ELRC773-19/20NC

THE INQUIRY-BY-ARBITRATOR BETWEEN

THE SUPERINTENDENT-GENERAL
NORTHERN CAPE DEPARTMENT OF EDUCATION EMPLOYER

and

MR MARIO KIVEDO EMPLOYEE

Case No: ELRC773-19/20NC
Dates: 08 August, 20 & 21 September 2022
Venue: Pixley-Ka-Seme District Offices of DOE, De Aar

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is the award in the disciplinary matter (Inquiry-By-Arbitrator) between the Northern Cape Department of Education (the employer) and Mr Mario Kivedo, the employee.

2. The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) took place on 08 August, 20 & 21 September 2022 at the district offices of the employer in De Aar. Both parties attended the Inquiry. The employer was represented by Mr FD Bitterbosch from its Pixley-Ka-Seme District Offices. The employee, was represented by Mr Pule Mogopodi, an Official from the trade union South African Democratic Teachers Union (hereinafter ‘SADTU’).

3. The Inquiry was held under the auspices of the Education Labour Relations Council (the Council) in accordance with section 188A of the Labour Relations Act (the LRA), read together with Clause 32 of the Council’s Dispute Resolution Procedure as well as the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued in terms of section 138(7) of the LRA.

4. The proceedings were digitally recorded, and Mr Brian Banga was the interpreter. The parties requested at the end of the Inquiry to submit their closing arguments in writing by 27 September 2022, where after the award shall then follow.

PRELIMINARY ISSUES

5. Various points in limine were raised since the commencement of this Inquiry in 2020. My predecessor in this case dealt with some of the issues whereas I also had to deal with some. Like my predecessor, I also made ex tempore rulings in order to ensure that the matter reaches finality. Postponement rulings were also issued separately from this award. I shall briefly deal with some of the important issues raised by the parties:

Legal Representation

6. It transpired that the employee at some stage on 01 July 202 applied for legal representation. Having considered the submissions of both parties on the application, my predecessor in this case Commissioner SM Osman declined the application for legal representation. The reasons for the decision are contained in a ruling which was issued separately from this award.

Rescission Application of Hearsay Evidence Ruling issued by Commissioner Osman

7. During the course of the Inquiry and in-between adjournments, the employee brought an application to this Council to have a ruling previously issued by Commissioner Osman rescinded. The ruling was issued on 05 April 2022, and it dealt with the admissibility of hearsay evidence within this Inquiry. Commissioner Osman held that hearsay evidence will be allowed for purposes of this dispute. The employee submitted that the complainant is this matter has withdrawn her participation in this case and that the case law relied upon by the arbitrator does not serve justice in this matter.

8. The employer opposed the application and submitted that the application for rescission does not meet the peremptory provisions of section 144 of the LRA. It submitted that the averments made by the employee are denied and are frivolous. The employer submitted that the employee is complaining mostly about the conduct of the previous arbitrator, the complaint of which must be dealt with under section 145 review proceedings and not through a rescission application.

9. I made an ex tempore ruling in which I held that the ruling of my predecessor remains valid and that the Inquiry shall proceed.

ISSUE TO BE DECIDED

10. I am called upon to decide whether the employee committed misconduct as per the allegations levelled against him. If I find that he did commit the misconduct, I must decide on an appropriate sanction.

BACKGROUND TO THE DISPUTE

11. It is common cause that the employee is employed by the employer as an Educator in Mathematics and Life Sciences since 14 February 2014 at Colesberg Combined School in Colesberg to date. The employee was notified of the allegation on 14 November 2019 and has been on paid suspension since 10 September 2019.

12. The allegation levelled against the employee are as follows:

Count 1
On or about August 2019 at or near Colesberg in the Pixley ka Seme District you committed an act of misconduct in terms of section 18(1)(dd) of the Employment of Educators Act 76 of 1998 in that you, inter alia, sexually harassed a learner [complainant] at the school’s hostel where you were a resident at the time of the alleged incident, while you knew or ought to have known that you were not allowed to do so.

13. The employee pleaded not guilty to the charge. The employee was properly served with a notice to appear at the Inquiry and was provided with sufficient time to prepare for the case. His rights and obligations were also properly explained to him at the commencement of the Inquiry.

14. For purposes of this award, the name of the learner shall be kept confidential. The learner was 18 years old at the time when the alleged incident took place. The alleged incident took place in the bedroom of the complainant at the school’s hostel. The employee denies having improperly touched/ sexually harassed the complainant during August 2019.

SURVEY OF EVIDENCE AND ARGUMENT

15. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.

