ELRC613-21/22MP
Text
ELRC613-21/22MP
Award Date:
16 August 2022
THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT NOKANENG
Case No. ELRC613-21/22MP
In the matter between
CHAUKE SAMUEL TSHEPO Employee
And
MPUMALANGA DEPARTMENT OF EDUCATION Employer
ARBITRATION AWARD (ENQUIRY BY ARBITRATOR)
Details of hearing and representation
1. This enquiry is conducted in terms of Section 188A of the Labour Relations Act, 66 of 1995 (the Act). The hearings took place at Nokaneng Circuit Offices, Nokaneng, Mpumalanga Province, on 20 January, 22 February, 31 May, 01 June, 28 and 29 July 2022 at 9:00AM. The employee, Chauke Samuel Tshepo was firstly represented by Tseke R.P, secondly by Mpolokeng Mahlobongoane M.M and lastly by Mthimunye M.P, all of them from South African Democratic Teachers Union (SADTU), while the employer, Mpumalanga Department of Education was in all material times represented by Madingwana Z.F, its official. The proceedings were digitally voice recorded and Herbert Matsenene was the Interpreter. The Intermediary was Mule Padi. The parties handed in bundles of documents I marked as follows; Employer’s bundle was Bundle A and that of the employee was Document B.
Issues to be decided
2. This was a disciplinary enquiry by an Arbitrator. I must decide whether the employee is guilty of misconduct levelled against him or not. If guilt, I must determine an appropriate sanction.
Background and common cause issues
3. The employee, Chauke Samuel Tshepo was charged with misconduct of; he committed an act of misconduct in terms of Section 17(1)(c) of the Act in that from March 2021 he committed an act of misconduct by having a sexual relationship with Koketso Cleopatra Setlogo who is a Grade 11 learner at Ramoshidi Technical School where he is employed. The employee made a plea of not guilty to the charge.
4. It was common cause that the employee is currently employed at Ramoshidi Technical High School. He is employed as an Educator, earning a salary of R21 000.00 per month. He is put on pre-cautionary suspension pending the outcome of this Inquiry. The learner is current in Grade 12
Survey of the employer’s evidence and argument.
Six Witnesses testified for the employer.
Witness 1, Bernard Seporo Mashao testified under oath that;
5. He is the Principal of Ramoshidi Technical High School (the school). The employee is teaching Maths and Electrical Technology at the school. The parents of Koketso Setlogo complained that there was allegation of improper relationship between the employee and the learner, Koketso Setlogo, they were in love. He took the matter to the Circuit Manager who then escalated it to the district office. The employee was informed of the allegation.
6. Under cross examination, Mashao testified that the matter of the love relationship between the employee and a learner came to him by the mother of the learner. The mother told him that she got the allegation from other learners. Three (3) to four (4) after he reported the matter to the Circuit Office, the father of the learner came to him complaining that he was protecting the employee by not disciplining the employee. The employee did not report anything to him. He did not detect any relationship between the employee and the learner.
Witness 2: Alfred Tlame Majatladi testified under oath that;
7. He knew the employee as a teacher at the school. He used to sell food at the school and the employee would come to him to buy food. The employee would send the learner Koketso to come and buy from him. Koketso used to explain that she was sent by the employee. There were sometimes that he would sell the employee food on credit and the employee would send Koketso to come and pay.
8. Under cross examination, Majatladi testified that he did not confirm as to where and how the employee and Koketso fell in love. His evidence was based on what Phomolo told him that Koketso and the employee were in love. He did not suspect anything between the employee and Koketso.
