ELRC 37-22/23FS

Commissioner: Zoliswa Taba
Case No :ELRC 37-22/23FS
Date of Award: 29 March 2023

In the Inquiry by Arbitrator between:

FREE STATE PROVINCIAL DEPARTMENT OF EDUCATION
(Employer)


And


SADTU OBO KHOMOESERA M.F
(Employee / union)


Details of hearing and representation
1. An inquiry by Arbitrator was set down in terms of section 188A of the LRA in Bloemfontein on 13 and 14 March 2023. In all matters in which an employer wants to take disciplinary action against an educator for alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the ELRC shall be mandatory. In this regard, I have noted section 3.3.1 of Collective Agreement 3 of 2018 of the ELRC.

2. The Employer in this matter is the Free State Provincial Education Department and the Employee is Mr Khomoesara. The Employee attended the proceedings and represented himself. The Employer was represented by Ms L. Cweba from the employee relations section.

Issue to be determined
3. In terms of the pre-arbitration minute of the parties, I am required to decide whether the Employee committed misconduct as per the allegation levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction in line with Section 17 of the EEA .

4. On the other hand, if the guilt is not proven, then the matter would be dismissed.

Background to the dispute
5. The parties signed a pre-arbitration minute in which it was recorded that the Employee was currently employed as an educator at Lenyora la Thuto Secondary School. There is only one allegation levelled against him of which he pleaded not guilty. The allegation related to the Employee committing an act of sexual assault when he had sex with a grade 12 learner who attended a school where he was employed. When the alleged sexual assault occurred, the learner was 18 years at the time. At the time of the hearing, the learner was 21 years. Due to the sensitivity of the facts of the case, the name of the learner will not be published in this award and she will be referred to as the “learner”. The name of the learner is captured in the record of the proceedings.

6. The matter was first set down before me on 17 June 2022 where the Employee party attended with his union representative from SADTU and requested postponement as he needed to obtain information from his cell phone which was confiscated by the police. Such request was granted and a written ruling was issued. The matter then proceeded on 05th October 2022 and the parties only managed to do a pre-arbitration conference as there was an issue with the system which was to be used in this type of case. The matter was set down again to be heard on 17 November 2022 but the Employee had then obtained a legal representative who wrote to the ELRC and requested the matter to be postponed. The ELRC then postponed the matter as the Employer did not oppose and the hearing was cancelled.

7. The matter then came before me on 18 January 2023. On this day, the Employee attended with a legal representative and no application for legal representation had been made prior to the date of the hearing. On the day, the legal representative requested to make an application to be allowed in the proceedings and the Employer requested the matter to be argued in writing. Parties argued the application in writting and submissions had to be in by 31 January 2023. A ruling denying legal representation was issued in writing on 02 February 2023.

8. The matter was finally heard and finalised on 13 and 14 March 2023. Although the learner was over 18 years of age, she was assessed by an intermediary and the recommendation was that services of the intermediary were required. There was no objection from the Employee party’s side and such was captured on the pre-arbitration minute. Ms Mphatane, an Intermediary attended the proceedings and acted as the learner observer throughout the proceedings. She alerted the proceedings at times when the learner was emotional and required a break. The proceedings were interpreted by Mr Mpitsi. Both the intermediary and the interpreter took an oath prior to proceeding with their duties.


9. Although the parties in their pre-arbitration minute indicated that they would submit less documents, on the day of arbitration, they submitted more documents and none of the parties objected to any document submitted. The Employer submitted a bundle with four pages and it was marked as bundle A, and the Employee submitted one with 16 pages marked as bundle B. The documents were accepted as what they purported to be. Although the Employer had initially intended to call two witnesses, on the day of arbitration, it only called one witness and indicated that no other witness would be called. The Employee was the only witness for his case.

10. The proceedings were digitally and manually recorded. What follows in this award is just a summary of evidence only relevant to the issue in dispute. All the testimonies of the parties are well captured in the recording. Parties requested to submit their closing arguments in writing by 22 March 2023, and such request was granted.

