ELRC644-20/21 EC
Text
ELRC197-21/22KZN
Award Date:
22 March 2022
Case : ELRC197-21/22KZN
Date of Award: 22 March 2022
Panelist : Vuyiso Ngcengeni
Province : KwaZulu Natal
Employee : Bonginkosi Emmanuel Mngadi
Employer : Department of Education – KwaZulu Natal
Issue : Enquiry by Arbitrator
Venue : Durban Teachers Training Centre
Employer representative : Ms Monica Mtetwa
Telephone : 031 360 6248
Email : monica.mtetwa@kzndoe.gov.za
Employee Representative : Mr Martin Dhlamini
Cell : 082 611 7037
Email : dhlaminimartin9@gmail.com
SECTION 188A ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was scheduled before me on 9th November 2021, and it was held at the Teachers Training Centre in Durban, under auspices of the Education Labour Relations Council (the Council).
2. The matter was held in terms of s188A of the Labour Relations Act of 1996 as amended (LRA) in conjunction with Collective Agreement 3 of 2018 which allows for such cases to be held accordingly.
3. The Employee was present and he was represented by Mr Martin Dlamini from SADTU and the Employer was represented by Ms Monica Mtetwa.
4. This matter is about an alleged sexual misconduct and it involves two learners.
5. The hearing was conducted in English, there was an isiZulu interpreter. The Employer submitted one bundle which is made of 10 pages and on pages 1 to 3 is Annexure 5 which is Learner 1’s statement and Annexure 4 which is made of three pages is Learner 2’ statement.
6. Annexure 3, which is also made of two pages, related to Learner 3 and it has been withdrawn.
7. On page 8 to 10 are the charges proffered against the Employee, made of four charges.
8. The names of the learners are not disclosed, that is in terms of clause 5.3 of Collective Agreement 3 of 2018. I will therefore refer to the learner involved in charge no 1 as Learner 1 and the one on charge no 2, 3 and 4 as Learner 2.
9. I received all the closing arguments on 07 March 2022.
ISSUE TO BE DETERMINED
10. I am called upon to determine whether the Employee is guilty of the charges that that he is accused of. The charges are written as follows: -
10.1 It is alleged that during the 2nd term 2019 you allegedly committed an act of sexual assault on Learner 1, a Grade 12 learner at Okumhlophe High School, in that hugged and kissed her by force and fondled her private part (virgina), breasts and buttocks. You thus committed an offence in terms of Section 17 (1)(b) or alternatively, 18 (1)(q) of the Employment of Educators Act 76 of 1998.
10.2 It is alleged that on or around 1st October 2020 you allegedly committed an act of sexual assault on Learner 2, a Grade 12 learner at Okumhlophe High School, in that you took her to a room in town (Durban) and kissed her and attempted to rape her. You thus committed an offence in terms of Section 17 (1)(b) or alternatively, 18 (1)(q) of the Employment of Educators Act 76 of 1998
10.3 On or around the 4th week in February 2021, you allegedly, whilst on duty, contravened Section 10 of the South African Schools Act 84 of 1998 as amended, in that you administered corporal punishment on Learner 2, a Grade 12 learner by hitting her with a plastic pipe on her hand. You thereby contravened section 18(1)(a) of the Act.
10.4 It is alleged that whilst you were on duty, you conducted yourself in an improper, disgraceful or unacceptable manner. You thereby contravened Section 18(1)(q) of the Act in that on or around February 2020, you allegedly tried to kiss Learner 2 and also solicited sex from her when she was in your office.
11. The Employee received the charge sheet on 2nd June 2021, and he pleaded not guilty to all of them.
BACKGROUND TO THE DISPUTE
12. The Employee is employed as a Principal of Okumhlophe Secondary School (the school). He started at the school in July 2018, coming from a different school in which he was a Deputy Principal.
13. The alleged incidences that gave rise to the charges took place during 2019, 2020 and 2021. The specific dates and times are not known, as the alleged incidences were reported to the Employer around March 2021.
14. The Employer referred this matter to the Council for an Enquiry by Arbitrator after June 2021.
Ruling on hearsay evidence
15. The Employer during the first sitting of the matter, applied for the admission of hearsay evidence, that is the evidence of the learners involved in this matter. This followed the non-appearance of the learners at the arbitration, which the Employer said, the leaners were fearful of the lives, after one learner was threatened not to appear in the arbitration to testify.
16. I granted the application, on the basis that I will decide what weight to offer on the hearsay evidence.
SURVEY OF EVIDENCE AND SUBMISSIONS
Employer’s case
Ms Jabu Mhlongo (Mhlongo) testified under oath as follows:-
17. She is employed as the Chief Administrative Clerk, based at the Circuit Offices under whose management the school falls. She has been employed by the Employer for 30 years, and she knows the Employee.
18. She has seen the statements from the learners before, as they are contained on p 1 to 7 of the bundle. The statements were written by the learners from the school.
19. It was towards the end of March 2021 when three learners came to the Circuit management offices, to see Mr Shandu, who is the Circuit Manager. Since Shandu is a male, he felt that the learners would not be free to tell him their stories and he thus requested her and Ms Sthembile Hadebe to listen to the children, and he left the office.
20. The learners came inside the office one by one, and the first one was Learner 1, who came and explained that she was no longer feeling safe at the school, because the Employee always calls her to the office, wherein he kisses her and do all the things mentioned in the statement. The learner also mentioned that the Employee at one stage called her into his office, kissed her and touched her on her private parts. She told him that she was on menstruation and he said he wanted to feel that for himself, he then inserted his fingers into her virgina. The Learner said she reported the incidences to the social worker, but nothing ever happened.
