ELRC570-21/22NW
Text
ELRC570-21/22NW
Award Date:
26 May 2022
Case No: ELRC570-21/22NW
In the matter between
NORTH WEST DEPARTMENT OF EDUCATION Applicant - Employer
and
SETLHARE J Respondent - Employee
ARBITRATOR: Adv S Fourie
HEARD: 12 and 13 May 2022;
FINALISED: (7days to submit closing statements 20 May 2022)
DELIVERED: 26 May 2022
INQUIRY BY ARBITRATOR - ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The Inquiry by Arbitrator, was heard at MORETELE MAGISTRATES COURT, TEMBA, on 12 and 13 May 2022. The Employee, Mr. Jacob Setlhare (“Setlhare”), was present and represented by Mr. N Machubele from Machubele Attorneys as the instructing attorney for Advocate Mello appeared mainly in an assisting capacity. The Employer was represented Mr. M Mashudu Mudau (“Mudau”), its labour relations officer. It was compulsory for an intermediary service due to two minor witnesses although the witness’s identity is known to the parties. Ms. Mule Padi served as intermediary and Mr. Herbert Matsenene as interpreter. The proceedings were conducted in English and Setswana. I kept handwritten notes and was also digitally recorded assisted by the Court’s stenographer who also provided the recording on a compact disc.
THE ISSUES TO BE DETERMINED
2. This is an arbitration award in terms of Section 188A of the Labour Relations Act 66 of 1995, as amended (“LRA”) read with Clause 3.2 of the ELRC Dispute Resolution Procedure with section 3.2.1 of Collective Agreement 3 of 2018. This award is issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. The employee Jacob Setlhare pleaded not guilty to the allegation listed hereunder to which I requested a plea explanation. I am required to determine whether the employee is guilty of the charge levelled against him and if so, to determine the appropriate sanction.
BACKGROUND TO THE DISPUTE
3. The employee, is employed by Respondent from February 2016. At the time of this enquiry at Letlopi Secondary School, as a PL1 educator. The employee was suspended from duty where after he was charged which reads:
On 15 June 2021, you sexually harassed a 15-year-old grade 9 learner at Letlopi Secondary School after you have instructed her to wait for you in your office where you kissed her and by doing so you have committed an act of misconduct in terms of section 18(1)(q) of the Employment of Educators, Act 76 of 1998,
SUMMARY OF THE EVIDENCE
4. This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and referred to as the LRA read with the changes as required by the context read with Section 188A (9) of the LRA. This award is not intended to be a verbatim transcript of the evidence led at the inquiry by arbitrator hearing but rather a determination with brief reasons for such determination.
5. Evidence relevant to the determination or to support any of the elements of fairness as required may be referred to. This however does not mean that I failed to consider other evidence or ignored such evidence in coming to my decision. The Employer submitted a bundle of documents (Bundle ‘ER’ 1 – 8 pages). The Employee submitted a bundle of documents (Bundle EE 1 -18 pages). Both parties accepted the bundle submitted for what it purports to be.
The Employer’s case
6. Learner A, testified under a solemn affirmation (through an intermediary) in camera. She is 16 years of age. She attends school at Mautsepo High School now but attended Letlopi Secondary School during 2021, when Setlhare was her social science teacher. She never experienced challenges with him. On the 15th of June 2021, around 15:20pm she came from the bathroom with her friend. Setlhare came to lock the bathroom and told Learner A to meet him at his office. She thought he wanted to send her somewhere. When Setlhare arrived he close the office door. There is a window from where people can see for the outside. Setlhare opened the cupboard door which closes the window. He told Learner A he wanted to marry her to which she responded why because she is still a child. She had a book she was reading which Setlhare took from her and placed it on the table. Setlhare then touched her body with the intention to kiss her but she refused when he came to kiss her. She pushed him away and ran out of the class, fetched her schoolbag from her class and went home. Her friend accompanied her home whom she requested to help her to tell her grandmother which she did. She felt scared and hurt after the incident.
7. During cross examination she stated that she had a good relationship with Setlhare and improved in her subject. She had no suspicion of his intentions but he would tell her that he would marry her but she took it as a joke. The size of the window (parties estimated on Learner A drawing) to be around 1.2m x 500. She stated that when Setlhare closed the office door, when he touched and kissed her, she thought he was going to rape her. To the statement that Setlhare liked her because she was an excellent student, Learner A responded that she thought so from when she received her first term results. She affirmed that she was fine on the day but not after the incident. She told her friend what took place who assisted her in telling her grandmother. To the statement that Setlhare did not do anything to her she responded that he touched her, kissed her on the cheek and told her to kiss him which she refused to do. Referring to EE4 paragraph 6, Learner A confirmed it to be her statement and what she told her grandmother. To the question that her statement does not refer to touching in relation to her testimony, Learner A responded that the statement is correct because Setlhare wanted to kiss her on the cheek and he wanted her to kiss him on the mouth which she refused.
8. Joseph Mothibe (Mothibe), testified under oath that he is the acting Principal at Letlopi Secondary School since February 2021. He could recall the visit from the Mashudu and the report to the circuit manager he signed on ER3. He stated that he was not at the school on the 15th of June 2021 when the incident occurred but requested Ngobeni to oversee. The 16th of June was a public holiday. On the 17th of June he had an early morning visit from 2 gentlemen and an old lady who came to report an incident of sexual harassment. They insisted not to talk to him alone and Mothibe called for an urgent SMT meeting. At the meeting the parents explained that Setlhare kissed Learner A. Mothibe listened to them and having a duty towards both children and educators, he called Learner A who explained the same to him. Mothibe then decided for them to go to Setlhare’s office for Leaner A to explain and show where she stated that Setlhare hided her from others to see. Because it involved one of his teachers, Mothibe then informed Setlhare of the allegation made against him. Setlhare then attended the meeting who denied the allegations after he was questioned about it. After some time Setlhare acknowledged that he kissed Learner A on the cheek and Mothibe requested him to make a statement. Mothibe then recorded the incident in the incident book referring to ER7 which also confirm Setlhare to have apologized to Learner A’s parents. Referring to ER6, the attendance register, hoe could not recall whether Setlhare attended a workshop on the day but show he left around 15:20pm on the 15th of June 2021. Mothibe only received the statements from the parents (grandmother) referring to ER4 and ER5 which he forwarded to the Department. During re-examination, Mothibe stated that he never received the statement from Setlhare and also not any other version from him.
9. During cross examination, he stated that he knows the Applicant since February 2021. On the 17th of June 2021, it was grandparents and the uncle who visited the school. He viewed it to be a meeting and not a hearing where after he wrote a report to the Department. The purpose to go the Setlhare’s office was merely to have an understanding to what Learner A complained about and was not an investigation. Learner A showed them where she and Setlhare was with the steel cabinet and no curtains in front of the windows. Mothibe’s conclusion was that it corroborated what she said earlier that the cabinet would close the view from outside the window. Mothibe stated that Setlhare admitted to the allegation during the meeting. He stated that the emotions were high during the meeting with the visitors very furious. He needed to arrange how the parties were seated and to move the uncle next to him. Mothibe also stated that the uncle said that they had evidence of the incident of people who saw it which perhaps was the reason for his admission. He could however not say whether Setlhare was under pressure to make the admission. He asked all to make written statements which he felt he gave Setlhare the opportunity to think about the situation. Mothibe denied that he was subjective during the meeting but that the meeting was heated with very high emotions. Mothibe could say whether Setlhare’s life was threatened when the grandfather told Setlhare that there is only one entrance which is also the exit and that Setlhare must not lie.
The Employee’s Case
10. Tlhale Johannes Setlhare (Setlhare), testified under oath that on the 15th of June 2021, he was at school. The subject advisor requested him to collect previous question papers from another school which he discussed with Ncobeni who indicated to him that he must just give the learners work to do before he leave after the short brake which was between 12:30 to 12:45. Ncobeni indicated that he had two open periods between 13:45 to 14:45. He could leave at 12:45 to 13:45. On the day he was supposed to open and lock the gates. At 12:30 he opened the gate for short brake until 12:45. When he locked the gate, he knew he must go and give tasks to the learners before he leaves. It was when he met Learner A coming from the toilets with her friends. At 12:45, he asked her to wait at his office to give her notes. She waited at his office where he also gave her a social science text book. He showed Learner A where to write the notes and to maintain order in the class otherwise he would be upset. Whilst at his office, Learner A looked through the window and said there is an educator going to the class. She also requested a Setswana book which was lying on the table to which Setlhare responded that it was for the grade 12’s and she could take it to read on the 16th. They exited the class with learner A being afraid that another educator, Motiang would dismiss her for being late.