Witness 3: Setlogo Yvonne testified under oath that;
9. She is the mother of the learner Koketso who attend school at Ramoshidi Technical High doing Grade 12. She saw the employee for the first time when they were at the Police Station where the employee and Koketso were opening a criminal case against her. Koketso had a cell phone that she did not know it. Koketso was in conversation with someone with the headset on and she wanted to grab the cell phone from Koketso. They started to fight for the phone with Koketso. Koketso bite her on the hand, and she release her to run away. Koketso did not sleep home that day. The following day Koketso came back home and explained that she slept at Amokgelang’s home. The employee organized learners’ group chat and Koketso borrow her cell phone. The employee would send messages to the cell phone directly without sending to the group. Koketso never told the employee that the cell phone she was using was not hers. On 16 August 2020 the employee sent a message to the phone saying, ‘Good morning love’. The employee used to call the learner, Koketso ‘Babe’ and sent heart images. Koketso did not respond, and the employee continued to send messages as per page 5 of Bundle A. The reason why Koketso was not responding to the messages was that the phone was with her (mother) and no longer with Koketso. After a week or two, Koketso was seen with a cell phone that she did not know. Koketso told Ms. Moepi that the phone belongs to her boyfriend, and they were fighting. Page 6 of Bundle A was a Facebook text by Koketso texting to her friend Amokgelang. Koketso was telling her friend that if she, Yvonne Setlogo could go and report the employee at school and the employee is dismissed, she Koketso would commit suicide. The learners at the school call the employee Mr. C. Koketso was in the text confirming to Amokgelang that she (Koketso) managed to breakaway with the employee, and she (Koketso) was happy that she (Koketso) protected the employee in his sexual harassment matter. She does not have doubt that Koketso was sleeping at the employee’s place. In December 2020 Koketso left home for 15 days. Document B was a game that the employee was playing in the Facebook.
10. Under cross examination, Yvonne Setlogo testified that she does not have a good relationship with her daughter Koketso. The sour relationship started when she took the cell phone from her. Most of the time when Koketso left home she would be brought back by the employee. The employee and Koketso used to meet at the graveyard or Ramatsana. At the Police Station Koketso was seen putting a hat which was usually wore by the employee. You cannot call a person your babe, love if you are not in love relationship with. The babe that the employee called Koketso was the one that shows that there are having a love relationship. I never saw Koketso with the employee, but her witnesses saw them.
Witness 4: Rueben Moselane testified under oath that;
11. He is the biological father of the learner Koketso Setlogo. He does not know the employee, as he was seeing the employee for the first time. Last year around March he got a message from Koketso’s mother that Koketso was in love relationship with the employee. Koketso deliberately used the wrong pattern to open the phone so that the phone could not be opened. In December 2021 when he was at home, he was told that Koketso left home on 15 December 2021. Koketso’s friend, Amokgelang confirmed to him that the employee and Koketso were having relationship. Amokgelang told him that the employee threatened her (Amokgelang) not to come to this hearing.
12. Under cross examination Moselane testified that he was told that there was exchange of chat between the employee and Koketso. He only got the report from the mother and friend of Koketso.
Witness 5: Amokgelang Coreng Phahla testified under oath that;
13. She is a learner at Ramoshidi Technical High School. Koketso and the employee met because Koketso was doing Electrical Technology and the employee was teaching it. She did not know that Koketso and the employee were in love relationship. Lovers flirt on phone and Koketso and the employee were flirting on phone. Koketso is her friend. They met at around 2017. Before the chat on page 6 of Bundle A she met with Koketso and advised her to stop seeing the employee. When Koketso dropped the message, it was after she (Koketso) decided to divorce the employee as she requested. She asked Koketso not to commit suicide. C from the message was referring to the employee. Even other learners at school were referring the employee as Mr. C. One day Koketso came to school with a cell phone which Koketso’s other friend told her that Koketso got it from the employee. In December 2021 Koketso’s father came to her home looking for Koketso because Koketso left home since 15 December 2021. Koketso once complained to her that the employee bit her forcing her to go and sleep at the employee’s place at Marapyana. She advised Koketso to part ways with the employee and Koketso refused, because she loves the employee. One day when she was with Koketso at her home Koketso used her cell phone to call the employee requesting him to buy her (Koketso) school shoes. The employee shouted at Koketso, but latter on when they were in their way to Koketso’s home agreed to buy Koketso school shoes. The employee threatened to bewitch her by consulting sangoma if she could testify against him. Koketso told her that she (Koketso) has been at the employee’s place in Marapyana. Koketso told her that life in Marapyana was a soft life because at the employee’s place she bathed in the shower and the place was beautiful.
