ELRC 184-21/22LP

ARBITRATION
AWARD

Panellist/s: Seretse Masete
Case No.: ELRC 184-21/22LP
Date of Award: 12 /09/2022


In the ARBITRATION between:

NAMOGANE JACK MACHENGWANA

(Union / Applicant)

and
DEPARTMENT OF EDUCATION LIMPOPO

(Respondent)


Union/Applicant’s representative: Mandla Tjia from Sadtu
Union/Applicant’s address: P.O Box 4661 Boleu Tafelkop
Telephone:
Cell: 0719263505


Respondent’s representative: N E Nyathela

Respondent’s address: P/Bag X9489 Polokwane 0700
Telephone: 015 297 0885
Cell: 079 872 1777

Particulars of proceedings and representation

1. The matter was held virtually on 24 August, 26 October 2021 and face to face on 22 August 2022 respectively.
2. The Applicant, Namogane Jack Machengwana (employee) was represented by Mandla Tjia of SADTU while the respondent, Department of Education, (employer), was represented by NE Nyathela.
3. The proceedings were in English and conducted virtually as well as face to face and digitally recorded.

Issues to be decided

4. I have to decide whether or not the dismissal of the employee was substantively fair.
5. I further have to determine an appropriate remedy in terms of Section 193 and 194 of the Labour Relations Act 66 of 1995, the Act, should I find that the dismissal of the employee was harsh and or substantively unfair.

Background to the dispute

6. The employee was employed as an educator at Kenneth Masekela Primary School Motetema Circuit in Sekhukhune Area.
7. He was dismissed on 26 May 2021 for allegedly failing to submit a report and bribing a parent/guardian and the sexually assaulted victim in order to silence them regarding the sexual assault case.
8. He challenged the substantive fairness of the misconduct as well as the formulation of the allegations, and sought to be reinstated.
9. The employer rejected the employee’s allegations citing that his dismissal was procedurally and substantively fair and the employer could not re-instate him back to his former position.
10. The employer submitted one bundle of documents marked A and called three witnesses and the employee testified and called one witness and further submitted one bundle of document marked B.

Survey of evidence and arguments
The Employers’ version
The first witness of the employer, Millicent Ntshieng Mathladisa (Millicent) testified under oath as follows;

11. She was the guardian of the learner who was gang raped and was staying with her. On 2 November 2017 when arriving home, she found the girl sick. The doctor confirmed that the child was raped by a gang of boys. On 3 November 2017 she went to the principal to report the matter and the principal said the incident did not happen at school. She insisted that he call the children and ask them. The children confirmed that the incident happened and it was not the only incident. She then went to the circuit manager and reported everything. On 4 November 2017, the principal and the SGB chairperson visited her at home. The two told her that they were still looking for those boys who raped the girls. They threatened her that the case would go nowhere because they were friends of the police officer who was handling the matter. She told them she would consult the legal people and they laughed at her and left. On 6 November 2017 she reported the matter to the social workers. The social worker promised to take the matter up. On 8 November she took the girl to the hospital that’s was when the principal called her. He asked her to meet him at Boxer at Groblersdal. He bought pizza and gave it to the child and gave them a lift home. On the way he went on trying to stop her from proceeding with the case. He ultimately gave R500-00 to the child saying he wanted the matter to end. She responded by saying he had to call the parents to discuss the matter. He then promised to build a three room house for her because she was staying in a shack. She was offended by the principal’s offer because she was not the only one who was poor. She could not sell the happiness of her family because of poverty. She was surprised why the principal would bribe her because he was not the one who raped the child. She ended up taking the matter to the media. The promised house would remind her of the bad memories. It would sound like she sold the child for a house in exchange of her being raped. On page 33 and 44 of bundle A were copies of the notes (R500-00). She requested the principal to come collect the money but he did not. The money was still with the police.
12. The two teachers she mentioned on page 17 of bundle A, Selepe and Ramatji, wanted her to abandon the matter claiming that the incident was child’s play. When children are at school teachers and the principal should be responsible as they are regarded as parents. The principal was the head of the school; he should take responsibility for whatever happens at school. She only knew that the principal visited her on 4 November 2017, she did not know of any date they visited her. On 8 November 2017, was the day when the principal promised her a house. During the visit, the principal never asked about the wellbeing of the child but that they were looking for the parents of the children who raped the child. It was the principal who told her that he had connection with the Police, he even quoted what was written in the docket. She was surprised when he offered her a house and money and she did not know why because he did not know her. It was put to her that building a house as a bribery was not convincing, she insisted that it was convincing because he wanted her to stop continuing with the matter. The principal said the R500-00 he gave to the child was for the sweets. It was put to her that she did not have any proof that the principal had connection with the police and further that she was not telling the truth. She insisted she was telling the truth.
13. The principal and her started knowing each other during the incident, R500-00 for sweets was too much, so there was a motive.

