ELRC92-22/23WC

Commissioner: Jacques Buitendag
Case No.: ELRC92-22/23WC
Date of Award: 21 November 2022

In the INQUIRY between:

A DESHA
(Employee)

and

WESTERN CAPE EDUCATION DEPARTMENT (WCED)
(Employer)


PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This inquiry, in terms of section 188A of the Labour Relations Act, 66 of 1995 as amended (LRA), took place under the auspices of the Education Labour Relations Council (ELRC) on 10 June-; 21 July-; 29 August-; 28 September; and 3 November 2022 at the premises of Western Cape Education Department (WCED) in Cape Town. The proceedings were digitally recorded.

2. The WCED was represented by its Labour Relations Officer, Ms. Z Ngqokombe. The employee, Mr. Desha represented himself.

BACKGROUND

3. On 5 September 2018 the parties to the Education Labour Relations Council (ELRC) entered into Collective Agreement 3 of 2018 which provides for compulsory inquiries by arbitrators in cases of disciplinary action against educators charged with sexual misconduct in respect of learners.

4. On or about 9 May 2022 the WCED filed ELRC form E12 with the ELRC and requested for an arbitrator to be appointed to conduct an inquiry into alleged sexual misconduct allegations levelled against Mr. Desha.

5. On or about 10 May 2022 the WCED emailed the ELRC form E12 and the charge sheet to Mr. Desha.

6. On or about 20 May 2022 the ELRC notified the WCED and Mr. Desha that the Inquiry will take place on 10 June 2022 at 09h00 at the premises of the WCED in Cape Town.

7. On or about 18 May 2022 Mr. Desha informed the WCED representative per email that he is on sick leave.

8. Mr. Desha did not attended the Inquiry on 10 June 2022. An intermediary to assist the minor children and an interpreter were also not available and the matter was postponed.

9. On 21 July 2022 the Inquiry continued. The WCED preferred the following charge against Mr. Desha:
“Charge 1
It is alleged that you are guilty of misconduct in terms of section 17(1)(b) of the Employment of Educators Act, no. 76 of 1998 (hereinafter referred to as the EEA), in that on or about 28 February 2022, you committed an act of sexual assault on a Grade 8 Learner (herein after referred to a Learner A – the identity of this learner is protected), associated with ID Mkhize High School by:
a) Grabbing her by the waist and/or
b) Hoisting her up against the wall and/or
c) Kissing her on her cheek and/or
d) Placing your hand underneath her buttocks.

10. Mr. Desha pleaded not guilty to the allegation. The WCED called four witnesses and thereafter closed its case.

11. On 29 August 2022 Mr. Desha testified. After his testimony Mr. Desha indicated that he applied to the ELRC for two witnesses to be subpoenaed. The ELRC only issued one subpoena. Mr. Desha did not serve the subpoena on the witness and nor did he arrange for the subpoena to be served by a Sherriff. The persons he wanted to subpoena is the mother of Learner A (her identity is not disclosed in this award because if it is disclosed the identity of Learner A will not be protected). The other person that Mr. Desha wanted to subpoena is a Mr. Vukile Mphango. The Inquiry was postponed to 28 September 2022 to allow Mr. Desha another opportunity to subpoena the witnesses.

12. On 28 September 2022 Mr. Desha presented copies of the subpoenas for the two witnesses. Mr. Desha indicated that a member of the SAPS served the subpoenas. He could not confirm when the subpoenas was served and no affidavit of the SAPS member who served the subpoenas accompanied the copies. The subpoenaed witnesses did not attend the proceedings. It could not be determined whether the subpoenas were served within the stipulated 7 days prior to this sitting. I allowed Mr. Desha another opportunity to subpoena the witnesses. The matter was postponed to 3 November 2022.

13. On 3 November 2022 Mr. Desha presented copies of the subpoenas that was served. The two witnesses did not arrive at 09h00 and I adjourned the Inquiry to about 10h00 in order to allow Mr. Desha an opportunity to contact his witnesses. Mr. Desha then reported that he could not get hold of the witnesses.

14. Having regard to the history of this matter and to the fact that labour disputes must be finalised as quickly as possible and unnecessary delays in the administration of justice must be avoided, I decided to continue with the Inquiry. Mr. Desha closed his case.