14. Under cross examination Phahla testified that the parents of Koketso requested her to testify about what she knew between Koketso and the employee. She has been hearing rumours that Koketso and the employee were in relationship, but as time went on Koketso started to be open to her. There was a time that Koketso told her that she was in love with the employee. Flirting on the phone is when lovers call each other babe, love, and heart emojis. There are two words ‘babe’ and ‘baby’. The first one is not in Dictionary and is used in social media. She did not see the employee and Koketso kissing and having sexual intercourse. The author of page 6 of Bundle A was Koketso. The message was from the Facebook lite. Koketso was speaking about 2015 issues, and she did not know Koketso then. “Text Only (20 MB/day) identifies that the message was from Koketso. On top there is her previous profile picture and Koketso saved her name as “My Smile keeper”. She discussed the message with Koketso. When Koketso spoke of C in the message, she knew that Koketso was speaking about the employee because learners including herself call the employee Mr. C. The message was written in 2021. Koketso never came to her and say she has parted ways with the employee.
Witness 6: Koketso Setlogo testified under oath that;
15. She is a learner at Ramoshidi Technical High doing Grade 12. She knew the employee as her Electrical Technology teacher. She knew pages 3 – 6 of Bundle A as document in which she was communicating with the employee, asking the employee about the parents’ Covid-19 meeting. She was using her mother’s phone. The employee was her teacher and it ended there. The employee was the one using love language and she was not using it when she responded. She was surprised when the employee called her ‘babe’. She did not expect the employee to call her ‘love’. She was not the author of the text on page 6 of Bundle A.
16. The employer requested to declare the witness a hostile witness and the employee party did not object to that.
Ruling: The witness was declared a hostile witness. Both parties were allowed to cross examine the witness.
17. Amokgelang was her friend. She named Amokgelang “My smile keeper”. She was not the author of page 6 of Bundle A. She would assume that C in the text referred to the employee. At school they call the employee Mr. C. The employee gave the learners task which required them to get into You Tube and google. She went to the employee to borrow his cell phone, because she did not have a phone. She told the employee to go to her parents and explain that he lent her his cell phone. She refused her mother’s access to the cell phone because the cell phone belonged to the employee and not because of the love language inside the cell phone. The employee was calling her ‘love’ or ‘babe’ when she was using her mother’s cell phone. The text on page 6 of Bundle A was written by her cousin who sent the text to her mother. The same cousin got into her face book account and sent the message/text to Amokgelang. If it was her who wrote the text, she would have said to Amokgelang ‘mmata’’ she has parted ways with the employee. She said the cell phone belong to her boyfriend because she was waiting for the employee to come to her mother and explain that he borrowed her his cell phone. Sometimes she slept at Amokgelang’s place and some other times at her boyfriend Thabang Maleti. The text on page 6 of Bundle A happened long time ago, but the committing of suicide happened in 2021 around October November month. She wanted the attention of her parents. Her mother and Ant wanted the employee to marry her. Her Ant wanted to talk to the employee to marry her, but she refused because she did not want to be married by the employee. She never told Amokgelang that she was with the employee at Marapyane and two weeks in December 2021 she was at her boyfriend’s place. She does not have relationship with the employee. She fought with her mother for the cell phone she got from the employee.
18. Under cross examination by the employee party Koketso Setlogo testified that it was not true that she had a love relationship with the employee. She never had sexual intercourse with the employee. She was at her boyfriend’s place during December 2020 holidays. She never slept at the employee’s place. The employee was trying to assist her when they were seen at the police station. If a person sends her a heart emojis does not mean that that person wanted to have sexual intercourse with her. It was outwards to be called “babe” or “love” by the employee. The messages on page 5 of Bundle A were written by the employee. She is not familiar with page 6 of Bundle A, but it was written by her cousin. “My smile keeper” was referring to Amokgelang Phahla. Amokgelang never had access to the cell phone she got from the employee. She never flirted with the employee. It was correct that the cell phone she got from the employee caused problems between her and her mother because the phone looked more expensive than the one of her mother. The employee never bit her. She never showered at the employee’s place. She never received any school shoes from the employee.
Survey of the employee’s evidence and argument.
One witness, the employee himself testified. Samuel Tshepo Chauke testified under oath and in English that;
19. He does not have any sexual relationship with Koketso Setlogo. Koketso is a learner at Ramoshidi Technical High, and he was teaching her Electrical Technology. Koketso never slept at his home. He never had sexual engagement with Koketso. She went to the police station with Koketso because Koketso and her friend found him at the car wash and Koketso explained to him that she has been chased away from home and she did not have a place to go. He suggested to Koketso to go to Amokgelang’s place and Koketso told him that Amokgelang’s mother would not allow her because of this allegation of her dating the employee. He wanted the police to accompany Koketso back home. The police then called Koketso’s mother to police station. At the police station Koketso’s mother explained to the police that Koketso was so disrespectful. Flirting is when two people show that they either want each other, they want to pursue a relationship. He never flirted with Koketso.
