ELRC644-20/21 EC
Text
ELRC252-20/21 KZN
Award Date:
24 February 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case No ELRC252-20/21 KZN
In the matter between
Department of Education KZN Employer
And
Sibusiso Mbhekiseni Xulu Employee
ARBITRATOR: R. Shanker
DELIVERED: 24 February 2022
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995 (LRA), as amended, and was set down for an Inquiry by Arbitrator process. The process was finalised on 01 February 2022.
2. The employee, Sibusiso Mbhekiseni Xulu (“Xulu”) was initially represented by Z.M Xulu, an attorney. During the arbitration, the attorney withdrew and Xulu, the employee, elected not to have any representation thereafter. The employer, Department of Education KZN, was represented by T. Mchunu.
3. The matter relates to allegations of sexual harassment of a learner who is a minor. In accordance with the protection of the rights of minors, the identity of that learner will not be disclosed. I will refer to her as “Learner” in this award. Her evidence was led via an intermediary and an interpreter.
4. The parties submitted written closing arguments.
ISSUES TO BE DECIDED
5. The issue to be determined is whether Xulu, an educator at the school, had a sexual relationship with the learner and whether he had committed an act of sexual assault on the learner.
BACKGROUND TO DISPUTE
6. For the last 20 years, Xulu has been employed as an educator at the Sinqobile Secondary School. He is currently on suspension pending the outcome of this case. He is charged with committing very serious acts of sexual misconduct on the learner in contravention of section 17 (1) (b) and (c) of the Employment of Educators Act 76 of 1998 (“Act”). At the time of the incidents, February – June 2019, the learner was 13 years old and in Grade 8. Xulu was about 50 years old and the learner’s English teacher at the same school.
7. Prior to the commencement of this process, Xulu confirmed that he understood the charges and had sufficient time to prepare for the hearing.
8. Xulu denied having committed any of the misconduct set out in the charges.
SURVEY OF EVIDENCE AND ARGUMENT
9. The evidence and arguments hereunder are not verbatim accounts of the proceedings but a summary of the evidence presented at this hearing. All evidence and arguments were considered prior to drafting this award.
10. Kwanele Zulu (“Kwanele”) was the boyfriend of the learner’s sister and Xulu’s friend. Vusi Zulu was Kwanele’s brother and was employed as a driver by Xulu. Mthobisi Dludla (“Dludla”) lived with them at the KwaZulu homestead.
11. The Learner testified that she got to know Xulu in February 2019. One day, when Kwanele was with her and her sister at home, they saw Xulu’s car drive by. She made a comment that she likes Xulu’s car. Kwanele then phoned Xulu and mistakenly told him that she likes him.
12. After a few days, she went with her sister to the KwaZulu homestead where Kwanele lived. Xulu and Dludla were also there. At the house, Kwanele told her that the teacher (Xulu) was in one of the rooms and wanted to see her. When she got to the room, Xulu started kissing her without saying anything. He then undressed her and proceeded to have sexual intercourse with her. This was without her permission. She did not say anything to Xulu as she was perplexed and shocked by what was happening.
13. Although she did not initially give her consent, a relationship developed between the two of them as time went by. Xulu bought her food and gave her money. Whenever Xulu wanted to see her, he would either fetcher her or send Kwanele or Dludla to do so. At his place, she and Xulu would chat, watch TV, kiss, undress and have sex. Initially they used condoms but they stopped doing so around May 2019. She missed her period in June but she ignored it. She again missed her period in July and this time she told Xulu. He was not surprised and told her to see a doctor.
14. On 20 August 2019, Vusi, Xulu’s driver, drove her to a doctor in Melmoth. Dludla also accompanied them. The Doctor confirmed that she was just over 2 months pregnant. The doctor refused to perform an abortion on her. When she informed Xulu, he said that he would get another doctor to give her tablets. On 23 August 2019, Dludla came to her house with four abortion pills and explained to her how to take it. She took the tablets the next day and had severe abdominal pains and bleeding. Dludla later told her that he had to give her the tablets as he did not want to lose his job. After the abortion, she informed Xulu and he said thank you.
