PSES 236-16/17 MP

Case Number: PSES 236-16/17 MP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 19TH September 2022

In the HEARING between

Fannie Themba Nonyane

(Union/Applicant)

And

(Respondent)

Department of Education

Employer representative:
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative:

Respondent’s address:

Telephone:
Telefax:
E-mail:


DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for an arbitration hearing at the Department of Education Building at the Government Complex in Mbombela on the 29th and 30th August 2022. By sitting extra hours, the arbitration was finalized at 17h30 on the 29th August 2022.
2. The parties requested and were granted the opportunity to submit written closing arguments by the 6th September 2022. Both sets of written arguments were timeously received and my award now follows.

3. Mr. E. Khambako, an attorney, represented the Applicant.

4. Adv. F. Venter, Instructed by Adendorff Theron Inc. attorneys, represented the Respondent.


ISSUE IN DISPUTE

5. Whether the Applicant’s dismissal for misconduct was substantively fair or not. Procedural fairness is not in dispute in this matter.


BACKGROUND TO THE ISSUE IN DISPUTE AND COMMON CAUSE FACTS

6. The Applicant had previously employed the Applicant as PL 2 (HOD) educator for mathematics and an educator of physical science at the Makhosana Manzini High (Secondary) School.
7. Three charges of misconduct were levelled against the Applicant but at the ensuing disciplinary enquiry the Applicant was only found guilty of two charges. Although an arbitration hearing is a hearing de novo the Respondent elected to abide by the decision of the disciplinary chairperson and not to pursue count two.
8. The first charge alleges a contravention of section 17 (1) © of the Employment of Educators Act no 76 of 1998 (as amended) (EEA) in that it alleged that the Applicant had a sexual relationship with learner Ms. T.I Nkuna (hereinafter referred to as the deceased) which caused her to commit suicide on the 23rd August 2011.
9. The third charge (now second) that the Applicant is alleged to have committed in terms of section 18 (1) (ee) of the EEA is that he acted dishonestly as a physical science teacher by providing a memorandum to the deceased prior to writing a test which was supposed to have been written on or about the 24th August 2011.
10. The Applicant was found guilty of both cited charges and dismissed on the 19th October 2011. The Applicant appealed the decision internally and was eventually furnished with the outcome of the appeal on or about the 28th June 2016 where the sanction of dismissal was upheld, and the appeal dismissed. The Applicant lodged a dispute with the ELRC and was subsequently found not guilty by another Panelist of the ELRC on the 31ST January 2018.
11. The Respondent took the Panelist’s decision on review to the Labour Court and delays ensued with the reconstruction of the record. Eventually on the 8th March 2022 Her Ladyship Madam Acting Justice Ntsoane reviewed and set aside the arbitration award and referred it back to be heard before another Panelist. In so doing she ordered that the evidence of only two witnesses whose testimony before the first Panelist could not be reconstructed to be re-heard at arbitration. A transcript was provided of the other witness’s testimony at the previous arbitration as part of the bundle of documents at this arbitration and the transcript was accepted for what it purported to be by both parties. In reality I inherited a part heard arbitration and the award proceeds on this premise.
12. I was presented with one lever arch file at the arbitration which consisted of three parts namely: Part 1-ArbitrationTranscript, Part 2-Employers Bundle and Part 3- Employee’s Bundle.