The 2nd witness of the employer, Segwarihle Dinkwenyane, testified under oath as follows;

14. In November 2017, he was a Circuit Manager at Motetema Circuit and he knew the employee as he(employee) was a principal of Kenneth Masekela Primary School then. On page 11 of bundle A, was the allegations levelled against the employee, failure to report the sexual assault at school. Page 22 of the same document was the report written by him (witness). The report was written on the 23rd November 2017 and the incident took place on 2nd November 2017. He went to the school and advised the principal to submit a report who promised it would come, but it did not until the Circuit wrote a report on its own. The principal said, he could not write the report because the two educators refused to write a report as they did not want to implicate themselves. He became aware of the matter through Mr Mathunyane who picked it up from the media. He went to the school before the department investigated the matter. After becoming aware of the matter, they went to the school immediately without notifying the principal that he was coming. Circuit Managers do monitoring and support. He did not remember the exact dates he visited the school. It was put to him that he failed to support the educators; he responded the representative was entitled to his own version.

The employee’s evidence and arguments
The employee, Jack Machengwane, testified as follows

15. He became aware of the rape matter in November 2017. He was informed by the deputy principal (DP) that a parent came on the 3rd of November 2017 to report that a child was raped. He was the last person to leave the school on the 2nd of November 2017. The DP told him that the guardian (Millicent) phoned the class teacher. He called the boys in a grade 2 class whose age was between 7 and 8. Millicent started beating the boys and he stopped her. He did not fail to report the matter because on the 3rd of November 2017, he called a meeting and called the chairperson of the SGB where he gave them a report. After that meeting he decided to report the matter to the Circuit office on the same date of the 3rd November 2017. At the circuit he found Mam Makgobotlwane. He requested her to inform the Circuit Manager on his behalf and she agreed. Reference was made to page 20 of bundle A where there was a report dated 09 November 2017 written by him. On the 3rd and 4th November 2017, he visited the child’s family. He wanted to check how the child was doing because he was informed that she was going to be taken to a doctor. On the 4th of November 2017, Millicent was not home but she later came and found him at the house. Millicent indicated to him that the child, as a victim, needed a safe place out of their residential area. He asked one of the SGB members who was also a Councillor as to why did not they build an RDP house for the family. He only told the meeting at the child’s house that the child needed a shelter. He even suggested to the SGB to raise funds so that a house could be built for the child. He refuted the charges and denied to have given anybody R500-00 on the 8th November 2017. He called Millicent who previously indicated that she would take the child to Hospital. He then offered to take them. Because he was told that the child was choosy when coming to food, he donated between R150 and R200 to the child when she was in his car. He could not have bribed the child because he was not the one who raped her and he did not know the boys.
16. The report on page 20 was written on 9 November 2017, he later changed and said the report was written on 08 November 2017. Mr Mathunyane rejected the hand written report on 08 November 2017. It was put to him that he went to the Circuit and found Makgobotlwane but never said anything about the hand written report and Mathunyane. He met Mathunyane on the 6th November 2017 who asked him to go and write a report. It was put to him that the employer charged him on 08 November 2022 but he claimed to have submitted the report before the 9th November 20217. It was further put to him that there was no report submitted to the Circuit office. He answered that on 21 November 2017 his union representative took the report. He gave the report to Mr Netshivhevhe. It was put to him that Dinkwenyane testified that he advised him to write the report and he did not, and he never put to him (Dinkwanyane) that he submitted the report to him. He answered that it was because he was talking to them verbally. He confirmed that there were two educators who were afraid to implicate themselves. It was put to him that he never put it to Dinkwanyane that he submitted a written report that was rejected. He did not respond to the question except to say Dinkwanyane also testified that he forgot some of the events.
17. He called the Millicent on his way to Grobblersdal and she said she was in a taxi with the child and he told her to go home because it was late. It was put him that she told him she was at Shoprite, and he told her to come to boxer. It was further put to him that he never put it to Millicent that he would not come to her then, because it was late. He did not respond to the version.
18. It was put to him, that he did not challenge Millicent about the R500-00, but only saying that it was between R150-00 and R200-00. He answered that he did not give R500-00 to the child because she was still young and would not know what to do with R500-00. He confirmed that the witness said the R500-00 was taken to the circuit and later to the SAPS. He further said Millicent took the money but did not buy anything. He was referred to Mr Mathunyana’s report on page 15 and subsequent pages of bundle A. It was then put to him that page 16 bullet 11 and 12 showed that the report was not submitted. He insisted that he did submit (no proof). It was put to him that he remembered and confirmed that Millicent said he (employee) wanted to build them a 3 roomed house, but then he turned and said that, he asked one member of the SGB (Councillor) to build an RDP house, he never challenged Millicent’s version. He did not answer. It was further put to him that he never put to Millicent the version of asking the SGB chairperson to build an RDP house. He answered that he told the SGB chairperson that if business people fail to build the child and her guardian(Millicent) an RDP house, he would offer to build a 3 roomed house for them. It was put to him that, as it relates to the RDP house he indicated this to Millicent under cross-examination, and this was it a crime to build a stranger a house and therefore his statement amounts to a confession. He responded that he saw the shack where the child lived and it was overcrowded.
19. He was never reprimanded about submitting a report. He never bought a pizza. He did not tell Millicent and the child to come to Boxer but only told them he was at Boxer and they came there. The issue of building the house was suggested on 04 November 2017 at Millicent’s home. He never gave the family any R500-00 but between R150-00 and R200-00. He never requested Millicent not to report the matter to the authorities.

