ELRC405-22/23WC

INQUIRY BY AN ARBITRATOR

Commissioner: Gail McEwan
Case No.: ELRC405-22/23WC
Date of Award: 22 April 2023

In the ARBITRATION between:

SADTU obo MLUNGISELELI BAM
(Employee)

and

WESTERN CAPE DEPARTMENT OF EDUCATION
(Employer)

Union/Employee’s representative: Sityhilewo Ntamo

Employer’s representative: Lazolo Mbotoloshi/Vuyokazi Mthivrazi and after 5 March 2023,
Ovaya Tyhalithi
 
PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995 (LRA) as amended and was heard on 5 October 2022; 21 November 2022; 5 March 2023 and 12 April 2023 at the premises of the Western Cape Department of Education. The request for an inquiry by an arbitrator was made on the prescribed form which was signed by Mlungiseleli Bam. The employer handed in a bundle of documents and arbitration was digitally recorded. Doris Xego was present as an intermediary. In terms of a Collective agreement it was agreed that the use of intermediaries is compulsory when a child gives evidence in cases involving misconduct of a sexual nature. Mlungiseleli Bam (the employee) was represented by Sityhilewo Ntamo (SADTU).The employer was represented by Lazolo Mbotoloshi/Vuyokazi Mthivrazi (labour Relations Officers). When arbitration continued on 5 March 2023 Ovaya Tyhalithi (labour relations officer) took over as the representative of the DOE and was sent copies of all the recordings of this matter. My thanks to the DOE for arranging a Xhosa interpreter whose services were agreed by both parties. Postponement of this matter was denied in a letter dated 4 October 2022. Also on 5 March 2023 the services of an intermediary was not required so Doris Xego took on the role of an interpreter as agreed by all present. On 12 April 2023 Bianca Mankay was present as a Xhosa interpreter.

2. The purpose of this enquiry is to determine whether Bam is guilty or not guilty of the following charges and if found guilty on a balance of probabilities to impose the appropriate sanction:-

(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 (the Act) in that during June 2022 you committed an act of sexual assault on learner ‘A’, a grade 12 learner associated with Phakama High School, Lower Crossroads, Nyanga / Philliippi by:-
(a) Touching her buttocks and / or
(b) Tapping her on the buttocks.”

(2) “It is alleged that you are guilty of misconduct in terms of section 18 (1) (q) of the Employment of Educators Act No. 76 of 1998 (the Act) in that during June 2022 you conducted yourself in an improper, disgraceful and/or unacceptable manner towards grade 12 female learners associated with Phakama High School, Lower Crossroads, Nyanga / Philippi by watching them half naked in their dormitory during a camp.”

3. I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings..

4. The Bill of Rights and the Children's Act define a 'child' as 'a person under the age of 18 years'. This means that all people under the age of 18 years are entitled to the protection guaranteed by section 28 of the Bill of Rights and the provisions of the Children's Act - Republic of South Africa Act 108 of 1996. All the learners at the time of arbitration were over 18 years’ old and hence have been referred to by their names.
THE BACKGROUND TO THE DISPUTE

5. Bam worked as an educator level 1 teaching grades 8 to 12 economics, business studies, art, economic management studies and earned R30 000.00 per month. Bam started working for the employer on 21 January 2000 and was made permanent on 21 January 2002.

SUMMARY OF EVIDENCE AND ARGUMENT

The employer’s version and testimony was as follows:-
6. Zamayedwa Jaxa (Principal) testified he had nine years’ service at the school where Bam is an educator. Jaxa explained he knew nothing about the first allegation. During the period 27 June 2022 to 1 July 2022 the school held a camp which was funded by the DOE. Bam was at the camp which had been held during the school holidays. The educators resumed school on 19 July 2022 whereas the learners returned to school on 26 July 2022. Allegations of sexual harassment at the camp had been reported by the class teacher Nolufefe Tutu. The school was told to send a report to the labour relations office and the documents about what Tutu had been told had been included. It was said that an educator touched a female learner (Alitha Sonamzi – a learner from grade 12 C) on her buttocks. Bam is aware that he is not allowed to touch the learners. The parents of the learners involved were phoned and told what had happened. Jaxa explained that he could not work with an educator who touches learners and watched them undressing. Jaxa stated that such behavior at schools is not permitted and he had yet to hear the version of Bam so was unable to say anything about trust.