SURVEY OF THE EMPLOYER EVIDENCE AND ARGUMENT

13. The two witnesses whose testimony was re-lead at this arbitration was Ms. Rose Nkuna and Ms. Nsuku Aquino Ngobeni.
14. Nkuna testified, inter alia, that the Applicant had been her physical science teacher at school. She and the deceased were best friends and shared everything which included sharing phone sim cards. On a certain night close to dawn a person called and said, “Hello babe”. Nkuna dropped the call and the person phoned again to say: “Its Themba and I am from the night vigil don’t you recognize my voice”. At this point she recognized the voice of the Applicant. She also recognized the cell phone number of the Applicant as being 0829391308
15. When the Applicant phoned the second time, she informed him that she is not Thobile (the deceased) and that she would give Thobile the phone in five minutes. She only gave the phone to the deceased in the morning and eavesdropped on the deceased phone call with the Applicant. The Applicant requested to meet the deceased at the Plaza, but she refused saying that people might see them together. They ultimately agreed to meet at the school on Sunday. On Sunday the deceased left the house informing her (Nkuna) that she is going to study at school and the deceased returned at about 17h00.
16. Nkuna testified further that she informed her brother Willy Nkuna about the incident and latter confronted the deceased in the presence of her mother and Nkuna. The deceased’s cell phone was confiscated, and Willy Nkuna threatened the deceased with the belt to tell the truth. The deceased confessed that she had been in a relationship with the Applicant for two weeks. Willy Nkuna then phoned his brother and the father of the deceased to relate the incident. The testimony of the deceased father is part of the transcript of the previous arbitration.
17. Nkuna testified further that on the following Monday the deceased’s other friend Sylvia admitted at school that the Applicant and the deceased were in a relationship. Sylvia stated that she was always with them so that people would not understand what is going on and that the Applicant would even buy her chips to silence her.
18. When she got home from school on Monday, she was informed that the deceased had been taken to hospital for drinking methyl spirit salt. After some time, they received the news that the deceased had passed on.
19. After the deceased’s death, when they were cleaning her room, they discovered a memorandum for a physical science test that was supposed to be written on the upcoming Tuesday. The memorandum was discovered under the deceased’s mattrass together with a death note and had the Applicant’s initials and surname on it. The test for the memorandum was never written as the Applicant had disappeared.
20. Nkuna testified that some time after the death of the deceased the Applicant had asked her to return the physical science memorandum and she had refused.
21. The second witness Ngobeni testified that she was a learner at Makhosana Manzini Secondary School during 2011 and the Applicant was her physical science teacher.
22. She was in the same grade as the deceased who was also her friend. She suspected that the Applicant and the deceased were having an affair (love relationship) through SMS’s and continuous calls from the Applicant to the deceased.
23. She later compared the number that Themba was using to call the deceased with Rose Nkuna who confirmed that this was indeed the Applicant’s number.
24. She saw a message from the deceased’s number where the Applicant informed the deceased to put a pillow on her chest which will represent him.
25. Ngobeni stated that this type of language is not proper between a learner and a educator unless they are having some type of close relationship.
26. Khenso Sylvia Mathebula and the father of the deceased Bailey Nkuna had testified at the first arbitration and their evidence is available as part of the transcript of the proceedings. Mathebula had testified, inter alia, that the Applicant had threatened her should she reveal any of his activities with the deceased.
27. It is common cause that Bailey Nkuna had obtained a statement from Vodacom which detailed the calls made to and from the deceased’s cell phone around the period just before her death. This statement was part of the Respondent’s bundle of documents that purported to be what they were.

SURVEY OF APPLICANT’S EVIDENCE AND ARGUMENT

28. The Applicant testified under oath and was given the opportunity to supplement the evidence that he had given at the first arbitration. He called no additional witnesses.
29. The Applicant stated that the only relationship he had with the deceased was that of a teacher-learner. He denied having any sexual relationship with the deceased.
30. The Applicant did not deny that his cell phone number appeared on the Vodacom statement obtained by Bailey Nkuna, but he did not know who was calling him on the dates listed in the statement.
31. The Applicant testified that all the learners and their parents had his number, and he also had their numbers. He interacted with various learners and their parents including the deceased.
32. The Applicant testified further that he received the memorandum on a Wednesday (second week of August) when the physical science paper was supposed to have been written on a Friday. He learned on the Thursday that the said paper had been leaked. The leakage did not occur within the school but at the Circuit level. He received the memorandums directly from the Principal and he forwarded them to the HOD for physical science by the name of Sondlane. Sondlane then signed them off and sent the papers back to him.
33. If there is a leakage in the circuit it will be announced at all schools and the paper will be blocked. He did not inform the learners of the leakage. Instead, he made them write the paper on the Saturday as a means to train them for revision purposes.
34. The Applicant denied giving the deceased the memorandum and requesting the memorandum from Rose Nkuna at any stage and at the previous arbitration had wanted to know why the memorandum was not part of the disciplinary enquiry or the first arbitration.
35. The Applicant also denied telling the Applicant to put a pillow on top of her as representation of him and denied inviting the deceased to come to his home.