11. Motiang assumed that Setlhare was teaching but was corrected that it was not Setlhare’s period but that of Motiang being a double period. It was around 12:50 and he asked Motiang if he could address the learners to whom he instructed that they must listen to Learner A. He left and informed Ncobeni where after he arrived at the other school around 13:05 for the question papers as arranged. He left the school at 13:50 back to his workplace. When it was time for his period (including Learner A), after Motiang’s periods, Learner A indicated that her right hand was painful and she requested her friend to write the notes. The following day was a public holiday and the school finished at 14:45. He assumed the class was noisy whilst Learner A was tasked to assist when he was away. He had a good relationship with the grade 9’s including Learner A. At first Leaner A, was underperforming but became better. He denied the allegation of sexual harassment on the 15th of June 2021 and explained his side of what happened on the date in question. It was the only time he called Learner A to his office but requested her and other learner’s assistance in the past.
12. He stated that he did not had a good relationship with Mothibe the acting Principal, but had a good relationship with all the other educators. The reason they had a bad relationship was that Mothibe would invite traditional healers to the school to place muti inside the school. He would also refuse learners to attend sport activities with Setlhare being in charge of soccer. After the traditional healer cleansed the school, he saw the muti which will make the muti ineffective. It is believed that if you see muti, it would not be effective anymore. This was when he realized Mothibe to be against him because Mothibe refuse him to take the learners to the stadium. This happened as commanded by Aphane the deputy Principal.
13. On the 17th on June 2021, he went to the grade 9 LO class where he found Aphane whom he requested the book he borrowed Learner A. He asked Learner A about the book to which she responded that it was thrilling and her being in a good mood. Having the first period open, Mothibe came to his office around 08:10 saying that there were visitors. Mothibe was shaking saying to Setlhare that he must submit himself. He requested Mothibe the reason for the meeting to which he replied that Learner A’s parents arrived having a case against him. Mothibe told him to humble himself and not to be aggressive.
14. At the office he found them seated with Setlhare seated behind the door. The meeting was heated for a fight just about to start. Setlhare denied the allegation on to him and they wanted to go the Setlhare’s office. Mothibe requested Setlhare to calm down who was surprise of all the allegations. Learner A was not present then but only the SMT and the parents with himself. The grandfather told Setlhare that he would kill him if he would not tell the truth. He also said that the school has one entrance which is also the exit. He would mobilize the community and find them waiting when the school comes out. He also said that Setlhare would try to run away but his life would be ending at the Tshwane river. This was said in the presence of Mothibe. Setlhare stated that when he responded in his defense, they said he lied. It was when the grandfather stood up saying he must tell the truth that he kissed Learner A, that he said he did kiss Learner A. They then requested where he kissed her and he replied on the cheek. This confession was not the truth of what happened. When he made the confession they asked him the reason he confessed to which he responded that it never happened. It was when he was requested by Mothibe to make a statement.
15. He asked Mothibe whether he knew they would come to the school but he was not aware. Aphane was however aware of it. On the 19th of June 2021, he heard that a case was opened at the SAPS when the investigating office called him and visited the school on the 21st of June 2021. Referring to his statement to the SAPS on EE15, he stated that he was surprised when he heard about the allegations and that Learner A was perhaps not in a good mood. After the alleged incident he still thought Leaner A and was only suspended on the 10th of September 2021, after the court case was dismissed for not enough evidence.
16. During cross examination, he recalls Mudau’s visit to the school on the 29th of June 2021 where Setlhare indicated that he was aware of the allegations raised against him. It was stated by Mudau that Setlhare admitted to him that he kissed Learner A on the forehead when she requested the book to which he replied that he did say he kissed her to corroborate the written statement at the office. Setlhare stated that he did not want to submit a statement to Mudau because he did not want to incriminate himself. Mudau stated that Setlhare failed to rebut the versions of Learner A and Mothibe to which Setlhare responded that he was not aware of it.
17. Vicky Mosipa (Mosipa), testified under oath that she works as a cleaner at Letlopi Secondary School. She stated that she has a good relationship with all educators accept for the HOD, Aphane. At first they had a good relationship but later she told Mosipa not to be in a good relationship with other educators. She named the other educators including Setlhare. The problem Aphane had with the other educators was that they did not follow her instructions. Aphane also used traditional medicine at the school requesting Mospia not to clean on Mondays for other educators to talk about it. Mosipa stated that Aphane told her that Setlhare and Ncobeni must “voetsek” from the school. During 2021, Aphane asked her to take advantage of how Setlhare related to learners to include Mosipa’s daughter in grade 9. At first she took it as a joke, but Aphane said her daughter must visit Setlhare’s office where after she must leave crying accusing Setlhare of touching her body. Mosipa refused to do what Aphane requested. She was thus not surprised when Setlhare was accused. Herself with her and her daughter was also ill-treated thereafter which she escalated to the Mothibe who said that Mosipa must submit as an employee to Aphane but may complain as a parent. For her, Mothibe was influenced by Aphane because after the first term her fixed-term contract ended March 2021 but was not renewed. She stated that all the other workers were renewed except for her because of Aphane who influenced Mothibe. She stated that Mothibe is a very good person but was influenced by Aphane’s traditional herbs.
18. During cross examination, she stated that she was not present on the 15th of June 2021, when the alleged incident occurred. For her the allegations levelled against Setlhare are not true because on the 16th of June 2021, a learner and her daughter told her that on the 15th of June 2021, this learner walked with Learner A to the village when she started to cry that Aphane wanted the incident to take place.
19. Learner B, testified under a solemn affirmation (through an intermediary) in camera. She stated that she attends school at Letlopi Secondary School from 2018 and was in grade 9 during 2021 where Setlhare was one of her educators. She had a good relationship with all educators except for Manwane but was better after her mother spoke to her. The reason for her to testify is about Aphane who requested her to go to Setlhare’s office and then to pretend that he raped her. She was scared because if she would pretend, Setlhare could really rape her. She only told her mother about it who did not took it seriously saying that Aphane made a joke.
SUBMISSIONS IN ARGUMENT
20. Both parties agreed to submit arguments (inclusive of mitigating and aggravating circumstances) within 7 days of which I only received the Employer’s closing statements as well as aggravating factors in time. Parties were to submit on the 20th of May 2022. On the 24th of May 2022, I only received an email requesting indulgence for the Employees closing submissions. On the 26th of May 2022, still no closing submissions inclusive of mitigating factors received from the Employee’s legal team. The Employer’s submissions were carefully considered, but will not be repeated here, as the contents basically mirror what was put during the leading of evidence and cross-examination in the arbitration hearing itself.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. Written arguments inclusive of aggravating evidence were submitted by only the Employer. I do not intend to summarise it here in detail. In short it was submitted on behalf of the employer that the employer has proved the charge levelled against the applicant and that dismissal should be the required sanction.
22. In order for a dismissal to be fair, Section 188A of the Labour Relations Act requires and Inquiry by arbitrator. An employer may, with the consent of the employee or in accordance with a collective agreement, request a council, an accredited agency or the Commission to appoint an arbitrator to conduct an inquiry into allegations about the conduct or capacity of that employee. The onus is on the employer to prove the allegations levelled against the employee is in accordance with substantive fairness. The parties in this matter agreed that I am required to determine under substantive fairness, whether the employee, Tlhale Johannes Setlhare kissed a Learner A.
23. It is common cause that Setlhare is a teacher to Learner A, in grade 9. It is common cause that Learner A was called by Setlhare to his office on the 15th of June 2021. It is also common cause that Mothibe was the deputy Principal at the time of the alleged incident. It is common cause that Learner A’s grandparents and uncle visited the school on the 17th of June 2021 after the 16th of June which was a public holiday. It is also common cause that they requested a meeting with the SMT which was “heated” discussion.
