ELRC697-21/22KZN
Text
ELRC697-21/22KZN
Award Date:
06 April 2022
IN THE ELRC: INQUIRY BY ARBITRATOR BETWEEN:
THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer
and
S Nkabinde The Employee
Inquiry by arbitrator-finding
Case Number: ELRC697-21/22KZN
Dates of arbitration: 8-9 March 2022
Date of submission of closing arguments: 16 March 2022
Date of award: 06 April 2022
J KIRBY
ELRC Arbitrator
DETAILS OF HEARING AND REPRESENTATION
1. The inquiry by arbitrator was held on 8-9 March 2022 at the offices of the Department.
2. The Employee was represented by Mr Makhathini, a trade union official.
3. The Employer, the Head of the KwaZulu-Natal Department of Education was represented by its employee, Ms Nxumalo.
4. The two complainants and a witness in this case are younger than 18 years of age. Throughout this award I shall refer to the learner who is the complainant in count 1 as Complainant No 1, the learner who is the complainant in respect of count 2 as Complainant No 2 and the learner who testified as a witness for the Respondent as the Learner. These three witnesses testified under oath with the assistance of an intermediary, Ms Phakathi.
5. The services of an interpreter, Ms Mthethwa, were utilized and the proceedings were digitally recorded.
EXPLANATION OF THE EMPLOYEES’ RIGHTS
6. The Employee was represented by Mr Makhathini and it was confirmed that they had had sufficient notice of the hearing to prepare properly. The written notice of this hearing records that the notice was received by the Employee on 2 December 2021. I explained the following rights to the Employee, who confirmed that he understood these rights:
6.1. The rights to question witnesses of the Employer and to dispute any documentary evidence. In particular, the need to ensure that any evidence with which he did not agree was disputed by his representative and the need to ensure that his version was put to each witness; and
6.2. The right to give evidence and to call witnesses.
7. It was explained to both parties, who indicated that they understood that:
7.1. A separate hearing in respect of sanction in event of a finding of guilty, would not be held. Evidence in mitigation and aggravation of sentence would be presented prior to a finding on the merits of the case having been given;
7.2. They could make closing arguments after all evidence had been heard; and
7.3. In terms of section 120 of the Children’s Act I, as the arbitrator, acting on my own or on application of the Employer may make a finding that the Employee is unsuitable to work with children. It was further explained in this regard that a separate hearing would not be held.
THE CHARGES AND PLEA
8. The written notice given to the Employee indicates that he was charged as follows:
“Charge 1
It is alleged that on or about 20 & 22 September 2021 at or near Matatane (sic) Secondary School, you committed an act of sexual assault on learners.
Count 1
You touched Complainant No 1’s bum and/or tried to kiss her
Count 2
On 14 October 2021, you kissed Complainant No 2 and told her that next time you will have sex with her.
You thereby contravened Section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.”
9. The notice to attend a disciplinary hearing was submitted by Ms Nxumalo and marked exhibit A. Having read the charges into the record Ms Nxumalo confirmed that the entry under “charge 1” should be read with the entry under “count 1.”
10. The Employee pleaded not guilty to both counts. In so doing he admitted that both Complainants were learners at the school, Mtatane Secondary School (the School,) at which he taught but denied that he had committed the misconduct complained of.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Employer’s case
11. Complainant No 1 is 14 years old and in grade 10 at the School. At the time of the alleged misconduct she was 13 years old and in grade 9.
12. Complainant No 1 was taught by the Employee during 2021 and he had also previously taught Complainant No 1’s brothers.
13. On 21 September 2021 the Employee had asked Complainant No 1 to take certain class task papers to his office. She was accompanied by another learner to the office. On reaching his office the Employee had asked the other learner to leave and had thereafter touched Complainant No 1 on her buttocks. Complainant No 1 was wearing a skirt with short pants underneath. The Employee had lifted Complainant No 1’s skirt and touched her buttocks from over her shorts. Complainant No 1 had tried to get away but the Employee had closed the office door and she could not escape. The Employee had then again tried to touch her buttocks and she told him to stop. He had said that he was in love with her. Complainant No 1 had responded by saying that he must be drunk. He then allowed her to return to her classroom.
14. Complainant No 1 had later heard from another learner that the Employee had complained that she had acted rudely towards him. The following day she had gone to his office to apologize for having been rude to him in saying that he must have been drunk. The Employee had closed the office door and had then tried to kiss her but she pushed him away. (She indicated that their faces were virtually touching when she pushed him away with her hands.) He told her not to tell her parents and that he would buy her alcohol.
15. Later she first told her mother about the Employee’s conduct and then on his return from work, she had told her father. The day after having informed her parents, they had complained to the principal of the School and later to the police.
16. Complainant No 1 felt hurt by the conduct of the Employee. He would not want someone to act in a similar manner towards his daughters.
17. Under cross-examination Complainant No 1 said that she had a “fine” relationship with the Employee. He had not said that he wants to kiss her but had simply closed the office door and moved in very close to her.