21. Learner 2 also said she felt unsafe at the school, after the Employee once asked her if the boys have told her how beautiful she was. He wanted to kiss her, and he told her that he wanted her to benefit from his money. On one other day, she was late at school and the Employee told her that there is no way that he could not beat / punish her because she did not want to have sex with him.
22. On another day, when she was going to town, whilst being accompanied by her friend, the Employee came and offered her lift to town. He then took her to another room, wherein he undressed himself and asked her to join him on the bed and have sex with him. She refused and told him that she was a virgin and he said he was not going to penetrate her. She refused and he then gave her money to go to her destination.
23. Some of the learners came to the offices with their parents, and they appeared worried and were crying as they told their stories.
24. The learners did not mention any person whom would have influenced them to concoct their stories. Learner 2 also mentioned that when they arrived late at school, the Employee would beat them.
25. Cross examination – She did not normally listen to learners challenges, because when the learners come to the Circuit, they speak to the Circuit Manager. It was the first time that she was asked to listen to the learners and she found that strange and she was shocked.
26. Listening to complaints from learners was not part of her job. She handed over the report from the learners to Shandu. She did not ask the learners why they did not report the matter to the school, as she was only asked to listen.
27. She did not comment, when put to her that all these charges are fabricated. She has never been to the Employee’s office at the school. The things that she has mentioned are not known to her, she heard them from the learners, as she was not present when the alleged incidences took place.
28. Learner 2 did not give a description of the room the Employee took her to, whether is a hotel or a B and B. She had no comment when put to her that the Employer never administered any corporal punishment to any of the learners.
Ms Sithembele Hadebe (Hadebe) testified under oath as follows:-
29. She is an Administrative Clerk at the Circuit Office and has been employed for 12 years. She knows the Employee as the Principal of the school.
30. She recalls the statements, as they were brought by the learners to the office, after Shandu had asked them to listen to the learners. The learners were saying the Employee was asking for hugs and kisses from them, and promising to give them money, and that they refused.
31. Learner 1 said on one day when she was late at school, the Employee called her into his office and wanted to kiss her and she refused. The learner also said the Employee touched her on her private parts and her buttocks, and wanted to have sex with her, to which she refused and she reported him to a Social Worker.
32. Learner 2 said on one day when she was sent to town, whilst waiting for transport at the stop, the Employee came and offered her lift to town, then he took her to another room where he undressed himself and asked her to have sex with him. When she refused and told him that she was a virgin, he said he did not believe that and he said he was not going to penetrate her. She refused and he then gave her money to continue with her trip to town.
33. Leaner 2 said the Employee told her that he wanted to have sex with her so that she could benefit from his money.
34. After having listened to the learners, she gave the report to Shandu. She did not know about the corporal punishment issue.
35. Cross examination – It was the first time that she had listened to complaints brought by the learners, and she did so because Shandu had asked them to.
36. Only one learner had come with one parent, but they did not talk to the parent because they were told to listen to the learners. It is strange that Shandu is not at the arbitration, but since he asked them to listen to the learners, they are present.
37. The learners came with the statements, and the statements were closed. The learners opened the statements as they each enter the office.
38. When it was put to her that the Employee disputes all the charges, she said there is nothing more that she can say, as all she had said was what was told to her by the learners.
39. Learner 2 said she took pictures of the room to which the Employee had taken her, but they did not ask to see those pictures. On the allegation of the Employee having administered corporal punishment, it is the learner and himself who know what happened.
40. She could not confirm if the stories by the learners are fabricated, as she is not based at the school.
The Employee’s case
The Employee testified under oath as follows-
41. He was appointed to his current post at the school in 2019, following his appointment to act on the same post since 26 July 2018.
42. When he arrived at the school in July 2018, he was brought to the school by two circuit Managers, and a meeting was called at 12h00 for the School Management Team (SMT) in which he was introduced. This meeting was followed by another one with the rest of the staff at the school, followed by an introduction on each class.
43. At the time of his arrival at the school, interviewed had been done for the same post, three months back. He noticed that the situation was toxic, as some people at the school had expected to be appointed to the post of Principal.
44. On the following day, 27 July (Friday), he held a meeting at about 09h30 in which there were three School Governing Body (SGB) members, including the Chairman of the SGB. There were other people who stood outside his office. The three SGB members entered the office and told him that they heard that he was the acting principal, and that they have their own principal that they were waiting for, as such, he should please handover the office keys to them and go back to where he came from, as he was not needed at the school. They also told him that he was not the first one, so he should not take that personal.
45. The parents were very angry. He tried to calm them down and he showed them his appointment letter, also asked them to go and talk to Mr Shandu and Mrs Zuma (Circuit managers) who had brought him to the school. He showed them the plan he had drafter for the school.
46. The parents went out of his office and as they went out, whilst on the foyer, he heard the SGB Chairman saying “he is refusing to hand over the keys to them”. One of the parents responded and said he (Employee) was not refusing, but said they should lay their grievance at the Circuit office.
47. The teachers at the school were surprised as to how did it happen that he did not leave.
48. The school is a big school, and there are teachers who had been at the school for about thirty years, and they have ambitions of being a principal.
49. He discovered that attendance by teachers at the school was a challenge and he insisted on completion of the attendance register on time without fraudulently signing for a day when one has not been at school. This after he discovered that there were teachers who would not be at school for about three weeks. So he was at the school from 06h00 in the morning. Fortunately, the matric results improved from 44% to 72%.
50. As the school closed in 2018 in December, it had no electricity and no fence, no feeding scheme. He wrote sixteen letters to the responsible institutions.
51. When 2019 began, he introduced new operational plans to better the management of the school. As they proceeded through the year, he became hard on the SMT as some teachers came to school being drunk. That is where the problems started and he started having differences with teachers, as ordinary teachers were friends with Heads of Departments (HOD) such that they were having lunch together.