The survey of evidence and arguments
The Employer’s case
1st witness: The learner
11. She knew the Employee as he was her Mathematics teacher in grade 12 in 2020. On 13 December 2020, she received a call from the Employee requesting to meet her for the purpose of assisting her with her mathematics problems. The Employee had obtained her telephone number from the school WhatsApp group which was created to assist learners with their mathematics (“Maths”) issues. It had been communicated to learners through WhatsApp messages that paper 2 of maths had leaked and that there was a possibility of rewriting hence she agreed to the meeting as she was struggling with Maths.

12. She met the Employee next to fly by night pub and she entered into his car. The Employee informed her that he was taking her to someone else who would help her with her studies. They drove and the Employee stopped the car somewhere at the firms / factories and he attempted to kiss her. She asked him what he was doing and he did not respond. He then said they must leave the place as there were people coming from the firms who were going to see them. When she asked where they were going, he said, she will see.

13. They drove into the veld and he stopped the car. He started touching her breasts and kissing her. He told her to go out of the car and sit at the back of the car and he later also followed. She was wearing a dress, and underneath wearing tights and a panty. The Employee lifted up her dress, took off her panties and tights and started licking her private part with his tongue. She tried stopping him but she could not. While doing that he was on his knees with his head between her thighs while also taking off his pants and underwear with his one hand holding her. The Employee penetrated her by putting his private part inside her private part without using protection and sexually assaulted her.

14. She never consented to sexual intercourse and when the act happened, they were not in a romantic relationship. After the sexual intercourse, the Employee wiped her with his underwear and told her that he enjoyed the deed. They both dressed up and he took her back from where he had picked her up. She went home and never reported the issue to anyone as he had warned her not to do so.

15. During cross examination, she confirmed that the statement made at the police station was signed by her but maintained that it was the police officer who wrote it while she was relating the issue to him. She disputed some parts of the statements but conceded that she was aware that she did not have to sign anything she did not agree with as taught in one of her subjects, life orientation. She conceded that the purpose of signing the statement was to confirm that it was her statement and to own it.

16. She confirmed that she wrote her Maths paper which was said to have leaked on 16 November 2020. The exams were written at the camp venue. She conceded that she finished writing on 09 December 2020 but maintained that she only went back home on 11 November 2020, which was the day she only found out that the paper she wrote had leaked and that there was a possibility or rewriting on or about 15 or 16 December 2020. Since cell phones were not allowed at the camp, she saw the message about the leaked paper on 11 December 2020 when she arrived home, hence she agreed to meet the Employee on 13 December 2020 to be assisted with Maths.

17. When it was put to her that it was not reasonable that she would have only known of the leaked paper on 11 December through a message as teachers were aware that leaners had no phones with them at the camp, hence they informed them on the same day after writing, she had no response to that and maintained that she only became aware on 11 December. She conceded when shown the Minister’s announcement of 16 November 2020 that the Minister indeed announced the leakage on the day the paper was written and not in December as claimed in her statement, when she arrived home. She distanced herself from that statement and said she did not say what was written on the statement. She further conceded when shown the newsletter that it was confirmed on 12 December 2020 on the news that there was not going to be a rewrite of the exam.

18. She maintained that the Employee was never close to her in 2020 and distanced herself from her statement in which it was indicated that the Employee had started to be close to her asking about what she wanted to do after matric and offering to help improve her marks. Although she said that she had never had any interaction with the Employee prior to 13 December 2020, she conceded that she had sent the Employee messages on his personal WhatsApp around September 2020 during trial exams. She had asked about Maths problems and had not used the WhatsApp group platform created for learners as she was ashamed that other learners may think that she did not understand patterns.