18. It was put to Complainant No 1 that she could have misinterpreted the Employee’s actions of touching her buttocks. He could have just done so in a “fatherly manner.” Complainant No 1’s response was that it had not been “normal.”
19. Complainant No 1 stated that she had not screamed when the Employee had tried to kiss her but if he had forced himself on her, she would have done so.
20. Although the Employee administered corporal punishment on Complainant No 1 and other learners, this had not caused her to hold a grudge against him. There was no reason for her to falsely implicate the Employee.
21. Complainant No 2 was in grade 9 and 14 years old during 2021. The Employee was one of her educators. On 14 October 2021 he had instructed her to collect learners’ scripts from a classroom and to bring them to the classroom where he was teaching. On her getting to that classroom, he had given her the keys to his office so that she could take the scripts to his office.
22. Complainant No 2 took the papers to the Employee’s office. As she was exiting the office the Employee approached his office and pushed her into his office and closed the door behind them. He pushed her behind the door. She attempted to push him away. He then kissed her with an open mouth. They continued pushing one another. He said that the next time they would have sex and that she must not be “forward” and tell others what had just happened.
23. She had reported the incident to an educator whom she trusted, Ms Mbatha, and a friend (the Learner.) The principal of the School had subsequently spoken to her about the incident. She had also reported the incident to the police.
24. Under cross-examination Complainant No 2 stated that the Employee had taught her since she had been in grade 8. It was not usual for the Employee to ask her to collect scripts for him. He had kissed her with an open mouth on her mouth.
25. The Learner is a grade 10 learner at the School. The Employee is known to her as he had taught her.
26. Complainant No 2 had approached the Learner and other learners and asked them if the Employee had ever done anything to them. She had said that he had done something that she did not like and which was hurtful. They had then walked away from the group of learners and she asked her what had the Employee done. Complainant No 2 had then informed her that the Employee had asked her to take him scripts. She had initially gone to his office but as he was not there, she had gone to the classroom where she knew he would be. She had then asked for his office key so that she could return a stapler to his office. She had returned the stapler but as she was about to leave, the Employee had pushed her back behind the office door. She had resisted unsuccessfully as he was stronger than her. He had then kissed her and said should she return to his office he would have sex with her.
27. The Learner had advised Complainant No 2 to report the incident to Ms Mbatha, who in turn had advised her to report it to her parents.
28. It was put to the Learner that Complainant No 2 had testified that she had taken scripts to the Employee’s office whereas her evidence was that she had been told by Complainant No 2 that she had returned a stapler. The Learner responded that Complainant No 2 had told her that the Employee had asked her to staple scripts.
29. The Employee had previously hit the Learner with a pipe but that wasn’t the reason why she testified against him at this hearing.
30. Sibongile Bonakele (Bonakele) is the principal of the School. On 25 October 2021 Complainant No 1’s parents came to the School. The father was furious and asked Complainant No 1 to narrate her story. Complainant No 1 had then said that the Employee had asked her to take scripts to his office. At the office the Employee had sent the learner who had accompanied Complainant No 1, away. Once they had entered his office the Employee had touched Complainant No 1’s buttocks and said that he loved her. Complainant No 1 had sworn at him and left.
31. She had phoned the Employee and told him of the allegations. His response was that he knew nothing about them.
32. She was asked by her circuit manager to compile a report. She obtained statements from both Complainants and she asked the Employee to also submit a report to her. His response was that he knew nothing about the allegations. She had not received any other similar complaints in respect of the Employee.
33. Under cross-examination Bonakele submitted that the Employee is loud and shouts at learners if, for example, they are dressed inappropriately. He, however, is the sports organizer at the School and he interacts well with both the boys and girls.
The Employee’s case
34. The Employee denies the charges.
35. He has taught at the School for 20 years. He has 6 adult children of his own but cares for an additional 13.
36. He knows the two Complainants and the Learner as learners at the School. They do not participate in sports. Complainant No 1 was once found to be drunk at the School. He had not been involved with the investigation of the case and does not know what came of it. Her attitude towards him did not change after this incident. This allegation of having been drunk at the School was not put to Complainant No 1.
37. He agrees that he shouts at learners if they do something wrong. He treats all learners in a similar manner.
38. Complainant No 1 has never been to his office and he has not lifted her skirt or tried to kiss her.
39. The Learner and Complainant were often found outside their classrooms when they should have been in class. They are friends and the educators at the school were against their friendship. He believes that the Learner had influenced Complainant No 1. He believes that the Learner and the Complainants had hatched a plot against him. These allegations had not been put to Complainant No 1 and the Learner when they testified.
40. The Employee has never sent Complainant No 2 to his office. In particular, on 14 October 2021 he was busy preparing for a meeting and he himself did not go to his office on that day. He has never kissed or touched the private parts of Complainant No 2. He has not had any problems with Complainant No 2.
