recorded, and typed notes were taken. The two learners gave their testimony with the assistance of an intermediary and, to protect them and avoid contact with the employee, testified from an adjacent room. The learners are aged 13 and 14 respectively. As such it became necessary that their identity be protected and are referred to as learner A and B.
THE ISSUE TO BE DECIDED:
[3] Whether the employee is guilty or not of the charges preferred against him by the department, and I am required to make the appropriate award.
THE BACKGROUND TO THE DISPUTE:
[4] The employee is currently employed as an educator at Sidingulwazi Senior Primary School. In this inquiry, the employee is facing the charges of having sexually assaulted two learners Grade 7A learners at the abovementioned school.
The employee pleaded “Not Guilty” to the charges.
SURVEY OF EVIDENCE AND ARGUMENT:
Employer’s Evidence
[5] Learner A, testified that she is a learner at Sidingulwazi Primary School and is doing Grade 7. She knows the employee Mr Sethushe as he is her Social Science teacher at Grade 7 and was teaching her English at Grade 6. On 07 April 2021, the employee asked her to collect social science textbooks from his office. After she left the classroom to fetch the textbooks, the employee followed her to the office. She had gone to the employee’s office with another leaner, leaner B and had just taken the textbooks when the employee entered the office, hugged her and touched her breasts and told her that he had dreamt of her. She had asked the employee what he dreamt about her doing and the employee told her to come to him during the short break so that he could give her the full details. When she left the office, the employee did not immediately follow her and stayed in the office.
[6] When she went to the classroom, she gave the textbooks out but did not go to the employee’s office during the short break but went to another educator, Miss Maredi. Miss Maredi then informed another educator, Miss Cesibe about the incident. She was not called to the offices to discuss the incident with the employee. On 13 April 2021 she was next to the water tap after school and after cleaning the classrooms that the employee came from the classroom and stood behind her while cleaning the mop and touched her buttocks and told her to come to his office when done what she was doing there. She never went to the employee’s office as he had asked her to. She instead went to Miss Cesibe to tell her about the incident. Miss Cesibe had then reported the incident to the principal.
[7] She, Miss Cesibe, Miss Maredi and leaner B went to the principal’s office. Upon arrival at the principal’s office, the principal asked her about what happened, and she gave full account of what happened. After having detailed what happened, the principal had then called her and learner B’s parents to the school. The principal had separate meetings with the parents and after the principal had met the parents, called her to the office and commended her for having reported the incident immediately after it happened. After a few days, the principal had called both her and learner B and informed them that there would be taken to a venue where they would be testifying about what happened and that there was another gentleman, a Mr Mahlangu that he wanted them to speak to first. They met Mr Mahlangu and had a conversation with him and he had told them to come to testify at the enquiry.
[8] The two incidents made her feel sad. After the incident, the relationship between the employee and her and learner B was bad because he (employee) would give them bad looks and jump them when distributing papers to other learners.
[9] The second witness, leaner B, testified that she is a Grade 7A learner at Sidungulwazi Primary School and she is currently thirteen (13) years old. The employee was her science teacher. She recalls an incident where the employee touched her breasts and buttocks in his office. The incident occurred on 07 April 2021. The employee arrived at her classroom during his period and asked her and another learner, learner A to go and fetch textbooks that were going to be used in the classroom. They went to the employee’s office but within 5 minutes, the employee came into the office, and he came between her and learner A and touched her breasts and her buttocks and told her that he dreamnt of them. She ran out of the office and left leaner A in the office.
[10] After a while, learner A came to the classroom while the employee remained in his office. When the employee’s period was about to end, the employee came back and asked them to take the textbooks back to his office. They refused and the employee asked the boys to take the textbooks to his office. The boys took the textbooks to the employee’s office after which they went on a break. After school, she told learner A that the employee had improperly touched her and that she did not like what the employee did, and learner A also told her that the employee had touched her as well. She told learner A that they needed to report the employee. They then went to report the incident to Miss Mareki who in turn told Miss Cesibe and Miss Seleke and Mr Seramane.