19. She maintained that when the Employee called her for a meeting, she was not sure where the Employee was and disputed what was written on the statement that she said that the Employee was at E- section. When asked if it was reasonable for her not to ask questions when a Maths teacher who agreed to assist her with Maths to now tell her that he was taking her to someone else to assist her, her response was that it was reasonable. She maintained that the Employee had told her to get out of the car and go to the back where he had sexual intercourse with her. She could not use the people she saw at the firms as an opportunity to run as the car was locked. When asked a clarity question on this matter, she stated that she could not use those people as an opportunity to run as they were far. She confirmed that she was aware that a victim of rape could report the matter but she was scared to do so. She only reported in September when she almost committed suicide after her parents asked her the reasons for such. From the day of the sexual assault until she reported, no one noticed any change from her.

20. She disputed that she had a romantic relationship with the Employee which started in March 2021 when she had finished matric and was no more a learner. She disputed that she had been pursuing further studies and had reached out to the Employee for assistance in 2021. She disputed that due to their romantic relationship of 2021, the Employee sent her money in March and in May 2021. When she was shown the bank account used in March and May 2021 as proof that money was sent to her, she said since she did not have her bank card, she could not deny nor confirm the bank account if it was hers. She disputed that she met the Employee in May 2021 for the first time which resulted in him sending her R300.00.

The employee’s case
1st witness: M. Khomoesare
21. He was the Employee in the matter and he had been the learner’s grade 12 maths teacher. There was a WhatsApp group created at school during the covid-19 period to assist learners with their work. The learner used to send Maths questions to him personally and he would respond to such and had no issues about that as few learners were doing same. The only relationship he had with the learner in 2020 was a learner and educator relationship and at no point had he ever discussed anything outside schoolwork with the learner in 2020.

22. He denied guilt on the allegation levelled against him. He denied that he met with the learner on 13 December 2020 and denied having sexual intercourse with her on that day. It was not probable that he could have called the learner to meet him on 13 December 2020 and inform her that he wanted to help her with Maths as the learner had already written the paper and the paper was not going to be rewritten any more. Teachers and learners became aware of the leaked Maths paper on 16 November 2020. Since the teacher whose paper was being written on the day was not allowed to go closer to the learners before they wrote a paper, he informed all learners verbally after writing the paper that such paper had leaked. The same day the Minister of basic Education announced on media the issue of the leakage. On 12 December, it was announced on the television that the paper would not be written, as a result it was not probable that he would have met the learner the next day with a promise to help her with Maths as they were not going to rewrite the paper anymore.

23. He was well experienced in Maths and it was not true that he told the learner that he was taking her to someone else who would help her with Maths while he had such experience. The only time he met physically with the learner was in May 2021 and they met as lovers as the learner had finished school and they had started an affair in March 2021. The learner had been sending him messages requesting Maths assistance when she was improving her matric results and shared personal stuff with him. On the day they met in May 2021, they indeed had sexual intercourse as they both agreed to it. Sexual intercourse took place at the veld inside his car.

24. Afterwards the learner had asked for a cell phone which he could not afford and he promised to give her money whenever he had and will give her the amount he could afford, hence he sent her R300 on the day they had intercourse via her cell phone as they both used Capitec bank. He obtained the learner’s bank account from Ms Cweba who was the investigator at the time as he wanted to compare the bank account in his statement to that of the learner to prove that indeed he only met the learner on one occasion which was the day he had sent her money, not in December 2020.

25. On the same day, the learner sent a message to inform him that she left her lip gloss in the car and asked him to keep it for her until they met again. He did not respond to the message as he was surprised as to why the learner did not acknowledge the money, he had sent her. The learner later sent another message and said that he must keep the lip gloss and said that all men were the same, as soon as they got what they wanted, they ignore a person and she blocked him. His thought was that since he took long to respond to the learner about the lip gloss issue, she probably became angry and blocked him thinking that he did not want to see her again.

26. He was aware that the allegations against him related to 2020 when the learner was still a school going learner but he provided information of 2021 to prove that he was a truthful person and that he had nothing to hide. It was his testimony that he was not guilty of the allegation as he never had sexual intercourse with the learner while she was still a learner in 2020.