41. If learners do well he would tell them in the classroom that he loves them in a fatherly way.
42. Nothing has come of the criminal complaint.
43. Under cross-examination it was put to the Employee that it had been put to Complainant No 1 that he had touched her in a fatherly fashion. The Employee maintained that he had never touched her and that the version put to Complainant No 1 was not his version. He had never touched his daughters’ buttocks and when he kissed them he would kiss them on their foreheads or cheeks.
44. He had never asked Complainant No 1 to collect scripts. He had never said that next time he would have sex with her. When it was put to him that her version in this regard had not been challenged, his response was that he did not know that he had to dispute her version.
45. The Employee similarly testified that he did not know that he had to dispute Complainant No 2’s version that he had kissed her on the mouth.
46. The Complainants were friends so it is possibly because he imposed discipline, that they had decided to falsely incriminate him. In total there are 9 male educators at the School.
47. He is aware that sexual assault amounts to misconduct.
SUMMARY OF ARGUMENTS
The Employer
48. It was submitted on behalf of the Employer that the evidence of the two Complainants and that of its other witnesses ought to be accepted.
49. On the other hand it was submitted that the evidence of the Employee ought to be rejected. He had failed to dispute certain aspects of the Complainants’ evidence and a version was put to Complainant No 1 that he had touched her buttocks in a fatherly way which was in direct contradiction to his evidence that no such incident had occurred. He had been represented by an experienced trade union official and his assertion that he did not know that he was required to dispute evidence with which hie did not agree, ought to be rejected.
50. It was submitted that the Employee ought to be found guilty of both counts, as charged.
51. No submissions were made in respect of section 120 of the Children’s Act.
The Employee
52. Despite me having ruled that written closing arguments ought to be submitted by 16 March 2022, on 14 March 2022 the Employee’s representative submitted a request for this period to be extended to 22 March 2022 as he was required to attend a SADTU training workshop from 14-20 March 2022. The request was not granted and a written submission on behalf of the Employee was only received on 22 March 2022. This submission was not considered by me.
ANALYSIS OF EVIDENCE AND ARGUMENT
53. The Employer is required to prove on a balance of probabilities that the Employee is guilty of the alleged misconduct with which he has been charged.
54. The Employee is charged with two counts of having contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998 (the Act) in that he committed acts of sexual assault on the two Complainants by touching the buttocks and trying to kiss Complainant No 1 on or about 20 and 22 September 2021 respectively and of kissing Complainant No 2 on 14 October 2021. It is evident from the charge sheet that whilst the Employee is charged with one count in respect of Complainant No 1, two separate incidents of alleged sexual assault are involved. The said section 17(1)(b) of the Act provides that an Educator must be dismissed if he is found to be guilty of “committing an act of sexual assault on a learner ...”
55. It is evident from the provisions of section 17(1)(b) of the Act that an essential element of the alleged misconduct of the Employee is that he committed an act of sexual assault. As such it was required of the Employer to establish that the Employee committed acts of a sexual nature against the consent of the two Complainants.
56. In this case the two Complainants are essentially single witnesses to their respective alleged sexual assaults. The defence of the Employee is a bare denial that the alleged incidents occurred. I thus need to determine the reliability and credibility of the two Complainants. Having considered these aspects of the evidence I need to determine whether the evidence for the Employer as a whole has established on a balance of probabilities that the Employee committed the acts of misconduct as alleged by it.
57. It was evident that both Complainants appeared to be shy and reserved when testifying. Their demeanor can be contrasted with that the Learner who testified on behalf of the Employer. She was noticeably more relaxed and forthcoming whilst testifying. This, however, does not detract from the cogency of the evidence of the Complainants. The two Complainants were also calm and unflustered under cross-examination. Their evidence in respect of key aspects of the alleged acts of misconduct was consistent throughout their evidence.
58. It is the evidence of Complainant No 1 that after the Employee had instructed her to deliver certain scripts to his office and after having asked a fellow learner, who had accompanied Complainant No 1 to his office, to leave, he had lifted her skirt and touched her buttocks whilst she was alone with him in his office. The Employee in his evidence denies that such an incident occurred. In particular, he denies that he had asked Complainant No 1 to take anything to his office.
59. The Employee has two difficulties with this defence. Firstly, contrary to his evidence, it was put to Complainant No 1 that she could have misunderstood the intentions of the Employee when he lifted her skirt and touched her buttocks and that the Employee could have been acting in a “fatherly” manner when he had done so. If these were not his instructions, I do not know why such a version was put to Complainant No 1. Secondly, it was the evidence of Complainant No 1 that following the incident she had returned to his office to apologise for having been rude. This was a reference to her having said that he must be drunk for having said that he loved her after having touched her buttocks. She did so after having been informed by another learner that the Employee had complained that she had been rude. If Complainant No 1 had not been in the Employee’s office the previous day, there would have been no need for her to return the following day to apologise. This evidence that Complainant No 1 had returned to the Employee’s office the following day was not disputed under cross-examination. The Employee seeks to avoid responsibility for having not challenged this evidence by alleging that he did not know that he had to. (This was also a similar refrain of the Employee when it was put to him that he had not challenged certain aspects of Complainant No 2’s evidence.) The responsibility to challenge evidence and put opposing versions to witnesses was explained at the commencement of the hearing.