[11] Miss Cesibe called them the following day and asked about what happened. They told her about the whole incident. Miss Cesibe sent them to Mr Seramane. They told Mr Seramane what happened. He told them that he could not talk to them about the matter because they were female learners and referred them to Miss Seleke. They stated what happened to Miss Seleke and Miss Seleke gave them certain documents to give to their parents. She however cannot recall when that was. There was thereafter a parents’ meeting where the incident was discussed, and they were told they would be informed of what would happen. She felt bad about the incident so much that she had cried. Her relationship with the employee became worse after the incident. He stopped talking to her and passed threatening looks at her. The employee did not teach her the social sciences after the incident.
[12) On a version put to her during cross examination to the effect that the employee will testify that it was actually learner C that he touched and that learner C would come and testify to that effect and that the employee will deny that any incident involving her (learner B) occurred, learner B responded that the employee would not be telling the truth and that the incident involving learner C did not happen in her presence.
[13] The third witness called by the employer was Miss Yvone Maphefu Maredi, and she testified that she is employed by the employer as an educator at Sidingulwazi Primary School and has been employed at the school for 35 years. She knows the employee and was working with him at the school. She knows learner A and learner B and the two learners are learners at her school. The two learners reported an incident that occurred around the 7th of April 2021. The learners came to her office looking for their class teacher whose office was next to hers. One leaner, learner B, was crying and he asked the learner why she was crying and they told her that they had a problem with “Sir” who was touching them on their buttocks. She asked who “Sir” was and they told her it was Mr Sethusha. It was learner A who narrated the incident since learner B was crying all the time. She then decided to call another teacher so she could be present when the learners narrated the incident. She called Miss Siyaya and asked the learners to explain what happened in Miss Siyaya’s presence.
[14] The leaners told her in Miss Siyaya’s presence that the employee was touching their buttocks. After the learners narrated the incident, they decided to escalate the incident to their superiors, Mr Malaka and Mr Dlamini. They both were in a meeting but after the meeting, they asked her what had happened. She told them that the learners reported to her that the employee was touching their buttocks. She left after having reported the incident. The learner who was crying was leaner B. indicated that they first wanted to talk to their teacher but that their teacher was not in her class.
[15] Miss Sizeni Petunia Cesibe was called as the employer’s fourth witness. She testified that she is employed as an educator at Sidingulwazi Primary School and has been employed at the school for seven (07) years. She knows learner A and Learner B and is aware of an incident reported to her involving the two learners. Around the 8th of April 2021, Miss Maredi had told her that her learners, learner A and B reported an incident to her that the employee touched them in an improper manner. Miss Maredi told her that her learners had come looking for her the previous day. She had already left the school when the leaners came looking for her. Miss Maredi also indicated that she had reported the matter to the Heads of Department (HOD). She also reported the incident to the HOD, Miss Malaka who advised her that she should report the matter to the Deputy Principal, Miss Seleke. She went to report the incident to Miss Seleke.
[16] The employer called a fifth witness, Miss Meriam Johanna Seleke. She is currently employed at Sidingulwazi Primary School as the Deputy Principal. She knows the employee and has worked as an educator at the school. She recalls an incident where Miss Cesibe, on the 15th of April 2021, reported an incident where the employee had touched them. She, after having received the report from Miss Cesibe, escalated the matter to the principal. The principal however told her that since the incident involved female learners, she (Seleke) should interview the learners.
[17] She had interviewed the two leaners who told her that the employee had touched their breasts and buttocks. She did not engage the learners any further because they had already reported the incident to the teachers. A meeting of parents was convened by the principal.
Employee’s Evidence
[18] The employee, Mr Tshepo Christian Sethusha, testified that he is currently employed as an educator at Sidingulwazi Primary School and has been at the school since February 2012. He received a notice of suspension on 25 May 2021. The notice was however not signed, and Mr Mahlangu had said it would be signed on 26 May 2021. He was not given an opportunity to make representations or respond to the notice. Mr Magagula signed the charge sheet on 10 May 2021 and he read the charge sheet for the first time on 25 May 2021 and signed it on 26 May 2021. There was no need for the suspension because an investigation had already been concluded on 10 May 2021. He however accepted the situation as he is a layperson. He is currently still on suspension.
