ELRC966-22/23NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT SANDTON

Case No: ELRC966-22/23NW

In the matter between

DEPARTMENT OF EDUCATION – NORTH WEST Applicant - Employer

and

RAPULA SHADRACK MOHUBE Respondent - Employee

ARBITRATOR: Adv. S Fourie
HEARD: 1, 2 and 3 August 2023;
FINALISED: (7 days to submit closing statements 10 August 2023)
DELIVERED: 25 August 2023

INQUIRY BY ARBITRATOR - ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

1. The Inquiry by Arbitrator, was heard at the Moretele Magistrates Court from 1 to 3 August 2023. The Employee, Mr. Rapula Mohube (“Mohube”), was present and represented by Mr. Kenny Modihapula from LPM Attorneys. The Employer was represented Ms. Kasetseng Tau (“Tau”), its ELRS practitioner. It was compulsory for an intermediary service due to two minor witnesses although the witness’s identity is known to the parties. Ms. S M Mohaule-Mboweni served as intermediary and Mr. Herbert Matsenene as interpreter. The proceedings were conducted in English and Setswana. I kept handwritten notes and was also digitally recorded.

THE ISSUES TO BE DETERMINED

2. This is an arbitration award in terms of Section 188A of the Labour Relations Act 66 of 1995, as amended (“LRA”) read with Clause 3.2 of the ELRC Dispute Resolution Procedure with section 3.2.1 of Collective Agreement 3 of 2018. This award is issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. The employee Shadrack Mohube pleaded not guilty to the allegations listed hereunder. I am required to determine whether the employee is guilty of the charges levelled against him and if so, to determine the appropriate sanction. In addition, Mohube also required of me to determine that he was not informed of the allegations when he was allegedly only told to report to the District Office.

BACKGROUND TO THE DISPUTE

3. The Employee, is employed by Respondent since 23 February 1996. At the time of this enquiry at I B Damons Combined School, as a PL1 educator. The Respondent withdrawn the third charge against the Employee with the first two charges remaining against Mohube which reads:

3.1 On the 12th of April 2022 whilst on duty it is alleged you committed a misconduct by rubbing your thigh against the thigh of a Grade 9 learner by the name of Learner A. As a result, your alleged conduct you contravened the provisions of Section 17 (1) (b) of the Employment of Educators Act,76 of 1998 which reads as follows “committing an act of sexual assault on a learner.

3.2 On the 5th of April 2022 whilst on duty it is alleged you committed a misconduct by hugging Learner B in front of her friends being Koketso and Masego. As a result, your alleged conduct you contravened the provisions of Section 17 (1) (b) of the Employment of Educators Act,76 of 1998 which reads as follows “committing an act of sexual assault on a learner.

SUMMARY OF THE EVIDENCE

4. This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and referred to as the LRA read with the changes as required by the context read with Section 188A (9) of the LRA. This award is not intended to be a verbatim transcript of the evidence led at the inquiry by arbitrator hearing but rather a determination with brief reasons for such determination.

5. Evidence relevant to the determination or to support any of the elements of fairness as required may be referred to. This however does not mean that I failed to consider other evidence or ignored such evidence in coming to my decision. The Employer submitted a bundle of documents (Bundle ‘ER’ 1 – 38 pages). The Employee submitted no bundle of documents and relied on the Respondent’s bundle. The Employee accepted the Respondent’s bundle for what it purports to be.

The Employer’s case

6. Learner A, testified under a solemn affirmation and could distinguish between right and wrong. She attended IB Damons in 2022 as a grade 9 learner but is attending grade 10 at Eagles Christian College. The Employee taught her Afrikaans. She was referred to her own statement on R35 which she read into the record referring to 4 February, 11 April and 12 April 2022. She stated that the Employee harassed her when he hugged and touched her in his office on the 12th of April 2022. Referring to touching, she stated that the Employee placed his leg inside her thighs. She stated that Mr. Mathubela was present but did not see everything because when he left, the Employee requested him to close the door which he did. Mathubela asked the Employee why he must close the door but the Employee did not answer him.

7. The reason she was in the office with the Employee was that he called for her to assist him. He requested another learner to call her from the class and the teacher for that class released her to go. When she reached the office, the Employee asked her to stand in front of her which she did. Mathubela was still there at the cupboard near the door. It was when he left and closed the door. The Employee then hugged her and she pushed him back saying that she did not expect it from him. To the question how the Employee hugged her, she responded that he grabbed her and placed his arm around her waist and she pushed him away. It was when Mr. Manamela (the math teacher) entered the office with another learner. The Employee then stood back away from her. She stated that she did not report the incident to any teacher or the Principal but told her friend. To the question how she felt after the hug, she also stated that the Employee also sat on his chair, pulled her closer and put his leg between her thighs.