Aphane Lucas Maapea, testified under oath as follows

20. He was the chairperson of the SGB. He became aware of the case on 03 November 2017 when the Principal called and asked him to come to the school. They held a meeting with the SMT and the affected teachers. The principal and the chairperson were delegated to go and report the matter at the circuit office but the Circuit Manager’s office was closed. They then reported to Makgobotlwane and they left and headed for the child’s family house. They found a number of children in the shack and Popy (alleged victim) told them her mother was not there. They went back on the 4th and a child told them her mother was nearby. They wanted to know the welfare of the child. He took the principal as a good person who did not want to see people suffering because he assisted some children with school uniform and transport money and further assisted one child who needed to go to hospital.
21. He did testify during the disciplinary hearing. He was serving the CPF and the ward committee. He never heard about the 3 roomed house. The application for the RDP closed in August. On the 8th of November 2017 they submitted the report but were told to go back and type it. It was put to him that the employee testified that he wrote the report on the 9th not the 8th. He answered that he typed it on the 9th November 2017.He did not know whether the typed report was submitted or not. When asked why did not know because he was the SGB chairperson, he responded that he was told telephonically at about 21h00, that it was submitted. Page 16 of bundle A was Mathunyane’s report dated the 10th of November 2017. When asked whether the principal was lying when he said he did not submit the report. He chose not to respond, but later said he would agree that the principal was lying.
22. His conversation about the house was based on the department of housing and municipality, he never made any promises.