60. With regards to the evidence of Complainant No 1 as a whole, no contradictions or inconsistencies were established under cross-examination. Contrary to the evidence given by the Employee seemingly in support of his averment that Complainant No 1 was motivated to falsely implicate him (and none of which were put to her under cross-examination,) I find that she did not embellish her evidence. In this regard, she testified that after she had told him that he must be drunk to have said that he loved her, he had allowed her to leave the office. Further, with regards to the incident the following day, she testified that he had tried to, but had not kissed her. If Complainant No 1 had wanted to falsely implicate the Employee, she could just as easily have alleged that he had forcefully kissed her.
61. Complainant No 2’s evidence is that after having been instructed to take scripts to the office of the Employee, he had entered the office, closed the door and kissed her. The evidence of the Learner was that Complainant No 2 had relayed this version to her save that she had been told that she had returned a stapler (and not scripts) to the office. When it was put to the Learner that her evidence differed from the version of Complainant No 2 she responded that Complainant No 2 had told her that she had had to staple scripts. I agree that the version of Complainant No 2 differs from that allegedly given by her to the Learner, to whom she may be said to have made her first report. I, however, do not regard this difference to be material. The essence of both their evidence is that the Employee had forcefully kissed Complainant No 2 after he had sent her on an errand to his office. In this regard, the evidence of Complainant No 2 at this hearing and her first complaint to the Learner are consistent.
62. Against the evidence for the Employer, the only defences offered by the Employee were bare denials, allegations of a conspiracy and attempts to besmirch the characters of the three child witnesses. None of the alleged wrongful conduct were put to any of the child witnesses for them to comment on and, in particular, it also was not put to the principal of the School who would have been in a position to confirm the version of the Employee.
63. In light of all of the above, I accept the versions of the Employer’s witnesses and reject the version of the Employee.
64. With regards to Complainant No 1 I accordingly find that the Employer has established on a balance of probabilities that on or about 21 September 2021 the Employee had lifted the skirt of Complainant No 1 and touched her buttocks and the following day had attempted to kiss her. Although the Employee did not kiss Complainant No 1 it is clear from her evidence that the action of the Employee of moving very close to her face with his face induced in her the fear that he would have kissed her had she not resisted him. This inducement of this fear amounts to an assault on Complainant No 1. Similarly, the lifting of her skirt and the touching of her buttocks without her consent amount to an assault on Complainant No 1. Both these actions (of lifting her skirt and touching her buttocks and of attempting to kiss her) are acts of a sexual nature. I am accordingly satisfied that with regards to Complainant No 1 the Employer has established on a balance of probabilities that during or about the period 20-22 September 2021 the Employee committed an act of sexual assault of a learner and is accordingly guilty of having contravened section 17(1)(b) of the Act.
65. With regards to Complainant No 2 I am satisfied that the Employer has established on a balance of probabilities that on 14 October 2022 the Employee had kissed Complainant No 2 on her mouth. This had been done without her consent and such conduct is clearly sexual in nature. I am accordingly satisfied that with regards to Complainant No 2 the Employer has established on a balance of probabilities that on or about 14 October 2021 the Employee committed an act of sexual assault of a learner and is accordingly guilty of having contravened section 17(1)(b) of the Act.
66. According to the provisions of section 17(1) of the Act the sanction for an employee found guilty of having contravened the section, is dismissal
FINDING
67. The Employee, S Nkabinde, is guilty of two counts of having contravened the provisions of section 17(1)(b) of the Employment of Educators Act 76 of 1998, in that he committed acts of sexual assault on a learner and he is dismissed.
INQUIRY IN TERMS OF SECTION 120 OF THE Children’s Act 38 Of 2005, AS AMENDED
68. Section 120(1)(c) of the Children’s Act provides that a finding that a person is unsuitable to work with children may be made by any “forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” This inquiry by arbitrator is such a forum established in terms of section 188A of the Labour Relations Act 66 of 1995.
69. At the commencement of this hearing the parties were informed that such an inquiry would be held and that they should submit evidence and make submissions in this regard during the hearing.
70. The Employer did not make any submissions directed at the application of said section 120.
71. Whilst I did not have regard to the closing argument submitted on behalf of the Employee with regards to the Inquiry by Arbitrator, I did have regard to it in respect of this inquiry in terms of section 120 of the Children’s Act. The submission, however, does not relate to the provisions of the said section as it essentially focused on the credibility and reliability of the various witnesses.
72. It was the evidence of the Employee that he cares for 13 children who are not his own. It is possible that any order made by me under this section may have an impact on children under his care. I have no evidence or submissions before me in this regard. I am thus unable to take their interests into consideration.
73. I accordingly do not make any order in terms of section 120 of the Children’s’ Act and request that the Council refers the findings of this Inquiry to the KwaZulu-Natal Department of Social Development for further investigation and, if appropriate, an application before the Children’s Court.