27. During cross examination, he maintained that there was no sexual encounter with the learner in 2020 and he had never met the learner in 2020 physically or had any close relationship with the learner except the learner and teacher relationship. He denied all allegations made by the learner and maintained that the only sexual encounter which took place was only in 2021 after the learner finished school and was consensual. He was the one who initiated the meeting of May 2021 as they were already a couple. He conceded that he did not ask the learner about the issue of the cell phone and that of sexual intercourse of 2021 as the learner had denied that they had a relationship in 2021 and the learner’s testimony was focused only on what allegedly transpired on 13 December 2020 hence he denied all she said.

28. He maintained that Ms Cweba, was the one who gave him the learner’s bank account so he could confirm with his bank statement and indicated that he was happy that Ms Cweba had on record admitted that she had done so. He explained that the bank statement only showed names of those who were his beneficiaries and the reason the learner’s name did not appear on the statement was due to the fact that he had used her cell phone number to transfer the money hence he needed the bank account number to compare.

Parties’ arguments
29. It was the Employer’s argument that it was proven through the testimony of the learner which had no contradictions that the Employee was guilty of the allegations of sexual assault. The Employee had contravened the values and obligations of the Code of Professional ethics of Educators and his actions had led to an irretrievable breakdown of employment relations. His actions required that he be removed from the education system.

30. On the other hand, it was the Employee’s argument that the Employer failed to prove the allegations against him, that he had sexual intercourse with the learner in December 2020. The learner had contradicted herself in her testimony and although she had signed the police statement, because what she testified on was different to what she had written, she attempted to disown her own statement as she was not telling the truth. It was his prayer for the Commissioner to confine the outcome to what he had been charged with and dismiss the allegation as he was not guilty. Even though he knew he was not guilty, in an event he was to be found guilty, his prayer was for him not to be listed as someone who was not fit to work with children as the learner was 18 years at the time the alleged incident took place. Moreover, there was a pending criminal case against him and if he was found guilty there, in any event he may be imprisoned.


Analysis of evidence and argument
31. In this matter, the only allegation against the Employee is that he had sexually assaulted the learner on 13 December 2020 when he had sexual intercourse with her.

32. The onus is on the Employer to prove on balance of probabilities that the Employee indeed committed the misconduct he is accused of. What needs to be proven is that on 13 December 2020, the Employee had met with the learner and had sexually assaulted the learner. The Employee denies meeting the learner on the said day and dispute sexually assaulting her.

33. Although the incident of 2021 related by the Employee could be argued as one falling within the period when there was no learner and teacher relationship, this is the version which was testified on at arbitration and cannot be simply ignored. Some aspects of this version are similar to what the learner had testified on. In terms of this 2021 version, there had been sexual intercourse between the learner and the Employee and at the site which the learner identified in her testimony. The only difference in the two versions of the learner and the Employee is that the learner testified that the sexual intercourse was not by consent and that it happened in 2020. On the other hand, the Employee’s testimony is that it was by consent and it happened in 2021.

34. The issue of whether sexual intercourse was by consent or not, for the purpose of this arbitration at this stage is not necessarily the main issue as a sexual relationship between a learner and an educator is prohibited, whether it was by consent or not. The presence of such relationship will render an educator guilty of serious misconduct in terms of section 17 of the EEA.

35. What is common cause is that sexual intercourse took place. The main question to then answer is whether such sexual intercourse took place in 2020 or in 2021. If it took place in 2020, whether by consent or not, at the time there was a learner and teacher relationship, then the Employee would have broken a workplace rule and an appropriate sanction would have to be applied in terms of the EEA. On the other hand, if it cannot be proven that sexual intercourse took place in 2020, then the Employee cannot be found guilty of the allegation against him.

36. It must be noted that the only evidence before me is the learner’s word against the Employee’s word and the Employee’s word against the learner’s word on what actually had transpired. It is therefore necessary for me to deal with the versions before me and decide which version is the most probable.