7. In cross-examination Jaxa confirmed that he had known Bam for more than ten years. Bam was seen as a very good person and there had never had any sort of clashes. Bam is a very constructive person and there had never been any problems with his behaviour. Bam had taken a group of learners to the United Kingdom in 2010 for a soccer tournament during which nothing untoward had happened. Bam was trusted around female learners and Jaxa had not seen what had happened at the camp. No learner had reported anything to him. The learners had not approached Jaxa directly and at that time he had not been present although he believed he was trusted by the learners. The incidents had happened at the camp and were then reported to labour relations. It was put to Jaxa that as principal he had a duty to collect enough information regarding the case. Jaxa explained that he had no specifics regarding the incidents. Jaxa agreed that the Act did not disallow the principal from speaking to the learners but it was explained that the incidents had not been reported directly to him. Jaxa disagreed that he could have spoken to the adults as it was not his job to find out the specifics of the incidents as they had not been reported directly to him. The camp was arranged by a committee of educators and there had been no community involvement. Some parents had assisted with the cooking. The learners were told about the camp through a briefing session. At camp they had been told which side was for female learners plus female teachers and the same had been done for the males. At the camp there had been a timetable for activities; the rules had been made clear and they had been read out to all at the camp. Jaxa trusted that there would be one hundred percent supervision of female learners by female educators. The camp lasted for five days and Jaxa had trusted all the educators. Jaxa had been told about the incidents from Tutu. Jaxa confirmed that the learners trusted him and he could not say why these incidents had not been reported directly to him. Tutu had not been at the camp and had believed what she had been told had happened at the camp. Jaxa trusted the educators and he was not aware if Bam had done that which had been alleged. It was put to Jaxa that there is a witness who will say nothing at all happened such as was alleged against Bam. Jaxa agreed that it was unacceptable to touch the learners and the parents had attended meetings after they had been phoned. There was nothing in re-examination.

8. Alitha Sonamzi (18 years old and a learner from Grade 12 C at the school) testified that the camp at which she was present was held in June 2022 at Hout Bay where there were different rooms used by females and separate from those used by the males. Female educators looked after the females at night and during the day. The camp was held over five days and the dormitory where Sonamzi slept was shared with about twenty other female learners. Sonamzi is aware of the allegations against Bam in that at camp she and Onele Msethu had been leaving the kitchen where they had been eating and Bam had been behind them. Sonamzi had commented that they were being fed a lot and will gain weight. Msethu was between Sonamzi and Bam when Bam had hit her buttock. Sonamzi had stopped and looked at Bam; he looked back at them and Sonamzi had walked on. (Sonamzi gave a brief demonstration of how Bam had hit her on her right buttock). Bam had said that it seemed that they already had buttocks. Sonamzi had felt shocked as she had not expected this to have happened. Msethu had seen what had happened although she had been in front of Sonamzi. Sonamzi explained that she had not reported the incident to anyone at the camp. Once back at school she had told Tutu about what happened and she had also told her parents who had been called by the school. Bam did not have any permission to have touched Sonamzi. Bam spoke to Sonamzi after the camp when back at school when he asked another learner to call her so they could speak. Bam had said he had shockingly heard that he had touched her buttock at the camp. Bam explained that he had been unaware that he had touched her buttock; if it happened it had not been intentional and had said he was sorry. Sonamzi said she believed Bam when he said he never touched her buttock at the camp. (In clarification I went through the sequence of events with Sonamzi. They came out of the kitchen and had been in the middle of the steps. Once they were completely down the steps they headed towards the parking area which is when Bam hit her buttock). Sonamzi explained that it was possible that Bam had bumped her and not actually hit her. After a short lunch break Sonamzi was questioned over the difference between an accidental bump and a hit and she felt that it had not been accidental. Sonamzi accepted the apology made by Bam and it was put to her and agreed that if the hit was accidental then there had been no need for Bam to have made an apology. The dormitory layout was explained as a big room with a small room in the one corner. Sonamzi slept in the open plan area. The female learners were in the dormitory when Bam entered with (first name unknown) Mbovane (another male educator) although Bam had entered at first when he was alone. The learners took their baths after 03h00 as that was when the water was hot and thereafter went to bed. At 08h00 Bam knocked as his period was about to begin but the female learners were still sleeping. They would first need to get dressed and then get some food. The learners began to get dressed and Bam was watching. Bam would look up and he spent about thirty minutes watching the female learners getting dressed. There had been between twenty to thirty learners present at the time and Bam had instructed them all to get dressed. Some had been wearing pajamas but some were not. Sonamzi had a large fleece blanket so was able to hide behind it to get dressed. Some who were not wearing pajamas only had on panties and a vest. Everyone at least had worn panties and a vest. Sonamzi explained that Bam had made jokes about them still sleeping while the class was about to begin. Bam told everyone to get dressed whilst he was still in the dormitory. No-one had said anything about Bam still being present. Two of the learners had asked afterwards why Bam had been present in the dormitory while they were getting dressed.