15. The parties then requested to present written closing arguments. Mr. Desha filed his closing arguments on 10 November 2022 and Ms. Ngqokombe filed her closing arguments on 11 November 2022. On 14 November 2022 Mr. Desha wrote an email to me indicating that the criminal charges against him was withdrawn. He also attached two affidavits. I did not read nor consider these affidavits because it was not presented during the Inquiry. In as far the criminal charges against Mr. Desha were withdrawn by the state, this has no bearing on the Inquiry and the charge I am required to determine in terms of section 17(1)(b) of the EEA.

THE ISSUE IN DISPUTE

16. I must determine whether Mr. Desha is guilty of the allegation as referred to in paragraph 9 above, and if so, I must determine the appropriate sanction.

SUMMARY OF EVIDENCE AND ARGUMENT

17. I have considered all the evidence and arguments presented, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence and argument that I regard as necessary to substantiate my findings in the determination of this matter.

The WCED’s case

18. Ms. Debby Mshweshwe, the aunt of Learner A testified that she lives in Gugulethu. She and the mother of Learner A are sisters. Her house is a street away from where Learner A lives. Ms. Mshweshwe knows Mr. Desha as a friend of her brother, Mr. Vukile Mphango.

19. Ms. Mshweshwe testified that one night in February 2022 before 21h00 she heard children crying and calling her name. She saw that is was Learner A and her younger sister (referred to as Learner B hereinafter). They were crying and shaking. When she asked them what was wrong, Learner A said its “Desha, Desha the teacher”. She asked her what Mr. Desha has done and Learner A told her that he touched her and told her to come and learn to be an adult.

20. Ms. Mshweshwe explained that she took the children and asked her neigbour to accompany her to her sister’s house to look for Mr. Desha. Learner A informed her that her parents were at a tavern.

21. When she arrived at her sister’s house, Mr. Desha was not there. A neighbour, Ms. Nomfundo, informed her that she witnessed Mr. Desha’s vehicle leaving the residence.

22. Learner A relayed the following details to her. She and her sister and a younger child were at home. Mr. Desha knocked on the door and said to her that he was sent by their mother. She opened the door, and he started touching her. She and her sister escaped through a window.

23. Ms. Mshweshwe testified that she accompanied her sister, brother-in-law, and some other residents and went to the school to report Mr. Desha. Mr. Desha came to the gate and asked her sister what she was doing there and if she wants to take the bread from his mouth.

24. Ms. Mshweshwe testified that she would not like Mr. Desha to work with children again.

25. Under cross examination Ms. Mshweshwe testified that her sister house consists of two rooms. Mr. Desha put it to Ms. Mshweshwe that he knows the house and knows that the windows in the bedroom is high.

26. Mr. Desha also put it to Ms. Mshweshwe that she, himself, her sister, Mr. Mphango and other people were in the house on 28 February 2022 drinking. She elaborated in re-examination that she left the house at about 17h00 and that Mr. Desha was still there.

27. Mr. Desha’s version is that he told Mr. Mpango that he is leaving and that he then left. Ms. Mshweshwe replied that when she later arrived with the two children that there were no one at the house.

28. Mr. Desha put it to Ms. Mshweshwe that the following day at the school he told her sister that it is good that she is there because she said that he must fetch money owing to him from her home. She replied that Mr. Desha asked her sister if she wants him to lose his job.

29. Learner A testified. She is 14 years old and in Grade 8 at ID Mkhize High School. Mr. Desha is an educator at the school. He and her uncle are friends and she knew him before she started high school.

30. Learner A testified that the incident happened on a Monday. When she arrived home her older sister, uncle and some friends were at the house. Mr. Desha arrived in his vehicle. They were all drinking. Learner A said that it was not the first time that Mr. Desha was there drinking at their house. She testified that Mr. Desha later called her and asked her to go and buy cool drink. When she arrived back from the shop Mr. Desha informed her that it was not the cooldrink he asked for and sent her back to the shop. When she returned home, her mother arrived and told Mr. Desha to leave because it is was late. There was an argument between her mother and elder sister. All the adults then left and her mother told her to close the door.