J Kirby
Arbitrator
ELRC697-21/22KZN
THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer
and
S Nkabinde The Employee
Inquiry by arbitrator-finding
Case Number: ELRC697-21/22KZN
Dates of arbitration: 8-9 March 2022
Date of submission of closing arguments: 16 March 2022
Date of award: 06 April 2022
J KIRBY
ELRC Arbitrator
DETAILS OF HEARING AND REPRESENTATION
1. The inquiry by arbitrator was held on 8-9 March 2022 at the offices of the Department.
2. The Employee was represented by Mr Makhathini, a trade union official.
3. The Employer, the Head of the KwaZulu-Natal Department of Education was represented by its employee, Ms Nxumalo.
4. The two complainants and a witness in this case are younger than 18 years of age. Throughout this award I shall refer to the learner who is the complainant in count 1 as Complainant No 1, the learner who is the complainant in respect of count 2 as Complainant No 2 and the learner who testified as a witness for the Respondent as the Learner. These three witnesses testified under oath with the assistance of an intermediary, Ms Phakathi.
5. The services of an interpreter, Ms Mthethwa, were utilized and the proceedings were digitally recorded.
EXPLANATION OF THE EMPLOYEES’ RIGHTS
6. The Employee was represented by Mr Makhathini and it was confirmed that they had had sufficient notice of the hearing to prepare properly. The written notice of this hearing records that the notice was received by the Employee on 2 December 2021. I explained the following rights to the Employee, who confirmed that he understood these rights:
6.1. The rights to question witnesses of the Employer and to dispute any documentary evidence. In particular, the need to ensure that any evidence with which he did not agree was disputed by his representative and the need to ensure that his version was put to each witness; and
6.2. The right to give evidence and to call witnesses.
7. It was explained to both parties, who indicated that they understood that:
7.1. A separate hearing in respect of sanction in event of a finding of guilty, would not be held. Evidence in mitigation and aggravation of sentence would be presented prior to a finding on the merits of the case having been given;
7.2. They could make closing arguments after all evidence had been heard; and
7.3. In terms of section 120 of the Children’s Act I, as the arbitrator, acting on my own or on application of the Employer may make a finding that the Employee is unsuitable to work with children. It was further explained in this regard that a separate hearing would not be held.
THE CHARGES AND PLEA
8. The written notice given to the Employee indicates that he was charged as follows:
“Charge 1
It is alleged that on or about 20 & 22 September 2021 at or near Matatane (sic) Secondary School, you committed an act of sexual assault on learners.
Count 1
You touched Complainant No 1’s bum and/or tried to kiss her
Count 2
On 14 October 2021, you kissed Complainant No 2 and told her that next time you will have sex with her.
You thereby contravened Section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.”
9. The notice to attend a disciplinary hearing was submitted by Ms Nxumalo and marked exhibit A. Having read the charges into the record Ms Nxumalo confirmed that the entry under “charge 1” should be read with the entry under “count 1.”
10. The Employee pleaded not guilty to both counts. In so doing he admitted that both Complainants were learners at the school, Mtatane Secondary School (the School,) at which he taught but denied that he had committed the misconduct complained of.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Employer’s case
11. Complainant No 1 is 14 years old and in grade 10 at the School. At the time of the alleged misconduct she was 13 years old and in grade 9.
12. Complainant No 1 was taught by the Employee during 2021 and he had also previously taught Complainant No 1’s brothers.
13. On 21 September 2021 the Employee had asked Complainant No 1 to take certain class task papers to his office. She was accompanied by another learner to the office. On reaching his office the Employee had asked the other learner to leave and had thereafter touched Complainant No 1 on her buttocks. Complainant No 1 was wearing a skirt with short pants underneath. The Employee had lifted Complainant No 1’s skirt and touched her buttocks from over her shorts. Complainant No 1 had tried to get away but the Employee had closed the office door and she could not escape. The Employee had then again tried to touch her buttocks and she told him to stop. He had said that he was in love with her. Complainant No 1 had responded by saying that he must be drunk. He then allowed her to return to her classroom.
14. Complainant No 1 had later heard from another learner that the Employee had complained that she had acted rudely towards him. The following day she had gone to his office to apologize for having been rude to him in saying that he must have been drunk. The Employee had closed the office door and had then tried to kiss her but she pushed him away. (She indicated that their faces were virtually touching when she pushed him away with her hands.) He told her not to tell her parents and that he would buy her alcohol.
15. Later she first told her mother about the Employee’s conduct and then on his return from work, she had told her father. The day after having informed her parents, they had complained to the principal of the School and later to the police.
16. Complainant No 1 felt hurt by the conduct of the Employee. He would not want someone to act in a similar manner towards his daughters.
17. Under cross-examination Complainant No 1 said that she had a “fine” relationship with the Employee. He had not said that he wants to kiss her but had simply closed the office door and moved in very close to her.