ANALYSIS OF EVIDENCE AND ARGUMENT

36. The onus is on the employer to prove that the Applicant’s dismissal was substantively unfair in accordance with section 192 (2) of the Labour Relations Act, no 66 of 1995 (as amended) (LRA).
37. I am required to decide what type of interaction (if any) the Applicant had with the deceased and whether that interaction is indicative of a sexual relationship. I must further decide whether any interaction may have been the probable cause of the Applicant committing suicide. (Charge 1)
38. In respect of the memorandum, I must determine whether the Applicant gave the deceased the physical science memorandum and if so, what was his motive. (Charge 2)
39. I was impressed with the content and demeanor of the Respondent’s witnesses that testified viva voce before me. Furthermore, their evidence was consistent with the transcript detailing their evidence at the first arbitration.
40. The evidence of Sylvia Mathebula and the deceased’s father Bailey Nkuna also dovetails well with the evidence of Rose Nkuna and Nsuku Aquino Ngobeni.
41. The evidence of the Applicant did not impress me, and I will elaborate on the reasons for saying this as my evaluation of the evidence progresses.
42. In this arbitration I was faced with hearsay evidence which early on in the arbitration was admitted on the basis of its relevance in terms of section 3 (1) © of the Law of Evidence Amendment Act, no 45 of 1988.
43. The general nature of the allegations against the Applicant are of a circumstantial nature and I apply the test in the old yet seminal criminal judgment on circumstantial evidence contained in R v Blom The test stated in that judgement is that the inference to be drawn based on the circumstantial evidence must be consistent with the proven facts and exclude all other reasonable inferences.
44. I find that the Vodacom statement detailing the calls made to and from the deceased is authentic and has not been altered in any way. It is common cause that calls are from a cellphone number which the Applicant admitted as his own and are mostly made late at night or in the early hours of the morning when an educator would not be interacting for school business with learners at this time. It is not surprising that the Applicant’s attorney expressed shock at the disciplinary hearing when he became aware of the Vodacom statement and expressed the sentiment that they would be “suffocated”. He is correct the Vodacom statement provides compelling circumstantial evidence of the Applicant’s mostly nightly and early morning activities at the time.
45. The Applicant explanation that he had all his pupils and their parents’ cellphone numbers and that he phoned all regularly is contradicted by the evidence of Rose Nkuna and Nsuku Ngobeni (both members of the Applicant’s physical science class) that the Applicant did not have their cellphone numbers and had never contacted them or their parents about schoolwork or anything else.
46. The Applicant contended that Rose Nkuna could not have identified his voice on the phone since she is not a voice expert. Rose Nkuna is an educated person and had a good grasp of the facts. She had attended the Applicant’s physical science class for the whole year and before this, and it is probable that she would accurately be able to identify her class teacher’s voice. She also had two opportunities to identify his voice when the Applicant unwittingly phoned her thinking it was the deceased.
47. I find that the Applicant interacted with the deceased outside of normal classroom times.
48. The probabilities are that the interaction was not that of a normal teacher/learner relationship but rather that of an intimate sexual relationship. The Applicant used the word “Hi Babe” when he first spoke to Rose Nkuna. The call was made late at night. The Applicant later surreptitiously agreed to meet the Applicant at school on a Sunday (not a school day) and it was only in the early evening that she had returned home.
49. When Rose Nkuna had enough of hiding things she spoke to her uncle (Willy Nkuna) and revealed what was going on. The uncle applied a little pressure to get the deceased to confess to the affair, but she eventually did which led to the matter being reported to the deceased’s father and the simple investigation that took place thereafter which led, inter alia, to the Vodacom statement being obtained.
50. On her death bed after having consumed poison the deceased also confessed to her father that she was having a sexual affair with the deceased.
51. Rose Nkuna was aware of the deceased’s tryst. So was her friend Nsuku Ngobeni and Sylvia Mathebula. I find that Sylvia chaperoned the deceased and the Applicant (probably with their express consent) so that their affair would not be discovered. I find that it is probable that the Applicant bribed Mathebula to keep quiet with little gifts and ultimately threatened her with failure of physical science for the year if she did not keep quiet about him and the deceased.
52. Sylvia Mathebula testified at the hearing, and it is evident from the transcript that the deceased had slept at the Applicant’s place two times. When she returned the deceased had complained that she was suffering from morning sickness, and she suspected that she was pregnant. This on its own is indicative of a sexual relationship between the two. The evidence of the term of endearment used “Hi Babe” together with the pillow reference and the deceased’s confession and dying declaration are all indicative that the only reasonable inference to be drawn that the Applicant and the deceased were in an intimate sexual relationship at the time the deceased passed on. There are no other reasonable inferences to be drawn but this one.