52. He realised that there were many teachers who were still absent on a regular basis, and they were not even completing the leave form which was available. He then instructed the teachers that where one is absent, they must report such directly to him, not the HOD. That did not go well with the HODs.
53. The staff began to say he was trying to catch them. He also monitored that they spent the whole time allocated for each period in class, as he discovered that they would leave a class five minutes before the allocated time. During the day before the pay-day and on the pay day, some teachers would not report for work. As he monitored ill behaviour, he became unpopular.
54. Electricity was restored, feedings scheme was also implemented, the fence was erected and stability returned to the school.
55. At the beginning of 2021as they drew the Post Provisioning Norm (PPN), the teachers who had not been doing well were kicked out of the school through the PPN policy, and were given letters to go to other schools. They came back, saying they were not accepted on the other schools and that is when the problems started.
56. Three of the affected teachers, Mrs Nkombe and Mrs Nxumalo did not even take the transfer letters, together with other two teachers. That was in March 2021 and that was when five teachers were told to report to the Circuit office if they were not accepted on the other schools.
57. The teachers started accusing him of being inhumane and aggressive, and they reported him to the union. On the following day, all the teachers at the school toytoyed (demonstrated) and said they would not be attending to the classes in support of the five teachers transferred out of the school.
58. Circuit management arrived and held a meeting, in which the teachers said they did not want him at the school. The circuit manager told him to report to the circuit office the following day, and that was when he read the issues contained in the grievances and they related to the four charges that he was charged with. He was traumatised and decided to take three weeks leave.
59. Having come back from leave, he continued to report at the circuit office until he was suspended on 31 May 2021 and given the charges.
60. He disputes all the charges and knows nothing about them. He does not understand why did the charges take so long and coincide with the period in which the teachers had raised grievances against him. He also does not understand why the learners did not even tell their parents about these allegations.
61. His office does not have curtains, when he is in the office, he can see the office of one HOD. One HOD when coming to his office, he (HOD) passes through his (Employee’s) office. He has two clerks and an intern who come to him now and then. The teachers frequent his office for various reasons.
62. The charges are just made up. He never touched any learner, nor tried to kiss any learner, including the two learners included in the allegations.
63. He has never taken any learner to town, including the Learner 2, neither did he meet any learner in town. He never administered any corporal punishment on any child.
64. He is a very principled law abiding citizen and these allegations have traumatised him and his family. He finds the allegations disgusting, especially after he has dedicated his service to the school.
65. The fact that these learners did not even bring their parents to the school or report such allegations to law enforcement attest to his version that the allegations are trumped up.
66. He has been a teacher for more than twenty years and has never had such disgusting allegations levelled against him, even when he was still young and unmarried.
67. In 2018, he was not a class teacher, but a subject teacher.
68. On cross examination – His duties include ensuring that the culture of learning and teaching takes place and that the Employer’s policies are in place and implemented.
69. When he arrived in 2018, he taught grade 11 maths and he did that only in 2018. He does not know all the three learners and does not remember them being in the class he taught.
70. As the principal, everyone knows him, so it may happen that these learners are friends with some of the teachers at the school. During 2019 to 2021, he does not recall any complaint being brought to him in relation to teachers untoward behaviour to learners.
71. He heard that before his time at the school, he heard that there was a teacher who used to write letter to parents, telling them that they were going on excursions and that continued even after he arrived at the school. He called the said teacher and cautioned her against such a conduct.
72. He reported the incident of the three SGB members, to the Circuit management.
73. During the demonstration (toytoy) by the teachers, he is not aware if the sexual allegations were part of the grievances.
74. He was told that the three learners were brought to the circuit offices by teachers. There is a link between the learners’ allegations against him and the grievances by the teachers, and that is clear on the long time that the learners took to raise the allegations and raised them after the grievances by the teachers. Also the fact that these were not reported to their parents or police adds to the fact that they are nothing but form part of a ploy against him.
75. He disputes that the learners may have been scared of him, and therefore waited for him to be out of the school to report the allegations, and said there is a large number of female teachers at the school, to whom the learners should have reported the allegations. It cannot be that the three learners could individually and on their own, now decide to report these things at the same time, clearly, there is a third hand here.
76. It is surprising that such allegations were not reported to either the HODs or being advised to report them to parents or neighbours or anyone. If the allegations were reported to parents, parents should have reported them to the law enforcement units.
Arguments
77. The employer should have admitted that they had no case and it was poorly prepared to take this matter to arbitration. The employer could have allowed themselves to restart the investigation correctly and close all the loopholes.
78. It would seriously be dangerous to even proceed with giving a sanction to a matter that is poorly prepared for by the department of education wherein an official may lose his job because of the recklessness and excitement of the department of education to rush to charge and proceed with all the processes when the case is not water tight. The Employer has been hit hard on many occasions when such matters are taken on review.
79. The department of education has all the time to deal with corrective measures within itself after they would have done their investigation correctly. The Employer has dismally failed to gather all the facts and used all the correct protocols and the correct personnel to reach a correct determination to charge.
80. We plead with the commissioner to humbly consider our submission that the Employee remains not guilty.
ANALYSIS OF EVIDENCE AND ARGUMENTS
81. In Mudau v MEIBC and others [2013] 34 ILJ 663 LCM the Court held that the Panellist’s mandate in terms of section 188A is to determine on a balance of probabilities whether an Employee has committed an offence for which he / she has been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties.
82. It is common cause that the two learners involved in this matter did not testify and I granted the application by the Employer, to have their statements submitted as hearsay evidence.
83. Mhlongo mentioned that Learner 1, after the Employee had inserted his fingers into her virgina, Learner 1 said she reported the incidences to the social worker, but nothing ever happened.