15. She further testified that she loved Xulu and was not in a sexual relationship with anyone else. She had a good relationship with Xulu and there were no altercations between them. She had no reason to lie about the relationship between her and Xulu.
16. Under cross-examination, she maintained that Dludla was her schoolmate and they were not in a sexual relationship. During the time of her pregnancy, Xulu told her that if the truth surfaced, he would say that Dludla was the father of the child. She agreed that this was not in her statement.
17. Senzo, the learner’s father testified that he worked away from home. He phoned home on 29 August and was informed that his daughter was not well and bleeding. He returned home and spoke to her. She told him that Xulu had impregnated her and sent her the tablets for her abortion. He went to a social worker who advised him to open a criminal case. He did so on 12 September 2019 and Xulu was arrested. His daughter had Xulu’s telephone number and gave it when the police requested it - she just called out Xulu’s telephone number without having to check for it. Under cross-examination, he agreed that he did not previously know Xulu.
18. Biyela Sebenzile (“Sebenzile”) testified that she was employed by the Department of Education as a Circuit Manager before she retired in 2019. She conducted the investigation into allegations that Xulu had sexually harassed the learner. She interviewed, amongst others, the learner, Senzo, Dludla and Xulu. She confirmed Dludla’s and the learner’s version as per their statements taken at the time of their interviews.
19. Xulu testified that he did not have a sexual relationship with the learner. The only relationship he had with her was as a learner in English class. No one told him that she liked his car. He assisted Vusi get his license. He used to go to the KwaZulu homestead and park outside and never went inside the house. It was impossible to have sexual relations there because Mrs Zulu was always there. He maintained that there were no witnesses present to support the learner’s version. He was not aware and did not give permission to Zulu to drive his car and take the learner to the doctor. He did not tell Dludla to give abortion pills to the learner or send Dludla to thank her for taking the pills. The learner’s father did not consult him prior to laying charges. The father did not see him and the learner together.
20. Under cross-examination, he agreed that he was one of three male teachers at the school. He did not have any altercations or bad blood between him and the learner. He did not know why the learner had accused him of having a sexual relationship with her. He conceded that he went into the Zulu homestead when he spoke to Zulu’s mother in relation to getting Zulu his driver’s license. He agreed that Dludla, Vusi and Kwanele Zulu all had girlfriends but did not know if they had brought them home.
21. He agreed that he signed the statement taken by the police (Bundle B) but he denied that he had written it himself or that he agreed with what was written. It was clear that he was charged for rape. The content of the statement is as follows: “I deny the allegations against me, it just because the incident took place upon agreement with each other”.
22. Written Statement by Dludla: On 13 October 2000, Dludla made the following statement (translated): In my knowledge, Xulu is in a relationship with the learner. The learner said so one day. The learner came to the KwaZulu homestead and went into a room with Xulu. Xulu gave me the pills to give to the learner. Xulu told me to tell the learner to drink three of those pills and put one underneath.
23. Dludla testified that he was having a relationship with the learner and not Xulu. Regarding his statement referred to above, he stated the learner told him that she and Xulu were having a relationship and that is why he mentioned it. He did not see Xulu with the learner and he did not see them go into a room together. He wrote the statement to protect himself when Department officials came to ask him questions. He saw that Xulu had been arrested and thought that he would never see Xulu again. He feared that he would be arrested. He was scared because he made the learner have an abortion. There were no charges against him at that stage. He got the abortion pills after seeing an advert in the newspapers. He asked the learner when she was having her period and she said “long time”. He then told her to go to a doctor. He gave Vusi petrol money and took her to the doctor. The trip was not authorised by Xulu.
24. Under cross-examination, he maintained that the statement was not a lie but a way to protect himself at that time. He and Xulu were not close. Xulu would sometimes give him a lift and pay him for washing vehicles. Whenever he drove Xulu’s vehicle, it was never with the permission of Xulu. He later conceded that he admired Xulu and considered him to be a father figure. When questioned again as to why he lied in his statement he stated that it was because he heard that Xulu was having a relationship with his girlfriend (the learner). He didn’t remember being present when Xulu visited the KwaZulu homestead. He didn’t know that Xulu had a good relationship with the Zulu family.
