ELRC478 – 22/23GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the INQUIRY BY ARBITRATOR between

DEPARTMENT OF EDUCTION – GAUTENG PROVINCE “the Employer”

AND

J SEERANE “the Employee”


SECTION 188A IBA RULING

CASE NUMBER: ELRC478 – 22/23GP
DATE OF INQUIRY: 9 May 2023
LAST CLOSING ARGUMENTS RECEIVED ON: 19 May 2023
DATE AWARD SUBMITTED: 15 June 2023 (Extension granted)
NAME OF COMMISSIONER: Coen Havenga


Details of hearing and representation

1. This process was set down in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (hereafter “the LRA”), and ELRC Collective Agreement 3 of 2018. The last day of the inquiry took place on 9 May 2023. The last of the closing arguments were received from the parties on 19 May 2023.

2. The Employer is the Gauteng Department of Education, represented by Mr Ratshilaya, J. The accused Employee is Mr Seerane, J (‘Seerane”), represented by Ms Boikhutso, M, a SADTU official.

3. Seerane was initially represented by a legal representative, Mr Nkosi, S, after a successful application for legal representation. However, after being granted several opportunities to get his legal representative present at the inquiry, the Employee reverted back to representation by his union official. The Employer amended the charges on the second sitting of the inquiry, and Seerane was granted a postponement in order to prepare in respect of the amended charges. Seerane was also granted a postponement after the withdrawal of his attorney, in order to afford his union representative the opportunity to consult and prepare properly.

4. Mr Khuzwayo, S acted as interpreter, and the intermediary was Ms Padi, M.

5. The Employer submitted the documents in Bundle A, whilst the Employee did not submit any documents.

Issue to be decided

6. I am required to determine whether Seerane is guilty of the charges levelled against him. Should I find him guilty of the charges, then I need to determine the appropriate sanction, as well as make a determination in terms of section 120(1)(c) of the Children’s Act 38 of 2005 whether Seerane is unsuitable to work with children.

Background and charges

7. Seerane is charged in terms of section 18(1)(q) and (r) of the Employment of Educators Act 76 of 1998 with five charges of improper, disgraceful, and unacceptable conduct. The four charges in terms of section 18(1)(q) and (r) relates to the following allegations of misconduct committed during 2022 while he was employed as an educator at Hammanskraal Secondary School (“the School”):

7.1 That he proposed love to a grade 11 female learner;
7.2 That he threatened a grade 11 female learner by grabbing her by the hands and telling her that if she reported him to her mother, he would deal with her;
7.3 That asked a grade 11 female learner when she was going to have sex with him;
7.4 That he referred to grade 11 female learners as “bitches”, and
7.5 That he administered corporal punishment to grade 11 female learners by hitting them with a pipe.

Plea

8. Seerane pleaded not guilty to charge 1 to 4 and denied all the allegations against him.

9. Seerane pleaded guilty to the 5th charge and admitted all the allegations contained in the charge. He admitted that he administered corporal punishment to the female learners mentioned in charge 5, by hitting them with a PVC pipe on their hands. He admitted that he knew it was wrong to do so.

Summary of evidence

10. The proceedings have been recorded digitally, and a summary of the Employer’s and Employee’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the inquiry and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses.

11. The matter relates to, inter alia, allegations of assault and sexual harassment of learners who were minors at the time of the alleged incident. In accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, the identity of that learners and other minor witnesses for both the Employer and the Employee, will not be disclosed. I will refer to the minor witnesses for the Employer as Complainants in this award, and the other minor witness for the Employee as “Witness X”. The minor witnesses testified by making use of the assistance of an interpreter and an intermediary through the TEAMS virtual process.

Employer’s case

12. Complainant no.1, a 17-year old female learner, testified under oath that Seerane was her geography teacher in grade 11 in 2022. He asked her to carry books for him to the staff room. On the way there he asked her with whom she was in a love relationship with. She told him who it was Witness X. (Note: I will refer to this minor learner as Witness X, as it is the learner which Seerane called as a witness during presentation of his case). Seerane asked her whether Witness X had good sexual intercourse with her. Seerane told her that she was still fresh, and when was she going to have a love relationship with him. She told him that it would never happen. He told her to go home and think about it. She then went back to class. They were alone when he made those remarks to her. She told her friend, Complainant no.2, about it.