9. In cross-examination Sonamzi confirmed she is eighteen years old and had been at this school for the last four years. Sonamzi had only known Bam for the past three years when he had been teaching her since grade 10. Bam is a good teacher and always encourages everyone not to be negative; to assist others and so forth. Bam had never shouted in the classroom. If they had not done their homework Bam would say he never liked the students who did not do their daily work. Sonamzi was excited to attend the camp as this was a first for her. Bam teaches economics. They slept in bunk beds in the dormitory at the camp. The males were separated and had their own dormitory. The educators frequently went to the dormitories. It was unlikely that male teachers had come to their dormitory. Sonamzi became more comfortable being at camp after the educators were motivating them. Sonamzi never reported any concerns she had whilst at the camp. Sonamzi explained that she had nothing to report as nothing was wrong. At the camp they had been told the rules and who would be supervising them – although they had not been told exactly who would be responsible for the learners. At night no-one had checked if all were in their beds and also in the mornings they usually woke up by themselves. It was put to Sonamzi that her version had changed from them coming from the kitchen to now asking Bam for airtime. Sonamzi explained that Msethu had asked Bam for airtime when they had all descended the stairs. Msethu had asked for airtime or something and Bam had said to go downstairs to the educators’ room adjacent to the dormitory. At the corner they had been approaching where the cars parked; a comment was made about the weight on their buttocks and Bam had said that they already had buttocks. Sonamzi could not recall the exact time this happened but explained it was after supper and it was late. Sonamzi had stopped and let Bam walk ahead of her and she had just kept quiet as she had been shocked. Msethu had not seen what had happened and had only been told about it later on. Msethu had also been shocked and told Sonamzi she had to be joking. The matter ended at that point. Sonamzi did not tell the educators or parents who had been present at the camp. Sonamzi was comfortable telling Tutu although she had not been at the camp. Once schools re-opened Sonamzi reported what had happened to Tutu as well as telling her father who went to the school as he had been called by the principal. Tutu had been the class educator in grades ten to twelve. Sonamzi had not been sure how old Bam was so her father guessed that he was about forty years’ old. It was put to Sonamzi that she was not telling the truth as she said she had been traumatized about the incident although she had continued with the camp and their classes. Sonamzi said she preferred not to answer the question. It was put to Sonamzi that the incident had never happened as if she really was traumatized she would have been unable to continue with the camp without some form of assistance. This led to the conclusion that Sonamzi had not been traumatized. The camp took place from the Monday to the Friday and the incident happened on the Wednesday at about 20h20 yet Sonamzi had not sought help for the trauma she claims she had suffered. Sonamzi refused to answer the question as to why she had not sought help whilst at the camp at the time of the incident. It was further put to Sonamzi that Msethu never believed her so the question was posed why should this forum believe her? Sonamzi explained when in shock the Xhosa people express their shock by saying ‘you are lying’. Sonamzi told Tutu who said the deputy principal Matope would arrange a social worker to see her and she had one session with the social worker in August 2022. After the incident Sonamzi had seen Bam again in the classroom. Sonamzi said she was not answering any questions about how she felt when she again saw Bam at school. When school re-opened Bam had continued to teach Sonamzi. It was put to Sonamzi that she is lying as she claims she was very traumatized but continued with school with Bam teaching her daily. It was explained that Bam had called Sonamzi from the class and said he had heard that she alleged he had smacked her buttock at the camp. Bam had apologized saying he had never meant to do that but perhaps rather had just bumped her. Sonamzi confirmed she had forgiven Bam and at the time she had just said ‘okay teacher’. Sonamzi confirmed that she had never believed that Bam meant what he had said although she had accepted his apology. Sonamzi refused to answer any more questions in this regard. It was put to Sonamzi that her version is a complete fabrication and she had never told Bam that she did not accept his apology. It was put to Sonamzi that as she was refusing to answer any questions SADTU would not waste any more time delving into a clearly fabricated version. It was put to Sonamzi that Bam had gone to the dormitory to wake the learners up to go to a class. Sonamzi agreed that she had been present when the female learners were getting dressed. Sonamzi had used her fleece blanket to cover her body whilst she got dressed for the day. Sonamzi had not told anyone she had been uncomfortable at that time in the presence of Bam and had been intimidated by his presence. Sonamzi confirmed that the presence of Bam at the dormitory was not associated with sexual harassment and had not been reported as such.

10. In re-examination Sonamzi confirmed that Msethu had gone to fetch airtime from Bam at the educators’ room. Sonamzi confirmed that she had only told the truth. Samantha Musu Mlisa (another learner) had been present when Bam had apologized. Sonamzi had only met once with the social worker.