20. Under cross examination Chauke testified that there were two things, calling Koketso “babe or love” and not flirting with Koketso. The other texts were not meant for Koketso. The employer only made available the extract where he was calling Koketso “babe or love”, but there were other extracts where he was explaining that those extracts were not meant for Koketso. He had a girl friend by the same name of Koketso.
Analysis of the evidence and arguments
21. The employer was required to prove on the balance of probabilities that the employee had a sexual relationship with the learner of a school he was employed at. The employer through its witnesses testify that the employee had a sexual relationship with the employee. It was the testimony of the employer that the employee was flirting with the learner, Koketso Setlogo who was seventeen years at that time. The employer relied to the copies of the text messages extracted from the cell phone of the learner’s mother. The learner was using her mother’s cell phone at the time. In the text messages, page 3-5 of Bundle A, the employee was calling the learner “babe or love” and sent heart emojis. The employer went further to testify that the employee borrowed the learner his cell phone and the learner did not want her mother to access it. The learner and the mother fought for that cell phone. The employee accompanied the learner to police station where she was going to open a case against her mother. It was again the testimony of the employer that the learner sent a suicidal note to her friend Amokgelang Phahla. This was after Amokgelang was advising her to part ways with the employee (refer to page 6 of Bundle A).
22. The employee’s testimony was that he never had any sexual relationship with the learner. He went to the police station with the learner because he wanted the police to take the learner back home. The employer did not extract the messages where he was showing that some of the messages were not meant for the learner. He never flirted with the learner.
23. Based on the testimony of both the employer and the employee, I deduced that there could have been a sexual or love relationship between the employee and the learner. The employee could not have borrowed the learner his cell phone if there was not relationship between the two. The employee could not have called the learner “babe or love” if there was nothing between the two. It is my belief that it was not a coincident that the employee went to the police station with the learner. I draw an inference that the learner might have gone to the employee for protection after she fought with the mother. The learner would not have denied her mother access to the cell phone she got from the employee if the phone did not have messages of love between the two. Refusing her mother access to the phone to an extend that they violently fought was a sign that there was something sinister. The learner in her evidence denied having any sexual relationship with the employee. However, the learner went to the employee to borrow a phone. The learner also went to the employee after she fought with her mother over the same phone she got from the employee. The learner also testified that it was outwards for the employee to call her “babe or love”, but still insisted that there was no love relationship between the two.
24. In view of the above analysis, it is therefore my finding that the employer has on the balance of probabilities proved that the employee has committed the misconduct as charged in terms of section 17 (1)(c) of the Employment of Educators Act, 76 of 1998 (the Act). To me, there is no difference between sexual relationship and love relationship. The fact that the employer could not prove that the employee had sexual intercourse with the learner does not exonerate him from committing the misconduct. The employee had this unwanted relationship with the learner he was teaching.
25. Having found the employee guilty as charged in terms of section 17(1)(c) of the Act, the sanction of dismissal is mandatory, irrespective of the mitigating factors. I have considered the fact that the employee is teaching one of the scare skills subjects and he is one of the hard-working teachers at the school. However, the interest of the learner should prevail. Sexual or love relationship between an Educator and a learner is not acceptable at school environment. Educators play a role of a parents at school. They must ensure that learners are educated.
26. There was no submission or testimony about the suitability or not of the employee to work with children. However, section 120(1)(c) of the Children’s Act, 38 of 2005 makes provisions 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”. I make the finding on the unsuitability of the employee to work with the children in terms of section 120(2) of the Children’s Act, 38 of 2005.
Award
27. I find that the employee, Samuel Tshepo Chauke is guilty of misconduct as charged.
28. I impose the sanction of mandatory dismissal with immediate effect.
29. Mr. Samuel Tshepo Chauke is found unsuitable to work with children in terms section 120(4) of the Children’s Act, 38 of 2005.
30. 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 this forum made in terms of Section 120(4) of the Children’s Act, 38 of 2005 that Mr. Samuel Tshepo Chauke 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.