31. A few minutes later there was a knock on the door. When she asked who was there, Mr. Desha told her that her mother has sent him. She opened the door and went to the bedroom. Mr. Desha called her back. She went to him. Learner A testified and then demonstrated how Mr. Desha lifted her up against the wall, placed one hand on her buttocks and said to her that he will make her an adult. She testified that Mr. Desha wanted to kiss her. She turned her face away and he kissed her on the cheek. She then pushed him away from her. She fell, stood up and ran to the bedroom screaming. She called out to their neighbour, took her younger sister who was in the bedroom and they escaped through the bedroom window. They left their eldest sister’s son who is six years old in the bedroom. The two of them then ran to Ms. Mshweshwe’s home. Mr. Desha called after them to come back. They did not turn back.

32. Leaner A testified that when they arrived at Ms. Mshweshwe’s house she told Ms. Mshweshwe what had happened. When they returned home with Ms. Mshweshwe, Mr. Desha was gone. Their neigbour, Ms. Nomfundo, informed them that she saw Mr. Desha’s car leaving.

33. Learner A testified that she accompanied her mother to school the following day. When they arrived Mr. Desha asked them what they were doing there and told them to go home. The principal invited her and her mother in and asked them to wait in the waiting room. Mr. Desha then came to them and said that he will not do such a thing again and will not come to their house again. She and her mother were then called to the Principal’s office where she told the Principal what had happened.

34. Under cross-examination Mr. Desha put it to Learner A that during school on the day in question he gave her milk for her mother and asked her to convey a message to her mother that she owes him money and that she must give the money Mr. Mphango. Learner A confirmed that Mr. Desha gave her milk on this day. She does not recall a conversation about money that her mother owed Mr. Desha.

35. Mr. Desha put it to Learner A that he arrived at their house at about 15h15 to look for her parents and she told him that that they were at Ny6. Learner A replied that Mr. Desha took wine out of his vehicle and went into their house where her elder sister and her sister’s friends were.

36. Mr. Desha put to Learner A that he was informed by her parents that she has their bank card and that he went to their house at about 18h00. She denied that she had her parents’ bankcard with her.

37. Mr. Desha put it to Learner A that she is fabricating what had happened to her because she perceived him taking money meant for her birthday, which was the following week. Learner A denied this version and said that if Mr. Desha really wanted his money her should have gone to Ny6.

38. Mr. Desha put it to Learner A that she does not have the strength to push him away from her. Learner A responded that Mr. Desha was weak on the day in question because he was intoxicated.

39. About the altercation between her mother and oldest sister earlier that evening, Learner A agreed with Mr. Desha that blocked her from witnessing the altercation.

40. Learner B is 12 years old and in Grade 6 at Mseki Primary School. She is the younger sister of Learner A. She knows Mr. Desha as her uncle’s friend.

41. Learner B testified that she was in the bedroom when she heard her sister screaming. Her sister was in the next room with Mr. Desha. She went to hide behind a cupboard. Her sister then came into the bedroom and they jumped through a window and ran to her aunt’s house (Ms. Mshweshwe). Her sister was screaming and she thought Mr. Desha did something to her. It was at her aunt’s house that she heard what had happened to her sister.

42. Under cross-examination Learner B testified that she did not see Mr. Desha in the house but did see his car outside the house when she and her sister escaped through the window. She also heard Mr. Desha shouting after them.

43. Learner B does not know about her mother owing Mr. Desha money.

44. Mr. E Fillies, the acting principal of ID Mkhize High School testified that on 1 March 2022 he met with Learner A and her mother. They explained to him what had happened the night before. He referred the allegation to the WCED head office and arranged a social worker to assist Learner A. When he informed Mr. Desha about the allegations, Mr. Desha appeared shocked. Mr. Desha was later arrested by the SAPS.

45. Mr. Fillies testified that if Mr. Desha is found guilty of the allegations against him that he will find it difficult to trust him again.

46. Ms. Ngqokombe argued that the WCED has proven the allegation against Mr. Desha on balance of probabilities. She argued that Mr. .Desha showed no remorse and that his testimony was based on a bare denial. Ms. Ngqokombe argued that the seriousness of the offence warrants dismissal

Mr. Desha’s case

47. Mr. Desha testified and presented written closing arguments. He denies the allegation against him.

48. Mr. Desha testified that he borrowed money to Mr. Mphango. Learner’s A parents had to repay the money. He testified that on 28 February 2022 he asked Learner A at school to tell her mother not to forget to give the money that he is owed to Mr. Mphango.