Documentary Evidence

16. The parties agreed to submit the following bundles of evidence:
Employer: Bundle A
Employee: Bundle B

Employer’s Case

17. The employer tendered into evidence the first statement of the complainant in which the complainant narrated what transpired on 06 August 2019. As regards the alleged incident, the complainant had the following to say :
After telling him where the pain was, he felt there and went all the way to my bladder. I really felt uncomfortable because the pain wasn’t there. When I asked him he claimed that he’s trying to find out what the cause of the pain could be. This happened on 6 August 2019 during afternoon study time.
He instructed Landi to leave again, but she still refused. He then walked out, but before he did, he said that I would be taken to hospital of which it never happened. I went ahead to tell my mother and we both found it shocking and inappropriate. I also told Landi about it.

18. Ms Yolani January ‘Landi’, a Fellow Learner of the complainant back in 2019, was sworn in and she testified as the first witness of the employer. She confirmed that she was also staying at the hostel and knew the employee who was the Hostel Superintendent as well as the complainant who was both her friend and roommate at the time. Landi testified that she is aware of the incident of the afternoon of 06 August 2019 during study time. She stated that the learners were making too much noise in the study hall which caused her to go to her room and continued her studies there.

19. Landi further testified that whilst she was busy studying in the room, and during which the complainant was lying in her bed, the employee walked into the room and went to the complainant’s bed and asked the complainant where the pain was. She stated that the complainant replied that the pain was above her heart. Landi stated that the employee touched the complainant above her breasts on her chest and then moved his hand besides the breasts downwards to the complainant’s bladder.

20. Landi stated that the complainant told the employee that the pain is not there (at the bladder). She stated that the employee then left the room and instructed her to go and study in the study hall. Landi stated that both she and the complainant felt uncomfortable about the touching and that the employee’s conduct was uncalled for since there were female teachers available who could have checked the situation of the complainant. She stated that the employee promised to arrange an ambulance for the complainant which never happened.

21. In cross-examination, Landi testified on how the complainant was lying underneath a blanket and how the complainant lowered the blanket to her knees. She stated that the complainant was upset about the touching of the bladder and worried that the employee might end up touching the complainant’s vagina. Lanid stated that she did not know that the complainant was pregnant at the time but only learned about it at a later stage.

22. Ms Magaret Mekile ‘Ms Mekile’, a Cleaner at the Hostel, was sworn in and she testified as the second witness of the employer. She stated that she was already off-duty on the afternoon of 06 August 2019 when she received a phone call from the complainant who informed her of the incident. Ms Mekile stated that the complainant told her that she (the complainant) had a pain, and that the employee did not touch her where the pain was but rather at her bladder. She stated that she could sense that the complainant was feeling uncomfortable over the phone. Ms Mekile stated that she promised the complainant over the phone that she (Mekile) would report the matter the following day to the Matron.

23. Ms Mekile stated that she reported the incident the following day to the Matron and is of the view that the employee had no right to examine the complainant because the employee is not a doctor, and that the employee could have called the matron of his wife (who also resides at the hostel) to check on the complainant’s condition.

24. In cross-examination, Ms Mekile conceded that the complainant did not explain the whole story to her, and that the matron does not stay on the hostel premises but at her own private residence. She stated that the matron reported the matter to the school principal.

25. Mrs Emerentia De Wet-Pretorius ‘Ms De Wet-Pretorius”, the Acting Principal, was sworn in and she testified as the third witness in the employer’s case. She testified on how she had to act in the employee position of Deputy Principal and Hostel Superintendent in 2019. Mrs De Wet-Pretorius stated that the then Principal Mr Oosthuizen informed her of the incident. She stated that the complainant and her mother visited the school about the incident.

26. Mrs De Wet-Pretorius testified that the complainant told her about the touching without specifying where the touching took place. She stated that they were so upset to a point where they decided to lay criminal charges against the employee. Mrs De Wet-Pretorius stated that teachers are not allowed to touch learners, especially learners of the opposite sex. She stated that it is unlikely that the complainant would make up such lies.

27. In cross-examination, she stated that there was no need to have a meeting with the complainant and that she was in the office when the charge sheet was brought.

28. In closing arguments, the employer’s representative submitted that the act of the employment amounts to sexual harassment within the meaning of the SACE Act. He submitted that the employee abused his position of power and failed to act in loco parentis. The representative relied on various case law and submitted that the employee touched the complainant and that the complainant felt uncomfortable which warrants a guilty finding and a sanction of dismissal from the Public Service.

Employee’s Case

29. Mr Mario Kivedo, the employee, was sworn in and he testified as the first witness in his case. He testified that he has been in the employ of the employer for the past 28 years and confirmed that he was lately the Deputy Principal and Head Supervisor at the hostel. The employee stated that he was also the Rugby Coach and in society, the chairperson of his church, member of the hospital board, member of the local Community Police Forum (CPF), involved in the African National Congress (ANC) and Local Treasurer of the South African Democratic Teachers Union (SADTU).