V. MADULA
ELRC PANELIST
16 August 2022
Case No. ELRC613-21/22MP
In the matter between
CHAUKE SAMUEL TSHEPO Employee
And
MPUMALANGA DEPARTMENT OF EDUCATION Employer
ARBITRATION AWARD (ENQUIRY BY ARBITRATOR)
Details of hearing and representation
1. This enquiry is conducted in terms of Section 188A of the Labour Relations Act, 66 of 1995 (the Act). The hearings took place at Nokaneng Circuit Offices, Nokaneng, Mpumalanga Province, on 20 January, 22 February, 31 May, 01 June, 28 and 29 July 2022 at 9:00AM. The employee, Chauke Samuel Tshepo was firstly represented by Tseke R.P, secondly by Mpolokeng Mahlobongoane M.M and lastly by Mthimunye M.P, all of them from South African Democratic Teachers Union (SADTU), while the employer, Mpumalanga Department of Education was in all material times represented by Madingwana Z.F, its official. The proceedings were digitally voice recorded and Herbert Matsenene was the Interpreter. The Intermediary was Mule Padi. The parties handed in bundles of documents I marked as follows; Employer’s bundle was Bundle A and that of the employee was Document B.
Issues to be decided
2. This was a disciplinary enquiry by an Arbitrator. I must decide whether the employee is guilty of misconduct levelled against him or not. If guilt, I must determine an appropriate sanction.
Background and common cause issues
3. The employee, Chauke Samuel Tshepo was charged with misconduct of; he committed an act of misconduct in terms of Section 17(1)(c) of the Act in that from March 2021 he committed an act of misconduct by having a sexual relationship with Koketso Cleopatra Setlogo who is a Grade 11 learner at Ramoshidi Technical School where he is employed. The employee made a plea of not guilty to the charge.
4. It was common cause that the employee is currently employed at Ramoshidi Technical High School. He is employed as an Educator, earning a salary of R21 000.00 per month. He is put on pre-cautionary suspension pending the outcome of this Inquiry. The learner is current in Grade 12
Survey of the employer’s evidence and argument.
Six Witnesses testified for the employer.
Witness 1, Bernard Seporo Mashao testified under oath that;
5. He is the Principal of Ramoshidi Technical High School (the school). The employee is teaching Maths and Electrical Technology at the school. The parents of Koketso Setlogo complained that there was allegation of improper relationship between the employee and the learner, Koketso Setlogo, they were in love. He took the matter to the Circuit Manager who then escalated it to the district office. The employee was informed of the allegation.
6. Under cross examination, Mashao testified that the matter of the love relationship between the employee and a learner came to him by the mother of the learner. The mother told him that she got the allegation from other learners. Three (3) to four (4) after he reported the matter to the Circuit Office, the father of the learner came to him complaining that he was protecting the employee by not disciplining the employee. The employee did not report anything to him. He did not detect any relationship between the employee and the learner.
Witness 2: Alfred Tlame Majatladi testified under oath that;
7. He knew the employee as a teacher at the school. He used to sell food at the school and the employee would come to him to buy food. The employee would send the learner Koketso to come and buy from him. Koketso used to explain that she was sent by the employee. There were sometimes that he would sell the employee food on credit and the employee would send Koketso to come and pay.
8. Under cross examination, Majatladi testified that he did not confirm as to where and how the employee and Koketso fell in love. His evidence was based on what Phomolo told him that Koketso and the employee were in love. He did not suspect anything between the employee and Koketso.