53. The next question is whether the admission of the affair with the Applicant led to her committing suicide. The Applicant has contended that the deceased uncle’s threats to get her to confess were the direct cause of the deceased committing suicide and not any other cause.
54. I find that some degree of persuasion was brought to bear to get the deceased to confess as was testified by Rose Nkuna, but I find it improbable that this was the main reason for her committing suicide.
55. The confession obviously confronted the deceased with reality of her actions. The affair was no longer as exciting as it had first seemed and the thrill of being chased by her physical science teacher had worn off. The deceased had obviously experienced the guilt and shame of her own conscience, but she now experienced the shame of having tarnished the family name and the prospects of all the unwanted publicity at school and social media with the affair being known to all and sundry.
56. Added to that the deceased (rightly or wrongly) suspected that she was pregnant and carrying her physical science educator’s child and that was probably the final straw that she could not live with.
57. It is common cause that the deceased died an agonizing death having swallowed a caustic poison with her distraught father at her side.
58. I find that the Applicant’s sexual affair with the deceased on a balance of probabilities was the main cause of the deceased committing suicide.
59. On the question of the physical science memorandum, I find that the circumstantial evidence clearly points to the Applicant having given the memorandum to the deceased to help her with the upcoming physical science exam. The reason seems self-apparent. The deceased was being rewarded in a quid pro quo manner for her sexual favors with assistance for the upcoming test.
60. I accept the evidence of Rose Nkuna that the Applicant’s name was on the book and that the Applicant later asked her to return it to him which she refused. I reject the version of the Applicant that he did not give the memorandum to the deceased, that his name was not on it and that the memorandum related to a leaked paper. There is no evidence to suggest that the deceased obtained the memorandum in other way but from the Applicant. The deceased had hidden the memorandum under her mattrass, and it was only discovered after her death. I find that the deceased clearly knew she was in possession of illegal information that she was not permitted to access. This probably exacerbated her feelings of guilt together with all the other negative feelings that ultimately pushed her to suicide.
61. The Applicant is found guilty of the second charge on a balance of probabilities.
62. The evidence is shocking and disturbing, and the charges are serious, and both go to the very heart of the employment trust relationship. The Applicant has breached the fundamental rule of being a locus parentis to the deceased and instead indulged his own sexual fantasies destroying the life of a vulnerable child and the peace of a family in the process.
63. The Applicant showed not one iota of remorse for his actions and denied his involvement to the end. The only appropriate sanction is the one originally imposed at the disciplinary action and confirmed on appeal being that of a dismissal.
64. The Respondent asked me to consider the additional sanction of an order in terms of section 120 (1) © of the Children’s Act that the Applicant be declared unfit to work with children by any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child.
65. I find that given the misconduct for which the Applicant has been found guilty of and with regard to the evidence contained in a school report on the unfortunate incident involving the deceased it is probable that the Applicant had a history of interacting with other learners in unacceptable ways. This report introduced by the Applicant in his bundle was never placed in dispute.
66. I find further that an order i.t.o section 120 (1) (c) of the Children’s Act would be appropriate.
67. The Respondent argued at length for a costs order against the Applicant and his attorney for the inappropriate way in which they conducted themselves at the arbitration.
68. There is no doubt that most of the Respondent’s submissions are correct and clearly point to the Applicant’s attorney being ill prepared, ignorant on basic legal principles and obstructive to name a few infractions. This is often the conduct of representatives faced with clients who have very poor prospects of success. Something has to be done to justify fees and an appearance. The show or shall I say the masquerade must go on.
69. Given the general approach of the Labour Court to the losing party on the question of costs I have decided to refrain from making a costs order and I will content myself with the above brief general comments concerning the conduct of the Applicant’s attorney.

AWARD

70. The Applicant’s dispute referral is dismissed.
71. I.t.o section 120 (1) © of the Children’s Act the Applicant is declared unfit to work with children for the course of his natural life.
72. No order as to costs is made.

______________
MARK HAWYES
PART TIME SENIOR PANELIST