18. It was put to Complainant No 1 that she could have misinterpreted the Employee’s actions of touching her buttocks. He could have just done so in a “fatherly manner.” Complainant No 1’s response was that it had not been “normal.”
19. Complainant No 1 stated that she had not screamed when the Employee had tried to kiss her but if he had forced himself on her, she would have done so.
20. Although the Employee administered corporal punishment on Complainant No 1 and other learners, this had not caused her to hold a grudge against him. There was no reason for her to falsely implicate the Employee.
21. Complainant No 2 was in grade 9 and 14 years old during 2021. The Employee was one of her educators. On 14 October 2021 he had instructed her to collect learners’ scripts from a classroom and to bring them to the classroom where he was teaching. On her getting to that classroom, he had given her the keys to his office so that she could take the scripts to his office.
22. Complainant No 2 took the papers to the Employee’s office. As she was exiting the office the Employee approached his office and pushed her into his office and closed the door behind them. He pushed her behind the door. She attempted to push him away. He then kissed her with an open mouth. They continued pushing one another. He said that the next time they would have sex and that she must not be “forward” and tell others what had just happened.
23. She had reported the incident to an educator whom she trusted, Ms Mbatha, and a friend (the Learner.) The principal of the School had subsequently spoken to her about the incident. She had also reported the incident to the police.
24. Under cross-examination Complainant No 2 stated that the Employee had taught her since she had been in grade 8. It was not usual for the Employee to ask her to collect scripts for him. He had kissed her with an open mouth on her mouth.
25. The Learner is a grade 10 learner at the School. The Employee is known to her as he had taught her.
26. Complainant No 2 had approached the Learner and other learners and asked them if the Employee had ever done anything to them. She had said that he had done something that she did not like and which was hurtful. They had then walked away from the group of learners and she asked her what had the Employee done. Complainant No 2 had then informed her that the Employee had asked her to take him scripts. She had initially gone to his office but as he was not there, she had gone to the classroom where she knew he would be. She had then asked for his office key so that she could return a stapler to his office. She had returned the stapler but as she was about to leave, the Employee had pushed her back behind the office door. She had resisted unsuccessfully as he was stronger than her. He had then kissed her and said should she return to his office he would have sex with her.
27. The Learner had advised Complainant No 2 to report the incident to Ms Mbatha, who in turn had advised her to report it to her parents.
28. It was put to the Learner that Complainant No 2 had testified that she had taken scripts to the Employee’s office whereas her evidence was that she had been told by Complainant No 2 that she had returned a stapler. The Learner responded that Complainant No 2 had told her that the Employee had asked her to staple scripts.
29. The Employee had previously hit the Learner with a pipe but that wasn’t the reason why she testified against him at this hearing.
30. Sibongile Bonakele (Bonakele) is the principal of the School. On 25 October 2021 Complainant No 1’s parents came to the School. The father was furious and asked Complainant No 1 to narrate her story. Complainant No 1 had then said that the Employee had asked her to take scripts to his office. At the office the Employee had sent the learner who had accompanied Complainant No 1, away. Once they had entered his office the Employee had touched Complainant No 1’s buttocks and said that he loved her. Complainant No 1 had sworn at him and left.
31. She had phoned the Employee and told him of the allegations. His response was that he knew nothing about them.
32. She was asked by her circuit manager to compile a report. She obtained statements from both Complainants and she asked the Employee to also submit a report to her. His response was that he knew nothing about the allegations. She had not received any other similar complaints in respect of the Employee.
33. Under cross-examination Bonakele submitted that the Employee is loud and shouts at learners if, for example, they are dressed inappropriately. He, however, is the sports organizer at the School and he interacts well with both the boys and girls.
The Employee’s case
34. The Employee denies the charges.
35. He has taught at the School for 20 years. He has 6 adult children of his own but cares for an additional 13.
36. He knows the two Complainants and the Learner as learners at the School. They do not participate in sports. Complainant No 1 was once found to be drunk at the School. He had not been involved with the investigation of the case and does not know what came of it. Her attitude towards him did not change after this incident. This allegation of having been drunk at the School was not put to Complainant No 1.
37. He agrees that he shouts at learners if they do something wrong. He treats all learners in a similar manner.
38. Complainant No 1 has never been to his office and he has not lifted her skirt or tried to kiss her.
39. The Learner and Complainant were often found outside their classrooms when they should have been in class. They are friends and the educators at the school were against their friendship. He believes that the Learner had influenced Complainant No 1. He believes that the Learner and the Complainants had hatched a plot against him. These allegations had not been put to Complainant No 1 and the Learner when they testified.
40. The Employee has never sent Complainant No 2 to his office. In particular, on 14 October 2021 he was busy preparing for a meeting and he himself did not go to his office on that day. He has never kissed or touched the private parts of Complainant No 2. He has not had any problems with Complainant No 2.
41. If learners do well he would tell them in the classroom that he loves them in a fatherly way.
42. Nothing has come of the criminal complaint.
43. Under cross-examination it was put to the Employee that it had been put to Complainant No 1 that he had touched her in a fatherly fashion. The Employee maintained that he had never touched her and that the version put to Complainant No 1 was not his version. He had never touched his daughters’ buttocks and when he kissed them he would kiss them on their foreheads or cheeks.