25. He spent a total of R520 on the learner on the trip to the doctor and a further R600 on the abortion pills. He had no slips for the abortion pills. He got this money from home saying that he was going on a school trip and he earned money working as a taxi conductor. He agreed that the family he was living with was not financially settled. He disputed Xulu’s version that it was not possible to have sex at the KwaZulu homestead as he had had sex there with the learner. He stated that Xulu’s version was not true that Mrs Zulu was always present at home.
26. The written arguments of the parties were considered in drafting this award.
ANALYSIS OF EVIDENCE AND ARGUMENTS
27. The employer’s version in this matter is that Xulu, a 50 year old educator, had a sexual relationship with a 13 year old learner from the same school. I have no reason to disbelieve the learner’s version that she had a sexual relationship, fell pregnant and had an abortion as this was confirmed by Xulu’s witness, Dludla.
28. Xulu denied he had a sexual relationship with the learner. As an alternative version, he led the evidence of Dludla and contended that it was Dludla that had a sexual relationship with the learner and not him. The learner denied having a sexual relationship with Dludla.
29. I am required to determine which of these versions is more probable or believable. In considering the versions before me, and for reasons set out below, I find the employer’s version to be more believable.
30. I find that there is nothing inherently improbable in the learner’s version. I considered her to be a credible and reliable witness and her version, that she and Xulu had a sexual relationship, is probable. She was a compelling witness that gave her evidence clearly, honestly and without contradiction even under robust cross-examination. There was no apparent reason as to why the learner would have falsely accused Xulu. I reject Xulu’s version (submitted in his written closing arguments) that the learner “had chosen him because of his financial status and she craved one day that she would get him”. There was simply no evidence in this regard and this version was not put to the learner during her cross-examination, even though he was legally represented at the time. This version is in contradiction of his evidence that he had good relations and no altercations with the learner as well as with his concession during cross-examination that he did not know why the learner had accused him of having a sexual relationship with her.
31. Several factors point in the direction that the learner and Xulu had a relationship as described by the learner. Her version was consistent with the version she gave in her interview with Sebenzile. Her version was initially supported by Xulu’s statement to the police and his changed version at this arbitration hearing is, for reason mentioned later, improbable. Her version that she was in a relationship with Xulu is supported by her father’s evidence when he said that she was able to just recite Xulu’s telephone number without checking for it which suggests that she must have phoned Xulu on a regular basis.
32. Her version was initially supported by Dludla in his written statement and his changed version at this arbitration hearing is, for reasons mentioned below, improbable. Dludla inadvertently confirmed the learner’s version when he said that the learner had told him that she was having a relationship with Xulu (and therefore included it in his statement when he was interviewed). He also inadvertently confirmed the learner’s version when he said that he had heard from other sources that the learner was having a relationship with Xulu (and therefore decided to make his statement when he was interviewed).
33. From the learner’s description of what she saw inside the KwaZulu homestead, it is believable that she had been inside that house. In contradiction to Xulu’s evidence, Dludla confirmed that it was possible for an intimate relationship to take place at the KwaZulu homestead which supports the learner’s version that she did have an intimate relationship at that house.
34. I am not convinced that Dludla had a sexual relationship with the learner. He was not a credible witness and I considered his version to be improbable. The learner denied that there was any such relationship and, other than Dludla’s word, there was nothing to suggest that they were anything other than schoolmates. If they did have a relationship, there were no reasons advanced by Dludla as to why the learner would have wanted to protect him by not disclosing it. Given Dludla’s and the Zulu family’s financial situation, Dludla’s version that he paid the cost for the Doctor and abortion, a total of R1 100, seems improbable.
