ELRC223-21/22GP

Panellist: Themba Manganyi
Case No.: ELRC223-21/22GP
Dates of Hearing: 16 February 2022, 06 May 2022,
14 and 15 June 2022 and 15 July 2022
Date of Arguments: 22 & 26 July 2022
Date of Award: 23 September 2022

In the Inquiry by Arbitrator Hearing between

GAUTENG DEPARTMENT OF EDUCATION EMPLOYER

and

SADTU OBO MOFOKENG EMPLOYEE

Employer’s representative: Ms Valerie Mnisi


Employee’s representative: Mr Thulani Ngcobo


Details of hearing and representation

1. This is an arbitration award in terms of section 138(7) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended, emanating from an Inquiry by Arbitrator process (s188A of the LRA). The arbitration proceedings were conducted on 16 February 2022, 08 April 2022, 06 May 2022, 14 & 15 June 2022 and 15 July 2022 under the auspices of the Education Labour Relations Council (“the Council”). The proceedings were held at the GDE Head Office (Simmonds Street), Siyabonga Primary School for an inspection in loco and at the Gauteng West District Office (Florida).

2. Ms Valerie Mnisi (“Mnisi”), the Labour Relations Officer, represented the Employer, Gauteng Department of Education and Mr Thulani Ngcobo (“Ngcobo”), a SADTU Official, represented the Employee, Mr Gavin Mofokeng (“Mofokeng”). The parties submitted bundles of documents into the record and the contents thereof were not in dispute. The Employer’s bundle was marked as Bundle A and the Employee’s bundle was marked as Bundle B. Ms Edna Shibisi assisted with the intermediary services and Mr Marvin Seale assisted with the interpretation services.

3. At the end of the proceedings, the parties agreed to submit their closing arguments in writing on or before 22 July 2022. I duly received the Employee’s heads of arguments on the agreed date and I received the Employer’s heads of arguments on 26 July 2022. The proceedings were digitally recorded and I also took handwritten notes. The recordings thereof were retained by the Council.

Issue/s to be decided

4. I am required to determine whether Mofokeng has misconducted himself or not as alleged by the Employer. In the event that I find him guilty of the allegations levelled against him, I will be required to determine the appropriate sanction.


Rights and the procedure

5. All the rights commensurate with a fair process and the nature of the process were explained to the parties. Mofokeng confirmed that he was afforded all the rights that were commensurate with a fair process. Parties were reminded to address me in terms of section 120(3) of the Children’s Act 38 of 2005.

6. The Employer preferred the following charge against Mofokeng:

Allegation one:
• It is alleged that during the period 2016 to 2018, while on duty at Siyabonga Secondary School you sexually assaulted Learner X from Siyabonga Secondary School, in that you raped her.

In view of the above, you are thus charged with misconduct in terms of section 17 (1)(b) of the Employment of Educators Act 76 of 1998, as amended.

NB: The name of the learner is concealed to protect her identity.

Pleadings

7. Mofokeng pleaded NOT GUILTY to the allegation levelled against him.

Survey of evidence and arguments

The Employer called two witnesses and the Employee testified and called two witnesses. All the witnesses testified under oath. In summary they stated the following:

The Employer’s case

8. Learner X stated that she was 13 years old in the year 2016 when she started her Grade 8 at Siyabonga Secondary School. She left Siyabonga in 2018 when she was in Grade 10. She testified that she was raped between 2016 and 2018 by a Mr Khoza and the school Principal - Mofokeng in Mofokeng’s office and in the sick bay. She stated that during the second term, she realized that her Maths results on her report card were not correlating with her marked script. She then went to the staff room to complain. Khoza was in the staff room and he heard her complaining about her marks. He (Khoza) took her documents and went to Mofokeng’s office. He came back and called her to Mofokeng’s office. In there, she was told that she must come back the following day at around 07h00 to sleep with them (Mofokeng and Khosa) before her report is corrected. The following morning she went to school at around 07h00 and she wanted to hide herself in the library, but the library was locked. She then went to look for the gentleman (the caretaker) who keeps the keys. When she approached the Admin Block, Khoza forcefully grabbed her and took her to Mofokeng’s office.

9. In Mofokeng’s office, Khoza pushed her onto Mofokeng’s desk and Mofokeng started raping her whilst Khoza took pictures with his phone. After Mofokeng was done raping her, it was then Khoza who started raping her and Mofokeng took pictures with his phone. They both raped her using condoms. After raping her, Mofokeng threatened her by telling her that should she tell anyone, her parents would no longer see her again. She left Mofokeng’s office and went to the bathroom to clean herself because she felt dirty. Then she went to the library and she stayed there until after assembly. After assembly, she went to class. She did not tell anyone about her ordeal because she was afraid.