44. He had never asked Complainant No 1 to collect scripts. He had never said that next time he would have sex with her. When it was put to him that her version in this regard had not been challenged, his response was that he did not know that he had to dispute her version.
45. The Employee similarly testified that he did not know that he had to dispute Complainant No 2’s version that he had kissed her on the mouth.
46. The Complainants were friends so it is possibly because he imposed discipline, that they had decided to falsely incriminate him. In total there are 9 male educators at the School.
47. He is aware that sexual assault amounts to misconduct.
SUMMARY OF ARGUMENTS
The Employer
48. It was submitted on behalf of the Employer that the evidence of the two Complainants and that of its other witnesses ought to be accepted.
49. On the other hand it was submitted that the evidence of the Employee ought to be rejected. He had failed to dispute certain aspects of the Complainants’ evidence and a version was put to Complainant No 1 that he had touched her buttocks in a fatherly way which was in direct contradiction to his evidence that no such incident had occurred. He had been represented by an experienced trade union official and his assertion that he did not know that he was required to dispute evidence with which hie did not agree, ought to be rejected.
50. It was submitted that the Employee ought to be found guilty of both counts, as charged.
51. No submissions were made in respect of section 120 of the Children’s Act.
The Employee
52. Despite me having ruled that written closing arguments ought to be submitted by 16 March 2022, on 14 March 2022 the Employee’s representative submitted a request for this period to be extended to 22 March 2022 as he was required to attend a SADTU training workshop from 14-20 March 2022. The request was not granted and a written submission on behalf of the Employee was only received on 22 March 2022. This submission was not considered by me.
ANALYSIS OF EVIDENCE AND ARGUMENT
53. The Employer is required to prove on a balance of probabilities that the Employee is guilty of the alleged misconduct with which he has been charged.
54. The Employee is charged with two counts of having contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998 (the Act) in that he committed acts of sexual assault on the two Complainants by touching the buttocks and trying to kiss Complainant No 1 on or about 20 and 22 September 2021 respectively and of kissing Complainant No 2 on 14 October 2021. It is evident from the charge sheet that whilst the Employee is charged with one count in respect of Complainant No 1, two separate incidents of alleged sexual assault are involved. The said section 17(1)(b) of the Act provides that an Educator must be dismissed if he is found to be guilty of “committing an act of sexual assault on a learner ...”
55. It is evident from the provisions of section 17(1)(b) of the Act that an essential element of the alleged misconduct of the Employee is that he committed an act of sexual assault. As such it was required of the Employer to establish that the Employee committed acts of a sexual nature against the consent of the two Complainants.
56. In this case the two Complainants are essentially single witnesses to their respective alleged sexual assaults. The defence of the Employee is a bare denial that the alleged incidents occurred. I thus need to determine the reliability and credibility of the two Complainants. Having considered these aspects of the evidence I need to determine whether the evidence for the Employer as a whole has established on a balance of probabilities that the Employee committed the acts of misconduct as alleged by it.
57. It was evident that both Complainants appeared to be shy and reserved when testifying. Their demeanor can be contrasted with that the Learner who testified on behalf of the Employer. She was noticeably more relaxed and forthcoming whilst testifying. This, however, does not detract from the cogency of the evidence of the Complainants. The two Complainants were also calm and unflustered under cross-examination. Their evidence in respect of key aspects of the alleged acts of misconduct was consistent throughout their evidence.
58. It is the evidence of Complainant No 1 that after the Employee had instructed her to deliver certain scripts to his office and after having asked a fellow learner, who had accompanied Complainant No 1 to his office, to leave, he had lifted her skirt and touched her buttocks whilst she was alone with him in his office. The Employee in his evidence denies that such an incident occurred. In particular, he denies that he had asked Complainant No 1 to take anything to his office.
59. The Employee has two difficulties with this defence. Firstly, contrary to his evidence, it was put to Complainant No 1 that she could have misunderstood the intentions of the Employee when he lifted her skirt and touched her buttocks and that the Employee could have been acting in a “fatherly” manner when he had done so. If these were not his instructions, I do not know why such a version was put to Complainant No 1. Secondly, it was the evidence of Complainant No 1 that following the incident she had returned to his office to apologise for having been rude. This was a reference to her having said that he must be drunk for having said that he loved her after having touched her buttocks. She did so after having been informed by another learner that the Employee had complained that she had been rude. If Complainant No 1 had not been in the Employee’s office the previous day, there would have been no need for her to return the following day to apologise. This evidence that Complainant No 1 had returned to the Employee’s office the following day was not disputed under cross-examination. The Employee seeks to avoid responsibility for having not challenged this evidence by alleging that he did not know that he had to. (This was also a similar refrain of the Employee when it was put to him that he had not challenged certain aspects of Complainant No 2’s evidence.) The responsibility to challenge evidence and put opposing versions to witnesses was explained at the commencement of the hearing.