35. I find that there was a close relationship between Dludla and Xulu and that Dludla had a reason to protect Xulu. Dludla conceded that he respected Xulu and considered him as a father figure. Dludla lived at the KwaZulu homestead and Xulu assisted that family financially. Dludla used to wash Xulu’s vehicles for which he got paid. Xulu used to give Dludla a lift home from school. Xulu assisted Dludla’s brother to get his license and then employed him as a driver. It seems to me that there was more to the relationship between Dludla and Xulu than they were prepared to admit. I am convinced that Dludla had a reason to lie and cover for Xulu. It is therefore probable that Dludla fabricated his evidence, in contradiction of his written statement, to protect Xulu.
36. I find that the reasons advanced by Dludla for making his written statement that earlier supported the learner’s version, to be improbable. He first indicated that he made the statement because he was afraid of being arrested. At that time, Xulu had already been arrested and he believed that Xulu was not coming back. I considered this to be rather odd as there was therefore no reason for Dludla to have offered any statement, let alone a statement in support of the learner. He then indicated that he wrote the statement because he heard that Xulu was having a relationship with the learner which is totally different from his first reason and improbable because he had earlier stated that the learner had told him that she was having a relationship with Xulu.
37. For reasons mentioned above, I find that there was no relationship of a sexual nature between the learner and Dludla.
38. I find that Xulu’s version, that he did not have a sexual relationship with the learner, to be improbable. He merely denied the allegation and placed the blame on Dludla. I did not consider Xulu to be a credible witness. There were several contradictions in his version. His version at this arbitration process was in contradiction to the initial statement he made to the police (discussed later). He was initially adamant that he had never been into the KwaZulu homestead but later conceded that he did. His version that it was not possible to have an intimate relationship inside the KwaZulu homestead because Mrs Zulu was always present was contradicted by Dludla, his own witness. In any event, it is unclear as to how he would have known this if he hardly ever went inside that home. His version that he was not aware that his vehicle had been used to take the learner to the doctor and that he did nothing after he found out about it, is improbable.
39. Xulu made an initial statement to the police in which he denied the allegation of rape on the basis that the incident took place upon agreement with each other (ie, between him and the learner). Although he denied that he had written the statement, it is not in dispute that he signed the statement. The preconditions to signing the statement were very clear, ie, that he was informed that he was involved in a rape investigation, that he had the right to remain silent, that it was a serious matter and anything he said may be used in evidence against him in a court of law, that he had a right to an attorney and that he was not obliged to make a confession that can be used against him. He agreed that he understood those rights before he signed the statement. It is clear from that statement that Xulu had agreed at that stage that he did have a sexual relationship with the learner. His only argument at this arbitration hearing is that he did not write the statement himself.
40. For reasons mentioned above, I find, as the more probable version, that Xulu had a sexual relationship with the learner. The misconduct falls squarely within section 17(1)(b) and 17(1)(c) of the Employment of Educators Act, 76 of 1998. In terms of section 17 of the said Act the misconduct committed by Xulu is regarded as serious misconduct for which dismissal is a mandatory sanction irrespective of any mitigating factors. Having regard to the gravity of the misconduct, the rights of learners to be treated with dignity, respect and without emotional and/or physical abuse and being mindful of the fact that Xulu is an educator who works closely with learners, I am satisfied that the employment relationship has irretrievably broken down.
41. I therefore find that a sanction of dismissal is appropriate in the circumstances.
42. In addition, given the egregious nature of the sexual misconduct in this instance and the manner in which he lured and took advantage of a vulnerable 13 year old learner, I find that Xulu should not be permitted to ever work with children again.
AWARD
43. In the circumstances I make the following award:
43.1. The employee, Sibusiso Mbhekiseni Xulu, contravened section 17(1)(b) and 17(1)(c) of the Employment of Educators Act, 76 of 1998.
43.2. The employer, Department of Education KZN, must with immediate effect impose the sanction of dismissal on Xulu in terms of section 17 of the said Act.
43.3. The ELRC General Secretary must forward this award to the Department of Social Development for Sibusiso Mbhekiseni Xulu’s name to be included in the National Child Protection Register as unsuitable to work with children and to the SA Council for Educators (SACE) for appropriate action.