30. The employee testified that on the impact this disciplinary action and suspension has on him and that the charge as framed does not create an act of sexual harassment. He stated that the elements of intent and unwelcoming on the part of the complainant are not present in this case. The employee testified that upon realising on that afternoon of 06 August 2019 that some girls were not in attendance at the study hall, he then went to the girl’s dormitory to check on them. He stated that he found the complainant and three other girls in their room.

31. The employee testified that he stood at the room’s door and asked them why they were not in the study hall. The employee stated that the complainant complained of a pain on her right-hand side, underneath her rib and of which the complainant was sitting upright and covered with a blanket. He stated that as a Life Sciences Teacher (formerly known as biology teacher) he pressed with his fingertips and performed a pressure diagnosis around the complainant’s belly.

32. The employee stated that he did what any person in loco parentis would have done when confronted by a child who complains of a pain or fever. He stated that he had the complainant’s consent before performing the act and that no parent needs to be a medical doctor in order to establish where a pain is. The employee stated that it was not possible for Landi to have a clear view of how he touched the complainant.

33. The employee stated that whilst touching the complainant, he continuously asked the complainant to tell him if she feels any discomfort of which the complainant answered no. He stated that he moved his hand over the colon and told the complainant to let him know if the pain becomes acute in order for him to call an ambulance. The employee stated that he left the room and went to the kitchen to fetch vinegar and gave it to the complainant as he suspected that the pain could be serious.

34. The employee stated that he sent the complainant to the clinic the following day with a certain Frans Bester. He referred to the sworn statement of a police detective who investigated the criminal case against him and stated that he was called-in on 23 August 2019 by the School Governing Body (SGB) in relation to the allegations. The employee stated that the complainant never wanted to open a case against him and that the SGB Chairperson was disgruntled against him for refusing to allow him (SGB Chairperson) to supply meat to the hostel whilst occupying the position of SGB Chairperson.

35. The employee testified that he investigated the SGB Chairperson for corruption involving R13 000.00. He stated that the clinic called him the following day and informed him that the complainant was pregnant as per his suspicions. He stated that the complainant gave birth in December 2019 and that she was already pregnant in August 2019. The employee stated that the SGB Chairperson and Principal and Mrs De Wet-Pretorius took the complainant to the Principal’s private residence to concoct the charges against him.

36. In cross-examination, the employee denied having improperly touched the complainant and stated that he was the only supervisor on duty on that afternoon. He stated that his wife is not an employee of the employer and was therefore not permitted to attend to the learners. The employee also stated that he did not form part of the SACE investigation.

37. Mr Frans Edward Bester ‘Mr Bester’, the Former Hostel Cleaner, was sworn in and he testified as the second witness in the employee’s case. He testified that he took the complainant to a clinic on 07 August 2019 and that the operating times of the clinic are between 05:50 18:30. Mr Bester described the employee as a good supervisor. He stated that he saw the complainant and the Principal and the SGB Chairperson and Mrs De Wet-Pretorius going to the principal’s private residence.

38. Mr Bester stated that the principal’s wife, also a teacher, did not like the employee and was always insubordinate to him. He stated that he could witness these acts of insubordination and how the employee tried to stop the SGB Chairperson from doing business with the school.

39. In cross-examination, Mr Bester conceded to not having any knowledge of the incident of 06 August 2019.

40. In closing arguments, the employee’s representative submitted that the testimonies of the employer’s witnesses are false and contradicting. He submitted that the complainant gave different statements which are also very contradicting. The representative submitted that I must find the employee not guilty of the charge.

ANALYSIS OF EVIDENCE AND ARGUMENT

41. As stated previously, the employee pleaded not guilty to the charge levelled against him. The employer called three witnesses and the employee two. The complainant (who at the time was 18 years of age) did not testify and indicated her unwillingness to cooperate in this matter. Three different statements of the complainant were placed before me as evidence by the parties. Two of these statements were made to the South African Police Service (hereinafter the Police).

42. In her statement of 26 August 2019, the complainant most complained about the strictness of the employee at the hostel and how the employee implemented discipline and who was also implementing strict measures on the budget of the food, etc. The six-page statement only had two paragraphs on page six where the complainant mentioned the alleged incident of 06 August 2019. This creates an impression that the complainant and her fellow hostel mates were more aggrieved by the employee’s management style of the hostel, rather than the alleged incident which took place on 06 August 2019.