84. The fact that Shandu referred the three learners to the two Employer witnesses in this matter appears weird to me, as there is no testimony that at the stage that he did so, he had an idea of what the learners came to report at the Circuit offices. The Employers’ witnesses said the learners brought with them the statements in closed envelopes, which paints a probability that no one may have opened the envelops.
85. The story that the Employee wanted to kiss Learner 2 and he told her that he wanted her to benefit from his money sounds bizaar. Even though she said in her statement, that she reported the incident to one of her teachers, such a teacher was not called to corroborate this claim.
86. Learner 2’s story goes further to say on one other day when she was late at school, the Employee told her that there is no way that he could not punish her because she did not want to have sex with him, and therefore he administered corporal punishment to her.
87. Although all the allegations are serious, given the fact that the Employer relied on hearsay evidence, much more needed to be done by the Employer to substantiate its case. The allegations of corporal punishment relate to February 2021, which is about three months before the charges were given to the Employee. Such corporal punishment could probably have been administered either in front of other learners or / and teachers, which in my view means it could not have been difficult to report at the school by the learner, or to her parents, and yet, there is no such a report or evidence.
88. The above is the same as the story that on another day, when Learner 2 was going to town and being accompanied by her friend, the Employee came and offered her a lift to town and then took her to another room where he undressed himself and asked her to join him on the bed and have sex with him. Again, there are opportunities for more evidence in this story, firstly, the friend with whom the Learner was, also, the room that she said she was taken to by the Employee. The Employer did not place any evidence to corroborate this story, even though the Learner in her statement, said her friend lived near the school.
89. Further, notwithstanding the fact that Hadebe said that Learner 2 said she took pictures of the room to which the Employee had taken her, the Employer did not make any follow-up on such a claim.
90. There is nothing placed before me which alludes to difficulties experienced by the Employer in getting further evidence in this regard, which leaves its case shallow and lacking of merit.
91. Mhlongo said that Learner 1, following her being touched by the Employee, he then inserted his fingers into her virgina, and she told her that at some stage she informed the Social worker, presumably at the school. As it is the case with the other claims, there is nothing more that is placed before me by the Employer. There is no reason why such a social worker’s name is not disclosed, why did she not come to testify, no register of incidences such as this one from the school, which by the Employer’s own admission, are very serious.
92. The whole case is premised on stories that have no basis for a finding that would be so serious such that it ends the Employee’s career in such a terrible and disgraceful manner.
93. The submission by the Employee, that the allegations are trumped up and are a further attempts by the staff at the school to remove him are not far-fetched, given the period it took for the Learners to abruptly report them, not to the school, not to their parents and not to anyone else, but to the Circuit office.
94. It has to be borne in mind that the Employee’s testimony, in as far as the layout of his office is concerned, which as he said, is an open office with at least three additional staff members permanently seated in the office, and more other staff members frequenting it, also being in full view of one HOD who goes to his office through the Employee’s is not disputed. With such an environment in mind, it is mind boggling to think of how these multiple incidences could have taken place, all with no one else to witness, not even the sound of corporal punishment.
95. If these incidences had taken place, individually, and the learners had individually been scared to report them, it becomes a mystery as to why then did they decide to act in a concerted effort this time around, whilst still not reporting the allegations at the school, but chose to go to the Circuit office all at the same time, all having written down the allegations and placed them inside an envelope and close it. This to me appears too much of a coincident, and is very suspicious and consistent with an execution of a hatched plan, whose common purpose is to accuse the Employee with the hope that he would be dismissed.
96. It is also worth mentioning that Learner 2’s statement is co-signed by a teacher, whose name is not revealed and that teacher was not even called to the hearing. If anything, this raises more suspicions which could include that she wrote the statement with the unnamed teacher, or that actually, the unnamed teacher was behind the hatched plan.
97. In addition to learners’ sudden courage to report the said allegations, it is not clear how did they even get to the Circuit office, and the fact that they had already prepared statements and envelops to put them in. This to me adds into the suspicion that indeed, this was an execution of a hatched plan and the learners may have just been a conduit to it.
98. When bearing is had to the background that the Employee narrated in this regard, which clearly indicates that he was never openly welcome to the school, both at the level of the SGB and that of the teachers. This background shows the blatant animosity at the school towards him, which culminated in the demonstrations that took place in March 2021, calling for his removal and ended up with his suspension from the school.
99. The foregoing could probably have been the foundation and the main source for these allegations being fabricated and laid against the Employee.
100. I use the word fabricated, because these statements are so vague and lousy, such that on top of the fact that they are not substantiated at all, even the building or street to which Learner 2 was allegedly taken by the Employee is nowhere in the evidence.
101. These allegations are consistent with a wish list that was drawn out by some of the staff members to concoct a case against the Employee and it is a job done quit badly, in my view.
102. In Alpha Pharm (EC) (Pty) Ltd v CCMA and another (PR 12/16) [2019] ZALCPE 7 (handed down on 10 April 2019) the Court accepted that “it was in the interest of justice for the Commissioner to admit the statement from a witness into evidence, who was not called to testify during the arbitration, and to weigh its probability against the evidence tendered. However, the Employer bore the evidentiary burden over and above mere reliance on hearsay evidence….”
103. As guided by the Alpha Pharm case above, the Employer bore the evidentiary burden over and above its reliance on the hearsay evidence and it has failed to do so.
104. It is also safe to say, all its evidence was nothing but hearsay and in my view, the Employer’s testimony in its entirety lacks credibility and therefore carries very little weight, when compared to that of the Employee.
105. Having applied my mind to the total evidence brought before me, it is my finding that on the balance of probabilities, the Employer has failed to prove that the Employee is guilty of all the charges preferred against him.
AWARD
106. The Employee, Mr Bonginkosi Emmanuel Mngadi is not guilty of all the charges preferred against him.
107. In light of the above, the Employer is ordered to uplift the suspension of the Employee with immediate effect and allow him to report back to work.