Raj Shanker
Senior ELRC Arbitrator
KwaZulu Natal
Case No ELRC252-20/21 KZN
In the matter between
Department of Education KZN Employer
And
Sibusiso Mbhekiseni Xulu Employee
ARBITRATOR: R. Shanker
DELIVERED: 24 February 2022
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995 (LRA), as amended, and was set down for an Inquiry by Arbitrator process. The process was finalised on 01 February 2022.
2. The employee, Sibusiso Mbhekiseni Xulu (“Xulu”) was initially represented by Z.M Xulu, an attorney. During the arbitration, the attorney withdrew and Xulu, the employee, elected not to have any representation thereafter. The employer, Department of Education KZN, was represented by T. Mchunu.
3. The matter relates to allegations of sexual harassment of a learner who is a minor. In accordance with the protection of the rights of minors, the identity of that learner will not be disclosed. I will refer to her as “Learner” in this award. Her evidence was led via an intermediary and an interpreter.
4. The parties submitted written closing arguments.
ISSUES TO BE DECIDED
5. The issue to be determined is whether Xulu, an educator at the school, had a sexual relationship with the learner and whether he had committed an act of sexual assault on the learner.
BACKGROUND TO DISPUTE
6. For the last 20 years, Xulu has been employed as an educator at the Sinqobile Secondary School. He is currently on suspension pending the outcome of this case. He is charged with committing very serious acts of sexual misconduct on the learner in contravention of section 17 (1) (b) and (c) of the Employment of Educators Act 76 of 1998 (“Act”). At the time of the incidents, February – June 2019, the learner was 13 years old and in Grade 8. Xulu was about 50 years old and the learner’s English teacher at the same school.
7. Prior to the commencement of this process, Xulu confirmed that he understood the charges and had sufficient time to prepare for the hearing.
8. Xulu denied having committed any of the misconduct set out in the charges.
SURVEY OF EVIDENCE AND ARGUMENT
9. The evidence and arguments hereunder are not verbatim accounts of the proceedings but a summary of the evidence presented at this hearing. All evidence and arguments were considered prior to drafting this award.
10. Kwanele Zulu (“Kwanele”) was the boyfriend of the learner’s sister and Xulu’s friend. Vusi Zulu was Kwanele’s brother and was employed as a driver by Xulu. Mthobisi Dludla (“Dludla”) lived with them at the KwaZulu homestead.
11. The Learner testified that she got to know Xulu in February 2019. One day, when Kwanele was with her and her sister at home, they saw Xulu’s car drive by. She made a comment that she likes Xulu’s car. Kwanele then phoned Xulu and mistakenly told him that she likes him.
12. After a few days, she went with her sister to the KwaZulu homestead where Kwanele lived. Xulu and Dludla were also there. At the house, Kwanele told her that the teacher (Xulu) was in one of the rooms and wanted to see her. When she got to the room, Xulu started kissing her without saying anything. He then undressed her and proceeded to have sexual intercourse with her. This was without her permission. She did not say anything to Xulu as she was perplexed and shocked by what was happening.
13. Although she did not initially give her consent, a relationship developed between the two of them as time went by. Xulu bought her food and gave her money. Whenever Xulu wanted to see her, he would either fetcher her or send Kwanele or Dludla to do so. At his place, she and Xulu would chat, watch TV, kiss, undress and have sex. Initially they used condoms but they stopped doing so around May 2019. She missed her period in June but she ignored it. She again missed her period in July and this time she told Xulu. He was not surprised and told her to see a doctor.
14. On 20 August 2019, Vusi, Xulu’s driver, drove her to a doctor in Melmoth. Dludla also accompanied them. The Doctor confirmed that she was just over 2 months pregnant. The doctor refused to perform an abortion on her. When she informed Xulu, he said that he would get another doctor to give her tablets. On 23 August 2019, Dludla came to her house with four abortion pills and explained to her how to take it. She took the tablets the next day and had severe abdominal pains and bleeding. Dludla later told her that he had to give her the tablets as he did not want to lose his job. After the abortion, she informed Xulu and he said thank you.
