ELRC568-22/23GP

Case Number: ELRC 568-22 23 GP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 1st May 2023

In the ARBITRATION between

Gauteng Department of Higher Education

(Employer)

And

P.P Mokoele

(Employee)

Union/Applicant’s representative:
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative:
Respondent’s address:

Telephone:
Telefax:
E-mail:

DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for an inquiry by arbitrator at the Respondent’s Head Office in Johannesburg. The inquiry ran over five days namely the 25th November 2022, the 3rd and 17th February 2023 and the 14th and 17th April 2023.
2. After completion of the inquiry the parties requested the opportunity to submit written closing arguments by the 25th April 2023. The closing arguments were timeously received, and my award now follows.
3. Mr. K. Mashilo, a union official from SADTU, represented the employee.
4. Mr. T. Tshangela, a labour relations official, represented the employer.
5. The proceedings were digitally recorded, and long hand notes were also kept of the proceedings.
6. Three bundles of documents were utilized marked ‘A’, ‘B1’ and ‘B2’ respectively.
7. An intermediary assisted the minor witnesses and the said witnesses testified remotely from the hearing room where the arbitration hearing itself took place.
ISSUE IN DISPUTE
8. The employee pleaded not guilty to two counts of alleged misconduct in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 (as amended) (EEA).
9. It is common cause that the employer employs the employee as a PL1 educator at the Thuto Ke Maatla Comprehensive School and at the relevant time periods in this inquiry the employee taught the complainants’ Sepedi home language.
10. It was alleged firstly that during the month of February 2022 and at or near Thuto Ke Maatla Comprehensive School the employee conducted himself in a disgraceful unacceptable and improper manner in that he sexually harassed LM, a girl learner from the same school by touching her breasts.
11. Secondly, it was alleged that, during the month of July 2022 at or near the Thuto Ke Maatla Comprehensive School the employee conducted himself in an unacceptable, disgraceful, and improper manner in that he sexually harassed DM, a girl learner from the same school, by touching her breasts, down to her lower body, attempting to kiss her and further said that he loves her.

SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT

12. The employer led the evidence of three minor witnesses in support of its case namely the two complainants LM and DM who were both Grade 11 learners in 2022 and attended the employee’s Sepedi class. In addition, the Respondent led the evidence of another current Grade 12, 17-year-old learner TL who was the treasurer of the school’s RCL.
13. Both complainants were clearly able to distinguish between right and wrong and took the oath. So too TL.
14. LM testified, inter alia, that on a certain day in February 2022 she had a spiritual incident where she suspected that she was being attacked by a familiar ancestral spirit. This caused her to feel unwell and disoriented. The incident occurred towards the end of her Sepedi period with the employee. LM, assisted by her best friend DM, left for their next class which was a history period.
15. Shortly thereafter, the employee came to their history class and called both complainants to his office. He appeared to be concerned about LM’s condition and sent DM to get LM a glass of water. In the meantime, he untied LM’s tie so that she could get some fresh air. LM testified that the employee deliberately touched her breasts under the guise of assisting her. Shortly thereafter DM returned with the water which she drank, and they both took their books and returned to their history class leaving the employee in his office.
16. LM immediately told DM what the employee had done to her.
17. LM also testified that both DM and she knew the employee as a good teacher, and he was their favorite educator. She could not believe that the employee would resort to action such as this.
18. LM testified further that she reported the incident to a representative of the RCL (Learner Representative Council) three days after the incident.
19. LM admitted to only telling her mother and other family members some four months after the incident because she did not know where to start telling what had happened.
20. During further testimony LM stated that the employee had freely run his hands up and down over her breasts and had cupped them at the bottom.
21. LM testified that she felt most uncomfortable and in particular disappointment because she did not think that the employee (her trusted and respected teacher) would touch her inappropriately like this.
22. The second witness DM was 19yrs old at the time of her testimony and also testified under oath.
23. DM confirmed that LM was her best friend and like LM she had a high regard and respect for the employee. DM testified specifically that the employee was an educator that she trusted very much.
24. DM testified that on a certain day in July 2022 she took her phone to school and forgot to put it on silent. She received a message in the employee’s class and the phone beeped. The employee asked that she hand over the phone to him and she did so. At the end of the class, she asked LM to go with her to the employee to apologize. When they arrived at the employee’s office, he was busy speaking to other girls and he chased them out.
25. Two minutes before the end of the day she asked another classmate Brendon (another girl friend) to accompany her to the employee so that she could apologize to him. She asked Brendon to wait outside, and she went into the employee’s office. There was another learner in the office. After the girl left the employee wanted to know why she was there troubling him. DM testified that she found this strange because she was there fetching her phone.
26. The employee immediately started touching her breasts and DM remembered what LM had told her about the employee having ‘tendencies’. She became afraid and the employee noticed this and asked her if she could hug him which she did. Whilst their faces were close the employee pouted his mount to kiss her. She pulled back and the employee said to her “this old man loves you” and he asked if he could kiss her, and she said “no”. Shortly thereafter the employee handed her phone back and as they were leaving Brendon asked her why she was looking so sad. She told Brendon what had happened, and he advised her to tell her mother immediately. DM stated that she was scared to tell her mother because she was afraid that her mother would think that she goes after teachers. She spoke to LM instead.
27. The following day LM and she debated about whether she should speak to her parents and decided instead to speak to a representative from the local RCL otherwise known as COSAS. The Principal helped her as well. She later spoke to TL and explained to her what had happened.
28. DM testified further that she remembered the incident involving LM earlier that year when LM had an encounter with an ancestral spirit. She remembered that it was the end of the employees Sepedi class, and they were about to commence a history period. The employee came to the history class and called both of them to his office. When they arrived at his office the employee sent her to fetch LM a glass of water.
29. After they left the office LM immediately told her that the employee had touched her in an inappropriate manner after he had removed her tie and unbuttoned her shirt so that she could get air. That is all she said at that time.
30. DM reiterated that her relationship with the employee was good. He was like a father and uncle to her and prior to the incident she had a high level of trust in him as an educator.
31. The final witness for the employer was TL. She testified that she was currently in Grade 12 at Thuto Ke Maatla Comprehensive School. In 2022 she held the position of treasurer on the school’s RCL.
32. Around June 22 LM and DM approached her and indicated that they needed to report an incident of sexual harassment. DM related the incident when she had gone to the employee to collect her cellphone. She related how the employee had tried to touch DM’s breasts, tried to kiss her, and told her that this old man loves her. Also, that he did not want DM to be afraid of coming to school.
33. LM had also narrated her story that the employee had called her and DM, earlier that year to his office, to try and help LM after her incident with the ancestral spirit where the employee had unbuttoned her shirt and ended up touching her breasts intentionally.
34. TL advised the complainants’ to report the matter to the Principal and also COSAS. COSAS later reported the incidents to the District office and the matter was investigated from there. COSAS took a decision that the employee should not be allowed to come to school until he was proven innocent.

SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT

35. The employee’s version in effect was a bare denial of what was alleged against him on both counts.
36. In respect of allegation 1 the employee denied going to LM’s history class in February 2022 and asking her and DM to accompany him to his office. He admitted to teaching LM Sepedi for a number of years.
37. The employee testified about an incident in class involving LM and an ancestral spirit which took place in May/June 2022 he thinks (no specific time was mentioned). According to the employee LM was taken to his classroom office and LM’s brother was summoned and he together with other learners administered certain rituals involving water and snuff to appease the spirit. After they were done the employee instructed them to clean the water and snuff off the floor and return to class.
38. During cross examination it was put to the employee that he was fabricating an incident in May/June 2022 and that the only incident that occurred involving LM and her struggle with an ancestral spirit was in February 2022.
39. As far as allegation 2 was concerned the employee admitted to teaching DM Sepedi in Grade 10 and 11.
40. The employee denied sexually harassing DM in any way.
41. The employee did however admit that there was an incident where DM’s phone rang in class and disturbed the class. Knowing the rule against having phones at school DM handed her phone to him before he could ask.
42. After school at around 15h20 as he was on his way out to give the phone to the Principal, when he encountered DM and her friends, felt pity for DM and handed the phone back to her.
43. The employee then called three additional witnesses the first of whom was Ms. Rebecca Mphepya. Mphepya testified that she was the PL 2 HOD for African Languages at Thuto Ke Maatla Comprehensive School.
44. Mphepya testified that she became aware of the two alleged incidents involving the employee when the Principal made the announcement at a special briefing of the employee’s compulsory transfer pending the outcome of the inquiry by arbitrator.
45. It was evident from Mphepya’s testimony that the two complainants’ were not well known to her. However, she testified that the employee had approached her and reported in 2022 that there were two girls who were bunking classes. Mphepya advised the employee to monitor the situation and it is common cause that no more reports were made to Mphepya concerning the conduct of the two complainants’.
46. Mphepya concluded by saying that he knew the employee to be a daddy to the learners and she could not believe that he would have done what was being alleged against him.
47. The employee then led the evidence of two learner witnesses that had attended the same Sepedi class as the two complainants in 2022. They were MM and PM.
48. It is common cause that both witnesses could give no direct or circumstantial evidence relating to the two allegations themselves.
49. Their evidence could best be described as character evidence. Both witnesses gave virtually identical evidence on the incident of DM’s phone ringing in class, and both described the two complainants as naughty learners who were cheeky in class and her frequently left their bags in class, bunked the class, and only returned to pick up their bags after the class had ended.
50. MM testified that the employee had been tutoring her Sepedi from grade 8 to 11 and she could not believe that the employee would sexually harass his learners. She stated that she knew the type of person the employee was and the type of people that LM and DM were. LM and DM were frequently disrespectful to the employee in class.
51. It is common cause that both LM and DM failed grade 11 in 2022 and were continuing their school studies at other institutions outside of the public school system.
52. It is also common cause that both LM and DM passed Sepedi as a language in their final Grade 11 examinations in 2022.
53. Both witnesses referred to the incident involving LM, and an ancestral spirit as taking place in May/June 2022 and seemed to have no knowledge of this incident taking place in February 2022.