Vuyiso Ngcengeni
Panelist / Commissioner
Date of Award: 22 March 2022
Panelist : Vuyiso Ngcengeni
Province : KwaZulu Natal
Employee : Bonginkosi Emmanuel Mngadi
Employer : Department of Education – KwaZulu Natal
Issue : Enquiry by Arbitrator
Venue : Durban Teachers Training Centre
Employer representative : Ms Monica Mtetwa
Telephone : 031 360 6248
Email : monica.mtetwa@kzndoe.gov.za
Employee Representative : Mr Martin Dhlamini
Cell : 082 611 7037
Email : dhlaminimartin9@gmail.com
SECTION 188A ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was scheduled before me on 9th November 2021, and it was held at the Teachers Training Centre in Durban, under auspices of the Education Labour Relations Council (the Council).
2. The matter was held in terms of s188A of the Labour Relations Act of 1996 as amended (LRA) in conjunction with Collective Agreement 3 of 2018 which allows for such cases to be held accordingly.
3. The Employee was present and he was represented by Mr Martin Dlamini from SADTU and the Employer was represented by Ms Monica Mtetwa.
4. This matter is about an alleged sexual misconduct and it involves two learners.
5. The hearing was conducted in English, there was an isiZulu interpreter. The Employer submitted one bundle which is made of 10 pages and on pages 1 to 3 is Annexure 5 which is Learner 1’s statement and Annexure 4 which is made of three pages is Learner 2’ statement.
6. Annexure 3, which is also made of two pages, related to Learner 3 and it has been withdrawn.
7. On page 8 to 10 are the charges proffered against the Employee, made of four charges.
8. The names of the learners are not disclosed, that is in terms of clause 5.3 of Collective Agreement 3 of 2018. I will therefore refer to the learner involved in charge no 1 as Learner 1 and the one on charge no 2, 3 and 4 as Learner 2.
9. I received all the closing arguments on 07 March 2022.
ISSUE TO BE DETERMINED
10. I am called upon to determine whether the Employee is guilty of the charges that that he is accused of. The charges are written as follows: -
10.1 It is alleged that during the 2nd term 2019 you allegedly committed an act of sexual assault on Learner 1, a Grade 12 learner at Okumhlophe High School, in that hugged and kissed her by force and fondled her private part (virgina), breasts and buttocks. You thus committed an offence in terms of Section 17 (1)(b) or alternatively, 18 (1)(q) of the Employment of Educators Act 76 of 1998.
10.2 It is alleged that on or around 1st October 2020 you allegedly committed an act of sexual assault on Learner 2, a Grade 12 learner at Okumhlophe High School, in that you took her to a room in town (Durban) and kissed her and attempted to rape her. You thus committed an offence in terms of Section 17 (1)(b) or alternatively, 18 (1)(q) of the Employment of Educators Act 76 of 1998
10.3 On or around the 4th week in February 2021, you allegedly, whilst on duty, contravened Section 10 of the South African Schools Act 84 of 1998 as amended, in that you administered corporal punishment on Learner 2, a Grade 12 learner by hitting her with a plastic pipe on her hand. You thereby contravened section 18(1)(a) of the Act.
10.4 It is alleged that whilst you were on duty, you conducted yourself in an improper, disgraceful or unacceptable manner. You thereby contravened Section 18(1)(q) of the Act in that on or around February 2020, you allegedly tried to kiss Learner 2 and also solicited sex from her when she was in your office.
11. The Employee received the charge sheet on 2nd June 2021, and he pleaded not guilty to all of them.
BACKGROUND TO THE DISPUTE
12. The Employee is employed as a Principal of Okumhlophe Secondary School (the school). He started at the school in July 2018, coming from a different school in which he was a Deputy Principal.
13. The alleged incidences that gave rise to the charges took place during 2019, 2020 and 2021. The specific dates and times are not known, as the alleged incidences were reported to the Employer around March 2021.
14. The Employer referred this matter to the Council for an Enquiry by Arbitrator after June 2021.
Ruling on hearsay evidence
15. The Employer during the first sitting of the matter, applied for the admission of hearsay evidence, that is the evidence of the learners involved in this matter. This followed the non-appearance of the learners at the arbitration, which the Employer said, the leaners were fearful of the lives, after one learner was threatened not to appear in the arbitration to testify.
16. I granted the application, on the basis that I will decide what weight to offer on the hearsay evidence.
SURVEY OF EVIDENCE AND SUBMISSIONS
Employer’s case
Ms Jabu Mhlongo (Mhlongo) testified under oath as follows:-
17. She is employed as the Chief Administrative Clerk, based at the Circuit Offices under whose management the school falls. She has been employed by the Employer for 30 years, and she knows the Employee.
18. She has seen the statements from the learners before, as they are contained on p 1 to 7 of the bundle. The statements were written by the learners from the school.
19. It was towards the end of March 2021 when three learners came to the Circuit management offices, to see Mr Shandu, who is the Circuit Manager. Since Shandu is a male, he felt that the learners would not be free to tell him their stories and he thus requested her and Ms Sthembile Hadebe to listen to the children, and he left the office.
20. The learners came inside the office one by one, and the first one was Learner 1, who came and explained that she was no longer feeling safe at the school, because the Employee always calls her to the office, wherein he kisses her and do all the things mentioned in the statement. The learner also mentioned that the Employee at one stage called her into his office, kissed her and touched her on her private parts. She told him that she was on menstruation and he said he wanted to feel that for himself, he then inserted his fingers into her virgina. The Learner said she reported the incidences to the social worker, but nothing ever happened.
21. Learner 2 also said she felt unsafe at the school, after the Employee once asked her if the boys have told her how beautiful she was. He wanted to kiss her, and he told her that he wanted her to benefit from his money. On one other day, she was late at school and the Employee told her that there is no way that he could not beat / punish her because she did not want to have sex with him.