Witness 3: Setlogo Yvonne testified under oath that;
9. She is the mother of the learner Koketso who attend school at Ramoshidi Technical High doing Grade 12. She saw the employee for the first time when they were at the Police Station where the employee and Koketso were opening a criminal case against her. Koketso had a cell phone that she did not know it. Koketso was in conversation with someone with the headset on and she wanted to grab the cell phone from Koketso. They started to fight for the phone with Koketso. Koketso bite her on the hand, and she release her to run away. Koketso did not sleep home that day. The following day Koketso came back home and explained that she slept at Amokgelang’s home. The employee organized learners’ group chat and Koketso borrow her cell phone. The employee would send messages to the cell phone directly without sending to the group. Koketso never told the employee that the cell phone she was using was not hers. On 16 August 2020 the employee sent a message to the phone saying, ‘Good morning love’. The employee used to call the learner, Koketso ‘Babe’ and sent heart images. Koketso did not respond, and the employee continued to send messages as per page 5 of Bundle A. The reason why Koketso was not responding to the messages was that the phone was with her (mother) and no longer with Koketso. After a week or two, Koketso was seen with a cell phone that she did not know. Koketso told Ms. Moepi that the phone belongs to her boyfriend, and they were fighting. Page 6 of Bundle A was a Facebook text by Koketso texting to her friend Amokgelang. Koketso was telling her friend that if she, Yvonne Setlogo could go and report the employee at school and the employee is dismissed, she Koketso would commit suicide. The learners at the school call the employee Mr. C. Koketso was in the text confirming to Amokgelang that she (Koketso) managed to breakaway with the employee, and she (Koketso) was happy that she (Koketso) protected the employee in his sexual harassment matter. She does not have doubt that Koketso was sleeping at the employee’s place. In December 2020 Koketso left home for 15 days. Document B was a game that the employee was playing in the Facebook.
10. Under cross examination, Yvonne Setlogo testified that she does not have a good relationship with her daughter Koketso. The sour relationship started when she took the cell phone from her. Most of the time when Koketso left home she would be brought back by the employee. The employee and Koketso used to meet at the graveyard or Ramatsana. At the Police Station Koketso was seen putting a hat which was usually wore by the employee. You cannot call a person your babe, love if you are not in love relationship with. The babe that the employee called Koketso was the one that shows that there are having a love relationship. I never saw Koketso with the employee, but her witnesses saw them.
Witness 4: Rueben Moselane testified under oath that;
11. He is the biological father of the learner Koketso Setlogo. He does not know the employee, as he was seeing the employee for the first time. Last year around March he got a message from Koketso’s mother that Koketso was in love relationship with the employee. Koketso deliberately used the wrong pattern to open the phone so that the phone could not be opened. In December 2021 when he was at home, he was told that Koketso left home on 15 December 2021. Koketso’s friend, Amokgelang confirmed to him that the employee and Koketso were having relationship. Amokgelang told him that the employee threatened her (Amokgelang) not to come to this hearing.
12. Under cross examination Moselane testified that he was told that there was exchange of chat between the employee and Koketso. He only got the report from the mother and friend of Koketso.
Witness 5: Amokgelang Coreng Phahla testified under oath that;
13. She is a learner at Ramoshidi Technical High School. Koketso and the employee met because Koketso was doing Electrical Technology and the employee was teaching it. She did not know that Koketso and the employee were in love relationship. Lovers flirt on phone and Koketso and the employee were flirting on phone. Koketso is her friend. They met at around 2017. Before the chat on page 6 of Bundle A she met with Koketso and advised her to stop seeing the employee. When Koketso dropped the message, it was after she (Koketso) decided to divorce the employee as she requested. She asked Koketso not to commit suicide. C from the message was referring to the employee. Even other learners at school were referring the employee as Mr. C. One day Koketso came to school with a cell phone which Koketso’s other friend told her that Koketso got it from the employee. In December 2021 Koketso’s father came to her home looking for Koketso because Koketso left home since 15 December 2021. Koketso once complained to her that the employee bit her forcing her to go and sleep at the employee’s place at Marapyana. She advised Koketso to part ways with the employee and Koketso refused, because she loves the employee. One day when she was with Koketso at her home Koketso used her cell phone to call the employee requesting him to buy her (Koketso) school shoes. The employee shouted at Koketso, but latter on when they were in their way to Koketso’s home agreed to buy Koketso school shoes. The employee threatened to bewitch her by consulting sangoma if she could testify against him. Koketso told her that she (Koketso) has been at the employee’s place in Marapyana. Koketso told her that life in Marapyana was a soft life because at the employee’s place she bathed in the shower and the place was beautiful.