11. Onele Msethu was present but refused to give any testimony.

12. Samantha Musu Mlisa testified that she was nineteen years’ old and had been at the camp held in Hout Bay in June 2022. Bam is the educator who teaches economics. The camp was held in a disused army facility and she had stayed in the dormitory that had beds. The males were not allowed although she was unsure as this had not been mentioned. The female educators came into the dormitories as had Bam, Mbovane and Gcanje (all educators). Bam had said that class had started at 08h00 and that they should put on their uniforms. Mlisa speculated that there had been about twenty females in the dormitory. Bam entered the dormitory, they had been dressed and stated that the class was starting so they needed to get into their uniforms. The female learners had bathed at 03h00, then slept and only then changed into their uniforms. When Bam was present all had been in their pajamas. Bam watched them getting dressed for between ten to fifteen minutes and this was due only to the class starting. Everyone changed into their uniforms in front of Bam so Mlisa was unsure how she had felt as Bam had been rushing them. Mlisa was unsure whether Bam could see her panties. Mlisa knows Sonamzi as they go to the same school. At the time when Bam spanked Sonamzi - Mlisa had not been present and she was told what happened by Sonamzi. When Bam had apologized to Sonamzi he had said that he did not recall spanking her; had not been aware if he had bumped her and had apologized if this had happened. Mlisa agreed that Bam would not be apologizing if he had not spanked Sonamzi.

13. At this point we had run out of time. The employer confirmed that they had a further 4.5 witnesses and the employee had 3 to 4 witnesses. An intermediary and an interpreter would still be required. Arbitration continued on 5 March 2023. SADTU and Bam were not present and I noticed that Sityhilewo Ntamo was not included in the notice of sit down. On that basis I phoned him and he confirmed he had no knowledge of the arbitration continuing today. Ntamo phoned me back and requested he and Bam be given until 11h00 to arrive before arbitration continued. In consultation with the employer this was agreed. Arbitration therefore continued two hours later on 5 March 2023. On 5 March 2023 Mlisa was not present so there was no opportunity to cross-examine her which is regrettable.

14. Yonda Mtoto (19 years old and who had matriculated in 2022) testified that she had been at the camp in June 2022 where Bam was present along with about fifteen other educators. Bam had been her teacher in economics from grades 10 to 12. At the camp the females had a dormitory and the male dormitory was on the opposite side. The females were closer to where the educators had their male and female accommodation. The females were looked after by the female educators and vice versa for the males. On the Thursday Bam had come to her dormitory at about 20h00. The males were drunk, noisy and throwing stones as well. Some of the nearby residents in the area of the camp had lodged a complaint in this regard. Bam had come to check on the females and had been accompanied by three other male educators. Bam had never come alone to the female dormitory at any other time.

15. At this point I asked Mtoto pointed questions as follows: (i) The females bathed / showered at 03h00 as that was when hot water was available. They had to wake up at 07h00 to brush their teeth and fetch their food. At 08h00 classes began and they had to be ready in their uniforms.

16. Mtoto explained that once they were late for the class as they had all overslept due to the late nights during which hours between 03h00 and 04h00 they had to shower. Also uniforms had to be ironed for which task the queues were long. Mtoto was sure that it was on a Thursday as the males had locked away the educators. The female educators were bolted into their accommodation but the male educators were free. That day by 07h30 there were further delays as the food was not yet ready. The class run by Bam stated at 08h00 and as they were late they took their food to the class. When the class was over they had all eaten some oats. Also on that day no educators had come to their dormitory. Bam came to wake them up as they needed to be ready for his class. It had been too rushed as they had to brush their teeth and iron their uniforms. Some of the females only had towels covering their bodies and Bam had entered the female dormitory. Mtoto explained that Bam had walked around waking everyone up. Some learners were not yet dressed; were in grade 12 B and had been half naked but had to put on their uniforms even though Bam was still in the dormitory. No-one had been completely naked and most had on a bra and panties. By half naked Mtoto explained she meant that they had on either a bra or panties. When Bam walked around some had towels on and their arms and legs were naked. Some were only wearing a night shirt. Mtoto took off her pajamas and had first dressed her top half and then the bottom half. Some had said they would only get dressed once Bam had left the dormitory. The males were already in the class and the twins had refused to get dressed. Mtoto was uncomfortable getting dressed in front of a male and kept wondering why Bam was in the dormitory. At the camp the genders had been separated and no-one wanted them in a relationship with a male. It would have been easier being naked in front of the female educators. It is not allowed for educators to touch any learners.