15. She further testified that she loved Xulu and was not in a sexual relationship with anyone else. She had a good relationship with Xulu and there were no altercations between them. She had no reason to lie about the relationship between her and Xulu.
16. Under cross-examination, she maintained that Dludla was her schoolmate and they were not in a sexual relationship. During the time of her pregnancy, Xulu told her that if the truth surfaced, he would say that Dludla was the father of the child. She agreed that this was not in her statement.
17. Senzo, the learner’s father testified that he worked away from home. He phoned home on 29 August and was informed that his daughter was not well and bleeding. He returned home and spoke to her. She told him that Xulu had impregnated her and sent her the tablets for her abortion. He went to a social worker who advised him to open a criminal case. He did so on 12 September 2019 and Xulu was arrested. His daughter had Xulu’s telephone number and gave it when the police requested it - she just called out Xulu’s telephone number without having to check for it. Under cross-examination, he agreed that he did not previously know Xulu.
18. Biyela Sebenzile (“Sebenzile”) testified that she was employed by the Department of Education as a Circuit Manager before she retired in 2019. She conducted the investigation into allegations that Xulu had sexually harassed the learner. She interviewed, amongst others, the learner, Senzo, Dludla and Xulu. She confirmed Dludla’s and the learner’s version as per their statements taken at the time of their interviews.
19. Xulu testified that he did not have a sexual relationship with the learner. The only relationship he had with her was as a learner in English class. No one told him that she liked his car. He assisted Vusi get his license. He used to go to the KwaZulu homestead and park outside and never went inside the house. It was impossible to have sexual relations there because Mrs Zulu was always there. He maintained that there were no witnesses present to support the learner’s version. He was not aware and did not give permission to Zulu to drive his car and take the learner to the doctor. He did not tell Dludla to give abortion pills to the learner or send Dludla to thank her for taking the pills. The learner’s father did not consult him prior to laying charges. The father did not see him and the learner together.
20. Under cross-examination, he agreed that he was one of three male teachers at the school. He did not have any altercations or bad blood between him and the learner. He did not know why the learner had accused him of having a sexual relationship with her. He conceded that he went into the Zulu homestead when he spoke to Zulu’s mother in relation to getting Zulu his driver’s license. He agreed that Dludla, Vusi and Kwanele Zulu all had girlfriends but did not know if they had brought them home.
21. He agreed that he signed the statement taken by the police (Bundle B) but he denied that he had written it himself or that he agreed with what was written. It was clear that he was charged for rape. The content of the statement is as follows: “I deny the allegations against me, it just because the incident took place upon agreement with each other”.
22. Written Statement by Dludla: On 13 October 2000, Dludla made the following statement (translated): In my knowledge, Xulu is in a relationship with the learner. The learner said so one day. The learner came to the KwaZulu homestead and went into a room with Xulu. Xulu gave me the pills to give to the learner. Xulu told me to tell the learner to drink three of those pills and put one underneath.
23. Dludla testified that he was having a relationship with the learner and not Xulu. Regarding his statement referred to above, he stated the learner told him that she and Xulu were having a relationship and that is why he mentioned it. He did not see Xulu with the learner and he did not see them go into a room together. He wrote the statement to protect himself when Department officials came to ask him questions. He saw that Xulu had been arrested and thought that he would never see Xulu again. He feared that he would be arrested. He was scared because he made the learner have an abortion. There were no charges against him at that stage. He got the abortion pills after seeing an advert in the newspapers. He asked the learner when she was having her period and she said “long time”. He then told her to go to a doctor. He gave Vusi petrol money and took her to the doctor. The trip was not authorised by Xulu.
24. Under cross-examination, he maintained that the statement was not a lie but a way to protect himself at that time. He and Xulu were not close. Xulu would sometimes give him a lift and pay him for washing vehicles. Whenever he drove Xulu’s vehicle, it was never with the permission of Xulu. He later conceded that he admired Xulu and considered him to be a father figure. When questioned again as to why he lied in his statement he stated that it was because he heard that Xulu was having a relationship with his girlfriend (the learner). He didn’t remember being present when Xulu visited the KwaZulu homestead. He didn’t know that Xulu had a good relationship with the Zulu family.
