ELRC614-21/22MP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT KWAMHLANGA

Case No. ELRC614-21/22MP

In the matter between

NXUMALO NCAMISO NHLANHLA 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 the Department of Education, Kwamhlanga Educational Development Centre, Kwamhlanga, Mpumalanga Province, on 29 June, 02 September, and 31 October 2022 at 9:00AM. The employee, Nxumalo Ncamiso Nhlanhla was represented by Mahlobongoane M.M from South African Democratic Teachers Union (SADTU), while the employer, Mpumalanga Department of Education was represented by Madingwana Z.F, one of its official. The proceedings were digitally voice recorded and Skumbuzo Luthuli was the Interpreter. The Intermediary was Mule Padi. The Employer handed in bundle of documents I marked Bundle A. The Employee party did not have bundle of documents to use.

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, Nxumalo Ncamiso Nhlanhla is a Teacher at Marhagi Senior Secondary School since 02 April 2019. He was charged with misconduct of; he committed an act of misconduct in terms of Section 17(1)(c) of the Act in that during 2021 he was involved in sexual relationship with X who was then a Grade 12 learner at Marhagi Senior Secondary School. A plea of not guilty was made by the employee through his representative.
4. It was common cause that the employee is currently employed at Marhagi Senior Secondary School since 02 April 2019. The learner would be referred to as X because we were not sure of her age. At the time of the incident X was still a learner doing Grade 12.

Survey of the employer’s evidence and argument.

Two witnesses testified for the employer.
Witness 1, Micheal Tsepo Mahlangu testified under oath that;

5. He was the Acting Principal of Marhagi Secondary School. On 02 October 2021 he received a call from X’s mother at around 16h00 asking him as to when was X left the school. He replied by saying all the learners left school by 13h30. X’s mother explained to him that X was missing. X’s mother came to school on 04 October 2021 and by that time X was already found. They (SGB) arranged a meeting and in that meeting X’s mother explained what happened to X. X’s mother explained that X was in love relationship with a teacher who stays in Tweefontein and driving a red car. In the meeting they told X’s mother that the only teacher who drive red car was the employee. X’s mother confirmed that the employee was the one in love with her daughter, X. They called the employee to ask him if he had any knowledge of the allegation and the employee indicated that he knows nothing about the allegation. He never seen the employee either giving X lift after school or buying her food at school. He never summoned X, but he delegated it to his Deputy Principal to talk to X about the allegation. The feedback from the Deputy Principal was that X was distancing herself from the allegation. X’s mother further explained that after beating X up, X explained that she was in love with an Educator who stays in Tweefontein, and they used to go to Witbank together.
6. Under cross examination, Mahlangu testified that X’s mother did not know the employee, but she was told by her other children that X was in love with the employee. No one confirmed that X was with the employee. X never mentioned the name of the employee when she was beaten up by her mother. X was missing from 13h30 to 22h00 on 02 October 2021.

Witness 2: Maria Moepya testified under oath that;

7. She knew the employee as a teacher at Marhagi Senior Secondary School. X is her biological daughter. X got missing during October 2021 and it was her birthday. It was on the 1st of October 2021. She was at Kwagga to buy X’s birthday cake when X got missing. When she checked X’s room at home she found the school uniform, which to her meant that X was back from school. She called X’s sister at around 20h00 and explained that X was not at home. She called X’s friends who told her that they did not know the whereabouts of X, but X was in love with the employee. She then called the employee and enquired about the whereabouts of X. The employee responded by saying he does not know the whereabouts of X. X and the employee were in Witbank buying the employee’s car parts. Around 22h00 X came back, and she beat her up and X explained that she was in Witbank with the teacher and Cassandra. She suspected that if X says she was in Witbank, then it means that X was with the employee because she already heard that they were in love.
8. On Monday the 4th of October 2021, she met with the SGB of the school, and they (SGB) called the employee, who said he was in Kwazulu-Natal. However, to her surprise she met the employee getting to school when she was leaving the school.
9. When X was supposed to attend a traditional ceremony, X said her cell phone was with Cassandra. She went to Cassandra to enquire about X’s cell phone and Cassandra told her that X’s cell phone was with the employee. She personally called the employee and enquire about X’s cell phone. The employee responded by saying she would get the cell phone at around 17h00 and indeed X’s cell phone was brought back by Cassandra and friend at around 17h00 as promised by the employee. She asked Cassandra about her lies regarding her trip to Witbank with the employee and X. Cassandra responded by saying she was afraid of the employee since he was a teacher at their school.
10. She used to see the employee’s car giving X lift to school but at that time she did not know that the car belongs to the employee. Sometimes X would disappear saying she was going to the Taxi Rank to buy quarter bread, but after a while X would come back without that quarter bread.
11. The employee was on the profile picture of X’s cell phone, and she did not think that he was a teacher but a Pastor. X would come home with scripts to mark, and she would say the scripts were from her friend teacher, Ncamiso. The employee came to her home accompanied by another educator to apologize. She asked the employee why he was apologizing, and he did not respond.
12. Under cross examination, Moepya testified that there would be other days that X came home with food, and she would tell the mother that her friends bought her food. X’s brother saw X boarding the employee’s car. Cassandra told her that she, Cassandra never went to Witbank with X, but she was asked by the employee to protect him. She never saw X and the employee together, but only the car of the employee giving X lift to school. She used to see X with money that she did not give her. She later found that the photo on X’s cell phone was that of the employee and realized that X and the employee were in love. X and the employee are still in love, that is why X is refusing to come and testify against the employee. She combined the issues of the books (scripts) and profile photo of the employee in X’s cell phone and concluded that X and the employee were in love.