8. She was asked about the 4th of February 2022, to which she responded that her skirt was torn and the Employee told her that he would buy her another skirt to which she responded that her father has money and would buy her one. The Employee also said that teachers are also parents but she said it was fine and left. On the 11th of April 2022, the Employee called her during break time and she went to his office. He asked her to help him with papers after which he gave her a hug.

9. During cross examination she stated that she wrote the statement on the 13th of April 2022 after the incident of the 12th of April 2022 and agreed that it was still fresh in her mind. She had no reason why she did not mention details in her statement of what happened and also did not deem it to be important. She also agreed that she had no reason to leave anything out. To the rubbing of the Employees leg against her thigh, she responded it to have been on the 12th of April 2022 after Mathebula left. She agreed that when she came into the office the Employee was standing. To the question when the Employee placed his leg between her thighs she responded when Manamela left the Employee took a chair and told her to sit down. She did not report it to Manamela because she felt uncomfortable.

10. To the question if the Employee pulled her when he put his leg between her thighs she responded that she was standing and the Employee seated. He then moved the chair towards her and placed his leg inside her thighs and went upper and upper to reach her pantycote. To the question why she failed to testify about it, she stated she did not want to talk about it but she did explain it to the Departmental representative, Ms. Tau. To the question why it was not mentioned in her statement and that she only came up with it now, she responded that she told a friend, Morris Kasana about it were after they went to the Principal’s office.

11. To the office, she referred of the staff room which is shared by four teachers. The learner who called her from the class was Boy Matengi. She stated that she was two times with the Employee the staffroom. On the 11th of April 2022 she assisted with papers. She agreed that the Employee when she was done told her to leave, she was then asked how she was harassed to which she responded that she was harassed. She was then asked how many times she was hugged to which she responded that it was two times. To the statement that she did not mention it in her statement she responded that she only stated that she was hugged and not how many times. To the statement that her statement is based on the 12th of April 2022, she responded that it is both the 11th and the 12th of April 2022.

12. To the statement why she did not report the 4th of February and the 11th of April 2022, she responded that she did told her mother who said that if something happen again she must tell the Principal. She stated that the harassment took place after Manamela left the office. To the question when Mathebula left and Manamela arrived if she was harassed, Learner A responded that when Mathebula left, Mohube hugged her and when Manamela arrive, the Employee pushed her back. To the statement that when Manamela arrived the Employee was still hugging her she responded that from the door one could see if someone was coming and it was when he pushed her way.

13. She agreed that during her evidence she stated that the Employee grabbed her, placed his arms around her waist and she pushed him away. She denied her evidence in cross examination to be a new version. She agreed to her previous version that when Mathebula left the Employee hugged her and when Manamela arrived the Employee pushed her away and stated that when Manamela left, the Employee took the chair and moved towards her.

14. To the question why she did not report it, she responded that the Employee told her not to leave and it was break time but she did tell Morris (a friend) who told her to report it to the Principal’s office. She did not report it to any teacher because she does not trust the female teachers. In relation to the occurrence of the 4th of April 2022, she stated that it was not an incident but merely the Employee who asked about her torn skirt. To the statement what she has against Mohole, she replied nothing but she wants to see him in jail for what he did to her and Kia.

15. Learner B, testified under a solemn affirmation through the intermediary and could distinguish between right and wrong. She was a learner at IB Damons in 2022 where Mohube taught her Afrikaans. She stated that Mohube hugged her in a different way which she did not expect. This happened near Mohube’s office

16. She also stated that Mohube would sometimes teach about sex in his class but the text book does not include sex to be taught on. She did not report it to any teacher nor the Principal but she told Learner A. The reason she told Learner A was because Learner A approached her asking about Mohube that they were facing the same thing. She was not comfortable in Mohube’s class and so also other female learners who did not attend Mohube’s classes. It was mostly female learners and Mohube related good with male learners.

17. Learner B was referred to her statement on R36.and was asked what she meant by the phrase: ‘at the first time I ignored it’ but she stated that it was only once in her testimony to which Learner B responded that the hug was the first time. She also stated that before the 5th of April 2022, Mohube hugged her when they went to fetch a tissue at Mohube and he shakes hands with Koketso and Masego. Mohube did not had a tissue.