Substantive Fairness – whether the alleged incident took place -
24. I am guided by item 7 of the Code of Good Conduct on Dismissals contained in Schedule 8 to the LRA (hereinafter referred to as "the Code") which requires me to consider whether or not the Applicant contravened a rule regulating conduct in or of relevance to the workplace referring to misconduct in terms of section 18(1)(q) or section 17 of the Employment of Educators, Act 76 of 1998 as amended. Section 18(1) (q) of the Employment of Educators, Act 76 of 1998, reads ‘while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner’.
;
25. Setlhare claims that he did not kiss Learner A. In Moahlodi v East Rand Gold & Uranium Co Ltd (1998) 19 ILJ (IC) the court formulated the test as follows: an employer need not to be satisfied beyond reasonable doubt that an employee has committed the offence. We must remind ourselves that this is not a criminal trial and that the employer is therefore not required to prove the guilt of the Applicant beyond a reasonable doubt. The standard of proof in civil proceedings and arbitrations, is a balance of probabilities see Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC). The test for deciding whether something has been proved on a balance of probabilities, is whether the version of the party bearing the onus, is more probable than not, see Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A) at 157D.
26. In other words, the evidence must show that the existence of the fact in dispute is more probable than its non-existence. The difference between a possibility and a probability is that when something is possible, it can or could have happened. When something is probable, it most likely will or did happen. In determining probabilities, evidence is assessed against human experience, logic and common sense see Hoffmann en Zeffertt the South African Law of Evidence 4th ed 102. In order to resolve factual disputes, a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie 2003 (1) SA 11 (SCA) at 14I par 5. The Court further remarked as follows: “As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanor in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it…But when all factors are equipoised probabilities prevail " (at 14I - 15E par 5 per Nienaber JA)
27. The charge against the Applicant involve some form of sexual misconduct in relation to Learner A who is a child. The Constitutional Court in Bothma v Els and Others 2010 (2) SA 622 (CC) par 47, has recognised that sexual molestation of children generally takes place behind closed doors and is committed by a person in a position of authority over the child and that it is difficult to obtain eye-witness corroboration. The single witness rule is only applicable in criminal trials and not applicable in civil proceedings and arbitration proceedings. An arbitrator must however be satisfied that the evidence of a single witness is reliable and trustworthy before relying on it.
28. Learner A testified that the incident took place on the 15th of June 2021, when she was in grade 9. It is an established principle that the evidence of children should be treated with caution and that a tribunal must fully appreciate the dangers inherent in the acceptance of such evidence - see Woji v Santam Insurance Co Limited (A) at 1028B – D. Although Learner A’s identity was disclosed, I have indeed approached her evidence with caution. The parties in this matter agreed that I have to decide under substantive fairness whether the applicant was guilty of kissing Learner A, therefore, I need to determine whether Setlhare is guilty of the alleged misconduct in terms of section 18(1)(q) of the Employment of Educators Act. Setlhare pleaded not guilty to the allegation levelled against him in terms of section 18(1)(q) of the Employment of Educators Act, Setlhare elected not to present a plea explanation and decided to remained silent.
29. Mudau presented Learner A and the deputy Principal in support of the employer’s case. Setlhare, testified with Vickey Mosipa and her daughter Learner B in support of his case. In relation to the hearsay evidence presented by Mothibe as well as Mosipa, in Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for Chemical Industry & Others (JA51/10) [2013] ZALAC 16 (handed down on 19 July 2013), the Court with approval referred to the matter of Southern Sun Hotels and that of Swiss South Africa, confirmed the principle that hearsay evidence is allowed if it is in the interest of justice and that it was not irregular for the arbitrator to have relied on the hearsay evidence as the evidence was confirmed by other evidence. In addition, arbitrators have even more leeway than civil courts in determining what evidence should be admitted (Le Monde Luggage CC t/a Pakwells Petje v Commissioner Dunn & others [2007] 10 BLLR 909 (LAC) at paragraph 17); Naraindath v CCMA & others [2006] 6 BLLR 716 (LC) at paragraph 26). What is more important than admissibility is the weight a commissioner ultimately attaches to evidence such as hearsay when making inferences to deduce the facts of a case.
30. Setlhare and Learner A’s credibility and reliability as two single witnesses must be dealt with caution being the only two present when the alleged kissing took place The question to be determined is not whether a witness (Learner A) is wholly truthful in all she says, but whether the Arbitrator in this instance, can be satisfied that the story which the witness tells, is a true one in its essential features (see Nicholas J in S v Oosthuizen 1982 (3) SA 571 (T) 576) Witnesses who reconstruct their observations frequently make mistakes (see Frank J in Johannes v South West Transport 1994 1 SA 200 (Nm HC) at 202C-D, quoting Lambrechts v African Guarantee & Indemnity Co 1955 3 SA 459 A).
31. Learner A and Setlhare presented 2 conflicting versions. From Setlhare’s evidence, I only have a bare denial, insinuating that Learner A concocted the accusation against him because of Mothibe and Aphane’s (the HOD) “muti” practice, Mothibe’s disliked in him and the parents of Learner A who threatened to kill him being the reason he confessed. Setlhare’s version was that he asked Learner A to assist him with his class in his absence when he would collect exam papers from another school. Setlhare’s version that: …..It was when he met Learner A coming from the toilets with her friends at 12:45, he asked her to wait at his office to give her notes. She waited at his office where he also gave her a social science text book. He showed Learner A where to write the notes and to maintain order in the class otherwise he would be upset. Whilst at his office, Learner A looked through the window and said there is an educator going to the class. She also requested a Setswana book which was lying on the table to which Setlhare responded that it was for the grade 12’s and she could take it to read on the 16th. They exited the class with learner A being afraid that another educator, Motiang would dismiss her for being late. This version of Setlhare, in its totality, was never presented to Leaner A for her to respond to it.
32. Learner A’s version was that: On the 15th of June 2021 around 15:20 she came from the bathroom with her friend. Setlhare came to lock the bathroom and told Learner A to meet him at his office. She thought he wanted to send her somewhere. When Setlhare arrived, he closed the office door. There is a window from where people can see for the outside. Setlhare opened the cupboard door which closes the window. He told Learner A he wanted to marry her to which she responded why because she is still a child. She had a book she was reading which Setlhare took from her and paced it on the table. Setlhare then touched her body with the intention to kiss her but she refused when he came to kiss her. She pushed him away and ran out of the class, fetched her schoolbag from her class and went home. Her friend accompanied her home whom she requested to help her to tell her grandmother which she did. She felt scared and hurt after the incident. Learner’s A version she repeated to the questions during cross examination with no contradictions from her evidence in main. Machubele only referred to a contradiction from EE4 paragraph 6 being the grandmother’s statement of what Learner A told her. It referred to touching which she testified about. Her response was that the statement is correct because Setlhare wanted to kiss her on the cheek and he wanted her to kiss him on the mouth which she refused. In essence, Machubele failed to test Setlhare’s version unto Learner A which is totally different from that of Learner A. The mere time difference on the 15th of June 2021, remained unchallenged.
33. In Shange v MEC for Education, Kwazulu-Natal (15860/08) [2013] ZAKZDHC 32 (17 May 2013) the court warned that while a bare denial is easy to maintain to stonewall further interrogation during cross-examination, the risk of a bare denial defense is that a more credible version trumps a bare denial with equal ease. Setlhare did not deny that he called Learner A to his office on the 15th of June 2021 Learner A’s version remained uncontested when Setlhare’s version was not presented to Learner A to respond to. I could not find mistakes from Learner A’ evidence to conclude any reconstruction thereof.
34. Other contradictions are that Setlhare stated that the following day, which was the 16th of June 2021, was a public holiday and the school finished at 14:45 on the 15th. It would then be another unchallenged version towards Learner A in that Setlhare insinuate that the school was already finished in relation to the time Leaner A alleged the incident took place. Mothibe presented the attendance register for the relevant week which shows that Setlhare signed out at 15:20 contradicting Setlhare’s version of the time. Setlhare’s version is that they he called Learner A and that she was at his office after he called her but not at the time Leaner A stated it was distancing himself from the accusation in that he could not have been present in his office the time Learner stated the incident took place. Another contradiction is that Setlhare stated that he had two open periods from 13:45 to 14:45 with Motiang having the class including Learner A. He stated that when he returned from the other school Motiang was finished being 14:45 the time he alleges the school, closed. Mothibe corroborated Learner A’s version in relation to the cabinet’s door which would close the view in front of the window when its closed. Setlhare during his evidence, only mentioned that Learner A, whilst in his office, looked through the window and mentioned another teacher passing to his or her class. In my view this statement of Setlhare that Learner A randomly looked through the window in my view has no relevance but merely to mislead. Setlhare failed to rebut the statement that the cabinet’s door would close the window when opened.