13. During exams Complainant no. 1 was with the other Complainants outside the class. Seerane told them that they should not disturb the grade 12 learners who were writing exams. He told them to go back to class. They ran away. Later in class he asked them whether they did not hear him calling them and referred to them as “bitches”. Seerane then beat them with a PVC pipe. Complainant no. 1 told him she was going to tell her mother that he beat them and that he asked her to be in a love relationship with him. Seerane the grabbed her hands very tight and shook her, and told her that if she told her mother, he would deal with her.

14. Complainant no. 1 did tell her mother what happened. Seerane also called her on her phone at night at home. He wanted her to meet him in Hammanskraal. She refused to do so. Seerane told her that he would take care of her, and that he would buy her anything she wanted. He even offered to fetch her from home. He called her several times with the same requests. Complainant no. 2 overheard one of those conversations on the phone. She put the phone on speaker mode.

15. Complainant was absent from school one day due to being sick. While at home she posted a semi-naked picture of herself on her Whatsapp status. Her private parts were not visible. Seerane saw the post, and the following day at school he called her to his table in class, showed her the picture, and asked her when she were going to take pictures like that with him. She told him that it will not happen. He asked her when they were going to have sex, and she said it was not possible. He again said she must go home and think about it. She told Complainant no. 2 what he said to her. Seerane got hold of her mobile number from the geography Whatsapp group. He had saved her picture on his phone. The other learners did not hear the conversation as they were too far away.

16. Seerane called them “bitches” after they were sitting outside the classroom in the sun. She was hurt by being called a “bitch”. She had a good relationship with Seerane before. She has no reason to fabricate evidence against him. He referred to her as his number one, meaning his first wife.

17. Seerane used sexual examples when he taught them about weather systems. He said El Nino gets wets inside, just like girls, and El Nina gets wet outside, just like boys. He then asked the boys where their penises go when they penetrate a girl’s private part. He also gave learners derogatory nick names like “Pubic Hair”, “Mosquito” and “Big Nose”.

18. During cross-examination Complainant no.1 testified that her the good relationship which she had with Seerane deteriorated when he started to propose to her. It made her feel scared. She reported it to her mother, she did not report it to the School, she was afraid the principal would say she was making it up. She also thought Seerane would stop with what he was doing. She did report it to her best friend, Complainant no. 2. The books she had to carry for Seerane, were his books.

19. Complainant no. 2, a 17-year old female learner, testified under oath that she was in class with Complainant no.1, her best friend. Seerane was their geography teacher. Complainant no. 1 told her Seerane wanted her to meet him in Hammanskraal. She also overheard the conversation when Seerane called Complainant no.1. The phone was on speaker mode. She refused to go to him. He offered to come and fetch her if she did not have transport. Complainant no. 1 told her that Seerane proposed love to her on the day that he asked her to carry his books to the staff room. She also told her that Seerane asked her about her relationship, and that he told her that she was still fresh. Witness X is Complainant no.1’s ex-boyfriend.

20. Complainant no. 2 testified that Seerane called them “bitches” after he called them to come in from outside where they were sitting in the sun. She felt bad when he called them “bitches”. It was not appropriate for a teacher to call female learners “bitches”. He then took them to the staff room where he beat them on their hands with a PVC pipe. Complainant no. 1 told Seerane she was going to tell her mother what he did to them, and he then grabbed her and shooked her and told her he would deal with her if she told her mother.

21. Complainant no. 1 reported to her what Seerane said about the Whatsapp picture. He had the picture on his phone and wanted to know when she was going to take pictures like that with him. He also wanted to know when she was going to have sex with him.

22. Seerane did not teach them in the appropriate manner. He asked the boys where they would put their penises and told them that ladies’ private parts gets wet inside. He also did not call her by her real name but called her “Mosquito”.

23. During cross-examination Complainant no. 2 testified that Complainant no. 1 reported the conduct of Seerane to her many times. She did advise her to report it. Complainant no. 1 was scared to report it, so she left it. Seerane did grab her in the classroom. Seerane called Complainant no. 1 in her presence and asked her to go to him in Hammanskraal.

Employee’s case

24. Seanego Johannes Seerane (“Seerane”) testified under oath that he never proposed love to Complainant no.1. He was advised by the School to create a geography Whatsapp group where information was shared. The learners used different kind of names on the group. She never carried his books. He did not know about her relationship with Witness X, and he did not ask her about it. He never asked her whether they had good sex. He had a good relationship with Complainant no. 1. The problems only started after he administered corporal punishment on them.