22. On another day, when she was going to town, whilst being accompanied by her friend, the Employee came and offered her lift to town. He then took her to another room, wherein he undressed himself and asked her to join him on the bed and have sex with him. She refused and told him that she was a virgin and he said he was not going to penetrate her. She refused and he then gave her money to go to her destination.
23. Some of the learners came to the offices with their parents, and they appeared worried and were crying as they told their stories.
24. The learners did not mention any person whom would have influenced them to concoct their stories. Learner 2 also mentioned that when they arrived late at school, the Employee would beat them.
25. Cross examination – She did not normally listen to learners challenges, because when the learners come to the Circuit, they speak to the Circuit Manager. It was the first time that she was asked to listen to the learners and she found that strange and she was shocked.
26. Listening to complaints from learners was not part of her job. She handed over the report from the learners to Shandu. She did not ask the learners why they did not report the matter to the school, as she was only asked to listen.
27. She did not comment, when put to her that all these charges are fabricated. She has never been to the Employee’s office at the school. The things that she has mentioned are not known to her, she heard them from the learners, as she was not present when the alleged incidences took place.
28. Learner 2 did not give a description of the room the Employee took her to, whether is a hotel or a B and B. She had no comment when put to her that the Employer never administered any corporal punishment to any of the learners.
Ms Sithembele Hadebe (Hadebe) testified under oath as follows:-
29. She is an Administrative Clerk at the Circuit Office and has been employed for 12 years. She knows the Employee as the Principal of the school.
30. She recalls the statements, as they were brought by the learners to the office, after Shandu had asked them to listen to the learners. The learners were saying the Employee was asking for hugs and kisses from them, and promising to give them money, and that they refused.
31. Learner 1 said on one day when she was late at school, the Employee called her into his office and wanted to kiss her and she refused. The learner also said the Employee touched her on her private parts and her buttocks, and wanted to have sex with her, to which she refused and she reported him to a Social Worker.
32. Learner 2 said on one day when she was sent to town, whilst waiting for transport at the stop, the Employee came and offered her lift to town, then he took her to another room where he undressed himself and asked her to have sex with him. When she refused and told him that she was a virgin, he said he did not believe that and he said he was not going to penetrate her. She refused and he then gave her money to continue with her trip to town.
33. Leaner 2 said the Employee told her that he wanted to have sex with her so that she could benefit from his money.
34. After having listened to the learners, she gave the report to Shandu. She did not know about the corporal punishment issue.
35. Cross examination – It was the first time that she had listened to complaints brought by the learners, and she did so because Shandu had asked them to.
36. Only one learner had come with one parent, but they did not talk to the parent because they were told to listen to the learners. It is strange that Shandu is not at the arbitration, but since he asked them to listen to the learners, they are present.
37. The learners came with the statements, and the statements were closed. The learners opened the statements as they each enter the office.
38. When it was put to her that the Employee disputes all the charges, she said there is nothing more that she can say, as all she had said was what was told to her by the learners.
39. Learner 2 said she took pictures of the room to which the Employee had taken her, but they did not ask to see those pictures. On the allegation of the Employee having administered corporal punishment, it is the learner and himself who know what happened.
40. She could not confirm if the stories by the learners are fabricated, as she is not based at the school.
The Employee’s case
The Employee testified under oath as follows-
41. He was appointed to his current post at the school in 2019, following his appointment to act on the same post since 26 July 2018.
42. When he arrived at the school in July 2018, he was brought to the school by two circuit Managers, and a meeting was called at 12h00 for the School Management Team (SMT) in which he was introduced. This meeting was followed by another one with the rest of the staff at the school, followed by an introduction on each class.
43. At the time of his arrival at the school, interviewed had been done for the same post, three months back. He noticed that the situation was toxic, as some people at the school had expected to be appointed to the post of Principal.
44. On the following day, 27 July (Friday), he held a meeting at about 09h30 in which there were three School Governing Body (SGB) members, including the Chairman of the SGB. There were other people who stood outside his office. The three SGB members entered the office and told him that they heard that he was the acting principal, and that they have their own principal that they were waiting for, as such, he should please handover the office keys to them and go back to where he came from, as he was not needed at the school. They also told him that he was not the first one, so he should not take that personal.
45. The parents were very angry. He tried to calm them down and he showed them his appointment letter, also asked them to go and talk to Mr Shandu and Mrs Zuma (Circuit managers) who had brought him to the school. He showed them the plan he had drafter for the school.
46. The parents went out of his office and as they went out, whilst on the foyer, he heard the SGB Chairman saying “he is refusing to hand over the keys to them”. One of the parents responded and said he (Employee) was not refusing, but said they should lay their grievance at the Circuit office.
47. The teachers at the school were surprised as to how did it happen that he did not leave.
48. The school is a big school, and there are teachers who had been at the school for about thirty years, and they have ambitions of being a principal.
49. He discovered that attendance by teachers at the school was a challenge and he insisted on completion of the attendance register on time without fraudulently signing for a day when one has not been at school. This after he discovered that there were teachers who would not be at school for about three weeks. So he was at the school from 06h00 in the morning. Fortunately, the matric results improved from 44% to 72%.
50. As the school closed in 2018 in December, it had no electricity and no fence, no feeding scheme. He wrote sixteen letters to the responsible institutions.
51. When 2019 began, he introduced new operational plans to better the management of the school. As they proceeded through the year, he became hard on the SMT as some teachers came to school being drunk. That is where the problems started and he started having differences with teachers, as ordinary teachers were friends with Heads of Departments (HOD) such that they were having lunch together.
52. He realised that there were many teachers who were still absent on a regular basis, and they were not even completing the leave form which was available. He then instructed the teachers that where one is absent, they must report such directly to him, not the HOD. That did not go well with the HODs.