10. She stated that Khoza and Mofokeng told her to arrive early every day at school and she complied, but she would not go to the office as instructed. However, Khoza and Mofokeng would see her that she has arrived and Khoza would take her to Mofokeng’s office. She stated that there would be caretakers who opened the school. At times, she would be called whilst she was in class during contact time and when she got to the office, at times she would find Mofokeng alone or Khoza alone or both of them. Khoza and Mofokeng would take turns raping her. She testified that when she was in Grade 9, her mom passed away and they stopped raping her for a while, but they started raping her again after a short while. She stated that the rape continued until when she was in Grade 10 during term 3.

11. She decided to tell her father about the rape when she realized that they would not stop. After she told her father, her father went to Dobsonville Police Station to report a case and after her father saw that the SAPS were not doing anything, he reported the matter to the District Office. Ms Elizabeth Motsamai (“Motsamai”) took her statement. She testified that Khoza and Mofokeng only used condoms at the beginning and when they stopped using condoms, they gave her tablets (pills) after raping her.

12. She submitted that Motsamai’s report on page 1 of Bundle B was not entirely true. She stated that she did not tell Motsamai that she was raped by all the male educators. Regarding the trip to Bakers (brothel), she stated that Mofokeng and Khoza organized the trip. However, only Khoza went to the trip.

13. Under cross-examination, she stated that she did not know Ms Rachel Mkhonza (“Mkhonza”). She confirmed that she was a witness in Khoza’s hearing. She confirmed that she recalled the meeting that she had with Motsamai sometime in 2018. She stated that at that meeting she was with her father and that Motsamai was alone. When asked if Motsamai introduced her to a Ms Khosa, she stated that she did not recall meeting Ms Khosa. On the issue of the procedure to report incorrect marks, she stated that the learners were never told about the procedure that was supposed to be followed. She stated that she went to the Admin Block to have her Maths and EMS scripts corrected and when she was still explaining to the Admin lady, Khoza came in and took her scripts and went to Mofokeng’s office. After a while, Khoza called her into Mofokeng’s office, she was told to come early the following day, she went to school early the following day, but did not go straight to the office. Khoza found her whilst she was busy looking for the caretaker and pulled her into Mofokeng’s office.

14. She stated that there was no one in the Admin Block at that time. She found Mofokeng in his office and they told her that they were going to sleep with her. She refused to sleep with them. Khoza slapped her and pushed her onto Mofokeng’s desk. Khoza started raping her from behind and when he was done, Mofokeng raped her from the front. After they were done raping her, they gave her a pill. When she was told that in her evidence in chief she stated that Mofokeng was the one who started raping her, she stated that she at times forget details, but that did not mean that she was not raped. She confirmed that she would be called during lessons at times and she would be raped by both Mofokeng and Khoza in the sick bay. She stated that in her opinion, Mofokeng would send the Admin Staff on errands so that they (Mofokeng and Khoza) would not be disturbed. It was put to her that she stated during Khoza’s hearing that it was only Khoza who raped her in the sick bay. She refuted the version and stated that she said Khoza mostly raped her in the sick bay. She stated that she did not recall stating that she went to the bathroom after the rape to clean herself. She confirmed that she was still a virgin when Khoza and Mofokeng raped her. She testified that she did not see blood in her panties after the rape. However, she was adamant that Khoza and Mofokeng raped her.

15. It was put to her that there was a lady that opens Mofokeng’s office every morning. She could not comment. She could not comment on the version that the matriculants have classes that starts at 06h45. She confirmed that Mr Molefe who is responsible for the Readers’ Club starts at 07h00. She disputed that she told Motsamai that all the male educators raped her. She told Motsamai that all the male educators knew that Mofokeng and Khoza were raping her.

16. Motsamai testified that she was currently a Circuit Manager and that she was the IDSO at the time when she wrote the report on page 6 of Bundle A. She stated that her report was a verbatim account of what the learner and her father told her. She stated that the learner told her that she was raped by all male educators at the school and that she and other learners in Grade 11 and 12 were taken to a brothel in Roodepoort and they were raped. She testified that Learner X could not identify the learners that she went with to the brothel. She stated that Learner X informed her that Mofokeng and Khoza would send a learner to call her from the class during teaching and learning to sexually assault her. However, she (Learner X) could not identify who the learner was.