25. Seerane never threatened Complainant no. 1. During the exams he did find the learners outside the classroom, and he told them to go inside. He was frustrated when they did not comply, and he administered corporal punishment. They went back to class. Complainant no. 1 was still standing, and he told her to sit down. She said she was not afraid of him. He tapped her on the shoulder and then he left. He did not grab her, he just held her by the shoulder and told her to sit.

26. Seerane is aware that it was unlawful to administer corporal punishment. The Schools Act prohibits it. The School’s policy also prohibits it. He was just frustrated by their refusal to go back to class when he told them to. He is sorry that he did it.

27. Seerane did not ask Complainant no. 1 to have sex. He does not remember having a semi-naked picture of her on his phone. He did not have the learners’ numbers. The allegations only arose after he administered corporal punishment. He thinks that is why the false allegations were fabricated.

28. He never communicated with Complainant no. 1 telephonically. He did not call any leaners “bitches”. It is a false accusation because of the corporal punishment he administered on them once.

29. During cross-examination Seerane testified that he had been employed at the School since 2017. He did call Complainant no. 1 his number one. She was not the only one he called that. He promoted competition in the class, and the best performer would be called his number one. He did not call her his number one wife.

30. He did not dispute the learners’ evidence in cross-examination because he did not ask the questions. He was not advised that he could dispute their evidence. He thinks that Complainant no. 1 made up the allegations because of the corporal punishment he administered on them. He did not call he after hours.

31. It is correct that the School trended on Facebook about teachers having relationships with learners. He was one of the teachers named in that rumours. The others were not subjected to false allegations because they did not administer corporal punishment.

32. He would not have grabbed Complainant no. 1 by her hands, as he was aware that her hands would have been painful from the corporal punishment he just administered. It is possible to extract a number from the Whatsapp group, but he did not do it.

33. He is aware that corporal punishment causes physical and psychological to learners. He agreed that the allegations he is facing would cause a breakdown in the trust relationship if he was found guilty.

34. Witness X, an 18-year old male learner, testified that Seerane asked the learners to go back to class. The girls did not listen and Seerane took them to the staff room for corporal punishment. When they returned, he asked them to sit down, but Complainant no. 1 did not listen to him. She said she was not scared of Seerane. Seerane only asked her to sit down, he did not touch her. Seerane is a good teacher. He is always joking. He never asked a learner to carry books to the staff room. Witness X was the only one who carried the learners’ books to the staff room. He did not call the girls “bitches”.

35. During cross-examination Witness X testified that he knew nothing about charges 1, 2, 3 and 4. Seerane told Complainant no.1 politely to sit down. He never touched her. Witness X was at the back of the class and could not see clearly. Seerane’s version of tapping her on the shoulder might be the correct version.

36. Seerane used a PVC pipe to administer corporal punishment. It wasn’t the first time he administered corporal punishment. He used the pipe to punish the learners all the time if they did not do their work. Witness X was also beaten before. That is the way Seerane operated in the classroom. He would beat them to make them pass. Witness X knew they were not supposed to be beaten by a teacher.

Summary of arguments

37. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered the arguments, together with the other evidence, oral and documentary, presented by the parties during the inquiry, as reflected in the record of the hearing.

Analysis of evidence and argument

38. This inquiry was conducted in terms of the principles contained in section 188A, as well as Schedule 8 of the LRA, and ELRC Collective Agreement 3 of 2018, in respect of the fairness of disciplinary action against educators charged with sexual misconduct in respect of learners. In applying those principles, the following factors were considered:
a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) If the rule or standard was contravened, whether or not –
i. The rule was a valid or reasonable rule or standard;
ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
iii. The employer has consistently applied the rule or standard.
iv. Dismissal would be an appropriate sanction for the contravention of the rule or standard.

39. The LRA does not prescribe the standard of proof to be used in labour matters. It is however universally accepted that the standard of proof that is applicable in disciplinary hearings, and therefore inquiries by arbitrators of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.

40. All the allegations in the charge against Seerane, as well as the evidence, documentary and otherwise, deduced in support thereof by the employer, and the evidence deduced by Seerane in defence, were considered and weighed against the abovementioned standard of proof.