25. He spent a total of R520 on the learner on the trip to the doctor and a further R600 on the abortion pills. He had no slips for the abortion pills. He got this money from home saying that he was going on a school trip and he earned money working as a taxi conductor. He agreed that the family he was living with was not financially settled. He disputed Xulu’s version that it was not possible to have sex at the KwaZulu homestead as he had had sex there with the learner. He stated that Xulu’s version was not true that Mrs Zulu was always present at home.
26. The written arguments of the parties were considered in drafting this award.
ANALYSIS OF EVIDENCE AND ARGUMENTS
27. The employer’s version in this matter is that Xulu, a 50 year old educator, had a sexual relationship with a 13 year old learner from the same school. I have no reason to disbelieve the learner’s version that she had a sexual relationship, fell pregnant and had an abortion as this was confirmed by Xulu’s witness, Dludla.
28. Xulu denied he had a sexual relationship with the learner. As an alternative version, he led the evidence of Dludla and contended that it was Dludla that had a sexual relationship with the learner and not him. The learner denied having a sexual relationship with Dludla.
29. I am required to determine which of these versions is more probable or believable. In considering the versions before me, and for reasons set out below, I find the employer’s version to be more believable.
30. I find that there is nothing inherently improbable in the learner’s version. I considered her to be a credible and reliable witness and her version, that she and Xulu had a sexual relationship, is probable. She was a compelling witness that gave her evidence clearly, honestly and without contradiction even under robust cross-examination. There was no apparent reason as to why the learner would have falsely accused Xulu. I reject Xulu’s version (submitted in his written closing arguments) that the learner “had chosen him because of his financial status and she craved one day that she would get him”. There was simply no evidence in this regard and this version was not put to the learner during her cross-examination, even though he was legally represented at the time. This version is in contradiction of his evidence that he had good relations and no altercations with the learner as well as with his concession during cross-examination that he did not know why the learner had accused him of having a sexual relationship with her.
31. Several factors point in the direction that the learner and Xulu had a relationship as described by the learner. Her version was consistent with the version she gave in her interview with Sebenzile. Her version was initially supported by Xulu’s statement to the police and his changed version at this arbitration hearing is, for reason mentioned later, improbable. Her version that she was in a relationship with Xulu is supported by her father’s evidence when he said that she was able to just recite Xulu’s telephone number without checking for it which suggests that she must have phoned Xulu on a regular basis.
32. Her version was initially supported by Dludla in his written statement and his changed version at this arbitration hearing is, for reasons mentioned below, improbable. Dludla inadvertently confirmed the learner’s version when he said that the learner had told him that she was having a relationship with Xulu (and therefore included it in his statement when he was interviewed). He also inadvertently confirmed the learner’s version when he said that he had heard from other sources that the learner was having a relationship with Xulu (and therefore decided to make his statement when he was interviewed).
33. From the learner’s description of what she saw inside the KwaZulu homestead, it is believable that she had been inside that house. In contradiction to Xulu’s evidence, Dludla confirmed that it was possible for an intimate relationship to take place at the KwaZulu homestead which supports the learner’s version that she did have an intimate relationship at that house.
34. I am not convinced that Dludla had a sexual relationship with the learner. He was not a credible witness and I considered his version to be improbable. The learner denied that there was any such relationship and, other than Dludla’s word, there was nothing to suggest that they were anything other than schoolmates. If they did have a relationship, there were no reasons advanced by Dludla as to why the learner would have wanted to protect him by not disclosing it. Given Dludla’s and the Zulu family’s financial situation, Dludla’s version that he paid the cost for the Doctor and abortion, a total of R1 100, seems improbable.