[19] Regarding the charges, no date was reflected on the charges and the sexual assault referred to was not explained or detailed in the charges. He accordingly did not have enough chance to properly prepare. He still has questions as to what happened. The charges also do not state that incidents happened in his office or somewhere else. His recollection of the two incidents as testified by the learners differs with his in that on 07 April 2021, he never sent the learners to his office and is not aware of any such incident happening. He carries textbooks to his class and does not pick any particular learner to assist him. He at no stage asked learners to collect textbooks at his class. He did not have any lessons in the class on 07 April 2021 and thus never went to the class. The allegations were brought to his attention on 01 April 2021 by four of her colleagues, Miss Malaka, Miss Nkosi, Mr Dlamini and Miss Cesibe, the class teacher in a meeting called on that very day. Three leaners: learner A, learner B and learner C, who were in the same class, were called into the meeting a few minutes later.
[20] He acknowledged receipt of the charges on 26 May 2021, which was 54 days after the date he was made aware of the allegations. On 01 April 2021, he was called by Miss Malaka who was already with the other teachers. He went to Miss Malaka who took him to Mr Ramatlo’s office. Inside Mr Ramatlo’s office, Miss Malaka handed over to Miss Cesibe who told him about the allegations. He had responded that he knew nothing about the allegations. The learners were called about ten minutes later. Before the learners spoke, Miss Malaka addressed the learners in vernacular saying “bantwana bam ngicela nikhulume iqiniso” (children, please tell the truth). Learner A and learner C stated that he had touched them on their breasts and buttocks. Learner B however did not say much because she was emotional and was crying most of the time. Miss Malaka then went on about the allegations being raised as early as 2018 and Mr Dlamini, who was part of the meeting, also said in vernacular “wena Sethusha uzoboshwa because every year uthatha izinto zabantwana” (You Sethusha will be arrested because every year you touch children). He had then apologised to the learners for anything he may have done wrong. And the meeting ended on that note.
[21] Regarding the second charge, he knows nothing about the incident referred to by learner B and only got to know about the incident during the enquiry. He denies having touched learner A at the taps. From 01 April 2021 he never went back to the class until the 13th of April 2021 because he was not comfortable being with the learners. Because he had a good relationship with Miss Cesibe, the learners’ class teacher, she (Cesibe) offered to assist with any work that he needed to provide or give to the learners. He went to Grade 7A class to collect activity sheets on 13 April 2021, and learner A and learner B had left the classroom by then. While handing out the activity sheets, he was called out of the class and was told by the class teacher, Miss Cesibe, Miss Malaka and Miss Nkosi that the learners were not comfortable with his presence in class. In the brief meeting he had with the three teachers, it was agreed that the classes be rescheduled in such a manner that he did not have to teach the class. He never went back to the class thereafter.
[22] After 13 April 2021, he never interacted with the leaners. Learner A’s testimony to the effect that he touched her on 13 April 2021 was not true. The taps are in front of Miss Maredi’s class and she had a full view of what happened at the taps and there was no way he could do anything to learner A and not be seen by other people unless everybody else had already left the school premises. Except during the meeting of 01 April 2021, the allegations were never brought to his attention. The principal had called him on 22 April 2021 and asked him about the allegations and he had denied the allegations. The principal had told him that he was going to file a report regarding the allegations. He did not understand why the learners would not be comfortable with him since he had never had any problems with them. He had never had any problems with learners in the schools he previously worked for.
[23] It would be unfortunate for him to lose his job for something he never did. He had assisted other learners before and had bought shoes for one particular male learner who was in need, and the manager of the store he bought the shoes from had also given him two pairs of socks and a shirt. He cared about the learners’ wellbeing and did not understand why when girl learners were involved, her colleagues thought that there was something untoward going on. He still has good relations with the parents. The outcome he is seeking is that he should be absolved of the allegations and return to the job he is currently doing. No one at the school has anything against him. If he were to be dismissed, he would suffer prejudice because he has four children he is supporting.
[24] The employee called a witness, Miss Khabonina Nkosi, who testified that she is employed as an educator at Sidingulwazi Senior Primary School. She, along with other teachers, had been asked to give a statement regarding an incident involving two learners had reported that the employee had touched them on their buttocks and that they were unhappy with how he looked at them and that he often ask them to go to his office and that they had decided that where the employee asked them to go to his office, they would have others accompanying them because they felt unsafe. In that meeting, it resolved that the employee be asked not to send children from his class and that he should deal with the learners in the presence of female teachers. The employee had then offered an apology.