37. The learner’s testimony is that on the day in question she was contacted telephonically by the Employee who asked for a meeting so he can assist her with her Maths as the paper had to be rewritten. On the other hand, the Employee denied that and testified that he could not have called the learner to assist with a paper which was already written and was not going to be written again. The media statement was submitted as part of evidence to prove that it was announced on 12 December 2020 that the leaked paper would not be written. This media statement was not disputed by the Employer. If this is the case, the learner’s testimony that the Employee used the re-writing issue as the reason they had to meet is not probable, more so after it had already been announced that the paper would not be written.

38. Furthermore, the Employer’s representative did not deny that she had investigated the matter before allegations were brought against the Employee. It was not disputed that the investigator was aware that the Employee denied calling and meeting the learner on 13 December 2020 during the investigation period. With this background, it is not unreasonable to expect the Employer to lead evidence on cell phone records obtained during the investigation to at least prove that there was some contact on the day in question from the Employee to the learner. This would have called for the Employee to respond to why his cell phone number was appearing on the learner’s call records for the day it is alleged he called the learner. This was simply not done. Furthermore it is not the Employer’s case that such attempts to get the cell phone records were done but for reasons outside the Employer’s control, such failed.

39. What is important is evidence which connects the Employee with the learner on the day of the alleged incident. Although the Employee denied meeting the learner on 13 December 2020, he said he met her in May 2021. The learner had denied that there was a romantic relationship in place in 2021 and denied having anything to do with the Employee in that year. I am mindful that the allegations are for 2020, but since the Employee’s version went to 2021 in an attempt to defend the allegations, I must consider what transpired in 2021 in order to come to an informed decision.

40. Although the Employee was advised before cross examination that he needs to ask all questions to the learner which may implicate the learner when he testifies, he did not ask all the questions on the version he testified on. He did not put the version of 2021 sexual intercourse to the learner and also did not address the issue of the request to be bought a cell phone to the learner to afford her an opportunity to respond. What was put to the learner about what transpired in 2021 is that there was a romantic relationship in 2021 and that as a result of that, money was deposited into the learner’s bank account in May 2021. Therefore what would be considered is what was put to the learner as she had an opportunity to respond to it.

41. The leaner denied that she received money but she could not confirm nor deny whether the bank account number appearing on the Employee’s bank statement was hers. Even though she was given an opportunity to check her account, she simply said she did not have her bank card with her to confirm. Furthermore, the Employer’s representative confirmed that she telephonically gave the Employee the learner’s bank account during the investigation so that he could compare the account number in his statement to that of the learner. It was not put in dispute that when the Employee received such account number, the account number did not match that of the learner. Although the Employer’s representative was also given an opportunity to confirm the account number she gave to the Employee as to whether it was the same as the one in his statement, she refused on record to take such an opportunity. Had she done so, the issue of the account number would have been resolved.

42. The issue of the account is relevant as it goes to the version of the Employee. If the Employer’s representative made the account number, she provided available, then it would be clear whether such belonged to the learner or not. If it belonged to the learner, then it would have supported the version of the Employee about what transpired on that day. On the other hand, had it not matched, this would have supported the version of the learner that no money was deposited to her and such would put questions on the Employee’s version.

43. Furthermore, during the investigation, the Employer’s representative was aware why the Employee requested the learner’s bank account and knew that the Employee wanted to prove that on the day he deposited money, this was the only day he met the learner. Although she was aware of this and also being aware that the learner denied receiving money from the Employee, she failed to advise the learner to bring along her bank statement of the day in question so the denial of money being deposited could be supported by some sort of evidence.

44. As it stands, the Employer conceded to have given the Employee the learner’s account number for the purpose of comparison and did not deny that the account number appearing on the statement was the one given by the Employer’s representative. For this reason, it is probable that the Employee indeed deposited money in the learner’s bank account in May 2021, more so, the bank statement shows such deposit of R300.00. Since the aim of the bank account issue was aimed to assist the Employee to recall the day she met the learner, his version of meeting her on the day is therefore probable.