17. In cross-examination Mtoto confirmed that Bam is alright; approachable and learners could discuss anything with him. Bam always gave assistance to anyone in need when asked. Mtoto trusted Bam. It was put to Mtoto that she had said that no male educator came to their dormitory but then said when they overslept Bam had come to the dormitory which evidence was contradictory. Mtoto explained that males were not allowed in the female dormitory and Bam only came on the day of the incident. On that day the male learners were drunk and had bolted the female educators into their dormitory. Bam had not come alone to the female dormitory and he only came the day before the camp ended on the Friday. Bam only came as he wanted to start his class. It was put to Mtoto that she was not being honest as she first claimed Bam had never come to their dormitory and had then said that Bam had come to the female dormitory alone. Mtoto said that Bam only came alone on the Thursday to the female dormitory. Other male educators had come to the female dormitory. Mbovane (a male educator) had at the time been carrying a can of Black Label beer. Mtoto had not reported that Bam had come to the female dormitory. Although Mtoto had been uncomfortable she had waited until school started and had then reported everything to Tutu. After the camp they had still one week of holidays before the school started. Mtoto had told her mother about what had transpired having first told Tutu. Mtoto trusts her mother but had never said what had made her so uncomfortable. Her mother was very protective and would have asked what they did plus then confronted the educators which Mtoto did not want to happen. Mtoto wanted the school to deal with the matter and hence had waited until the day after school started to tell her mother. Afterwards her mother had spoken to Tutu. Mtoto had felt comfortable at the camp with the educators who had been present. Tutu had been the grade 11 class teacher and no other previous class teachers had been at the camp. On that Thursday some learners were in their pajamas; some were already dressed and others were naked or half naked. By naked Mtoto confirmed she meant that they had on a bra and panties. No one was ever naked without a bra, panties and a towel. On that day Mtoto felt that Bam should have waited outside the dormitory. Mtoto had been in pajamas and got dressed on one half and then the other that day. Mtoto had been in her pajamas when Bam entered their dormitory. Mtoto was uncomfortable as she had to take off her pajamas to put on her uniform and thus had been uncomfortable with the presence of Bam.

18. In re-examination Mtoto confirmed that she trusted Bam as it related to school work. Mtoto added that she had not been comfortable getting dressed in front of Bam.

19. In answer to questions of clarification from me Mtoto confirmed that she had not been alone when she reported things to Tutu. The group from the camp had gone together to Tutu and the leader of this group was Mlisa. They met as a group before approaching Tutu and it had been agreed in the group to report the matter to Tutu rather than anyone else. They had got together to decide when Tutu would be free. No one had anything to say in relation to the questions I had asked.

20. The employer wanted to be able to call Tutu to testify and SADTU confirmed that only Bam would testify and they had no intentions of calling any witnesses. Tutu ultimately was not called to testify.

The employee’s version and testimony was as follows:

21. Mlungiseleli Bam testified that the organizer of the camp had been Bafana Manisi (HOD mathematics). Everyone at the camp had been allocated duties. The male educators looked after the male learners and vice versa with the females. Manisi was overall in charge and classes each day started at 08h00 and the day ended by 21h00, with breaks being taken in between. Manisi at the start of the camp had told the learners that they should report to him right away if any problems arose. At night it was an imperative that the males were separated from the females. One night just after midnight Bam had received a phone call reporting that some of the female learners were at the male learners’ dormitory. Emma Mbewi (educator) had to also get up to assist at the male dormitory. They tried to get the females out and collectively this had been done by Bam, Mbewi and Jaxa. Bam said that the witnesses said that he went to the female dormitory to wake them up and get them dressed. The learners were supposed to be in class at 08h00; the females had not shown up so Bam went to the dormitory of the females to wake them up. The female educators were also late. Bam had gone to check on them, wake them up and had told them to come to the class. Bam explained that he had stood at the door to the dormitory for about one minute only. At the time the father of Bam was ill but he was required to attend the camp and once it was finished he went to the Eastern Cape to his father. On his return Bam was told by Tutu that Sonamzi had claimed he had hit her on her bottom. Bam had felt bad – he was a good teacher; was a parent himself and had felt hurt by what was being said. Bam felt down and had been helped by other educators. Bam taught economics and Sonamzi was in his class. Bam felt he had been good to learners and even brought them food on Saturdays. (We took a break at this point as Bam broke down with emotional pain). Bam explained that he did not know why he was being accused of these things by Sonamzi. Bam got on well with other educators and everyone at work. Bam believed he had a very good relationship with the learners and is trusted by them. Some educators, who heard about this, remained quiet as they did not know what to do because they did not know Bam that well. Most had told Bam that they were confused but gave him lots of encouragement not to give up and to place his trust in God. Bam spoke to Sonamzi although he never got a clear answer and did not want to push Sonamzi.

22. In cross-examination Bam confirmed that if there was a problem that was supposed to have been reported to Manisi and this never happened. It was agreed that the learners had said that they trusted Tutu. Bam confirmed he had woken the learners up; was there for about one minute and had left. Bam when waking them up had stood at the door to the dormitory and had never entered. It was put to Bam that it was said that he had walked between the learners who were trying to get dressed. This was denied by Bam. It was further put to Bam that the version of the learners had not been challenged and therefore his version was being fabricated. Bam explained that this was his first time at arbitration and he did not know that he could challenge what was being said by the learners. Bam agreed he had been at the dormitory but had never entered as he remained by the door. It was put to Bam that the learners said he entered their dormitory and therefore the version of Bam was being fabricated. Bam said he was told a random version by learners from grade 12C of what was claimed to have happened at the camp. Bam had spoken to Sonamzi back at school as he felt he could as they had a good relationship. Bam asked Sonamzi as he did not recall anything that happened at the camp so had asked Sonamzi to tell him what had happened. Sonamzi had kept quiet. It was put to Bam that this was not the truth as Sonamzi had said Bam had apologized to her. Bam stated that it was the learners who were not being truthful and not him. Bam denied giving any apology as he had done nothing wrong. Bam felt his relationship with the learners was different after this incident but he had not changed towards the learners. Some had told Bam to pray to get strong and he was making progress. Once after the camp Sonamzi had asked Bam to take her home but he had been weary so declined. Bam felt he was more careful after the camp and could not say why these allegations against him had been made. Bam vehemently denied that his version of events was fabricated. Bam agreed that he understood the seriousness of the charges and it was put to Bam that his version had not been put to the learners. It was further put to Bam that he was mistaken if he thought that the trust had not been lost after the camp as he had given a contradictory version. Bam said that Mtoto told him she trusted him again.