18. She was also asked whether Mohube called her to which she responded that he did call her asking how she was feeling when she was sick and he said he did not want to miss her because of being sick. Because of the flu she had, Mohube called her again on the 7th of April 2022 asking if he must buy her medication. She understood that she must have reported all to a teacher or a person you trust being the reason she reported it to Learner A.

19. During cross examination, she responded that she and Learner A attended the same class and were together in the class when Mohube taught about sex which she did not report but told Learner A. She denied the handwriting of her statement to be the same of Learner A. To the question why she did not write what Mohube did to her was because she was told to testify about it at the Inquiry.

20. In relation to the tissues, she responded that they would ask it at the mail staff room because Miss Mahila sits at the male staff room but changed later to the female staff room. Learner B denied that statement that she and Learner A conspired together against Mohube and that he never hugged her to which she responded that she did go to his office where he hugged her. She responded further that it was early in the morning but could not recall if the school was closed but could not recall if it was the day before a public holiday – Good Friday. She agreed that the day before 8 April being, Good Friday was when Mohube hugged her before two other learners before the school started. With other teachers in the offices. (staff rooms). She agreed that before the school start, there are a lot of learners and teachers entering the school’s premises. She only told Learner A about it because she was not sure what happened to her and it happened to others thinking it was only to her and the other learners saw it. She stated that she pushed Mohube away not being comfortable where after Mohube shaked hands with the Koketso and Masego.

21. Thabo Jacob Mathubela testified under oath. He is an Educator at IB Damons and knows Mohube as a colleague. What he recalls was that he was from his class to the staff room to fetch a text book. He found Learner A with Mohube in the staff room and greeted them fetching the text book from his desk. On his way out, Mohube asked him to kindly close the door which he did. He could not notice anything suspicious. They would normally call learners for different reasons. When he left Mohube was seated next to the table on a chair but he could not recall where Learner A was situated in the room.

22. During cross-examination, he denied Learner A’s version that Mathubela was seated when she entered the staff room stating that he found them in the staff room. He could also not recall Learner A’s version that he asked Mohube why he should close the door. For him it was normal to close the door and it was not wrong to be in the staff room. He agreed with Mohube’s version that Mohube was not alone in the staff room with Leaner A., although during re-examination he stated that when he left it was only Mohube and Learner A in the staff room.
23. Amanda Tlhapane testified under oath. She is the Principal at IB Damons and knows Mohube her colleague who is on suspension and not at the School currently. What she recalls is that on 12 April 2022 Learner A and some of the RCL members (with a male RCL member Morris Kazana) was uncomfortable the way Mohube touched them especially Learner A and Monja Sekwatcha, this was whilst she was with the Deputy Principal. When she asked where it happened, Learner A responded saying today (12 April 2022) in the library at around 13h35. She said that Mohube called her to the office where he touched her and rubbed his thigh on her thigh. Learner A said it was not the first time Mohube called her to the library but was the second time. Learner A also said that Mathubela was in the library and when he left Mohube asked him to close the door and then advanced to her.

24. She asked Learner A why she did not report it the first time around to which she responded that she told her mother who told her to report it when it happens again. She then requested them to write a report and she called the circuit manager. Learner A’s father arrived at the School angry whilst she was busy with the Circuit Manager. He was looking for Mohube and they needed to calm him down. Mohube was not at school because he requested to fetch his son’s report. She stated that another learner also complained but she did not mention it in her statement.

25. She did ask the social worker Wendy Mogorotsi to assist and did not investigate the others but only the ones reported her. Referring to her letter on R33, Learner A told her it was for the 2nd time. Mohube touched her in an uncomfortable way. She confirmed that Learner A told her that Mohube thigh touched her thigh.

26. During cross-examination she was referred to her letter on R33 and stated that Learner A asked why the door should be closed after Mohube asked Mathebula to close the door. To the statement that Learner A’s version is that it was reported on the 13th and not the 12th of April 2022, Tlhapane responded that it was reported on the 12th and not the 13th of April 2022. To the statement that Mohube never rubbed his thigh against Learner A’s thigh and that it was not Learner A’s version, Tlhapane responded that Learner A’s version was that Mohube rubbed his thigh against Learner A’s thigh. Tlhapane was also surprised how Learner B knew about it.

27. She called Mohube on the 12th of April 2022 instructing him to report at the circuit office because of the angry parents and denied the statement that she did not inform him about the allegations. She also reported the allegations to her senior and the SGB.

The Employee’s case

28. Rapula Mohube, testified under oath. He stated that he taught Afrikaans to the grade 9 learners and knows both Learner A and B. On the 12th of April 2022 he was at school in the morning but requested time-off to collect his son’s report. When he was done with the period, he went to the Deputy Principal (Mr. Maletsane) to inform him he was about to leave.