17. Under cross-examination, she confirmed that her report was a true reflection of what Learner X told her. She stated that Learner X did not mention to her that Mofokeng was not involved in the trip to the brothel. She stated that it was questionable that Learner X could know the grades of the learners that she went with to the brothel, but not know their names. She stated that Learner X did not dispute that she once poisoned her parents. She stated that the Admin Block was a very busy and noisy place and that it was questionable as to how the rape could happen during school hours. She stated that there was a caretaker who opened the school in the morning and that there was a general assistant lady who opened Mofokeng’s office for her when she visited the school.

The Employee’s case

18. Mofokeng testified that he was shocked when he received the charge sheet and that the charge levelled against him was not true. He stated that he arrived at the school at different times and that at times he would arrive early to monitor the Grade 12 morning classes. He also stated that there was a feeding scheme at the school and that the kitchen opened at 06h30. He stated that Mr Jomo Mnisi (“Mnisi”) and Ms Deborah Nhlapo (“Nhlapo”) were responsible for opening the school and that his office was only opened by Nhlapo. He submitted that Learner X was lying and that she has never been in his office. He stated that he was never involved with the changing of marks of any learner and that Ms Mkhonza was the Deputy Principal that was responsible for the curriculum.

19. He stated that he knew the brothel that was referred to as he stays around the area. He submitted that he was not responsible for arranging school trips as he did not teach any class and that all the school trips are sanctioned by the District. He stated that there were two sick bays at the school and that one was used as a store room and the other one was used by female general workers and as a sick bay whenever there was sick learner.

20. Under cross-examination, he stated that he interacted with Khoza like all the Grade 12 educators. He stated that he knew Learner X through the Readers’ Club. He stated that he did not know of any problems about Learner X. He explained how school trips are under taken and that he did know anything about the fake trip to the brothel. He confirmed that he knew the brothel that was mentioned because he resides around Roodepoort. He stated that he testified during Khoza’s hearing because Khoza’s representative called him to testify.

21. Mkhonza testified that she was the Deputy Principal at Siyabonga and that she wrote the affidavit on page 5 of Bundle B because SADTU Executives requested her to write it as she was the one who dealt with Learner X’s report card. She stated that Learner X’s story on the Council’s website was telling a different story to what she knew. She testified that she was requested by the EMS HOD to adjust Learner X’s marks and she took her script to the subject teacher, Ms Tshivhase to post-moderate the script. She explained the procedure for learners to follow when they had issues with the marks. She testified that Mofokeng was not involved in Learner X’s marks. She stated that there was too much traffic in the Admin Block and that Nhlapo and Mnisi were responsible for opening the Admin Block and Nhlapo was responsible to open Mofokeng’s office. She stated that there were matric classes that started at 07h00 every morning and that one Mr Mokoja was responsible for the matric classes. However, Mofokeng did make rounds at times to oversee the matric classes.

22. Under cross-examination, she reiterated that she became aware of the allegation when Mofokeng addressed the staff after he heard from Motsamai about the allegations involving Khosa. She stated that it was not possible that Mofokeng and Khosa could have raped Learner X in the staff room or sick bay during school time. She stated that Nhlapo and Mnisi kept the school keys.

23. Nhlapo stated that she was the General Assistant at Siyabonga and that she assisted with the opening and cleaning of the school since 2010. She stated that she started opening the school around 2015/16 and that she opened the Admin Block at 06h45. She stated that Mnisi also opened the Admin Block when she was not at work. She stated that she was responsible for opening Mofokeng’s office all the times. She mentioned that there were two sick bays and that one was used for sick learners and the General Assistants and the other one was used as store room. She stated that the sick bay was always locked when they went to work and that they would be called to open it when there was a sick learner. She said it was not probable for Mofokeng to have raped Learner X in his office as she always opened his office.

24. Under cross-examination, she stated that she arrived at the school around 06h40 and when she would be absent, she would inform Mnisi to open the school. She confirmed that she would not know what happened in Mofokeng’s office whilst she was busy with her chores. She stated that she kept Mofokeng’s office keys in the sick bay and she kept the Admin Block’s key with her.

Analysis of evidence and arguments

25. Section 138(7) of the LRA requires a commissioner to issue an award with brief reasons. Therefore, what follows hereunder is a summary of my findings and not a verbatim account of all the submissions that were made during these proceedings. However, it should not be construed that some of the submissions were not considered as I have considered all the submissions including the written heads of arguments.