Survey of the employee’s evidence and argument.

One witness, the employee himself testified. Nxumalo Ncamiso Nhlanhla testified under oath and in English that;

13. He is a teacher at Marhagi Secondary School situated at Virena village. He is teaching Grade 11 and 12 Business Studies. He knew learner X as one of his learners from 2019 to 2021. It once happened that he picked X to school with his car. There would be a time that he would find X and her friends on the road, and he would pick them up. It happened mostly around 7h30AM.
14. The only relationship between him and X was a teacher learner relationship. There was never such a sexual relationship between him and X.
15. He never had X’s cell phone in his possession. He remembered called by X’s mother on 23 December 2021 telling him to bring back X’s cell phone because X’s mother knew that the cell phone was with him. He told X’s mother that he did not have X’s cell phone. By the time he was called by X’s mother there was already allegation that he was having sexual relationship with X. He never delivered X’s cell phone to the mother unless it was delivered by someone else, he could not dispute that.
16. On 1st October 2021 he went to different places. First, he was at work in the morning. From there he went to Virena to a certain police officer who was also a motor mechanic to fix his car. The mechanic prescribed certain parts to be bought in Witbank. While in Witbank to buy parts for his car, he had another thought of going to Pretoria to sell that car. In Pretoria, they did not agree with the buyer on certain terms, and he brought the car back.
17. He was with Sinethando and X at school and he left Sinethando at her home first. He drove with X to her home as well and dropped X at the gate of her home. He was informed through SMS by his colleague that X was missing. It was at around 21h00 or 22h00 when he received the message, and it was being alleged that X was with him. He did not respond to the message because the message made him angry. He then text X a message asking her where she was, and she indicated that she was home.
18. There was a day that he went to X’s home, but not to apologize. The reason for his visit to X’s home was that X’s mother told him that he was going to lose everything because of the allegation of him being in love with X. X’s mother told him that she was going to pray calling his name and he would see what would happen to him. He had an accident in January 2022, and he thought it was because of X’s mother. He went to X’s home with his colleague Mr. Mabuza. He did not apologize, but he wanted them to discuss the loss of his car. He refused to talk about this matter since Labour Relations was busy with it. He never been with X at the Taxi Rank.
19. Under cross examination Nxumalo testified that he used to give Sinethando and X his scripts to mark. He was not aware that X was in Witbank as well on 01 October 2021. He was told by the mother. The purpose of his visit to X’s mother was to get from X’s mother what is it that she was using against him. He wanted to know if it was part of the prayers of X’s mother for him to lose his car. He agrees that on the 1st of October 2021 he gave X a lift and dropped her at the gate of her home.