43. Be that as it may, then there is the second statement made to the Police in which the narration of the alleged incident is basically the same as in her first statement. She added that she did not want to open a case against the employee. However, in her third statement (also to the Police), the complainant contradicted Landi’s version about the incident. Whereas Landi claimed to have seen how the employee touched the complainant, the complainant in her third statement submitted that Landi was focussing on her books and could thus not see how the employee touched her body.

44. It therefore transpires that the complainant’s version of the touching of her body is not corroborated. Further to that effect, the complainant did not testify at the Inquiry in order to establish what truly happened. With the contradictions identified and the inconsistencies in her statement, I cannot as a result, accept the complainant as a credible and reliable witness. The same applies to Landi’s testimony which is inconsistent with the version of the complainant.

45. As for Ms Mekile, she was not a direct witness to the event. Her hearsay evidence is based on what the complainant told her over the phone which resulted in her reporting the matter to the matron the following day. I do not deem it prudent to put too much weight on her testimony. Then there is the Acting Principal and Acting Hostel Superintendent Mrs De Wet-Pretorius. She was also not a direct witness other than the fact that she was informed about the incident.

46. The employee appeared quite credible in his testimony especially the manner in which he narrated the story and how his only witness, Mr Bester corroborated his version about the transportation of the complainant to a clinic the following. I do not have evidence in front of me on why their versions should not be regarded as credible and reliable.

47. For the sake of brevity, I shall repeat the allegation levelled against the employee as follows:

Count 1
On or about August 2019 at or near Colesberg in the Pixley ka Seme District you committed an act of misconduct in terms of section 18(1)(dd) of the Employment of Educators Act 76 of 1998 in that you, inter alia, sexually harassed a learner [complainant] at the school’s hostel where you were a resident at the time of the alleged incident, while you knew or ought to have known that you were not allowed to do so.

48. The employee has been charged for sexually harassment in that he touched the complainant’s body (her bladder to be specific). The evidence before me shows that the employee, in his capacity as a hostel father, did what any responsible parent in loco parentis would have done when one hears of an ailing child or learner as in the case of the complainant. I do not deem it practicable that anyone who intends to sexually harass a person, would do so in the presence of a witness like Landi. I doubt it to the fullest.

49. Then there is the issue of the bladder itself. A bladder is not a sexual organ, and the touching thereof can amount to an act of sexual harassment. The complainant and Landi and the employee are all in agreement that no sexual organ or body part of the complainant was touched by the employee. This is enough for me to conclude that a charge of sexual harassment cannot be sustained in this case.

50. I accept the employee’s version that his knowledge of body parts (A biology or life sciences teacher) permitted him to check on what could cause the ailment of the complainant. His touching of the complainant was with the complainant’s prior consent which once again rules out an intention to sexually harass the complainant. He stated that as the only supervisor on duty he had a duty to ensure both the safety and the wellbeing of all the learners at the hostel. I find the employee’s conduct under those circumstances as reasonable, and which gave effect to his responsibility and duty as someone who was in loco parentis. I am of the view that any reasonable person in the position of the employee would have acted the same by attending to the ailment which the complainant had at the time.

51. Uncontested evidence was led by the employee that the clinic found the following day that the complainant was pregnant, thus the pains which she experienced. The employee led evidence that he believes that the complainant was trying to hide her pregnancy on the afternoon of 06 August 2019 because of the fact that she gave birth in December of 2019. He stated that had he found as Hostel Superintendent and Deputy Principal and Biology Teacher that the complainant was pregnant, that discovery could have led to a suspension of the complainant in accordance with the employer’s policies. No evidence was led by the employer to refute these claims.

52. The employee led evidence on how his fellow school management peers and the SGB Chairperson wanted to have him ousted as Deputy Principal since the position of Principal would become vacant soon. I am satisfied that the employee has proven some malice on the part of his colleagues who used this opportunity to get him out of the race of running for the principal’s post. This was well corroborated by Mr Bester.


53. Section 18(1)(dd) of the Employment of Educators Act (the EEA) provides the following:

Misconduct
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits
Misconduct if he or she -
(dd) commits a common law or statutory offence

54. The evidence before me does not show the commission or any common law or statutory offence on the part of the employee. Evidence was led that the employee’s professional body (South African Council of Educators ‘SACE’) also investigated this matter. The outcome of the investigation was not divulged to this Inquiry, and neither was any reference made to the findings thereof. I am as a result not persuaded that the employer has made out a prima facie case that the employee committed the misconduct alleged off.

VERDICT

55. The employer, Northern Cape Department of Education, has failed to prove on a balance of probabilities, the guilt of the employee on the charge of sexual harassment.

56. The employee, Mr Mario Kivedo, is found not guilty on the charge.

This is done and dated on 25 October 2022 at Kimberley.


Adv. David Pietersen
ELRC COMMISSIONER
Inquiry-By-Arbitrator