14. Under cross examination Phahla testified that the parents of Koketso requested her to testify about what she knew between Koketso and the employee. She has been hearing rumours that Koketso and the employee were in relationship, but as time went on Koketso started to be open to her. There was a time that Koketso told her that she was in love with the employee. Flirting on the phone is when lovers call each other babe, love, and heart emojis. There are two words ‘babe’ and ‘baby’. The first one is not in Dictionary and is used in social media. She did not see the employee and Koketso kissing and having sexual intercourse. The author of page 6 of Bundle A was Koketso. The message was from the Facebook lite. Koketso was speaking about 2015 issues, and she did not know Koketso then. “Text Only (20 MB/day) identifies that the message was from Koketso. On top there is her previous profile picture and Koketso saved her name as “My Smile keeper”. She discussed the message with Koketso. When Koketso spoke of C in the message, she knew that Koketso was speaking about the employee because learners including herself call the employee Mr. C. The message was written in 2021. Koketso never came to her and say she has parted ways with the employee.
Witness 6: Koketso Setlogo testified under oath that;
15. She is a learner at Ramoshidi Technical High doing Grade 12. She knew the employee as her Electrical Technology teacher. She knew pages 3 – 6 of Bundle A as document in which she was communicating with the employee, asking the employee about the parents’ Covid-19 meeting. She was using her mother’s phone. The employee was her teacher and it ended there. The employee was the one using love language and she was not using it when she responded. She was surprised when the employee called her ‘babe’. She did not expect the employee to call her ‘love’. She was not the author of the text on page 6 of Bundle A.
16. The employer requested to declare the witness a hostile witness and the employee party did not object to that.
Ruling: The witness was declared a hostile witness. Both parties were allowed to cross examine the witness.
17. Amokgelang was her friend. She named Amokgelang “My smile keeper”. She was not the author of page 6 of Bundle A. She would assume that C in the text referred to the employee. At school they call the employee Mr. C. The employee gave the learners task which required them to get into You Tube and google. She went to the employee to borrow his cell phone, because she did not have a phone. She told the employee to go to her parents and explain that he lent her his cell phone. She refused her mother’s access to the cell phone because the cell phone belonged to the employee and not because of the love language inside the cell phone. The employee was calling her ‘love’ or ‘babe’ when she was using her mother’s cell phone. The text on page 6 of Bundle A was written by her cousin who sent the text to her mother. The same cousin got into her face book account and sent the message/text to Amokgelang. If it was her who wrote the text, she would have said to Amokgelang ‘mmata’’ she has parted ways with the employee. She said the cell phone belong to her boyfriend because she was waiting for the employee to come to her mother and explain that he borrowed her his cell phone. Sometimes she slept at Amokgelang’s place and some other times at her boyfriend Thabang Maleti. The text on page 6 of Bundle A happened long time ago, but the committing of suicide happened in 2021 around October November month. She wanted the attention of her parents. Her mother and Ant wanted the employee to marry her. Her Ant wanted to talk to the employee to marry her, but she refused because she did not want to be married by the employee. She never told Amokgelang that she was with the employee at Marapyane and two weeks in December 2021 she was at her boyfriend’s place. She does not have relationship with the employee. She fought with her mother for the cell phone she got from the employee.
18. Under cross examination by the employee party Koketso Setlogo testified that it was not true that she had a love relationship with the employee. She never had sexual intercourse with the employee. She was at her boyfriend’s place during December 2020 holidays. She never slept at the employee’s place. The employee was trying to assist her when they were seen at the police station. If a person sends her a heart emojis does not mean that that person wanted to have sexual intercourse with her. It was outwards to be called “babe” or “love” by the employee. The messages on page 5 of Bundle A were written by the employee. She is not familiar with page 6 of Bundle A, but it was written by her cousin. “My smile keeper” was referring to Amokgelang Phahla. Amokgelang never had access to the cell phone she got from the employee. She never flirted with the employee. It was correct that the cell phone she got from the employee caused problems between her and her mother because the phone looked more expensive than the one of her mother. The employee never bit her. She never showered at the employee’s place. She never received any school shoes from the employee.
Survey of the employee’s evidence and argument.
One witness, the employee himself testified. Samuel Tshepo Chauke testified under oath and in English that;
19. He does not have any sexual relationship with Koketso Setlogo. Koketso is a learner at Ramoshidi Technical High, and he was teaching her Electrical Technology. Koketso never slept at his home. He never had sexual engagement with Koketso. She went to the police station with Koketso because Koketso and her friend found him at the car wash and Koketso explained to him that she has been chased away from home and she did not have a place to go. He suggested to Koketso to go to Amokgelang’s place and Koketso told him that Amokgelang’s mother would not allow her because of this allegation of her dating the employee. He wanted the police to accompany Koketso back home. The police then called Koketso’s mother to police station. At the police station Koketso’s mother explained to the police that Koketso was so disrespectful. Flirting is when two people show that they either want each other, they want to pursue a relationship. He never flirted with Koketso.