Analysis of the evidence and arguments


20. 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. I have considered the closing arguments of the parties together with the oral evidence led, in determining the outcome of this matter. The employee was charged with committing an act of misconduct in terms of Section 17(1)(c) of the Employment of Educators Act, 76 of 1998 (the Act) in that during 2021 he was involved in sexual relationship with X who was then a Grade 12 learner at Marhagi Senior Secondary School.
21. There was no dispute that the employee was a teacher at Marhagi Secondary School and X was a learner of that school doing Grade 12 in 2021. It is also common cause that the employee was teaching X Business Studies in 2021. The testimony of the employer’s witness, Moepya showed incidents involving the employee and X which give suspicion that the employee and X could have been in love. Moepya testified that on the 1st of October 2021 X came back home from school and proceeded to Witbank with the employee. She testified that she suspected that X was with the employee in Witbank because X was there as well and there was already a rumour that the employee and X were in love. To worsen the situation X came back at around 22h00 and had food from Steers. The employee in his evidence in chief testified that on 1st of October 2021 he was with X and her friend Sinethando at school. The employee went further to testify that he dropped Sinethando home first and proceeded to X’s home where he dropped X at the gate of her home before he left to the mechanic. The employee was last seen with X before X disappeared until around 22h00 on the 1st of October 2021. The employee testified that he went to Witbank to buy parts of his car, but while he was in Witbank, he decided to proceed to Pretoria to sell the same car he wanted to fix, but he came back with the car unsold. This evidence is misleading. When did he arranged with the buyer of his car? The inference that one could draw is that the employee could have been with X enjoying X’s birthday in Witbank. This version of going to Pretoria to sell the employee’s car was not put to Moepya during cross examination. To me it was an afterthought version, and it is unbelievable. The employer’s testimony was that the employee was called and asked about the whereabouts of X, and he responded by indicating that he does not know the whereabouts of X. In his evidence in chief the employee testified that he was SMS by one of his colleagues informing him that X was missing and did not respond because he was very angry to his colleague. The employee was not going to be angry when he was asked about X if indeed, he was not with X. The employee got angry because he knew he was with X in Witbank.
22. The employer testified that the employee had X’s cell phone and he promised to take it back to X’s mother at around 17h00 and X’s cell phone was brought back to X’s mother by X’s friend, Cassandra at around the same time the employee promised, 17h00. The employee denied that he had X’s cell phone. The employee testified that X’s cell phone could have been delivered to X’s mother by someone else. If the employee did not have X’s cell phone in his possession, why the cell phone was delivered around the same time, 17h00 that he promised X’s mother. It is my believe and reading that the employee had X’s cell phone and he sent Cassandra to take it back to X’s mother.
23. The employer testified that the employee used to give X lift to school with his car. This evidence was not denied by the employee. The employee testified that it once happened that he gave X a lift to school and most of the time he would find X with her friends and gave them lift to school at around 7h30 in the morning. It is unbelievable that the employee would be able to recognize X from all school learners and friends of X that he always gave lift. The employee testified that X and Sinethando were top performers in Business studies, but he failed to produce any document to assist him in that regard. It was the testimony of the employer that X would come home with scripts to mark and when X was asked, X would indicate that the scripts were from X’s teacher friend Ncamiso. The employee did not dispute this evidence, but he added that Sinethando was also another learner that he would give the scripts to mark. The parent has a reason to suspect love relationship between the daughter, X, and the employee because of the issue of scripts.
24. It was testified by the employer that the profile picture in X’s cell phone was that of the employee. This evidence was not challenged and as such I believe it. There were many teachers who were teaching X many subjects beside Business Studies. The putting of the picture of the employee as a profile picture gives inference that X and the employee could be in love. The employer testified that the employee went to X’s mother with another Educator to apologize. The employee disputed that by testifying that he went to X’s mother to talk about him losing his car because of the bad spirit of X’s mother. The employee did not dispute that he went to X’s mother with Educator Mabuza, but he disputed the reason for going there. My belief is that the employee could have gone to X’s mother to apologize after realizing that X’s mother was angry about the love relationship, she was suspecting between the two.
25. 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, X. The employer’s testimony through the second witness, Moepya overweight that of the employee. The evidence of the first witness of the employer, Mahlangu was generally about how the matter was reported at school by X’s mother. I am also not relying on what X has said when beaten up by the mother, but on the sequence of events as testified by the mother which confirmed what X’s friends have told the mother. X’s friends told X’s mother that X and the employee were in love relationship. The employee’s evidence was an afterthought. The version he put in his evidence in chief should have been put to the second witness of the employer during cross examination. The employee in his evidence in chief testified that he texted X a message asking her where she was. This means that the employee had X’s contact details and it is strange that a teacher would have the contact details of a learner if there was no sexual relationship between the two.
26. 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). The employee had this unwanted relationship with the learner he was teaching.
27. 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. 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.
28. The parties made submission about the suitability or not of the employee to work with children. The employee submitted that the employee is not suitable to work with children, while the employee submitted that the employee was suitable to work with children. 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”. The employee was found guilty as charge. Considering the above, 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

29. I find that the employee, Nxumalo Ncamiso Nhlanhla is guilty of misconduct as charged.
30. I impose the sanction of mandatory dismissal with immediate effect.
31. Mr. Nxumalo Ncamiso Nhlanhla is found unsuitable to work with children in terms section 120(4) of the Children’s Act, 38 of 2005.
32. 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. Nxumalo Ncamiso Nhlanhla 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
12 November 2022