49. Later that day he went to Mr. Mphango’s house and was informed that he is at Learner’s A parent’s house. He went there at about 15h50. When he arrived at the house the mother’s eldest daughter was there with two of her friends. They told him that Mr. Mphango and Leaner A parents are at Ny6 (a tavern). He went to the tavern to discuss the repayment of the money with them. They asked him to wait until 18h00 as they required a bank card. Mr. Desha testified that he and Mr. Mphango went to a friend’s house where he wanted to borrow R200.00 for petrol. It did not materialised. Mr. Mphango however obtained a bottle of liquor at this house which he opened and drank.

50. At about 17h00 they returned to Learner A’s mother’s house. There Mr. Mphango started to drink with the other ladies present. Mr. Desha testified that he did not drink with them and sent Learner A to buy him a cold drink. When she return with a Twissa he send her back to buy a Coke or Lemon Twist.

51. At about 18h10 Learner A’s mother and friend arrived and he told her that he is waiting for his money. They said they will return shortly with the money and left. They then returned at about 19h00. Upon their return Learner A mother’s grabbed her eldest daughter and started swearing at her. Learner A and her younger sister approached from the bedroom. He pushed them back so as not to witness the altercation. Mr. Desha said that this was the only time he touched Learner A. When the altercation between mother and daughter was defused he again asked for his money. Mr. Desha testified that this is when Leaner A’s mother started swearing at him and told him that she will send the money with her daughter the following day.

52. Mr. Desha testified that he then left with Mr. Mphango. He dropped Mr. Mphango off and went home.

53. Mr. Desha explained that he was busy in his classroom the following day when an educator called him and said that had to go to the school’s gate. He found several people at the gate including Leaner A and her mother. He again asked for his money. Leaner A’s mother replied that he will get his money but that it was not why they were there. Learner’s A mother then mentioned something about raping her child to which he asked if she wanted him to lose his job.

54. Mr. Desha testified that he was later informed that the allegation will be investigated and was arrested the following day.

55. Mr. Desha submitted that Ms. Mshweshwe lied about being in house on the 28 February 2022 whilst he was there. Mr. Desha submitted that Learner A could remember the altercation between her mother and her older sister but could not remember her mother informing her to give money to him at school the following day.

56. Mr. Desha submitted that the explanation he has for Leaner A’s claim is that she realised that he was there to take the last money her mother had and couldn’t allow that to happen because she needed the money for her birthday on that coming Friday, the 3rd of March 2002.

57. Mr. Desha submitted that the testimony of Leaner A and Leaner B sounded rehearsed, and that Learner B acknowledged that she only heard from Leaner A what had happened.

58. Mr. Desha submitted that the absence of Leaner A mother from the arbitration shows her intentions to hide the truth.

ANALYSIS OF EVIDENCE AND ARGUMENTS

59. The WCED bears the onus to proof the allegations levelled against Mr. Desha on a balance of probability. In WESUSA & Others vs Jacobz 2000 8 BLLR 977 (LC), the Court remarked that “the onus will be discharged if the respondent can show credible evidence that its version is the more probable and acceptable version. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondents version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradictions is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that a the end of the day one can say with conviction that one version is false and be rejected with safety”. The onus will not be discharged by raising mere suspicions of misconduct.


60. Mr. Desha has not denied that he was at the home of Leaner A on Monday 28 February 2022. He testified that he went there to collect money that was owed to him, later left with Mr. Mphango and did not return to the house. He thus denies the version of Leaner A. Mr. Desha argued that the evidence of Leaner A was made up and that her testimony and that of Learner B was rehearsed.

61. The imaginativeness and suggestibility of children, their memory, understanding of the importance of telling the truth, their capacity of observation, recollection and narrative ability, their age, mental ability and development is just some of the factors that our Courts have held to be taken into account when scrutinising the testimony of a child. I must hasten to add that this does not mean that the evidence of children should be approached on the basis of assuming that all children make false allegations, have poor memories or is highly suggestible.