[25] The other witness called by the employee was Miss Sesi Joyce Dlamini who testified that she is a mother to Learner C. Her daughter, learner C had told her that she had been asked to be a witness about an incident that happened but that she did not know anything about the incidents that happened when leaner A and learner B went to the employee’s office. What her daughter told her was that they would ask for chips from the employee and he would tell them to fetch the chips from his office. She (learner C) never told her about the incident involving the other two learners.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
[26] I have taken into account evidence led and closing arguments advanced by both the employer and the employee. I need mention from the onset that when dealing with any hearing involving alleged sexual misconduct by an educator against a learner, such allegations, when proven, need to be viewed in a very serious light. This is primarily because an educator is no ordinary employee. He or she is charged with the duty to care and to look after the wellbeing of the learners. Learners and society alike look upon educators to provide as such care and guidance as would result in the learners becoming better and responsible leaders of society and better and responsibly future citizens. Just about every leader of society is a result of work put in by teachers. It is therefore not uncommon for leaders of society to always refer to that one teacher or teachers who made them what they are.
[27] Furthermore, for the better part of their learning life, leaners are with teachers. As such, the principle of in loco parentis finds application. Educators become parents and have a duty to ensure that learners’ interests take paramount importance, including protecting learners against all forms of not only violence but sexual assault whilst at schools. This is generally accepted as a non-negotiable requirement for any individual who aspires to be a teacher or an educator. By the very nature of their positions, educators assume a very powerful and influential role which, if abused, has very devastating consequences, not only for the leaners but for the society at large. Furthermore, any form of sexual assault on a learner usually have long lasting consequences that stay with them through their adult life and long after they have left school. It is with these considerations in mind that allegations of sexual assault against learners should be approached. Such considerations are also in keeping with Section 28 of the Constitution which provides, among other things, that:
“Every child has a right –
“to be protected from maltreatment, neglect, abuse or degradation ”
Furthermore, the above Section also provides that:
“A child’s best interests are of paramount importance in every matter concerning the child”
[28] Having heard evidence, I had no reason to doubt the testimony of the two learners. The two learners are both young, with learner A aged 14 years while learner B is 13 years old. Both learners gave a detailed account of what happened and learner A in particular and as part of her testimony, drew a catch The testimony they gave While they are both young, with both of them having not yet sketch of the position she, learner B and the employee were when the sexual assault occurred in the employee’s office. The employee, although he denied having sexually assaulted the learners by touching their breasts and buttocks, denied having had any contact with the two learners on 07 April 2021. Events that appear to have unfolded by all the witnesses and the by the employee’s own account, strongly point to the likelihood of the sexual assault on the two learners having occurred.
[29] While the employee denied the allegations and while he denied having had any contact with the two learners on 07 April 2021, the employee’s representative, during cross questioning, spent a considerable amount of time questioning the learners about what transpired in the employee’s office and went on to suggest that it was not possible for the two learners to have seen what the employee could have done to either of them. The representative also went on to engage learner A on the sketch she drew and sought to pour cold water to her testimony that learner B could not have seen what the employee was doing. Throughout their testimony, the two learners, except for the incident that occurred on 13 April 2021 involving learner A, corroborated each other insofar as the events that occurred leading up to and after the sexual assault that occurred on 07 April 2021.
[30] For an example, they both testified that they had gone to the employee’s office to fetch textbooks, that the employee arrived shortly after, that the employee had touched their breasts and buttocks and told them that he had dreamnt of them, that one of the learners ran out of the class, that the employee returned to the class a short while later. They also corroborated each other on their having reported the incident and their later having been called into a meeting with the teachers and the principal. I thus could not find that their evidence was manufactured or a mere fabrication. In my considered view, the learners had no reason to falsely allege that they were sexually assaulted by the employee. There does not appear to have been any motive for them to so do. No evidence was led as to any history of animosity between the employee and the tow learners. The employee’s colleagues that gave evidence pointed to no history of animosity between themselves and the employee. They in fact all stated that they had a good relationship with the employee. The employee himself did attest to his having a good relationship with the educators who testified. That being the case, I was only left to conclude that the employee did sexually assault the two learners as alleged.