60. With regards to the evidence of Complainant No 1 as a whole, no contradictions or inconsistencies were established under cross-examination. Contrary to the evidence given by the Employee seemingly in support of his averment that Complainant No 1 was motivated to falsely implicate him (and none of which were put to her under cross-examination,) I find that she did not embellish her evidence. In this regard, she testified that after she had told him that he must be drunk to have said that he loved her, he had allowed her to leave the office. Further, with regards to the incident the following day, she testified that he had tried to, but had not kissed her. If Complainant No 1 had wanted to falsely implicate the Employee, she could just as easily have alleged that he had forcefully kissed her.
61. Complainant No 2’s evidence is that after having been instructed to take scripts to the office of the Employee, he had entered the office, closed the door and kissed her. The evidence of the Learner was that Complainant No 2 had relayed this version to her save that she had been told that she had returned a stapler (and not scripts) to the office. When it was put to the Learner that her evidence differed from the version of Complainant No 2 she responded that Complainant No 2 had told her that she had had to staple scripts. I agree that the version of Complainant No 2 differs from that allegedly given by her to the Learner, to whom she may be said to have made her first report. I, however, do not regard this difference to be material. The essence of both their evidence is that the Employee had forcefully kissed Complainant No 2 after he had sent her on an errand to his office. In this regard, the evidence of Complainant No 2 at this hearing and her first complaint to the Learner are consistent.
62. Against the evidence for the Employer, the only defences offered by the Employee were bare denials, allegations of a conspiracy and attempts to besmirch the characters of the three child witnesses. None of the alleged wrongful conduct were put to any of the child witnesses for them to comment on and, in particular, it also was not put to the principal of the School who would have been in a position to confirm the version of the Employee.
63. In light of all of the above, I accept the versions of the Employer’s witnesses and reject the version of the Employee.
64. With regards to Complainant No 1 I accordingly find that the Employer has established on a balance of probabilities that on or about 21 September 2021 the Employee had lifted the skirt of Complainant No 1 and touched her buttocks and the following day had attempted to kiss her. Although the Employee did not kiss Complainant No 1 it is clear from her evidence that the action of the Employee of moving very close to her face with his face induced in her the fear that he would have kissed her had she not resisted him. This inducement of this fear amounts to an assault on Complainant No 1. Similarly, the lifting of her skirt and the touching of her buttocks without her consent amount to an assault on Complainant No 1. Both these actions (of lifting her skirt and touching her buttocks and of attempting to kiss her) are acts of a sexual nature. I am accordingly satisfied that with regards to Complainant No 1 the Employer has established on a balance of probabilities that during or about the period 20-22 September 2021 the Employee committed an act of sexual assault of a learner and is accordingly guilty of having contravened section 17(1)(b) of the Act.
65. With regards to Complainant No 2 I am satisfied that the Employer has established on a balance of probabilities that on 14 October 2022 the Employee had kissed Complainant No 2 on her mouth. This had been done without her consent and such conduct is clearly sexual in nature. I am accordingly satisfied that with regards to Complainant No 2 the Employer has established on a balance of probabilities that on or about 14 October 2021 the Employee committed an act of sexual assault of a learner and is accordingly guilty of having contravened section 17(1)(b) of the Act.
66. According to the provisions of section 17(1) of the Act the sanction for an employee found guilty of having contravened the section, is dismissal
FINDING
67. The Employee, S Nkabinde, is guilty of two counts of having contravened the provisions of section 17(1)(b) of the Employment of Educators Act 76 of 1998, in that he committed acts of sexual assault on a learner and he is dismissed.
INQUIRY IN TERMS OF SECTION 120 OF THE Children’s Act 38 Of 2005, AS AMENDED
68. Section 120(1)(c) of the Children’s Act provides that a finding that a person is unsuitable to work with children may be made by any “forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” This inquiry by arbitrator is such a forum established in terms of section 188A of the Labour Relations Act 66 of 1995.
69. At the commencement of this hearing the parties were informed that such an inquiry would be held and that they should submit evidence and make submissions in this regard during the hearing.
70. The Employer did not make any submissions directed at the application of said section 120.
71. Whilst I did not have regard to the closing argument submitted on behalf of the Employee with regards to the Inquiry by Arbitrator, I did have regard to it in respect of this inquiry in terms of section 120 of the Children’s Act. The submission, however, does not relate to the provisions of the said section as it essentially focused on the credibility and reliability of the various witnesses.
72. It was the evidence of the Employee that he cares for 13 children who are not his own. It is possible that any order made by me under this section may have an impact on children under his care. I have no evidence or submissions before me in this regard. I am thus unable to take their interests into consideration.
73. I accordingly do not make any order in terms of section 120 of the Children’s’ Act and request that the Council refers the findings of this Inquiry to the KwaZulu-Natal Department of Social Development for further investigation and, if appropriate, an application before the Children’s Court.
J Kirby
Arbitrator
ELRC697-21/22KZN