41. It is not disputed by Seerane that the actions he had been charged with constitute misconduct. He pleaded guilty to the allegation of administering corporal punishment, but merely denied committing the misconduct of improper, disgraceful, and unacceptable conduct in respect of the other four charges.

42. I am mindful of the fact that Seerane is charged with sexual misconduct. It is a natural response in matters relating to the sexual assault or sexual harassment that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.

43. Seerane’s defence in respect of the alleged sexual harassment of Complainant no. 1, and the allegation of calling the female learners “bitches”, is a blanket denial of any wrongdoing. He submits that it is all a fabrication of lies, stemming from the fact that he administered corporal punishment on them on that day.

44. I take cognisance of the fact that the Complainant is largely a single witness in respect of what transpired between her and Seerane, except for the telephone call he made to her. Complainant no. 2 overheard that conversation on the speaker mode of her phone, and corroborated Complainant no. 1’s evidence in all material aspects. It also important to remember that this is an arbitration hearing, and the matter needs to be dealt with the minimum of legal formalities, as it is not a criminal trial. Even if the rule is not applicable in civil proceedings or arbitration proceedings, I must nevertheless be satisfied that the evidence of a single witness is reliable and trustworthy before relying on it.

45. It must be remembered that the Complainants were only seventeen years old at the time of the incident. Despite their young age, there were no inconsistencies in their evidence. They stood steadfast by their version that Seerane proposed love to Complainant no. 1, that he threatened her by grabbing her by the hands and telling her that if she reported him to her mother, her would deal with her, that he asked her when she was going to have sex with him and that he referred to grade 11 female learners as “bitches”. I find no discrepancies in their evidence that should impact negatively on their credibility.

46. Complainant no. 1 clearly remembers what Seerane said and did to her. Although children may confuse calendar dates and may have trouble reporting events in chronological order, it was not the case with the Complainants’ evidence. Children who are sexually abused, also concentrate on the core details of the incident and not so much on peripheral details. The omission of peripheral details or contradiction relating thereto, is not usually a basis for rejecting the testimony of a child witness. What is most important is consistency regarding the core details of the experience. Refer to the ELRC Guidelines: Inquiries by ELRC arbitrators in terms of section 188A of the LRA relating to misconduct of a sexual nature in respect of learners.

47. The Complainants were consistent in their testimony. They did not contradict themselves or each other herself in any material way. They came across as a reliable witnesses. Their emotional testimony never appeared to be feinted.

48. I find it highly improbable that the Complainants’ evidence is a fabrication. If it was an elaborate fabrication involving other learners with the intent to get rid of Seerane, why then not make the allegations more serious in respect of sexual assault in order to lend more weight to the fabricated allegations, for maximum effect. Seerane’s defence that the fabrication was the result of the one-time corporal punishment he administered, is highly improbable. His own witness, Witness X, contradicted Seerane’s version that the corporal punishment was a one-time event because of his frustration with the female learners. Witness X testified that Seerane regularly administered corporal punishment in the classroom, as that was the way he taught them. If corporal punishment was the trigger for the false accusations, as alleged by Seerane, then there were many previous opportunities for false accusations, which did not happen.

49. I find it improbable that the Complainant would disadvantage herself with a false version to satisfy other learners, and more improbable that parents would allow their young child to go through the trauma merely to satisfy the whims of other learners.

50. Seerane and his Witness X contradicted each other in respect of whether he touched Complainant no. 1 when he told her to sit down. Seerane admitted that he tapped her on the shoulder, while Witness X, clearly trying to defend Seerane at all costs, testified that Seerane never touched her.

51. Seerane never put any of his version to the Employer’s witnesses in cross-examination. He actually did not dispute their evidence. His explanation for not doing it because he did not know he could, is not valid. He was represented by an experienced union official. In NUM and another v CCMA and others [2018] 3 BLLR 267 (LAC) the Court found that since keys aspects of the employee’s case were not put to the employer’s witnesses in cross-examination and had not been canvassed in the evidence of those witnesses in chief, their version on such aspects was not placed before the commissioner. The same principle will therefore apply in this matter.