35. I find that there was a close relationship between Dludla and Xulu and that Dludla had a reason to protect Xulu. Dludla conceded that he respected Xulu and considered him as a father figure. Dludla lived at the KwaZulu homestead and Xulu assisted that family financially. Dludla used to wash Xulu’s vehicles for which he got paid. Xulu used to give Dludla a lift home from school. Xulu assisted Dludla’s brother to get his license and then employed him as a driver. It seems to me that there was more to the relationship between Dludla and Xulu than they were prepared to admit. I am convinced that Dludla had a reason to lie and cover for Xulu. It is therefore probable that Dludla fabricated his evidence, in contradiction of his written statement, to protect Xulu.
36. I find that the reasons advanced by Dludla for making his written statement that earlier supported the learner’s version, to be improbable. He first indicated that he made the statement because he was afraid of being arrested. At that time, Xulu had already been arrested and he believed that Xulu was not coming back. I considered this to be rather odd as there was therefore no reason for Dludla to have offered any statement, let alone a statement in support of the learner. He then indicated that he wrote the statement because he heard that Xulu was having a relationship with the learner which is totally different from his first reason and improbable because he had earlier stated that the learner had told him that she was having a relationship with Xulu.
37. For reasons mentioned above, I find that there was no relationship of a sexual nature between the learner and Dludla.
38. I find that Xulu’s version, that he did not have a sexual relationship with the learner, to be improbable. He merely denied the allegation and placed the blame on Dludla. I did not consider Xulu to be a credible witness. There were several contradictions in his version. His version at this arbitration process was in contradiction to the initial statement he made to the police (discussed later). He was initially adamant that he had never been into the KwaZulu homestead but later conceded that he did. His version that it was not possible to have an intimate relationship inside the KwaZulu homestead because Mrs Zulu was always present was contradicted by Dludla, his own witness. In any event, it is unclear as to how he would have known this if he hardly ever went inside that home. His version that he was not aware that his vehicle had been used to take the learner to the doctor and that he did nothing after he found out about it, is improbable.
39. Xulu made an initial statement to the police in which he denied the allegation of rape on the basis that the incident took place upon agreement with each other (ie, between him and the learner). Although he denied that he had written the statement, it is not in dispute that he signed the statement. The preconditions to signing the statement were very clear, ie, that he was informed that he was involved in a rape investigation, that he had the right to remain silent, that it was a serious matter and anything he said may be used in evidence against him in a court of law, that he had a right to an attorney and that he was not obliged to make a confession that can be used against him. He agreed that he understood those rights before he signed the statement. It is clear from that statement that Xulu had agreed at that stage that he did have a sexual relationship with the learner. His only argument at this arbitration hearing is that he did not write the statement himself.
40. For reasons mentioned above, I find, as the more probable version, that Xulu had a sexual relationship with the learner. The misconduct falls squarely within section 17(1)(b) and 17(1)(c) of the Employment of Educators Act, 76 of 1998. In terms of section 17 of the said Act the misconduct committed by Xulu is regarded as serious misconduct for which dismissal is a mandatory sanction irrespective of any mitigating factors. Having regard to the gravity of the misconduct, the rights of learners to be treated with dignity, respect and without emotional and/or physical abuse and being mindful of the fact that Xulu is an educator who works closely with learners, I am satisfied that the employment relationship has irretrievably broken down.
41. I therefore find that a sanction of dismissal is appropriate in the circumstances.
42. In addition, given the egregious nature of the sexual misconduct in this instance and the manner in which he lured and took advantage of a vulnerable 13 year old learner, I find that Xulu should not be permitted to ever work with children again.
AWARD
43. In the circumstances I make the following award:
43.1. The employee, Sibusiso Mbhekiseni Xulu, contravened section 17(1)(b) and 17(1)(c) of the Employment of Educators Act, 76 of 1998.
43.2. The employer, Department of Education KZN, must with immediate effect impose the sanction of dismissal on Xulu in terms of section 17 of the said Act.
43.3. The ELRC General Secretary must forward this award to the Department of Social Development for Sibusiso Mbhekiseni Xulu’s name to be included in the National Child Protection Register as unsuitable to work with children and to the SA Council for Educators (SACE) for appropriate action.
Raj Shanker
Senior ELRC Arbitrator
KwaZulu Natal