35. Setlhare shifted the blame towards Mothibe who invited a traditional healer to place ‘muti’ at the school. Setlhare saw the ‘muti’ which meant that it would be ineffective and he realized Mothibe turned against him thereafter. Setlhare then included Aphane in this because for him it happened as she commanded. Machubele dismally failed to present this version unto Mothibe.in rebuttal of Mothibe’s version. Mosipa’s version that she and her daughter, Learner B was ill treated at school by Aphane which she reported to Mothiba, such version was also not presented to Mothiba during cross-examination. Also the version that Mothiba was influenced by Aphane when Aphane advised Mothiba not to renew Mosipa’s fixed-term contract, was not presented to Mothiba. Mosipa and her daughter Learner B’s version contradicted each other where Mosipa stated that Aphane told her daughter to visit Setlhare’s office where after she must leave crying saying that Setlhare touched her body. Learner B’s version was that Aphane asked her to go to Setlhare office and then to pretend that Setlhare wanted to rape her. These contradictions materially affected Setlhare’s case not to be the probable version of what took place on the 15th of June 2021.
36. Setlhare agreed that he confessed to the allegation when the parents (actually the grandparents and the uncle) were present at the Mothibe’s office. This confession was because he was threatened to be killed. Being afraid he told them that he kissed Learner A. Setlhare stated that they asked him where he kissed her to which he responded on the cheek, which correspond to Mothibe’s report in the occurrence book on the 17th of June 2021, when the meeting took place. Mothibe stated that it was a heated meeting and it is highly likely that Setlhare was threatened but Setlhare failed to correct the alleged untruthful confession afterwards within a statement or verbally towards Mothibe or in any other way towards his employer. Setlhare’s failure to state that his life was threatened in the SAPS statement (see EE15) but only that they were shouting very loud is another contradiction from Setlhare. The area Setlhare confessed to have kissed Leaner A on the cheek correspond with Learner A’s version. This heated discussion was on the 17th after the 16th of June 2021 which was a public holiday. It is my view it is more likely that Setlhare’s corresponding statement, that the kiss was on Leaner A’s, cheek was what happened and not merely a statement made under pressure.
37. I am satisfied that the evidence of Learner A was reliable and trustworthy and that she gave her evidence in a clear and satisfactory manner. Moreover, there was some form of corroboration for the evidence of Mothibe and Learner A in relation to the cabinet in the classroom closing the window when opened. In the premise, the Respondent proved its case on a balance of probabilities that Setlhare failed to refrain from improper physical contact with Learner A. It therefore flows that the Respondent’s case is more probable. I find Setlhare’s conduct to be improper and unacceptable when he kissed Learner A. I also find the contravention to be within the scope of a Section 17 (b) type of offence which stated: committing an act of sexual assault on a learner, student or other employee. This is an offence in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 read with section 3.6 of South African Council of Educators Act 31 of 2000 which reads: thus ‘refrains from improper physical contact with learners’. This improper physical contact in my view was an act of sexual assault onto Leaner A.
38. Setlhare misused his position as teacher and made himself guilty of the allegation levelled against him. The South African government ratified the UN Convention on the Rights of the Child (CRC) in 1995. The CRC forms part of South Africa’s international law obligations which means that the South African government is under an obligation to ensure that the CRC is implemented and complied with. In line with South Africa’s obligations under international law, the South African Constitution states that:
“Everyone has inherent dignity and the right to have their dignity respected and protected”
“Everyone has the right to be free from all forms of violence and not to be treated or punished in a cruel, inhuman or degrading way”
“A child’s best interest is of paramount importance in every matter concerning the child”
‘Every child has the right to be protected from maltreatment, neglect, abuse or degradation.’.
39. In determining the appropriateness of dismissal in relation to the charges, I adopt the approach of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). I also take into account the CCMA Guidelines on Misconduct Arbitrations. While discipline falls within the discretion of the employer, the employer must impose an appropriate and fair sanction.
Having held that Setlhare is guilty of an improper, disgraceful or unacceptable conduct as defined in section 18(1)(q) of the Employment of Educators Act, his conduct is also within the scope of sexual harassment in terms of Section 17(1)(b). In my view dismissal is mandatory. Neither the employer, nor I, or the Labour Court has any discretion to impose any other sanction than dismissal for this misconduct for as long as the conviction stands. Mitigating factors (of which I have received none from the employee but a mere indulgence request from his legal representative) are becomes irrelevant once an educator is convicted of this form of misconduct. For an educator to kiss a learner, constitute serious misconduct of a sexual nature. Adults are expected to help protecting all children from sexual abuse. In this regard Borchers J remarked in S v G 2004 (2) SACR 296 (W): There is general outrage in South Africa at the moment over child abuse, and the prevalence thereof and the damage done by such crimes to society justifies that outcry. People are being exhorted to adopt the motto, ‘your child is my child’. All that this amounts to is that the public knows that its children are vulnerable and often cannot be protected for every moment of their lives. Decent people recognise these facts and help and protect children. They do not harm them, as the accused had done” (300h-301b);
40. Evidence directed that it was highly likely for Setlhare to have kissed Learner A and also touched her. After having committed such acts of misconduct, he subjected Learner A to further trauma in that she had to testify about the sexual harassment that he had subjected her to in the arbitration hearing. In order to show true remorse, a person must be willing to accept guilt for his wrongdoing, must accept that he has done wrong and must accept that some sanction must be imposed for it (see S v G 1993 (2) SACR 359 (C)). Setlhare was not willing to do that. Setlhare failed to correct his so called wrong confession and failed to indicate that he was threatened to be killed when he made his statement at the SAP. Setlhare’s explanation of a muti practice which caused him to be concocted into a conspiracy between Mothiba and Aphane could not be substantiated. The refusal by Setlhare to admit guilt and thereby show remorse for his misconduct is generally considered to be a serious aggravating factor (see Grogan Dismissal (2014 ed) 211). Courts in all jurisdictions across the world have always viewed any form of sexual inappropriate behavior on the part of educators towards children, in the most serious light, justifying summary dismissal (see the judgement in: Her Majesty the Queen v. Kelly (1988), 68 Nfld. & P.E.I.R. 236 at 238 (Nfld. c.A.)
41. In this regard the Labour Appeal Court regards any form of sexual harassment in the workplace as extremely serious, justifying dismissal. This was confirmed again in the matter of Kok v CCMA (JR 2475 / 2010) [2015] ZALCJHB 45 (20 February 2015) handed down on 20 February 2015. The Court remarked: where the court remarked that once the complainant’s evidence about sexual harassment was accepted “that is the end of the matter for the applicant”
41. The SACE Code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). Our Courts have recognized that where the misconduct is of such a serious nature that from itself the inference could be drawn that the trust relationship and therefore the employment relationship has been destroyed, an Arbitrator may on this basis find that the trust relationship has been destroyed, and that dismissal is justified, see Grogan Dismissal (2nd ed 2014) 201, M Brassey et al The new Labour Law (Juta) at 96-7; Electrical & Allied Workers Union v The Production Casting Co (Pty) Ltd (1988) 9 ILJ 702. Conduct like this makes a continued employment relationship intolerable as teachers who act in this manner, cannot be trusted, especially when they in denial.
42. I am satisfied that employer has succeeded in proving on a balance of probabilities that Setlhare has irreparably destroyed the relationship of trust and had made the continuation of the employment relationship intolerable. I confirm dismissal as an appropriate sanction and find dismissal as sanction to be substantively fair.
AWARD
43. In the premises, the summarily dismissal of Setlhare from the employment of the North West Department of Education to be effected from 30 May 2022.
44. Mr J Setlhare (Persal No 90031920) is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the Children's Act 38 of 2005. The General Secretary of the ELRC must, in terms of Section 122(1) of the Children's Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children's Act 38 of 2005, that Mr TJ Setlhare (Persal No 90031920) is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
45. The ELRC is directed to forward a copy of this award to SACE. The attention of SACE is drawn to the fact that an educator Mr. TJ Setlhare (Persal No 90031920) has sexually harassed Learner A by kissing her and touching her.