53. The staff began to say he was trying to catch them. He also monitored that they spent the whole time allocated for each period in class, as he discovered that they would leave a class five minutes before the allocated time. During the day before the pay-day and on the pay day, some teachers would not report for work. As he monitored ill behaviour, he became unpopular.
54. Electricity was restored, feedings scheme was also implemented, the fence was erected and stability returned to the school.
55. At the beginning of 2021as they drew the Post Provisioning Norm (PPN), the teachers who had not been doing well were kicked out of the school through the PPN policy, and were given letters to go to other schools. They came back, saying they were not accepted on the other schools and that is when the problems started.
56. Three of the affected teachers, Mrs Nkombe and Mrs Nxumalo did not even take the transfer letters, together with other two teachers. That was in March 2021 and that was when five teachers were told to report to the Circuit office if they were not accepted on the other schools.
57. The teachers started accusing him of being inhumane and aggressive, and they reported him to the union. On the following day, all the teachers at the school toytoyed (demonstrated) and said they would not be attending to the classes in support of the five teachers transferred out of the school.
58. Circuit management arrived and held a meeting, in which the teachers said they did not want him at the school. The circuit manager told him to report to the circuit office the following day, and that was when he read the issues contained in the grievances and they related to the four charges that he was charged with. He was traumatised and decided to take three weeks leave.
59. Having come back from leave, he continued to report at the circuit office until he was suspended on 31 May 2021 and given the charges.
60. He disputes all the charges and knows nothing about them. He does not understand why did the charges take so long and coincide with the period in which the teachers had raised grievances against him. He also does not understand why the learners did not even tell their parents about these allegations.
61. His office does not have curtains, when he is in the office, he can see the office of one HOD. One HOD when coming to his office, he (HOD) passes through his (Employee’s) office. He has two clerks and an intern who come to him now and then. The teachers frequent his office for various reasons.
62. The charges are just made up. He never touched any learner, nor tried to kiss any learner, including the two learners included in the allegations.
63. He has never taken any learner to town, including the Learner 2, neither did he meet any learner in town. He never administered any corporal punishment on any child.
64. He is a very principled law abiding citizen and these allegations have traumatised him and his family. He finds the allegations disgusting, especially after he has dedicated his service to the school.
65. The fact that these learners did not even bring their parents to the school or report such allegations to law enforcement attest to his version that the allegations are trumped up.
66. He has been a teacher for more than twenty years and has never had such disgusting allegations levelled against him, even when he was still young and unmarried.
67. In 2018, he was not a class teacher, but a subject teacher.
68. On cross examination – His duties include ensuring that the culture of learning and teaching takes place and that the Employer’s policies are in place and implemented.
69. When he arrived in 2018, he taught grade 11 maths and he did that only in 2018. He does not know all the three learners and does not remember them being in the class he taught.
70. As the principal, everyone knows him, so it may happen that these learners are friends with some of the teachers at the school. During 2019 to 2021, he does not recall any complaint being brought to him in relation to teachers untoward behaviour to learners.
71. He heard that before his time at the school, he heard that there was a teacher who used to write letter to parents, telling them that they were going on excursions and that continued even after he arrived at the school. He called the said teacher and cautioned her against such a conduct.
72. He reported the incident of the three SGB members, to the Circuit management.
73. During the demonstration (toytoy) by the teachers, he is not aware if the sexual allegations were part of the grievances.
74. He was told that the three learners were brought to the circuit offices by teachers. There is a link between the learners’ allegations against him and the grievances by the teachers, and that is clear on the long time that the learners took to raise the allegations and raised them after the grievances by the teachers. Also the fact that these were not reported to their parents or police adds to the fact that they are nothing but form part of a ploy against him.
75. He disputes that the learners may have been scared of him, and therefore waited for him to be out of the school to report the allegations, and said there is a large number of female teachers at the school, to whom the learners should have reported the allegations. It cannot be that the three learners could individually and on their own, now decide to report these things at the same time, clearly, there is a third hand here.
76. It is surprising that such allegations were not reported to either the HODs or being advised to report them to parents or neighbours or anyone. If the allegations were reported to parents, parents should have reported them to the law enforcement units.
Arguments
77. The employer should have admitted that they had no case and it was poorly prepared to take this matter to arbitration. The employer could have allowed themselves to restart the investigation correctly and close all the loopholes.
78. It would seriously be dangerous to even proceed with giving a sanction to a matter that is poorly prepared for by the department of education wherein an official may lose his job because of the recklessness and excitement of the department of education to rush to charge and proceed with all the processes when the case is not water tight. The Employer has been hit hard on many occasions when such matters are taken on review.
79. The department of education has all the time to deal with corrective measures within itself after they would have done their investigation correctly. The Employer has dismally failed to gather all the facts and used all the correct protocols and the correct personnel to reach a correct determination to charge.
80. We plead with the commissioner to humbly consider our submission that the Employee remains not guilty.
ANALYSIS OF EVIDENCE AND ARGUMENTS
81. In Mudau v MEIBC and others [2013] 34 ILJ 663 LCM the Court held that the Panellist’s mandate in terms of section 188A is to determine on a balance of probabilities whether an Employee has committed an offence for which he / she has been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties.
82. It is common cause that the two learners involved in this matter did not testify and I granted the application by the Employer, to have their statements submitted as hearsay evidence.
83. Mhlongo mentioned that Learner 1, after the Employee had inserted his fingers into her virgina, Learner 1 said she reported the incidences to the social worker, but nothing ever happened.
84. The fact that Shandu referred the three learners to the two Employer witnesses in this matter appears weird to me, as there is no testimony that at the stage that he did so, he had an idea of what the learners came to report at the Circuit offices. The Employers’ witnesses said the learners brought with them the statements in closed envelopes, which paints a probability that no one may have opened the envelops.