[31] Another strong indication that the sexual assault on the leaners did take place is the meeting that appears to have taken place where the allegations were first discussed. All of the witnesses, the employee included, testified that a meeting did take place where the allegations were discussed and where the two learners were called. In that meeting, the employee himself stated that the allegations were raised and made reference to utterances by Mr Dlamini who appeared to admonish him about his conduct and the possibility that his touching the learners might result in him being arrested. What I also paid attention to was the employee’s own reference of the state of the learners during the said meeting. His testimony was that one of the learners, learner B was crying most of the time and was in an emotional state while learner A did most of the talking. This version is consistent, not only with learner B’s testimony that she had cried after the incident but is also consistent with the version of some of the educators who testified that the learners were emotional and that learner B was crying most of the time.
[32] While the employee testified that the said meeting was held on 01 April 2021, he was the only one to attest to same. All the other witnesses testified that the meeting occurred well after the 7th of April 2021. One of the employee’s witnesses, Miss Nkosi, could not give the exact date that the meeting was held on but remembered that it occurred a week after the sexual assault incident had been reported. In the absence of the employee furnishing proof of his claim that the meeting occurred on 01 April 2021, I am left to conclude that the meeting occurred after the 7th of April 2021. Of importance is that all the witnesses, including the employee, testified that the employee had apologised. The employee’s having apologised during the meeting leaves me to find that he committed the misconduct and that it was for this conduct that he was apologising. It was not the employee’s case that he had registered his protest when Mr Dlamini made utterances to the effect that his touching of the leaners may result in him being arrested. At no stage did the employee, in support of his contention that he did not sexually assault the learners, sought to put up a defense during the meeting. He appears to have accepted that he did sexually assault the learners as alleged. He did not explain what he was apologising for. It appears from evidence led that the discussions in the meeting centred around the sexual assault reported by the two learners and there was no evidence led that the meetings was called for any other purpose other than that of discussing the complaints of sexual assault of the learners. It is my finding that the employee is guilty of both charges preferred against him.
[33] There is a provision in terms of the South African Council of Educators (SACE) Code of Professional Ethics that educators: “respect the dignity, beliefs and constitutional rights of learners and in particular children” and that educator must: “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school.”
[34] The employee’s conduct was inconsistent with the obligation placed on him to respect the dignity, beliefs and constitutional rights of learners. The misconduct committed by the employee is of such severity that any sanction short of dismissal would serve no purpose. The two learners are aged 13 and 14 respectively. They are accordingly still very young and the sexual assault on them is likely to negatively affect them. Evidence before me is that the learners, in particular learner B, was so traumatized after the assault that she cried in class after the incident, cried when both learners reported the incident and also during the meeting they were called into. It is therefore highly likely that the sexual assault will scar the learner for a longer period.
[35] On the question of the three issues raised by the employee before and during the arbitration process, it is my finding that the employer did not err as to the process leading up to the employee being charged. The first issue raised was that the employer took longer to prefer charges against the employee. But evidence led do not point to the employer having taken any longer to charge the employee than required. Another issue raised was that the charges preferred against the employee were vague and did not make reference to dates that the alleged incidents occurred. This argument falls to be rejected. By employee’s own admission, a meeting had been held where the allegations were discussed. If the employee’s assertion that the meeting happened on 01 April 2021, the employee then had amply opportunity to prepare for the hearing. In advancing this argument, the employee did not refer to any steps he took to alert the employer that the charges were vague. He was served with a notice of suspension and the charges well before the date of the inquiry. I can thus not find that he was in any way prejudiced. As at the date of the hearing, the employee was on suspension on full pay and thus suffered no prejudice.
[36] In the circumstances, I make the following award:
AWARD
[37] I find the employee guilty of both charges preferred against him and I, as a consequence, impose a sanction of summary dismissal effective from 22 December 2021.
[38] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE.
[39] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and must do so within the prescribed timeframe should he so wish.
Monde Boyce
Panelist: ELRC