62. The general quality of the testimony of Leaner A, within the content and structure of her own evidence and where her and her younger sister corroborated each other on material aspects, coupled with the testimony of Ms. Mshweshwe on what she experienced on the night in question when the children called upon her are factors that I considered in examining Learner As credibility as a witnesses. Leaner A’s description of what had transpired that night between her and Mr. Desha remained, at its core, the same during her testimony in chief and during cross-examination. She made concessions during cross-examination and also agreed with Mr. Desha about earlier events of that night. I did not get the impression that the evidence of Learner A and that of her younger sister was rehearsed or that they somehow conspired to lie about the events of 28 February 2022. In fact I find both Learner A and Learner B to have been credible witnesses. I further have no reason to reject the testimony of Ms. Mshweshwe and what she experienced on that night. I accept Mr. Desha’s version that he was at Leaner A’s home to collect money that was owing to him but his version that Leaner A has fabricated the allegation against him because she realised that he was there to take money from her mother which she wanted for her upcoming birthday has no substance, is inconsistent with the evidence and is rejected.

63. It is not possible to determine the exact time when the incident happened but from Ms. Mshweshwe testimony it appears that it happened shortly before 21h00. I am persuaded by the testimony of Learner A which is corroborated by younger sister’s testimony that at some stage that night of 28 February 2022 they, along with a smaller child, were left alone in the house. It was during this time that Mr. Desha arrived, knocked on the door and announced himself. Leaner A knew Mr. Desha as a family friend and educator and opened the door for him. I accept Leaner A version as probable of what transpired next. When Mr. Desha called her, she went to him and he physically lifted her up and in the process had one of his hands on her buttocks. He then told Learner A something to the effect that he will make her an adult that then proceeded to try and kiss her. She turned her head and he kissed her on the cheek. Learner A then pushed Mr. Desha away, she screamed and ran to the bedroom. Leaner B testified that she heard her sister’s screaming. Obviously panicking the two then jump out of the bedroom window. Leaner B acknowledged that she did not see Mr. Desha in the house when her sister screamed. But she testified that she heard Mr. Desha shouting at them and noticed her vehicle. Leaner B has placed Mr. Desha at the scene and both Learners A and B testified that the ran to house of Ms. Mshweshwe.

64. Ms. Mshweshwe testified how the children arrived crying and shaking. This is then where first report of the incident was made. There is no evidence that Learner A was acting or has made up her emotional state when she arrived at told Ms. Mshweshwe’s house. I find her emotional state not to be inconsistent with someone who has experienced a traumatic event such as sexual assault or abuse. I find it improbable that this was an act on her part. This supports my rejection of Mr. Desha’s version that Learner A’s has made up the allegation.

65. Whilst evidence of previous consistent statements is normally inadmissible there is an exception to the rule when it comes to rape, indecent assault and similar offences. In cases of misconduct of a sexual nature our law provides evidence may be given of a voluntary complaint made by the victim after the commission of the misconduct. The contents are admissible evidence to show the consistency of the complainant’s version. Learner A said to Ms. Mshweshwe, its “Desha, Desha the teacher” and told Ms. Mshweshwe that he touched her buttocks and told her to come and learn to be an adult.

66. Mr. Desha is charged in terms of section 17(1)(b) of the EEA with an act of sexual assault on Learner A.

67. Assault is defined as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires on another person a belief that such impairment of his/her body is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. Assault by means of menacing threats of a sexual nature may occur without any touching.

68. The elements of sexual assault are a) conduct of a sexual nature; b) which results in the victim’s integrity being impaired (or inspired the believe that it will be impaired); c) unlawfulness – meaning that there must not be a justification ground for the action, such as for example consent; d) intention to commit the misconduct - in other words accidental unintentional bodily contact is excluded from the definition.

69. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in light of all the circumstances. The part of the body touched, the nature of the contact, the situation in which it occurred, the words or gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force will be relevant. The intent or purpose of the person committing the act, to the extent that it may appear from the evidence, may also be a factor in considering whether the conduct is of a sexual nature.

70. Given the wide meaning of sexual assault, it involves not only rape, sodomy, oral sex or other forms of sexual activity without the consent of the victim but also includes other forms of intentional conduct of a sexual /erotic nature such as kissing on the lips and touching or caressing buttocks or breasts of a victim.