23. In re-examination Bam confirmed he had been told about the allegations by Tutu with whom he had a good relationship as colleagues. Bam believed he was an asset to the school and Jaxa knows this so expects certain things from him. The learners for instance know that Bam will attend to any bullying claims immediately. Bam had excelled with choirs, drama and such like. Bam took some females and males learners to the United Kingdom to play soccer and had been accompanied by Tutu. On that trip the relationship between Bam and Tutu was professionally strong. The second trip undertaken with learners Bam was accompanied by Jaxa. Bam had no doubt that he was an asset as his class rose from 38% to 89.97% pass for economics and it was Bam who had brought this to the school.

24. In answer to questions in clarification from me Bam thought that the ringleader in this was probably one of the Mlisa twins. Bam confirmed that there had not been any use of alcohol at the camp and there may be some houses nearby where they had camped. After 21h00 everyone had to return to their dormitory to sleep. Bam is married with three children (two sons and a daughter). The daughter is the eldest child aged 23 and his youngest son was six years old.

25. It was requested and agreed that closing statements be submitted in writing by no later than 17h00 on 19 April 2023.Closing statements were received from both parties, the contents of which have been noted.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

26. I am faced with as many versions of what happened at the Camp held in June 2022 in Hout Bay as there were witnesses, some refusing to answer questions and Msethu being present but then refusing to give any testimony. It is common cause that the camp was held over a five day period; male learners and educators had accommodation separate to the female learners and educators. The dormitory where Bam was accused of entering accommodated about 20 learners on bunk beds in the main area and there was a smaller room at the end or side of the dormitory which housed a lesser number of learners. The female learners had to get up at 03h00 to take their showers as this was the time when the water was hot. Once finished showering they would either iron their school uniforms where the queues for the iron were long and would then return to their dormitory to sleep but had to be ready and wearing their uniforms for the start of the first lesson of the day which began at 08h00. Minisi was in charge of the camp and had at the beginning stated the rules and after the days’ lessons plus breaks in between it was held that all learners had to be in their respective dormitories by 21h00 to relax and sleep. Minisi was the person to whom any problems experienced during the camp by the learners could have been reported or raised. I will go through the evidence of each witness and distill the different versions given as they relate to the charges faced by Bam.