ANALYSIS OF EVIDENCE AND ARGUMENT

54. The onus rests on the employer to prove all allegations of misconduct against the employee on a balance of probabilities.
55. Crucial in this case is the credibility findings in respect of the various witnesses. I was impressed with the three young witnesses for the employer. All the evidence provided one detailed and comprehensive flow of the sequence of events.
56. LM and DM were single witnesses to each of their respective assertions of sexual harassment and as such their evidence must be treated with a level of caution.
57. In South Africa, children’s evidence was treated with caution historically due to concerns about children’s ability to accurately understand, recall and communicate information. However, the South African judicial system has undergone significant reforms, such as the adoption of the Children’s Act 38 of 2005.
58. The Children’s Act recognizes the importance of involving children in matters that affect them and encourages their participation in legal proceedings relevant to their well-being. The legislation seeks to ensure that the children’s best interests and rights are considered during the process. Over time, the court’s have become more inclined to accept children’s evidence, provided that their testimony is deemed credible and reliable. The cautionary rule is now applied with increased flexibility concerning child witnesses and the evidence is assessed on a case-by-case basis.
59. I have carefully assessed the evidence of both LM and DM in particular their performance when questioned initially about their respective events, their performance under rigorous cross examination and the general probabilities of their versions.
60. I found them to be strong credible witnesses who testimony remained consistent throughout the course of their testimony.
61. LM was obviously disorientated by her spiritual encounter, and I sought by some questioning of my own to establish whether the employee’s touching of her breasts was perhaps an accidental event occasioned whilst the employee sought to make her more comfortable by loosening her buttons and removing her tie. It was evident to me how LM stiffened her back and quickly and almost indignantly moved to assert that what the employee had done to her in touching her breasts was not accidental. I saw and heard the echo of truth displayed in these words and actions.
62. DM also gave her testimony in such a way that her disbelief that the employee was capable of conducting himself in the way that he did was palpable in her general demeanor.
63. Both witnesses expressed sincere notions that they respected the employee as a beloved pater (father) and educator of Sepedi who had their best interests at heart. Even PM in her testimony in support of the employee admitted under cross-examination that both LM and DM had a good relationship with the employee as a teacher/pupil just like the rest of the class.
64. This seemed in stark contrast with her and MM’s early allegations that the two complainants were naughty disrespectful children towards the employee and often bunked his classes.
65. I find that LM and DM were probably not model students academically and otherwise, but I find that they were not broken children who harbored intent to misrepresent the facts against a teacher who they clearly both loved and respected. The testimony of Rebecca Mphepya revealed that after one incident of truancy she advised the employee to monitor the situation and according to her testimony there were no further incidents. This also contrasts with the testimony of MM and PM that seeks to paint LM and DM as bad kids, constantly playing truant and being hell bent on implicating the employee in something that he had nothing to do with. Both LM and DM passed Sepedi in 2022 demonstrating that the employee had properly taught them the subject and their actions in class did not affect their performance.
66. MM and PM’s testimony is purely of a character nature and provides little probative value to exculpate the employee.
67. The testimony of the employee and his two young witnesses is almost picture perfect appears to have been carefully rehearsed. I find on a balance of probabilities that MM and PM were directly coached as to what they should say prior to testifying at the hearing.
68. The employee has produced no convincing evidence why LM and DM would falsely implicate him in the two instances of sexual harassment. The bad kid smear only goes so far, and I find that the employees attempt to moderately discipline the two complainants in the past was well received and formed part of the reason that they loved him as a surrogate father at school. I find that it most certainly did not provide, in this instance, a motive to bring false sexual harassment charges against him.
69. I also find that the LM’s incident with the ancestral spirit took place in February 2022 and not during May/June 2022. I find that the employee has misrepresented the timing of the spiritual attack to discredit LM and confuse the Commissioner.
70. Perhaps the most cogent indictment of the allegations raised by the employee and his witnesses is the fact that almost none of these bad kid allegations were put to LM and DM during cross-examination so that they could give their comments. Whether this was an oversight on the part of the employees union representative or deliberate, the net result is that it diminishes the value of their testimony to the point where I cannot attach any weight to it.
71. I observed a pattern of the employee taking advantage of the two learners when they were in a state of compromise. LM was ill and disoriented by her encounter with a spirit in February 2022 and the employee fondled her breasts in the heat of the moment hoping that all would be forgiven and forgotten later. So too DM had broken a school rule by bringing her phone to school and she wanted it back when she went to the employees office. The employee took advantage of DM’s vulnerability because of her naughtiness to foist himself upon her probably thinking that her unacceptable conduct was an open excuse for him to engage in a little sexual flirtation and harassment himself. In both instances the employee was clearly alone in his office with his young charges.
72. I find the employee guilty of both counts of unacceptable, improper, and disgraceful conduct in terms of section 18 (1) (q) of the EEA.
SANCTION
73. Both parties are now directed to submit their written submissions in aggravation and mitigation within three calendar days after having received my finding on the merits.

MARK HAWYES
PART TIME SENIOR PANELIST
1st May 2023