52. In Rautini v PRASA (853/2020) [2021] ZASCA 158 (handed down on 8 November 2021) the Court also reiterated that cross examination is not only a right but also imposes certain obligations. As a general rule it is essential when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact by questions put in cross-examination, showing the imputation is intended to be made and to afford the witness an opportunity, whilst still in the witness box, of giving an explanation. If a point in dispute is left unchallenged in cross examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct (see also President of the Republic of SARFU 2000 (1) SA 1; 1999 (10) BCLR 1059). The reason for this rule is to ensure that arbitrations and trials are conducted fairly, and that a witness is afforded the opportunity to answer challenges to his or her evidence and is not ambushed.

53. I find Seerane’s version that the Complainants decided to falsely accuse him because he beat them with the PVC pipe, highly improbable. He failed to present any substantial evidence that would prove a fabrication. He merely made unsupported allegations in that respect. Seerane could not provide any substantial evidence that the alleged conspirators had anything to gain by falsely implicating him.

54. The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows: “Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The Complainants’ version has been materially the same throughout the inquiry. I find it improbable that they would make up such a detailed version of events without any reason. Seerane’s version that it is a fabrication is not plausible.

55. Therefore, with consideration of all the relevant cautionary rules I find that the Employer provided evidence that proves on a balance of probabilities that Seerane committed the misconduct of contravening section 18(1)(q) and (r) of the Employment of Educators Act 76 of 1998 with five charges of improper, disgraceful, and unacceptable conduct. I find on a balance of probabilities that Seerane proposed love to a grade 11 female learner, that he threatened a grade 11 female learner by grabbing her by the hands and telling her that if she reported him to her mother, her would deal with her, that he asked a grade 11 female learner when she was going to have sex with him, that he referred to grade 11 female learners as “bitches”, and that he administered corporal punishment to grade 11 female learners by hitting them with a PVC pipe.

56. There is therefore evidence before me that proves that Seerane contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

Finding

57. The accused employee, Mr Seerane, J, is found guilty of the five charges of contravening section 18(1)(q) and (r) of the Employment of Educators Act 76 of 1998.

Sanction

58. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.

59. Seerane’s conduct is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behavior does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of sexual relationship with or assault on learners at a school, and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of Complainant no. 1 being a minor female learner of 17 years old to be sexually harassed and groomed by an educator. He pursued her relentlessly and even saved a semi-naked picture of her on his phone, in total violation of her privacy.
60. Section 18(5)(f) of the Employment of Educators Act states that an employee may be dismissed for contravening section 10 of the South African Schools Act 84 of 1996. The evidence shows that Seerane regularly administered corporal punishment on the learners in his class. It wasn’t a one-time occurrence caused by frustration, as he alleged. He used a PVC pipe to beat female leaners on their hands, inflicting pain and humiliation. Considering the fact that corporal punishment is deemed so serious that it had been specifically prohibited by legislation, and the callous way in which Seerane went about this illegal, inhumane practice, it is my opinion that on this charge alone, dismissal is an appropriate sanction in these circumstances. The severity of the other four charges only enhances the appropriateness of the sanction of dismissal.
61. Having considered all the facts before me, including but not limited to, the gravity of the offences, the position of trust Seerane was employed in, and his years of service, I find that the sanction of dismissal is fair and appropriate in the circumstances.
62. I find that summary dismissal is an appropriate sanction in the circumstances.

Sanction

63. In terms of section 188A(9) of the LRA I direct that the employee, Mr Seerane, J, be dismissed summarily.
Finding in respect of section 120 of the Children’s Act 38 of 2005
64. Section 120(1)(c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 120(2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.
65. In view of my finding of the serious nature of the Employee, Mr Seerane’s sexual misconduct and the priority to protect the rights of children, I find that he is unsuitable to work with children. The fact that there are no previous incidents on record, does not necessarily mean that his conduct will not be repeated. This finding is supported by the evidence that showed that Seerane regularly administered corporal punishment on the learners in his class. He used a PVC pipe to beat female leaners on their hands, inflicting pain and humiliation. He did this despite being aware that corporal punishment is deemed so serious that it had been specifically prohibited by legislation. The callous way in which Seerane went about this illegal, inhumane practice, supports a finding that he is unsuitable to work with children. My finding is aimed at the protection of children and in particular in this case, vulnerable young girls.
66. Mr Seerane, J, is found unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the Act, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005, that Mr Seerane, J, is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.


COEN HAVENGA
Senior ELRC Arbitrator
15 June 2023