45. On the version of the learner on what transpired on 13 December 2020 about meeting on that day, it was the learner’s testimony that the purpose of meeting the Employee was for the Employee to assist her with Maths. If this is the case, when the Employee allegedly told her that he was taking her to someone else who could help her, a reasonable person in her position, who was already an adult at the time and who expected to be helped by the Employee, would have asked the Employee why he was now taking her to another person as he had promised to be the one assisting her, this she did not do.

46. During her testimony, the learner could not stand by her version on certain questions posed. When she attempted to respond to why she did not seek help from the people who were coming out from the firms/ factories, she initially said she could not ask assistance from those people as the car was locked but later changed her statement and said those people were far. She further testified that the Employee had told her to get out of the car and move to the back seat and she went outside the car and did so and the Employee only followed later. When asked why she did not use the opportunity to attempt to run away as she was now already outside the car away from the Employee, she now changed her testimony and said the Employee was standing in front of her door blocking her from getting away.

47. Although it is accepted that victims may not recall each and every action which took place on the day of the alleged incident, it is not unreasonable to expect a witness to stick to a version proffered by them or at least provide an explanation why the version has been changed. The learner changed some part of her version and could not explain why the version was changed.

48. Sexual assault is a gruesome act which requires perpetrators to be punished and victims to be protected. The negative impact sexual assault leaves on a victim is well known, more so, when a victim is a person who has never experienced sexual intercourse before. In this matter, although the learner explained that she was a virgin when asked, her actions after the alleged sexual assault are not consistent with those of someone who was sexually assaulted around the period she alleges the act happened. It is accepted that victims deal with these encounters in different ways but it is not reasonable that a victim in the position of the learner would just act normal and those close to her would not notice any changes in her behaviour.

49. Even though the learner attempted to argue that she disclosed the gruesome act to parents when she had attempted to commit suicide, this evidence only came up after a clarity question was asked as to why she only reported the matter later. Furthermore, she failed to even explain when such attempt took place and details around it were also omitted which could have assisted in determining the condition the learner may have found herself under.

50. It is not unreasonable to expect a victim of sexual assault, especially who was a virgin at the time the act took place to suffer some physical scars or behave in a different way than she would have normally done. No testimony was rendered as to whether any physical harm was sustained due to the alleged sexual assault. More so that it was her testimony that the Employee had applied force on her to get his way. There is no reasonable proof before me to support the allegation of sexual assault for December 2020. All that is before me is the word of the learner against that of the Employee. As it stands, the Employee’s version of events is more probable than that of the learner.

51. It must be noted that although the rights of the alleged victim in cases of sexual assaults are to be protected, the same applies to the one who is accused. As much as perpetrators are not to be allowed to get away with their gruesome acts, a guilt finding cannot be made on allegations which were not proven.

52. With all this being said, except the testimony of the learner, which is not more probable than that of the Employee, no reasonable proof was submitted to prove that on the day in question, 13 December 2020, the Employee called the learner; that indeed the learner and the Employee met on the day; there is no reliable proof submitted that there was indeed sexual intercourse which took place between the learner and the Employee on the day. Furthermore, the conduct of the learner after the alleged incident cannot be said to be consistent with that of someone who had just experienced sexual assault. Without such reasonable proof, I am not persuaded that the Employer led evidence which on the balance of probabilities proves that an act of sexual assault was committed on 13 December 2020 or at any time while the learner was still a school going learner.

53. Having considered all the evidence before me as a whole, it is my finding that the Employer failed to prove on balance of probabilities that the Employee committed misconduct as charged. Therefore, there is no basis to find the Employee guilty of the offence he is charged with. Therefore, the allegations against him are dismissed.

Award
54. The Employee, M. Khomoesara is found not to be guilty of the allegations levelled against him.

55. The allegations against the Employee, M. Khomoesara made by the Employer, Free State Provincial Department of Education are dismissed.


ELRC PANELIST: ZOLISWA TABA