26. The alleged rape ordeal started when Learner X was thirteen (13) years old and it persisted until when she was fifteen (15) years old. Learner X just turned nineteen (19) years when this matter was heard. It therefore cannot be expected that she would recount every detail of the incident. Learner X first reported the incident to her father where after they (she and her father) reported the matter to Motsamai and Khosa (the Psychologist) from the District in November 2018. Motsamai authored a report (page 1 – 4 of Bundle B) on 18 January 2019 and Khosa co-signed the report. Motsamai testified on behalf of the Employer in these proceedings. I must say, she impressed me as a witness. She was consistent during her evidence in chief and during cross-examination. I do not find any reason for Motsamai and Khosa to fabricate the report that was submitted to the Department for further investigation.

27. Motsamai stated that her report was a true reflection of what was narrated to her and Khosa by Learner X and her father. On the other hand, Learner X refuted some of the contents of the report as a fabrication by Motsamai. It was Motsamai’s evidence that she did not know Learner X at the time she wrote the report and that she did not have any reason to lie about what she was told. Concerning the report, Learner X, stated that bullet 3, 7, 10 and 11 on page 2 and bullet 4 on page 3 were incorrect. In her version, Learner X stated that she was not raped by all male teachers and that Mofokeng was not part of the team that went to the prostitution outlet in Roodepoort. However, she maintained that Mofokeng and Khosa raped her in the sick bay and in Mofokeng’s office from 2016 to 2018. It was Learner X’s evidence that she used to arrive early (around 07h00) at school before other learners arrived and at times she would be called to the sick Bay or to Mofokeng’s office during teaching and learning to be raped by either Mofokeng or Khosa or both of them. I find this version highly improbable.

28. An inspection in loco was conducted at Siyabonga Secondary School during these proceedings. What I observed during the inspection in loco was that the Admin Block was very busy during school hours and Mofokeng’s office was an arm’s length from the Admin Office and the two sick bays. There were matric learners who had morning classes from around 06h45. The Readers Club started at 07h00 and Molefe (responsible for the Readers Club) reported for duty at around 06h50. There was also a feeding scheme that started at 06h30. Nhlapo’s evidence that she alternated with Mnisi to open the Admin Block and that she was responsible for opening Mofokeng’s office was not challenged. Mkhonza also confirmed that Nhlapo and Mnisi were the people that were responsible for opening the school and that Nhlapo was responsible for opening Mofokeng’s office. Even Motsamai confirmed that whenever she was at the school in Mofokeng’s absence, Nhlapo would open Mofokeng’s office for her. I can therefore safely conclude that Mofokeng did not have the key to his office and that his office was opened upon his arrival.

29. Now, one has to ask himself what motive/s Learner X had to implicate Mofokeng and all the male teachers with this shameful act. I wish I could answer this question with absolute certainty, but unfortunately I cannot find any rationale behind this allegation. However, there are some events that make me draw a negative inference against Learner X’s allegations. These are the following:

 She informed Motsamai and Khosa that she was raped by all the male teachers at school during school hours. At times the male teachers would take turns raping her during school hours. As I have indicated herein above, the Admin Block is always busy during school hours. It is highly improbable that all male teachers can engage in such an act without fear of being discovered by either other staff members or learners.

 Lerner X’s informed Motsamai and Khosa that she poisoned her father and mother once and that the poison was from Khosa. Her father disputed that the poison was from Khosa, but it was from a sangoma who used girls for prostitution and the father further stated that Learner X tried again to poison him after her mother’s demise. I find her conduct in this regard very worrisome. This conduct cannot be expected from a learner / person who was mentally stable. I am of the view that if Learner X was capable of trying to kill her own parents; it would not be difficult for her to concoct such allegations against any one.

 Learner X stated that she was taken to Barkers (a prostitution outlet) with other learners from Grade 11 and 12 to be raped by several teachers. I have my misgivings about this allegation. This is so because, a prostitution outlet is very protected by its service providers and they would not allow clients to bring their own “stock” from outside. My doubts are also exacerbated by the fact that Learner X stated that she was locked in a room with a Grade 12 learner before they were raped. Learner X did not know the name of the learner or could not even identify her. It is my considered view that if indeed Learner X was repeatedly raped by Mofokeng and Khosa, it would have dawned on her to engage that learner and warn her of what was about to happen to them.

 Learner X also stated that she would be called from class during teaching and learning to be raped in either the sick bay or in Mofokeng’s office. As indicated before, there is a lot of movement in the Admin Block during school hours. Mofokeng and Khosa would not be so careless to risk engaging in such a hideous act without any fear of being caught.

30. After all the evidence that was presented before me, I find on a balance of probabilities that the allegation levelled against Mofokeng does not have any merit and it stands to be dismissed.

Award

I find
31. Mr Gavin Mofokeng NOT GUILTY of the allegation levelled against him.

Arbitrator: Themba Manganyi