Analysis of the evidence and arguments

23. Common cause issues. A child was mob raped at Kenneth Masekela School on or around 02 November 2017. The employee was a principal of the said school at that time. The child was offered money by the employee (only the amount was disputed). The employee mentioned a three roomed house/RDP to the child’s family. Issues in dispute. There was no bribe. The employee submitted a report on the matter to the Circuit office. The Circuit did not support the employee.
24. The employee was charged with among others, allegation of prejudicing the administration, discipline or efficiency of the department. (This can be found on Section 17 (1)(b) and 18 of the Employment of Educators Act 76 of 1998) (EE of A). The evidence led by the employer was that the employee failed to report an act of rape where a minor was gang raped by other minor learners. The defense by the employee, backed by his witness, (Maapea), was that he did report the matter on the same date of becoming aware, i.e.the 3rd of November 2017. He did not find the Circuit Manager, Mr Segwarihle Dinkwenyane (Dinkwenyane) at the Circuit office but found Ms Mokgobotlwane whom he gave the message to. He requested Mokgobotlwane to pass the message to Dinkwanyane and she agreed. The employer’s witness, Dinkwenyane, disputed this version and the employee did not produce any proof thereto and did not call Mokgobotlwane to come and corroborate his story. My take on this version is that it was not corroborated and therefore cannot stand.
25. In the second instance, the employee testified that he submitted a hand written report on 07 November 2017 but later changed and said on 08 November 2017 to a one Mathunyane at the Circuit office who turned it back indicating that it should have been typed. He therefore returned home with the hand written report. He met Mathunyane on 06 November 2017. Dinkwenyane disputed the employee’s version citing that he first heard about the incident through Mathunyane who picked it up from the media. He (Dinkwenyane) later went to the school himself before the matter was investigated and requested the employee to write and submit a report about the incident but the employee never submitted any report until then. He ended up writing his own report on 23 November 2022, see page 22 of bundle A. The employee never challenged Dikwanyane and never indicated to Dinkwaneyane that he submitted the report to Mathunyane who returned it indicating that it was supposed to have been typed. The employee also did not call the people he alleged to have given the report to (Mathunyane and Mokgobotlwane), to come and corroborate his version. Because the employee’s version was disputed by Dinkwenyane and it was not corroborated by any means, I conclude on the balance of probability, that he never submitted such report at all. His witness, Lucas Maapea, was not credible in his testimony. He testified that the employee submitted the hand written report and later the typed report, but when cross questioned, he conceded that the employee lied by saying he submitted the typed report.
26. Bribery. The witness, Millicent Ntshieng Mathladisa, testified that the employee gave the child R500-00 trying to stop them from continuing with reporting the case, this was not disputed. She further said the copies of the notes thereof, were on page 33 and 45 of bundle A. The original notes were taken by the police to be kept as exhibit. This version was not challenged by the employee except to say he only gave the child between R150-00 and R200-00. He never challenged the copies on pages 33 and 45 and he never challenged that the original copies of the R500-00 were taken by the police. The employee’s testimony on the issue of the money actually did not add up. He initially mentioned that he, on or around 08 November 2017, called Millicent because she once mentioned that she would be taking the child to hospital. He offered to take them with and on the way, because he heard that the child was choosy when coming to food, offered her between R150-00 and R200-00 to buy what she wanted. When cross-questioned about this issue, he then turned and said, he talked to Millicent telephonically when she was already in Grobblersdal and told her to come to Boxer so that they could travel together. He further contradicted the two above versions when he said he called Millicent on his way to Groblersdal and she told him that she was in a taxi with the child that was when he told her that they should go on because it was late. On the issue of offering to build the family a three roomed house, he testified that he only suggested it to Maepa because he was one of the council committee member. He further indicated that if nobody could help, he would volunteer in raising funds and built a three roomed house for the family because children were cramped in that shack the family was living in.
27. It is for the above reason that, on the balance of probability, the issue of the money and the issue of building a three-roomed house existed. A question is, was it a bribe or not. Millicent testified that she rejected the money and the offer for a house because it would appear that she sold the child, this was not disputed. Although SAPS was not called to come and corroborate the issue of R500-00, the employee did not dispute the copy of the notes in bundle A. He further did not dispute that SAPS took the R500-00 with, to the station and that it was still there. The employee himself also confirmed that he did mention that should Municipality and or any other business fail to build a house for the family, he would offer to build it for them because children were cramped in the shack where the child was staying. Why would the employee do that? It was seen in the paragraphs above that he failed to submit a report on the rape against the same child he wanted to canvass a house for even after he was told by his own Circuit Manager to do so. The report was not submitted even at the time of the arbitration. To me,the, R500-00-00 and a three roomed house promise to the family, was on the balance of probability a way of the employee’s attempt to sooth Millicent so that she could stop continuing with the matter. One will remember that he did not challenge Millicent when she testified about the house.
28. My take is that managers should be loyal to the rules, regulations and policies of their employers. Managers have fiduciary duties and obligations to ensure that they exercise care and skill and further refrain from engaging in conduct that is incompatible with the implied terms of trust and confidence. In Woolworths vs Saccawu and others (JA 56/2016){2017} ZALAC 54, the court held that in cases of breach of a rule, the following must be considered; (a) whether there was a rule breached (b) the nature and importance of the rule (c) whether the employee knew about the rule or expected to have known about it. (d) whether the rule has been consistently applied and (e) whether dismissal is an appropriate sanction and this is also echoed in paragraph 7 of the code of good practice in the Act. It is important that innocent children must be protected and it is the responsibility of the parents to do that. Teachers at Schools act in loco parentis, they are expected to take care of the safety of the children under the management of the principal. The employee’s argument that what employees do after work hours is of no concern to their employers, is misguided because it depends on the type of the work performed by the employee and or the kind of misconduct committed. The argument by the employee that bribes and or criminal activities are investigated by SAPS, SIU and other law enforcement agencies, is also misguided because disciplinary procedures in terms of the Employment of Educators Act as amended, are not affected and should not emulate court proceedings. The concern that the employee was not supported by the Circuit, was also not substantiated because among others, Dinkwenyane testified without any challenge that he visited the school before the matter was investigated and he requested the employee to write and submit a report but that did not happen. My conclusion is that on the balance of probability, the employee failed to adhere to the rules of his employer by failing to report the rape incident and by trying to stop the parents from continuing with the case. The employer therefore succeeded in discharging its honours of proving that the dismissal of the employee was fair. On the balance of probability, the employee breached the standard which he was aware or expected to have been aware of. The standard was fair as it was meant to protect both the teachers and the learners. The sanction imposed on the employee was therefore commensurate with the offense he committed. It was also found in Delport v SA Red Cross and others [2015] 28 (LC) that the dismissal of the employee for failing to adhere to the employer policies was fair.


Award

29. The dismissal of the employee, Namogane Jack Machengwane, by the employer, Limpopo Department of Education was substantively fair, procedure was not challenged.
30. The case of the employee is hereby dismissed.


Seretse Masete Date 12/09/2022
ELRC Panellist