20. Under cross examination Chauke testified that there were two things, calling Koketso “babe or love” and not flirting with Koketso. The other texts were not meant for Koketso. The employer only made available the extract where he was calling Koketso “babe or love”, but there were other extracts where he was explaining that those extracts were not meant for Koketso. He had a girl friend by the same name of Koketso.
Analysis of the evidence and arguments
21. The employer was required to prove on the balance of probabilities that the employee had a sexual relationship with the learner of a school he was employed at. The employer through its witnesses testify that the employee had a sexual relationship with the employee. It was the testimony of the employer that the employee was flirting with the learner, Koketso Setlogo who was seventeen years at that time. The employer relied to the copies of the text messages extracted from the cell phone of the learner’s mother. The learner was using her mother’s cell phone at the time. In the text messages, page 3-5 of Bundle A, the employee was calling the learner “babe or love” and sent heart emojis. The employer went further to testify that the employee borrowed the learner his cell phone and the learner did not want her mother to access it. The learner and the mother fought for that cell phone. The employee accompanied the learner to police station where she was going to open a case against her mother. It was again the testimony of the employer that the learner sent a suicidal note to her friend Amokgelang Phahla. This was after Amokgelang was advising her to part ways with the employee (refer to page 6 of Bundle A).
22. The employee’s testimony was that he never had any sexual relationship with the learner. He went to the police station with the learner because he wanted the police to take the learner back home. The employer did not extract the messages where he was showing that some of the messages were not meant for the learner. He never flirted with the learner.
23. Based on the testimony of both the employer and the employee, I deduced that there could have been a sexual or love relationship between the employee and the learner. The employee could not have borrowed the learner his cell phone if there was not relationship between the two. The employee could not have called the learner “babe or love” if there was nothing between the two. It is my belief that it was not a coincident that the employee went to the police station with the learner. I draw an inference that the learner might have gone to the employee for protection after she fought with the mother. The learner would not have denied her mother access to the cell phone she got from the employee if the phone did not have messages of love between the two. Refusing her mother access to the phone to an extend that they violently fought was a sign that there was something sinister. The learner in her evidence denied having any sexual relationship with the employee. However, the learner went to the employee to borrow a phone. The learner also went to the employee after she fought with her mother over the same phone she got from the employee. The learner also testified that it was outwards for the employee to call her “babe or love”, but still insisted that there was no love relationship between the two.
24. In view of the above analysis, it is therefore my finding that the employer has on the balance of probabilities proved that the employee has committed the misconduct as charged in terms of section 17 (1)(c) of the Employment of Educators Act, 76 of 1998 (the Act). To me, there is no difference between sexual relationship and love relationship. The fact that the employer could not prove that the employee had sexual intercourse with the learner does not exonerate him from committing the misconduct. The employee had this unwanted relationship with the learner he was teaching.
25. Having found the employee guilty as charged in terms of section 17(1)(c) of the Act, the sanction of dismissal is mandatory, irrespective of the mitigating factors. I have considered the fact that the employee is teaching one of the scare skills subjects and he is one of the hard-working teachers at the school. However, the interest of the learner should prevail. Sexual or love relationship between an Educator and a learner is not acceptable at school environment. Educators play a role of a parents at school. They must ensure that learners are educated.
26. There was no submission or testimony about the suitability or not of the employee to work with children. However, section 120(1)(c) of the Children’s Act, 38 of 2005 makes provisions 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”. I make the finding on the unsuitability of the employee to work with the children in terms of section 120(2) of the Children’s Act, 38 of 2005.
Award
27. I find that the employee, Samuel Tshepo Chauke is guilty of misconduct as charged.
28. I impose the sanction of mandatory dismissal with immediate effect.
29. Mr. Samuel Tshepo Chauke is found unsuitable to work with children in terms section 120(4) of the Children’s Act, 38 of 2005.
30. 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 this forum made in terms of Section 120(4) of the Children’s Act, 38 of 2005 that Mr. Samuel Tshepo Chauke 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.
V. MADULA
ELRC PANELIST
16 August 2022