S Fourie
ELRC Arbitrator
North West
In the matter between
NORTH WEST DEPARTMENT OF EDUCATION Applicant - Employer
and
SETLHARE J Respondent - Employee
ARBITRATOR: Adv S Fourie
HEARD: 12 and 13 May 2022;
FINALISED: (7days to submit closing statements 20 May 2022)
DELIVERED: 26 May 2022
INQUIRY BY ARBITRATOR - ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The Inquiry by Arbitrator, was heard at MORETELE MAGISTRATES COURT, TEMBA, on 12 and 13 May 2022. The Employee, Mr. Jacob Setlhare (“Setlhare”), was present and represented by Mr. N Machubele from Machubele Attorneys as the instructing attorney for Advocate Mello appeared mainly in an assisting capacity. The Employer was represented Mr. M Mashudu Mudau (“Mudau”), its labour relations officer. It was compulsory for an intermediary service due to two minor witnesses although the witness’s identity is known to the parties. Ms. Mule Padi served as intermediary and Mr. Herbert Matsenene as interpreter. The proceedings were conducted in English and Setswana. I kept handwritten notes and was also digitally recorded assisted by the Court’s stenographer who also provided the recording on a compact disc.
THE ISSUES TO BE DETERMINED
2. This is an arbitration award in terms of Section 188A of the Labour Relations Act 66 of 1995, as amended (“LRA”) read with Clause 3.2 of the ELRC Dispute Resolution Procedure with section 3.2.1 of Collective Agreement 3 of 2018. This award is issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. The employee Jacob Setlhare pleaded not guilty to the allegation listed hereunder to which I requested a plea explanation. I am required to determine whether the employee is guilty of the charge levelled against him and if so, to determine the appropriate sanction.
BACKGROUND TO THE DISPUTE
3. The employee, is employed by Respondent from February 2016. At the time of this enquiry at Letlopi Secondary School, as a PL1 educator. The employee was suspended from duty where after he was charged which reads:
On 15 June 2021, you sexually harassed a 15-year-old grade 9 learner at Letlopi Secondary School after you have instructed her to wait for you in your office where you kissed her and by doing so you have committed an act of misconduct in terms of section 18(1)(q) of the Employment of Educators, Act 76 of 1998,
SUMMARY OF THE EVIDENCE
4. This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and referred to as the LRA read with the changes as required by the context read with Section 188A (9) of the LRA. This award is not intended to be a verbatim transcript of the evidence led at the inquiry by arbitrator hearing but rather a determination with brief reasons for such determination.
5. Evidence relevant to the determination or to support any of the elements of fairness as required may be referred to. This however does not mean that I failed to consider other evidence or ignored such evidence in coming to my decision. The Employer submitted a bundle of documents (Bundle ‘ER’ 1 – 8 pages). The Employee submitted a bundle of documents (Bundle EE 1 -18 pages). Both parties accepted the bundle submitted for what it purports to be.
The Employer’s case
6. Learner A, testified under a solemn affirmation (through an intermediary) in camera. She is 16 years of age. She attends school at Mautsepo High School now but attended Letlopi Secondary School during 2021, when Setlhare was her social science teacher. She never experienced challenges with him. On the 15th of June 2021, around 15:20pm she came from the bathroom with her friend. Setlhare came to lock the bathroom and told Learner A to meet him at his office. She thought he wanted to send her somewhere. When Setlhare arrived he close the office door. There is a window from where people can see for the outside. Setlhare opened the cupboard door which closes the window. He told Learner A he wanted to marry her to which she responded why because she is still a child. She had a book she was reading which Setlhare took from her and placed it on the table. Setlhare then touched her body with the intention to kiss her but she refused when he came to kiss her. She pushed him away and ran out of the class, fetched her schoolbag from her class and went home. Her friend accompanied her home whom she requested to help her to tell her grandmother which she did. She felt scared and hurt after the incident.
7. During cross examination she stated that she had a good relationship with Setlhare and improved in her subject. She had no suspicion of his intentions but he would tell her that he would marry her but she took it as a joke. The size of the window (parties estimated on Learner A drawing) to be around 1.2m x 500. She stated that when Setlhare closed the office door, when he touched and kissed her, she thought he was going to rape her. To the statement that Setlhare liked her because she was an excellent student, Learner A responded that she thought so from when she received her first term results. She affirmed that she was fine on the day but not after the incident. She told her friend what took place who assisted her in telling her grandmother. To the statement that Setlhare did not do anything to her she responded that he touched her, kissed her on the cheek and told her to kiss him which she refused to do. Referring to EE4 paragraph 6, Learner A confirmed it to be her statement and what she told her grandmother. To the question that her statement does not refer to touching in relation to her testimony, Learner A responded that the statement is correct because Setlhare wanted to kiss her on the cheek and he wanted her to kiss him on the mouth which she refused.
8. Joseph Mothibe (Mothibe), testified under oath that he is the acting Principal at Letlopi Secondary School since February 2021. He could recall the visit from the Mashudu and the report to the circuit manager he signed on ER3. He stated that he was not at the school on the 15th of June 2021 when the incident occurred but requested Ngobeni to oversee. The 16th of June was a public holiday. On the 17th of June he had an early morning visit from 2 gentlemen and an old lady who came to report an incident of sexual harassment. They insisted not to talk to him alone and Mothibe called for an urgent SMT meeting. At the meeting the parents explained that Setlhare kissed Learner A. Mothibe listened to them and having a duty towards both children and educators, he called Learner A who explained the same to him. Mothibe then decided for them to go to Setlhare’s office for Leaner A to explain and show where she stated that Setlhare hided her from others to see. Because it involved one of his teachers, Mothibe then informed Setlhare of the allegation made against him. Setlhare then attended the meeting who denied the allegations after he was questioned about it. After some time Setlhare acknowledged that he kissed Learner A on the cheek and Mothibe requested him to make a statement. Mothibe then recorded the incident in the incident book referring to ER7 which also confirm Setlhare to have apologized to Learner A’s parents. Referring to ER6, the attendance register, hoe could not recall whether Setlhare attended a workshop on the day but show he left around 15:20pm on the 15th of June 2021. Mothibe only received the statements from the parents (grandmother) referring to ER4 and ER5 which he forwarded to the Department. During re-examination, Mothibe stated that he never received the statement from Setlhare and also not any other version from him.
9. During cross examination, he stated that he knows the Applicant since February 2021. On the 17th of June 2021, it was grandparents and the uncle who visited the school. He viewed it to be a meeting and not a hearing where after he wrote a report to the Department. The purpose to go the Setlhare’s office was merely to have an understanding to what Learner A complained about and was not an investigation. Learner A showed them where she and Setlhare was with the steel cabinet and no curtains in front of the windows. Mothibe’s conclusion was that it corroborated what she said earlier that the cabinet would close the view from outside the window. Mothibe stated that Setlhare admitted to the allegation during the meeting. He stated that the emotions were high during the meeting with the visitors very furious. He needed to arrange how the parties were seated and to move the uncle next to him. Mothibe also stated that the uncle said that they had evidence of the incident of people who saw it which perhaps was the reason for his admission. He could however not say whether Setlhare was under pressure to make the admission. He asked all to make written statements which he felt he gave Setlhare the opportunity to think about the situation. Mothibe denied that he was subjective during the meeting but that the meeting was heated with very high emotions. Mothibe could say whether Setlhare’s life was threatened when the grandfather told Setlhare that there is only one entrance which is also the exit and that Setlhare must not lie.
The Employee’s Case
10. Tlhale Johannes Setlhare (Setlhare), testified under oath that on the 15th of June 2021, he was at school. The subject advisor requested him to collect previous question papers from another school which he discussed with Ncobeni who indicated to him that he must just give the learners work to do before he leave after the short brake which was between 12:30 to 12:45. Ncobeni indicated that he had two open periods between 13:45 to 14:45. He could leave at 12:45 to 13:45. On the day he was supposed to open and lock the gates. At 12:30 he opened the gate for short brake until 12:45. When he locked the gate, he knew he must go and give tasks to the learners before he leaves. It was when he met Learner A coming from the toilets with her friends. At 12:45, he asked her to wait at his office to give her notes. She waited at his office where he also gave her a social science text book. He showed Learner A where to write the notes and to maintain order in the class otherwise he would be upset. Whilst at his office, Learner A looked through the window and said there is an educator going to the class. She also requested a Setswana book which was lying on the table to which Setlhare responded that it was for the grade 12’s and she could take it to read on the 16th. They exited the class with learner A being afraid that another educator, Motiang would dismiss her for being late.