85. The story that the Employee wanted to kiss Learner 2 and he told her that he wanted her to benefit from his money sounds bizaar. Even though she said in her statement, that she reported the incident to one of her teachers, such a teacher was not called to corroborate this claim.
86. Learner 2’s story goes further to say on one other day when she was late at school, the Employee told her that there is no way that he could not punish her because she did not want to have sex with him, and therefore he administered corporal punishment to her.
87. Although all the allegations are serious, given the fact that the Employer relied on hearsay evidence, much more needed to be done by the Employer to substantiate its case. The allegations of corporal punishment relate to February 2021, which is about three months before the charges were given to the Employee. Such corporal punishment could probably have been administered either in front of other learners or / and teachers, which in my view means it could not have been difficult to report at the school by the learner, or to her parents, and yet, there is no such a report or evidence.
88. The above is the same as the story that on another day, when Learner 2 was going to town and being accompanied by her friend, the Employee came and offered her a lift to town and then took her to another room where he undressed himself and asked her to join him on the bed and have sex with him. Again, there are opportunities for more evidence in this story, firstly, the friend with whom the Learner was, also, the room that she said she was taken to by the Employee. The Employer did not place any evidence to corroborate this story, even though the Learner in her statement, said her friend lived near the school.
89. Further, notwithstanding the fact that Hadebe said that Learner 2 said she took pictures of the room to which the Employee had taken her, the Employer did not make any follow-up on such a claim.
90. There is nothing placed before me which alludes to difficulties experienced by the Employer in getting further evidence in this regard, which leaves its case shallow and lacking of merit.
91. Mhlongo said that Learner 1, following her being touched by the Employee, he then inserted his fingers into her virgina, and she told her that at some stage she informed the Social worker, presumably at the school. As it is the case with the other claims, there is nothing more that is placed before me by the Employer. There is no reason why such a social worker’s name is not disclosed, why did she not come to testify, no register of incidences such as this one from the school, which by the Employer’s own admission, are very serious.
92. The whole case is premised on stories that have no basis for a finding that would be so serious such that it ends the Employee’s career in such a terrible and disgraceful manner.
93. The submission by the Employee, that the allegations are trumped up and are a further attempts by the staff at the school to remove him are not far-fetched, given the period it took for the Learners to abruptly report them, not to the school, not to their parents and not to anyone else, but to the Circuit office.
94. It has to be borne in mind that the Employee’s testimony, in as far as the layout of his office is concerned, which as he said, is an open office with at least three additional staff members permanently seated in the office, and more other staff members frequenting it, also being in full view of one HOD who goes to his office through the Employee’s is not disputed. With such an environment in mind, it is mind boggling to think of how these multiple incidences could have taken place, all with no one else to witness, not even the sound of corporal punishment.
95. If these incidences had taken place, individually, and the learners had individually been scared to report them, it becomes a mystery as to why then did they decide to act in a concerted effort this time around, whilst still not reporting the allegations at the school, but chose to go to the Circuit office all at the same time, all having written down the allegations and placed them inside an envelope and close it. This to me appears too much of a coincident, and is very suspicious and consistent with an execution of a hatched plan, whose common purpose is to accuse the Employee with the hope that he would be dismissed.
96. It is also worth mentioning that Learner 2’s statement is co-signed by a teacher, whose name is not revealed and that teacher was not even called to the hearing. If anything, this raises more suspicions which could include that she wrote the statement with the unnamed teacher, or that actually, the unnamed teacher was behind the hatched plan.
97. In addition to learners’ sudden courage to report the said allegations, it is not clear how did they even get to the Circuit office, and the fact that they had already prepared statements and envelops to put them in. This to me adds into the suspicion that indeed, this was an execution of a hatched plan and the learners may have just been a conduit to it.
98. When bearing is had to the background that the Employee narrated in this regard, which clearly indicates that he was never openly welcome to the school, both at the level of the SGB and that of the teachers. This background shows the blatant animosity at the school towards him, which culminated in the demonstrations that took place in March 2021, calling for his removal and ended up with his suspension from the school.
99. The foregoing could probably have been the foundation and the main source for these allegations being fabricated and laid against the Employee.
100. I use the word fabricated, because these statements are so vague and lousy, such that on top of the fact that they are not substantiated at all, even the building or street to which Learner 2 was allegedly taken by the Employee is nowhere in the evidence.
101. These allegations are consistent with a wish list that was drawn out by some of the staff members to concoct a case against the Employee and it is a job done quit badly, in my view.
102. In Alpha Pharm (EC) (Pty) Ltd v CCMA and another (PR 12/16) [2019] ZALCPE 7 (handed down on 10 April 2019) the Court accepted that “it was in the interest of justice for the Commissioner to admit the statement from a witness into evidence, who was not called to testify during the arbitration, and to weigh its probability against the evidence tendered. However, the Employer bore the evidentiary burden over and above mere reliance on hearsay evidence….”
103. As guided by the Alpha Pharm case above, the Employer bore the evidentiary burden over and above its reliance on the hearsay evidence and it has failed to do so.
104. It is also safe to say, all its evidence was nothing but hearsay and in my view, the Employer’s testimony in its entirety lacks credibility and therefore carries very little weight, when compared to that of the Employee.
105. Having applied my mind to the total evidence brought before me, it is my finding that on the balance of probabilities, the Employer has failed to prove that the Employee is guilty of all the charges preferred against him.
AWARD
106. The Employee, Mr Bonginkosi Emmanuel Mngadi is not guilty of all the charges preferred against him.
107. In light of the above, the Employer is ordered to uplift the suspension of the Employee with immediate effect and allow him to report back to work.
Vuyiso Ngcengeni
Panelist / Commissioner