27. In the incident where Bam was accused of hitting the buttock of Sonamzi only three people were present – Bam plus Sonamzi and Msethu being the only learners. In terms of when Sonamzi and Msethu were leaving the kitchen after dinner, with Bam behind them, when Sonamzi made a comment about gaining weight as they were being fed so well. Msethu was between Sonamzi and Bam. Bam then had to have overtaken or leaned over Msethu in order to hit the buttock of Sonamzi. This version seems highly improbable as Msethu was walking between Bam and Sonamzi making it difficult for him to lean through to reach and hit Sonamzi on her buttock. According to Sonamzi she stopped and looked at Bam; he had looked back at her and then she had walked on. Sonamzi also stated that Bam had then said that they already had big buttocks. It makes no sense that Sonamzi would then say Msethu had been in front of her although had seen what happened behind her when Bam hit her buttock as this is the opposite to the testimony given shorty before this new version arose. Sonamzi also said she had believed Bam when he had said he never touched her buttock. Sonamzi agreed that it was possible that Bam had just bumped her and not hit her buttock. Initially Sonamzi claimed there were about 20 learners in the dormitory and this number then rose to between twenty to thirty learners in the same dormitory. Sonamzi testified that Msethu had seen Bam hit her buttock and then testified that Msethu had never seen this although shocked when told what happened by Sonamzi. In cross-examination Sonamzi explained that she never reported anything as she had nothing to report as nothing was wrong. That flies in the face of her allegedly being traumatized and having to have a session with the social worker once back at school. Sonamzi then changed her version to Msethu asking Bam for some airtime when they were all descending the stairs towards the parking area and towards the dormitory where the male educators were housed. Sonamzi made a comment about the weight on their buttocks due to being fed so well and Bam had replied that they already had buttocks. It was late and after dinner and Sonamzi stopped to let Bam walk ahead. Msethu had then not seen what happened and learnt about what happened when told by Sonamzi. Msethu is said to have been equally shocked at what had happened. The incident happened on the Wednesday (half way through the camp) at about 20h20. Sonamzi refused to say why being traumatized she had not sought help at the camp. Despite feeling shocked and left traumatized Sonamzi never reported this to anyone at the camp and waited until school resumed. All these versions make any credibility of what really happened with Sonamzi very difficult or nearly impossible to believe. A small group of the females from Grade 12C had got together, once back at school, to discuss when they could meet with Tutu and they went as a group and reported what happened to Tutu. I have noted that Sonamzi had one session with a social worker after the camp. Back at school Sonamzi was still taught by Bam and refused to say how she had felt about this. At school Bam told Sonamzi that he had heard that she alleged he had smacked her buttock at the camp. Bam denied the claim and had apologized if perhaps he had just bumped her. Mlisa was present when Bam said he did not recall spanking her; had not been aware if he perhaps had bumped her and in case that happened then Bam apologized. Sonamzi had accepted this apology from Bam. Thereafter Sonamzi refused to answer any further questions in this regard. The problem when fabricating a version is that you need to make sure that your version remains consistent to be credible and with the changing versions, Sonamzi was far from being credible. Msethu refused to testify so was not able to corroborate even one of the versions as given by Sonamzi. Bam confirmed that he spoke to Sonamzi although he never got a clear answer from her and did not want to push Sonamzi as to why she reported he had smacked her buttock. In light of the above I find on a balance of probabilities that Bam never committed any act of sexual assault on Sonamzi, a grade 12C learner associated with Phakama High School, Lower Crossroads, Nyanga / Philippi by:- (a) Touching her buttocks and / or (b) Tapping her on the buttocks.

28. In so far as the second charge regarding Bam watching the female learners half naked in their dormitory during the camp I again have a number of conflicting versions to weigh up in term of credibility and probabilities.

28.1 According to Sonamzi Bam entered the female dormitory followed by another male educator. Bam knocked as his period was about to begin and the female learners were still sleeping. The knock had to have been very loud to wake up the sleeping female learners. It had been 08h00 when the first lesson should have started but as they were still sleeping they still needed to get dressed and have some food. Bam had stayed about thirty minutes watching while the female learners got dressed after telling them to get ready for his class. How long Bam actually spent at the female dormitory ranges from one minute; to ten to fifteen minutes and according to Sonamzi it was thirty minutes. Everyone had at least worn panties and a vest whilst some wore pajamas. Sonamzi in cross-examination testified that it was unlikely that male teachers had come to their dormitory. If it was unlikely that male educators came to the female learners dormitory then it is inexplicable why thereafter Sonamzi testified that Bam came to their dormitory. Sonamzi had a fleece blanket to cover her body whilst she got dressed. Sonamzi had not told anyone she felt uncomfortable getting dressed with Bam being present. This incident was according to Sonamzi not associated with sexual harassment and had not been reported as such.

28.2 The version of Mlisa of the same event was that Bam along with two other male educators plus female educators had entered the dormitory with beds; the twenty females in that dormitory were dressed and were told to change into their uniforms as class was starting at 08h00. Bam stared for about ten to fifteen minutes and watched while they got into their uniforms. Nothing was said about what the other two male educators who entered the dormitory had been doing during this time. Bam was rushing them and Mlisa was unsure whether Bam could see her panties. Sonamzi had told Mlisa that Bam had spanked her.