11. Motiang assumed that Setlhare was teaching but was corrected that it was not Setlhare’s period but that of Motiang being a double period. It was around 12:50 and he asked Motiang if he could address the learners to whom he instructed that they must listen to Learner A. He left and informed Ncobeni where after he arrived at the other school around 13:05 for the question papers as arranged. He left the school at 13:50 back to his workplace. When it was time for his period (including Learner A), after Motiang’s periods, Learner A indicated that her right hand was painful and she requested her friend to write the notes. The following day was a public holiday and the school finished at 14:45. He assumed the class was noisy whilst Learner A was tasked to assist when he was away. He had a good relationship with the grade 9’s including Learner A. At first Leaner A, was underperforming but became better. He denied the allegation of sexual harassment on the 15th of June 2021 and explained his side of what happened on the date in question. It was the only time he called Learner A to his office but requested her and other learner’s assistance in the past.
12. He stated that he did not had a good relationship with Mothibe the acting Principal, but had a good relationship with all the other educators. The reason they had a bad relationship was that Mothibe would invite traditional healers to the school to place muti inside the school. He would also refuse learners to attend sport activities with Setlhare being in charge of soccer. After the traditional healer cleansed the school, he saw the muti which will make the muti ineffective. It is believed that if you see muti, it would not be effective anymore. This was when he realized Mothibe to be against him because Mothibe refuse him to take the learners to the stadium. This happened as commanded by Aphane the deputy Principal.
13. On the 17th on June 2021, he went to the grade 9 LO class where he found Aphane whom he requested the book he borrowed Learner A. He asked Learner A about the book to which she responded that it was thrilling and her being in a good mood. Having the first period open, Mothibe came to his office around 08:10 saying that there were visitors. Mothibe was shaking saying to Setlhare that he must submit himself. He requested Mothibe the reason for the meeting to which he replied that Learner A’s parents arrived having a case against him. Mothibe told him to humble himself and not to be aggressive.
14. At the office he found them seated with Setlhare seated behind the door. The meeting was heated for a fight just about to start. Setlhare denied the allegation on to him and they wanted to go the Setlhare’s office. Mothibe requested Setlhare to calm down who was surprise of all the allegations. Learner A was not present then but only the SMT and the parents with himself. The grandfather told Setlhare that he would kill him if he would not tell the truth. He also said that the school has one entrance which is also the exit. He would mobilize the community and find them waiting when the school comes out. He also said that Setlhare would try to run away but his life would be ending at the Tshwane river. This was said in the presence of Mothibe. Setlhare stated that when he responded in his defense, they said he lied. It was when the grandfather stood up saying he must tell the truth that he kissed Learner A, that he said he did kiss Learner A. They then requested where he kissed her and he replied on the cheek. This confession was not the truth of what happened. When he made the confession they asked him the reason he confessed to which he responded that it never happened. It was when he was requested by Mothibe to make a statement.
15. He asked Mothibe whether he knew they would come to the school but he was not aware. Aphane was however aware of it. On the 19th of June 2021, he heard that a case was opened at the SAPS when the investigating office called him and visited the school on the 21st of June 2021. Referring to his statement to the SAPS on EE15, he stated that he was surprised when he heard about the allegations and that Learner A was perhaps not in a good mood. After the alleged incident he still thought Leaner A and was only suspended on the 10th of September 2021, after the court case was dismissed for not enough evidence.
16. During cross examination, he recalls Mudau’s visit to the school on the 29th of June 2021 where Setlhare indicated that he was aware of the allegations raised against him. It was stated by Mudau that Setlhare admitted to him that he kissed Learner A on the forehead when she requested the book to which he replied that he did say he kissed her to corroborate the written statement at the office. Setlhare stated that he did not want to submit a statement to Mudau because he did not want to incriminate himself. Mudau stated that Setlhare failed to rebut the versions of Learner A and Mothibe to which Setlhare responded that he was not aware of it.
17. Vicky Mosipa (Mosipa), testified under oath that she works as a cleaner at Letlopi Secondary School. She stated that she has a good relationship with all educators accept for the HOD, Aphane. At first they had a good relationship but later she told Mosipa not to be in a good relationship with other educators. She named the other educators including Setlhare. The problem Aphane had with the other educators was that they did not follow her instructions. Aphane also used traditional medicine at the school requesting Mospia not to clean on Mondays for other educators to talk about it. Mosipa stated that Aphane told her that Setlhare and Ncobeni must “voetsek” from the school. During 2021, Aphane asked her to take advantage of how Setlhare related to learners to include Mosipa’s daughter in grade 9. At first she took it as a joke, but Aphane said her daughter must visit Setlhare’s office where after she must leave crying accusing Setlhare of touching her body. Mosipa refused to do what Aphane requested. She was thus not surprised when Setlhare was accused. Herself with her and her daughter was also ill-treated thereafter which she escalated to the Mothibe who said that Mosipa must submit as an employee to Aphane but may complain as a parent. For her, Mothibe was influenced by Aphane because after the first term her fixed-term contract ended March 2021 but was not renewed. She stated that all the other workers were renewed except for her because of Aphane who influenced Mothibe. She stated that Mothibe is a very good person but was influenced by Aphane’s traditional herbs.
18. During cross examination, she stated that she was not present on the 15th of June 2021, when the alleged incident occurred. For her the allegations levelled against Setlhare are not true because on the 16th of June 2021, a learner and her daughter told her that on the 15th of June 2021, this learner walked with Learner A to the village when she started to cry that Aphane wanted the incident to take place.
19. Learner B, testified under a solemn affirmation (through an intermediary) in camera. She stated that she attends school at Letlopi Secondary School from 2018 and was in grade 9 during 2021 where Setlhare was one of her educators. She had a good relationship with all educators except for Manwane but was better after her mother spoke to her. The reason for her to testify is about Aphane who requested her to go to Setlhare’s office and then to pretend that he raped her. She was scared because if she would pretend, Setlhare could really rape her. She only told her mother about it who did not took it seriously saying that Aphane made a joke.
SUBMISSIONS IN ARGUMENT
20. Both parties agreed to submit arguments (inclusive of mitigating and aggravating circumstances) within 7 days of which I only received the Employer’s closing statements as well as aggravating factors in time. Parties were to submit on the 20th of May 2022. On the 24th of May 2022, I only received an email requesting indulgence for the Employees closing submissions. On the 26th of May 2022, still no closing submissions inclusive of mitigating factors received from the Employee’s legal team. The Employer’s submissions were carefully considered, but will not be repeated here, as the contents basically mirror what was put during the leading of evidence and cross-examination in the arbitration hearing itself.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. Written arguments inclusive of aggravating evidence were submitted by only the Employer. I do not intend to summarise it here in detail. In short it was submitted on behalf of the employer that the employer has proved the charge levelled against the applicant and that dismissal should be the required sanction.
22. In order for a dismissal to be fair, Section 188A of the Labour Relations Act requires and Inquiry by arbitrator. An employer may, with the consent of the employee or in accordance with a collective agreement, request a council, an accredited agency or the Commission to appoint an arbitrator to conduct an inquiry into allegations about the conduct or capacity of that employee. The onus is on the employer to prove the allegations levelled against the employee is in accordance with substantive fairness. The parties in this matter agreed that I am required to determine under substantive fairness, whether the employee, Tlhale Johannes Setlhare kissed a Learner A.
23. It is common cause that Setlhare is a teacher to Learner A, in grade 9. It is common cause that Learner A was called by Setlhare to his office on the 15th of June 2021. It is also common cause that Mothibe was the deputy Principal at the time of the alleged incident. It is common cause that Learner A’s grandparents and uncle visited the school on the 17th of June 2021 after the 16th of June which was a public holiday. It is also common cause that they requested a meeting with the SMT which was “heated” discussion.
Substantive Fairness – whether the alleged incident took place -
24. I am guided by item 7 of the Code of Good Conduct on Dismissals contained in Schedule 8 to the LRA (hereinafter referred to as "the Code") which requires me to consider whether or not the Applicant contravened a rule regulating conduct in or of relevance to the workplace referring to misconduct in terms of section 18(1)(q) or section 17 of the Employment of Educators, Act 76 of 1998 as amended. Section 18(1) (q) of the Employment of Educators, Act 76 of 1998, reads ‘while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner’.
