ELRC52-23/24 GP

Case Number: ELRC 52-23/24 GP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 9TH July 2023

In the ARBITRATION between

Gauteng Department of Higher Education

(Employer)

And

T.D Mlangeni

(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 initially at the Soweto College, Pimville on the 31st May 2023 but was later transferred to the GDE Head Office to accommodate the testimony of minor witnesses. The inquiry was adjourned to the 22nd and 23rd June 2023 and finalized in this time frame.
2. After completion of the inquiry the parties requested the opportunity to submit written closing arguments by the 3rd July 2023 and they were furnished with the necessary contact details where to submit the arguments. At the 8th July 2023 I had only received written closing arguments from the employer and my inquiry award now follows.
3. Mr. S. Mjuleka, a union official from NATU, represented the employee.
4. Mr. T.L Majola a labour relations official represented the employer.
5. The proceedings were digitally recorded, and long hand notes were also kept of the proceedings.
6. The employer made use of a bundle of documents consisting of 10 pages and the employee made use of a bundle containing 5 pages.
7. An intermediary assisted the minor witnesses and the said witnesses testified remotely from the hearing room where the arbitration hearing itself took place.
8. A Zulu and Tsonga interpreter was present and assisted the witnesses where necessary.

ISSUE IN DISPUTE
9. The employee pleaded not guilty to two counts of alleged misconduct in terms of section 18 (1) (r) and (q) of the Employment of Educators Act, 76 of 1998 (as amended) (EEA).
10. It is common cause that the employer employs the employee as a PL1 educator at the Itemogele Combined/Primary School.
11. It was alleged firstly that during the month of September 2022 and at or near Itemogele Combined School he assaulted TT, a grade 7 girl learner from the same school, by hitting her with a stick on the right hand.
12. Secondly, it was alleged that, on the 22nd September 2022 and at or near the Itemogele Combined School the employee conducted himself in an unacceptable, disgraceful, and improper manner in that he sexually harassed TT, a girl learner from the same school, by kissing her and touching her on her thighs whilst she was in class.

SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT

13. The employer led the evidence of two minor witnesses namely the complainant TT and her best friend TS.
14. Both the complainant and TS were clearly able to distinguish between right and wrong and took the oath.
15. Please note that I will not necessarily be surveying the evidence of the employer’s witnesses in the order that they gave their testimony.
16. It is common cause that the complainant TT, a grade 7 learner in 2022, kept a diary which the employee surprisingly produced at pages 1 and 2 of its bundle of documents. TT forgot the diary in the school’s library and it was read by a few educators before being handed to the Principal of the school, Mr Hlatshwayo. Hlatshwayo was also a witness for the employer at the hearing.
17. TT confirmed the full contents of the diary which spoke of two incidents namely the employee hitting her hand with a stick in class and a second incident where the employee held her thighs in class and tried to forcibly kiss her. The diary related the events as one looking back on past history and it is clear from the narration of the diary that the second allegation took place before the first allegation. TT stated that she wrote in her diary because the employee in September 2022 disciplined her in class by hitting her with a stick on her right hand and also because she gave him a cold shoulder because he had forced to kiss her and had touched her thighs on the 22nd September 2022.
18. TT elaborated that she was one of three class representatives in the class but she was the only representatives present in class on the day. The class had been making a noise and the employee blamed her and he hit her once on the right hand with the aforementioned stick.
19. In respect of allegation 2 TT deposed that during the month of September 2022 she had participated in a spelling Bee but had failed to receive an award. She engaged the employee about her disappointment in the school passages and the employee said he was busy and invited her to visit him after school. She did so and she and the employee were alone in the classroom.
20. She sat on a desk and at one point a chart fell from the wall and she went to pick it up. It was at this point that the employee approached her and forcibly tried to kiss her and he also put both his hands on her thighs.
21. The next minor witness was TT’s close friend TS. It is common cause that both learners utilize the same transport in the afternoons. TS testified that on or around September 2022 TT approached the transport upset and in tears. In the taxi TT related to her how the employee had assaulted her by hitting her on her right hand and that the employee had tried to kiss her and had touched her thighs BEFORE the alleged assault.
22. Both witnesses stated that the employee did not like to be called “Sir” or “Mr Mlangeni” but insisted that everyone including learners refer to him as “Daddy”.
23. The Principal testified that TT’s diary was discovered on the 15th January 2022 at PTA meeting. A cleaner staff member brought the diary to his office.
24. Upon receiving the diary he conducted his own investigation by inviting TT’s parents and the employee to his office where he specifically advised the employee not to contact TT’s parents. A short while later Hlatshwayo reported the matter to the district office.
25. Hlatshwayo testified that he had always had a good and professional relationship with the employee.
26. Mrs. Kelebogile Sebipo testified that she was the mother of TT. Sebipo testified that her and her husband were invited to the school on the 27th January 2023 and spoke to the Principal concerning the alleged incident involving TT and the employee. This resulted in a statement deposed to by TT’s father which Ms. Sebipo fully associated herself with. (See A8 of the employer’s bundle of documents).
27. TT’s father deposed in his affidavit that the employee had tried to contact them contrary to the expressed wishes of the Principal. Mrs. Sebipo also deposed that she had always known the employee as “Daddy”.
28. Sebipo testified that neither TT nor any other educators had ever contacted them using “Daddy’s” or their cellphone.
29. Sebipo confirmed that a criminal charge was pending arising out of the same allegations that are being adjudicated before this inquiry.


SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT

30. The employee’s version in effect was a bare denial of what was alleged against him on both counts.
31. During cross-examination it emerged that the employee had previously been employed as an educator at Mphethi Mahlatse Secondary School in Orange Farm. The employee admitted that he had resigned when the parents threatened the school after it had become known that the employee was allegedly dating learners.
32. During cross-examination the employee admitted to being arrested twice criminally in the past for the alleged molestation of minors.
33. Despite being probed on this aspect on numerous occasions the employee could not explain or give reasons why TT would fabricate evidence against him.
34. The employee stated that TT’s parents had his cellphone number and that TT had used his cellphone (and indeed the phone of Zulu) on occasion to speak to them.
35. The employee called one witness namely Mr Zulu, a fellow educator at the school, who described the employee as a close friend. He also stated that the employee had groomed/mentored him as an educator.
36. Zulu testified that on the 22nd September 2022 the learners were preparing a cultural event ahead of the Heritage day public holiday and not much teaching had taken place on the day. Zulu testified that he had spent most of the day in the presence of the employee.
37. Zulu testified that the employee and he used to borrow TT their cell phones so that she could call her parents.

ANALYSIS OF EVIDENCE AND ARGUMENT

38. The onus rests on the employer to prove all allegations of misconduct against the employee on a balance of probabilities.
39. Crucial in this case is the credibility findings in respect of the various witnesses. I was impressed with the two young witnesses for the employer. I found TT to be one of the best young witnesses I have ever had testify before me. She gave detailed testimony and was able to answer all the questions put to her in cross-examination with ease and with a confident attitude which belied her young age.
40. TT’s testimony was supported by the evidence of TS.
41. The testimony of Hlatshwayo and TT’s mother dovetailed with the version of the minor witnesses to provide a cohesive and persuasive single version.
42. Zulu’s testimony related both to the good character of the employee and also seemed to provide an alibi that the employee was not alone on the 22nd September and thus could not have seen TT alone and thus could not have committed any misconduct of a sexual nature.
43. I find that Zulu is not a reliable witness since it is probable that he would say anything to support the version of the employee. I find further that the employee and Zulu have colluded to fabricate evidence on allegation 2. Zulu, in any event, admitted that he was not with the employee for the entire day on the 22nd September 2022 and so his alibi is not foolproof.
44. Zulu’s testimony provides no corroboration for the employer’s evidence on allegation 1 other than to have recourse to the employee’s alleged good character.
45. Since the employee has led evidence of his good character, evidence of the Applicant’s bad character is likewise admissible at the arbitration.
46. The employer provided convincing, essentially unchallenged evidence that the Applicant had been involved in similar sexual misconduct at a previous school that led to his resignation at the school. The employee had likewise admitted to being criminally arrested for similar misconduct as he indeed was also arrested arising from the facts of this case following a charge laid by TT’s parents at the local police station.
47. I find that the employee did not heed the Principal’s advice not to contact TT’s parents after the misconduct was reported to the school. I accept the version of TT’s mother (and the supporting sworn affidavit of TT’s father) that the employee did in fact make contact with them. The only reason that the employee would have to contact TT’s parents at this time would be to influence them to withdraw the complaint laid at the District office.
48. It is common cause that the employee insisted that staff, parents and learners call him by the nickname “Daddy” and became angry if the learners called him “Sir or “Mr Mlangeni”.
49. I find that this to be most unusual, inappropriate and unprofessional and appears to be a method of blurring the lines between real parental authorities and in loco parentis school authority with learners. I agree with the submissions of the Respondent that this is probably a grooming tactic of the employee to get learners to trust him so that he can later take advantage of them.
50. I find it proven that the employee assaulted TT by hitting her with the stick on her right hand. Clearly the employee administered corporal punishment in this situation which is prohibited under all circumstances at school institutions.
51. I find it further proven that the employee tried to kiss TT whilst they were alone in his classroom after school on the 22nd September 2022 and in so doing he held her with both hands on her thighs whilst attempting to do so. I find that the Applicant acted in an improper, unacceptable and disgraceful manner unbecoming of an educator.

DECISION ON THE MERITS
52. I find the employee guilty of both counts of conduct in terms of section 18 (1) (r) and (q) of the EEA.


SANCTION

53. Both parties are now called upon to make submissions in aggravation and mitigation within three calendar days of receiving this award.
54. All submissions (as with the written closing arguments) are to be forwarded to mark@advocare2.com and manager.drs@elrc.co.za . No late submissions without good reason will be entertained.

MARK HAWYES
PART TIME SENIOR PANELIST
9th July 2023