28.3 Mtoto testified that Bam had come to her dormitory on the Thursday at about 20h00. The males had been drunk, noisy and throwing stones. The nearby residents had lodged a complaint and Bam had come to check on the females. Bam had never come alone to the female dormitory at any other time. Mtoto was the only one who testified to this drunken commotion and the days’ activities only finished at 21h00 so it is highly improbable that this could have taken place at 20h00. This could have and would have been immediately stopped by about fifteen educators and parents who were present at the camp. Mtoto testified that once the females had overslept. Mtoto was sure it had been a Thursday as the males had bolted the door from the outside so the female educators were unable to get out although the male educators were free. It is unlikely even in a disused army camp (where soldiers had resided) that doors could be bolted from the outside (it was a barracks and not a prison). That day there were further delays as the food had not been ready by 07h30 which resulted in them taking their food to the first class run by Bam at 08h00. Mtoto explicitly stated that on that day no educators had come to their dormitory. But a second later testified that Bam had come to their dormitory to wake them up as they needed to be ready for his class. This evidence is contradictory if no educators had come to their dormitory that day. Some females only had towels covering their bodies when Bam entered the dormitory. Bam had walked around waking everyone up. Some learners were not yet dressed; were in grade 12B and had been half naked (but not completely naked) and had to put their uniforms on whilst Bam was still in the dormitory. This seems to suggest some rivalry as Mtoto blamed the grade 12B learners (she was in grade 12C) for not yet being dressed. Some had towels on whilst with others their arms and legs were naked. Some only wore a night shirt. Some said they would only get dressed once Bam had left the dormitory. Mtoto felt uncomfortable getting dressed in front of a male and had wondered why Bam had still been in the dormitory. Having suggested that only grade 12B learners were not dressed now Mtoto claimed she had been in her pajamas. In cross-examination, although being contradictory Mtoto insisted that Bam had only come to the dormitory on the day of the incident when the male learners were drunk and had bolted the female educators into their accommodation from the outside. Bam had not come alone to their dormitory and had only come on the day before the camp ended. Mbovane (another male educator) had been carrying a can of Black Label beer. This is highly improbable as had this been the case then others too would have seen what he had been carrying and would have been sure to report it. Mtoto had not reported this although she had been uncomfortable with Bam being in the female dormitory. This after testifying that Bam never came alone to the dormitory but had only come on the day the educators were bolted into their dormitory and not on the day of the drunken commotion. Also in cross-examination Mtoto testified that some were already dressed; others were naked or half naked (both these terms meaning they all had on their bra and panties and a towel) and on that day Mtoto felt that Bam should have waited outside their dormitory. When Bam entered the dormitory Mtoto had been in pajamas but had to change into her uniform. After a further weeks’ holiday, on their return to school, Moto and a few others decided to report the incident to Tutu. Mtoto told Tutu before she had even told her own mother as she had wanted the school to deal with the matter as her mother was very protective. Mtoto was inconsistent in her evidence and testified to big events that were not even mentioned by the other witnesses.

28.4 Bam testified that the learners were supposed to be in class at 08h00; the females had not shown up so Bam went to the dormitory of the female learners to wake them up. The female educators were also late. Bam had gone to check on them, wake them up and had told them to come to the class. Bam explained that he had stood at the door to the dormitory for about one minute only and had never entered. Bam denied that he walked between the learners whilst they were trying to get dressed. This seems to be the most probable version on the basis that none of the females were present at the start of his class at 08h00 so he went to the dormitory to check on them. Bam found them still sleeping and in that minute would have been doing something from the door to wake them up. A few awoke; were moving around then which would have started a noise that in all probabilities woke up the other still sleeping learners. Bam had in all probabilities only gone to wake them up as when he checked he found them still sleeping. Interestingly no-one testified that if Bam had remained in the dormitory why everyone failed to ask him to leave whilst they got dressed.

29. The common thread between these differing versions is that the female learners and educators had overslept and needed to be in their uniforms for the class of Bam to commence at 08h00. It is confirmed and admitted that Bam went to the female dormitory to wake them up as they were not present when his class was due to commence at 08h00. Bam categorically denied that he entered the dormitory and stated that he had only been there for about one minute. As stated above the versions of the other learners are contradictory to the extent that these versions were plausibly fabricated. Factually no-one asked Bam to leave the dormitory in order for them to get dressed which is astounding if he had remained watching them. Inexplicably no complaints in this regard were lodged with Minisi or any-one else at the camp. It was only a small group who once back at school reported what had allegedly taken place. This had been discussed by the group prior to going to Tutu and it seems plausible that each one had wanted to make their version more dramatic yet in doing so they lost their credibility. Additionally no-one said what the other male educators were doing during this time if indeed any others were present. I am alert to the fact that in one instance Bam was in the dormitory with bunk beds and then in the dormitory with those who slept in beds. In light of the above I find on a balance of probabilities that Bam is not guilty of misconduct in terms of section 18 (1) (q) of the Employment of Educators Act No. 76 of 1998 (the Act) in that during June 2022 you conducted yourself in an improper, disgraceful and/or unacceptable manner towards grade 12 female learners associated with Phakama High School, Lower Crossroads, Nyanga / Philippi by watching them half naked in their dormitory during a camp

30. In finding Bam not guilty of both charges I also took into account that Jaxa thought very highly of Bam whom he had known for ten years. Bam had a clean disciplinary record and had never been involved in any dissention. Bam had accompanied teams of males and females to a soccer tournament in the United Kingdom in 2010 accompanied by Tutu. Bam also took another group of learners to a soccer event overseas and had been accompanies by Jaxa. In both trips nothing untoward had happened with all returning safely. Bam was genuinely upset about the allegations against him and had become more cautious when for instance being asked for a lift home by Sonamzi after the camp.

31. The purpose of this enquiry is to determine whether Bam is guilty or not guilty of the charges he faced. I have found Bam not guilty of any of the charges. I am aware that after the camp Bam continued to work and had not been placed on a period of precautionary suspension.

AWARD

32. Mlungiseleli Bam is found not guilty on a balance of probabilities of the charges against him and as such no disciplinary sanction is imposed.


Gail McEwan
COMMISSIONER