;
25. Setlhare claims that he did not kiss Learner A. In Moahlodi v East Rand Gold & Uranium Co Ltd (1998) 19 ILJ (IC) the court formulated the test as follows: an employer need not to be satisfied beyond reasonable doubt that an employee has committed the offence. We must remind ourselves that this is not a criminal trial and that the employer is therefore not required to prove the guilt of the Applicant beyond a reasonable doubt. The standard of proof in civil proceedings and arbitrations, is a balance of probabilities see Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC). The test for deciding whether something has been proved on a balance of probabilities, is whether the version of the party bearing the onus, is more probable than not, see Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A) at 157D.
26. In other words, the evidence must show that the existence of the fact in dispute is more probable than its non-existence. The difference between a possibility and a probability is that when something is possible, it can or could have happened. When something is probable, it most likely will or did happen. In determining probabilities, evidence is assessed against human experience, logic and common sense see Hoffmann en Zeffertt the South African Law of Evidence 4th ed 102. In order to resolve factual disputes, a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie 2003 (1) SA 11 (SCA) at 14I par 5. The Court further remarked as follows: “As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanor in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it…But when all factors are equipoised probabilities prevail " (at 14I - 15E par 5 per Nienaber JA)
27. The charge against the Applicant involve some form of sexual misconduct in relation to Learner A who is a child. The Constitutional Court in Bothma v Els and Others 2010 (2) SA 622 (CC) par 47, has recognised that sexual molestation of children generally takes place behind closed doors and is committed by a person in a position of authority over the child and that it is difficult to obtain eye-witness corroboration. The single witness rule is only applicable in criminal trials and not applicable in civil proceedings and arbitration proceedings. An arbitrator must however be satisfied that the evidence of a single witness is reliable and trustworthy before relying on it.
28. Learner A testified that the incident took place on the 15th of June 2021, when she was in grade 9. It is an established principle that the evidence of children should be treated with caution and that a tribunal must fully appreciate the dangers inherent in the acceptance of such evidence - see Woji v Santam Insurance Co Limited (A) at 1028B – D. Although Learner A’s identity was disclosed, I have indeed approached her evidence with caution. The parties in this matter agreed that I have to decide under substantive fairness whether the applicant was guilty of kissing Learner A, therefore, I need to determine whether Setlhare is guilty of the alleged misconduct in terms of section 18(1)(q) of the Employment of Educators Act. Setlhare pleaded not guilty to the allegation levelled against him in terms of section 18(1)(q) of the Employment of Educators Act, Setlhare elected not to present a plea explanation and decided to remained silent.
29. Mudau presented Learner A and the deputy Principal in support of the employer’s case. Setlhare, testified with Vickey Mosipa and her daughter Learner B in support of his case. In relation to the hearsay evidence presented by Mothibe as well as Mosipa, in Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for Chemical Industry & Others (JA51/10) [2013] ZALAC 16 (handed down on 19 July 2013), the Court with approval referred to the matter of Southern Sun Hotels and that of Swiss South Africa, confirmed the principle that hearsay evidence is allowed if it is in the interest of justice and that it was not irregular for the arbitrator to have relied on the hearsay evidence as the evidence was confirmed by other evidence. In addition, arbitrators have even more leeway than civil courts in determining what evidence should be admitted (Le Monde Luggage CC t/a Pakwells Petje v Commissioner Dunn & others [2007] 10 BLLR 909 (LAC) at paragraph 17); Naraindath v CCMA & others [2006] 6 BLLR 716 (LC) at paragraph 26). What is more important than admissibility is the weight a commissioner ultimately attaches to evidence such as hearsay when making inferences to deduce the facts of a case.
30. Setlhare and Learner A’s credibility and reliability as two single witnesses must be dealt with caution being the only two present when the alleged kissing took place The question to be determined is not whether a witness (Learner A) is wholly truthful in all she says, but whether the Arbitrator in this instance, can be satisfied that the story which the witness tells, is a true one in its essential features (see Nicholas J in S v Oosthuizen 1982 (3) SA 571 (T) 576) Witnesses who reconstruct their observations frequently make mistakes (see Frank J in Johannes v South West Transport 1994 1 SA 200 (Nm HC) at 202C-D, quoting Lambrechts v African Guarantee & Indemnity Co 1955 3 SA 459 A).
31. Learner A and Setlhare presented 2 conflicting versions. From Setlhare’s evidence, I only have a bare denial, insinuating that Learner A concocted the accusation against him because of Mothibe and Aphane’s (the HOD) “muti” practice, Mothibe’s disliked in him and the parents of Learner A who threatened to kill him being the reason he confessed. Setlhare’s version was that he asked Learner A to assist him with his class in his absence when he would collect exam papers from another school. Setlhare’s version that: …..It was when he met Learner A coming from the toilets with her friends at 12:45, he asked her to wait at his office to give her notes. She waited at his office where he also gave her a social science text book. He showed Learner A where to write the notes and to maintain order in the class otherwise he would be upset. Whilst at his office, Learner A looked through the window and said there is an educator going to the class. She also requested a Setswana book which was lying on the table to which Setlhare responded that it was for the grade 12’s and she could take it to read on the 16th. They exited the class with learner A being afraid that another educator, Motiang would dismiss her for being late. This version of Setlhare, in its totality, was never presented to Leaner A for her to respond to it.
32. Learner A’s version was that: On the 15th of June 2021 around 15:20 she came from the bathroom with her friend. Setlhare came to lock the bathroom and told Learner A to meet him at his office. She thought he wanted to send her somewhere. When Setlhare arrived, he closed the office door. There is a window from where people can see for the outside. Setlhare opened the cupboard door which closes the window. He told Learner A he wanted to marry her to which she responded why because she is still a child. She had a book she was reading which Setlhare took from her and paced it on the table. Setlhare then touched her body with the intention to kiss her but she refused when he came to kiss her. She pushed him away and ran out of the class, fetched her schoolbag from her class and went home. Her friend accompanied her home whom she requested to help her to tell her grandmother which she did. She felt scared and hurt after the incident. Learner’s A version she repeated to the questions during cross examination with no contradictions from her evidence in main. Machubele only referred to a contradiction from EE4 paragraph 6 being the grandmother’s statement of what Learner A told her. It referred to touching which she testified about. Her response was that the statement is correct because Setlhare wanted to kiss her on the cheek and he wanted her to kiss him on the mouth which she refused. In essence, Machubele failed to test Setlhare’s version unto Learner A which is totally different from that of Learner A. The mere time difference on the 15th of June 2021, remained unchallenged.
33. In Shange v MEC for Education, Kwazulu-Natal (15860/08) [2013] ZAKZDHC 32 (17 May 2013) the court warned that while a bare denial is easy to maintain to stonewall further interrogation during cross-examination, the risk of a bare denial defense is that a more credible version trumps a bare denial with equal ease. Setlhare did not deny that he called Learner A to his office on the 15th of June 2021 Learner A’s version remained uncontested when Setlhare’s version was not presented to Learner A to respond to. I could not find mistakes from Learner A’ evidence to conclude any reconstruction thereof.
34. Other contradictions are that Setlhare stated that the following day, which was the 16th of June 2021, was a public holiday and the school finished at 14:45 on the 15th. It would then be another unchallenged version towards Learner A in that Setlhare insinuate that the school was already finished in relation to the time Leaner A alleged the incident took place. Mothibe presented the attendance register for the relevant week which shows that Setlhare signed out at 15:20 contradicting Setlhare’s version of the time. Setlhare’s version is that they he called Learner A and that she was at his office after he called her but not at the time Leaner A stated it was distancing himself from the accusation in that he could not have been present in his office the time Learner stated the incident took place. Another contradiction is that Setlhare stated that he had two open periods from 13:45 to 14:45 with Motiang having the class including Learner A. He stated that when he returned from the other school Motiang was finished being 14:45 the time he alleges the school, closed. Mothibe corroborated Learner A’s version in relation to the cabinet’s door which would close the view in front of the window when its closed. Setlhare during his evidence, only mentioned that Learner A, whilst in his office, looked through the window and mentioned another teacher passing to his or her class. In my view this statement of Setlhare that Learner A randomly looked through the window in my view has no relevance but merely to mislead. Setlhare failed to rebut the statement that the cabinet’s door would close the window when opened.