71. In Leaner’s A’s house, Mr. Desha has picked her up A, touched her buttocks, tried to kiss her and told her that he will make her an adult. Mr. Desha’s conduct was of a sexual nature, it was deliberate and intentional and it without consent of Learner A. His conduct has impaired the integrity and dignity of Learner A and I find on a balance of probability that Mr. Desha has sexually assaulted Learner A during the evening of 28 February 2022. I find Mr. Desha guilty as charged.

72. I must now consider the appropriate sanction.

73. The WCED has argued that Mr. Desha has broken the trust relationship and has called for his dismissal.

74. It is trite that mitigating factors such as the personal circumstances of an employee should normally be considered before deciding the appropriate sanction. Mr. Desha denied the allegation and did not present mitigating circumstances. I did however consider that Mr. Desha is married and is a father and that there is no evidence of him being found guilty of similar misconduct in the past. I also considered that he will probably find it difficult to secure employment in the education sector if he is dismissed.

75. I must take into account that the South African Constitution stipulates that every person has the right to human dignity (section 10) as well as freedom and security, including the right to bodily and psychological integrity (section 12). And that a child has the right to be protected from maltreatment, neglect, abuse, or degradation (section 28(1)(d)) and should not be required to commit acts that i) are inappropriate for a person of that child’s age; or ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral, or social development (section 28(1)). The Constitution also states that the best interest of the child shall be paramount in any matters affecting the child (section 28(2)). In this regard the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC, held that section 28 of the Constitution impresses an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance. Courts and administrative authorities are constitutionally bound to consider the effect their decision will have on children’s lives.

76. I considered the Code of Professional Ethics contained in section 3 of the South African Council for Educators (SACE), Act 31 of 2000, which provides that an educator must inter alia: respects the dignity and constitutional rights of learners; avoid any form of humiliation, and refrains from any form of abuse, physical or psychological; refrain from any form of sexual harassment (physical or otherwise) of learners; refrains from any form of sexual relationship with learners from any school; take steps to ensure the safety of the learner; and not abuse the position he or she holds for inter alia personal gain.

77. Educators are entrusted with the care of children and they must act with utmost good faith in the conduct towards learners because society must be able to trust educators unconditionally with their children. Learner A is a 14-year old child who has a general right to be protected from sexual abuse, harassment and sexual assault. Mr. Desha’s conduct on 28 February 2022 was inappropriate, unacceptable and far removed from acting in the best interest of Learner A. He has unfortunately failed in his obligations as an educator and a protector of children. Mr. Desha has breached this trust and he has displayed no remorse for his conduct during the Inquiry.

78. The conduct of Mr. Desha falls within the ambit of section 17 of the EEA and in terms of this section an educator must be dismissed for acts of sexual assault. Even if I could have considered alternatives to dismissal, the seriousness of the offence is such that an employment relationship cannot possibly continue especially in light of our duty in terms of the Constitution to consider the interest of children as paramount.

79. In terms of section 18(1)(q) of the Employment of Educators Act, it constitutes misconduct if an educator “while on du
80. Lastly, section 120(1) of the Children’s Act, No 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” Section 120(2) of the act provides that a finding that a person is unsuitable to work with children may be made by such forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children.

81. The WCED could have made such an application to this Inquiry. The WCED did however not make such an application either during or at the end of this Inquiry. Whilst I can make such a finding on own accord, I find that in the absence of such an application by the WCED and in the absence of the accused employee not having had an opportunity to make submission as to why such a finding should not be made, I cannot make a finding at this stage as to whether or not the accused employee must be declared unsuitable to work with children (my emphasis). In these circumstances it will be more appropriate for the South African Council for Educators (SACE) to consider revoking the SACE certificate of Mr. Desha and declaring him unsuitable, in terms of the Children’s Act, to work with children.

AWARD
1. I find Mr. Desha guilty as charged.
2. The sanction is summary dismissal.
3. The WCED must inform Mr. Desha of the date of his summary dismissal.
4. The ELRC is directed to send a copy of this award to the South African Council for Educators (SACE) to consider revoking Mr. Desha’s SACE certificate and declaring him unsuitable, in terms of the Children’s Act to work with children.

ELRC Commissioner: Jacques Buitendag