35. Setlhare shifted the blame towards Mothibe who invited a traditional healer to place ‘muti’ at the school. Setlhare saw the ‘muti’ which meant that it would be ineffective and he realized Mothibe turned against him thereafter. Setlhare then included Aphane in this because for him it happened as she commanded. Machubele dismally failed to present this version unto Mothibe.in rebuttal of Mothibe’s version. Mosipa’s version that she and her daughter, Learner B was ill treated at school by Aphane which she reported to Mothiba, such version was also not presented to Mothiba during cross-examination. Also the version that Mothiba was influenced by Aphane when Aphane advised Mothiba not to renew Mosipa’s fixed-term contract, was not presented to Mothiba. Mosipa and her daughter Learner B’s version contradicted each other where Mosipa stated that Aphane told her daughter to visit Setlhare’s office where after she must leave crying saying that Setlhare touched her body. Learner B’s version was that Aphane asked her to go to Setlhare office and then to pretend that Setlhare wanted to rape her. These contradictions materially affected Setlhare’s case not to be the probable version of what took place on the 15th of June 2021.
36. Setlhare agreed that he confessed to the allegation when the parents (actually the grandparents and the uncle) were present at the Mothibe’s office. This confession was because he was threatened to be killed. Being afraid he told them that he kissed Learner A. Setlhare stated that they asked him where he kissed her to which he responded on the cheek, which correspond to Mothibe’s report in the occurrence book on the 17th of June 2021, when the meeting took place. Mothibe stated that it was a heated meeting and it is highly likely that Setlhare was threatened but Setlhare failed to correct the alleged untruthful confession afterwards within a statement or verbally towards Mothibe or in any other way towards his employer. Setlhare’s failure to state that his life was threatened in the SAPS statement (see EE15) but only that they were shouting very loud is another contradiction from Setlhare. The area Setlhare confessed to have kissed Leaner A on the cheek correspond with Learner A’s version. This heated discussion was on the 17th after the 16th of June 2021 which was a public holiday. It is my view it is more likely that Setlhare’s corresponding statement, that the kiss was on Leaner A’s, cheek was what happened and not merely a statement made under pressure.
37. I am satisfied that the evidence of Learner A was reliable and trustworthy and that she gave her evidence in a clear and satisfactory manner. Moreover, there was some form of corroboration for the evidence of Mothibe and Learner A in relation to the cabinet in the classroom closing the window when opened. In the premise, the Respondent proved its case on a balance of probabilities that Setlhare failed to refrain from improper physical contact with Learner A. It therefore flows that the Respondent’s case is more probable. I find Setlhare’s conduct to be improper and unacceptable when he kissed Learner A. I also find the contravention to be within the scope of a Section 17 (b) type of offence which stated: committing an act of sexual assault on a learner, student or other employee. This is an offence in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 read with section 3.6 of South African Council of Educators Act 31 of 2000 which reads: thus ‘refrains from improper physical contact with learners’. This improper physical contact in my view was an act of sexual assault onto Leaner A.
38. Setlhare misused his position as teacher and made himself guilty of the allegation levelled against him. The South African government ratified the UN Convention on the Rights of the Child (CRC) in 1995. The CRC forms part of South Africa’s international law obligations which means that the South African government is under an obligation to ensure that the CRC is implemented and complied with. In line with South Africa’s obligations under international law, the South African Constitution states that:
“Everyone has inherent dignity and the right to have their dignity respected and protected”
“Everyone has the right to be free from all forms of violence and not to be treated or punished in a cruel, inhuman or degrading way”
“A child’s best interest is of paramount importance in every matter concerning the child”
‘Every child has the right to be protected from maltreatment, neglect, abuse or degradation.’.
39. In determining the appropriateness of dismissal in relation to the charges, I adopt the approach of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). I also take into account the CCMA Guidelines on Misconduct Arbitrations. While discipline falls within the discretion of the employer, the employer must impose an appropriate and fair sanction.
Having held that Setlhare is guilty of an improper, disgraceful or unacceptable conduct as defined in section 18(1)(q) of the Employment of Educators Act, his conduct is also within the scope of sexual harassment in terms of Section 17(1)(b). In my view dismissal is mandatory. Neither the employer, nor I, or the Labour Court has any discretion to impose any other sanction than dismissal for this misconduct for as long as the conviction stands. Mitigating factors (of which I have received none from the employee but a mere indulgence request from his legal representative) are becomes irrelevant once an educator is convicted of this form of misconduct. For an educator to kiss a learner, constitute serious misconduct of a sexual nature. Adults are expected to help protecting all children from sexual abuse. In this regard Borchers J remarked in S v G 2004 (2) SACR 296 (W): There is general outrage in South Africa at the moment over child abuse, and the prevalence thereof and the damage done by such crimes to society justifies that outcry. People are being exhorted to adopt the motto, ‘your child is my child’. All that this amounts to is that the public knows that its children are vulnerable and often cannot be protected for every moment of their lives. Decent people recognise these facts and help and protect children. They do not harm them, as the accused had done” (300h-301b);
40. Evidence directed that it was highly likely for Setlhare to have kissed Learner A and also touched her. After having committed such acts of misconduct, he subjected Learner A to further trauma in that she had to testify about the sexual harassment that he had subjected her to in the arbitration hearing. In order to show true remorse, a person must be willing to accept guilt for his wrongdoing, must accept that he has done wrong and must accept that some sanction must be imposed for it (see S v G 1993 (2) SACR 359 (C)). Setlhare was not willing to do that. Setlhare failed to correct his so called wrong confession and failed to indicate that he was threatened to be killed when he made his statement at the SAP. Setlhare’s explanation of a muti practice which caused him to be concocted into a conspiracy between Mothiba and Aphane could not be substantiated. The refusal by Setlhare to admit guilt and thereby show remorse for his misconduct is generally considered to be a serious aggravating factor (see Grogan Dismissal (2014 ed) 211). Courts in all jurisdictions across the world have always viewed any form of sexual inappropriate behavior on the part of educators towards children, in the most serious light, justifying summary dismissal (see the judgement in: Her Majesty the Queen v. Kelly (1988), 68 Nfld. & P.E.I.R. 236 at 238 (Nfld. c.A.)
41. In this regard the Labour Appeal Court regards any form of sexual harassment in the workplace as extremely serious, justifying dismissal. This was confirmed again in the matter of Kok v CCMA (JR 2475 / 2010) [2015] ZALCJHB 45 (20 February 2015) handed down on 20 February 2015. The Court remarked: where the court remarked that once the complainant’s evidence about sexual harassment was accepted “that is the end of the matter for the applicant”
41. The SACE Code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). Our Courts have recognized that where the misconduct is of such a serious nature that from itself the inference could be drawn that the trust relationship and therefore the employment relationship has been destroyed, an Arbitrator may on this basis find that the trust relationship has been destroyed, and that dismissal is justified, see Grogan Dismissal (2nd ed 2014) 201, M Brassey et al The new Labour Law (Juta) at 96-7; Electrical & Allied Workers Union v The Production Casting Co (Pty) Ltd (1988) 9 ILJ 702. Conduct like this makes a continued employment relationship intolerable as teachers who act in this manner, cannot be trusted, especially when they in denial.
42. I am satisfied that employer has succeeded in proving on a balance of probabilities that Setlhare has irreparably destroyed the relationship of trust and had made the continuation of the employment relationship intolerable. I confirm dismissal as an appropriate sanction and find dismissal as sanction to be substantively fair.
AWARD
43. In the premises, the summarily dismissal of Setlhare from the employment of the North West Department of Education to be effected from 30 May 2022.
44. Mr J Setlhare (Persal No 90031920) is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the Children's Act 38 of 2005. The General Secretary of the ELRC must, in terms of Section 122(1) of the Children's Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children's Act 38 of 2005, that Mr TJ Setlhare (Persal No 90031920) is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
45. The ELRC is directed to forward a copy of this award to SACE. The attention of SACE is drawn to the fact that an educator Mr. TJ Setlhare (Persal No 90031920) has sexually harassed Learner A by kissing her and touching her.
S Fourie
ELRC Arbitrator
North West