29. During his last period, Learner A was in his class and he was doing filing. Learner A, being the class representative and with RCL members, they are responsible to assist with files. Whilst he was in the class, he told Learner A to fetch files from the staff room which she did and they did some filing in the class. Whilst busy she noticed three files of her class mates not there. They continued with the filing and asked Learner A to look for the files because he was leaving. When the bell rang he went to the staff room and left Learner A in the classroom. Learner A came to the staff room saying the teacher after him, gave her permission she came to look for the missing files.

30. At the staff room he found Mathebula where after Learner A arrived finding both of them at the staff room. Learner A went to the shelves where the files are kept. Whilst he was busy to put his stuff together in order to leave, he was seated. Mathebula left and when he stepped out Manamela walked in to fetch a book for another period. Manamela was in the staff room for more or less 5 minutes with Learner A still busy. They talked and he shared with him that he was leaving to collect his son’s report during which time Learner A left where after Manamela left.

31. Where he was seated it was around 1 meter from where Learner A was busy. Mohube denied to have rubbed his thigh against the thigh of Learner A. Mohube also denied Learner A’s version that he moved the seat and put his leg between her legs moving it upwards touching her pantycote. Mohube also denied Learner A’s version that he instructed Mathubela to close the door. He stated that he might have done it on his own but he could not recall if he closed the door. The door was always kept closed.
32. In relation to Learner B, Mohube denied to have hugged Learner B. He also responded that nobody came to him referring to the two learners mentioned in the second charge.

33. During cross-examination, he stated that he left around 12:20 to collect his son’s report. Mohube agreed that Mathebula when he testified was not asked whether Manamela came to the staffroom. He denied Learner A’s allegation that he touched her thigh. He also denied that he did not put his leg between her legs moving it upwards to touch her pantycote. He also denied to have called Learner A to the staff room. He stated that she followed him to the staff room after she was instructed to find the missing files. He also denied that learners ‘banked’ his classes. He also denied to have taught sex in his class and denied to have hugged Learner B.

34. He agreed that he was reporting to the sub-district after the Principal told him to do so without saying the reason why. No one from the Department informed him and only after 9 days in the presence of Ms. Tau he was informed. He stated that Tau asked him why he did not ask the Principal to which he responded that he does not question his seniors.

35. Panti Lazarus Manamela testified under oath. He is an educator at IB Damons and knows Mohube teaching together. Referring to 12 April 2023, he stated that he taught grade 8 and 9’s and after a grade 8 period he was having a grade 9 class and went to the staff room to exchange books. When he wanted to entered the staff room to open the door, another teacher, Mathebula came out. The door was open and he entered. In the staff room he found Mohube seated at his desk and a girl, Learner A, busy with files. After pulling files Learner A went out where after he took his books. Mohube told him about him leaving to fetch his son’s report at another school. He stated that when he entered the staffroom, there were two and with him, 3 people. All this took place in less than 5 minutes. Learner A was approximately 2 meters away from Mohube. Learner A left whilst he was still talking to Mohube where after he left Mohube alone in the staff room.

36. During cross examination, he stated that he was alone when he arrived at the staff room.

SUBMISSIONS IN ARGUMENT

37. Both parties agreed to submit arguments (inclusive of mitigating and aggravating circumstances) within 7 days. Only the Employer’s submissions were received and carefully considered It will however not be repeated here, as the contents basically mirror what was put during the leading of evidence and cross-examination in the arbitration hearing itself.

ANALYSIS OF EVIDENCE AND ARGUMENT

38. Heads of Argument win cases especially if they are properly cross referenced. Within labour law, commissioners are consumers of law and the representatives are the sellers of law. If you want to sell the law, you must package it correctly, make it desirable and display its best qualities. As a salesman of the law, respect your consumer and give them what they want.

39. In order for a dismissal to be fair, Section 188A of the Labour Relations Act requires and Inquiry by arbitrator. The onus is on the Employer to prove the allegations levelled against the Employee is in accordance with substantive fairness. The parties in this matter agreed that I am required to determine under substantive fairness, whether the employee is guilty of the allegations levelled against him. Three charges were levelled against the Employee however the Employer withdrawn the third allegation. It was not clear as to the reason for the third charge to be withdrawn other than the unavailability of the Learner witness. The first charge reads: On the 12th of April 2022 whilst on duty it is alleged you committed a misconduct by rubbing your thigh against the thigh of a Grade 9 Learner by the name of Learner A. The second charge reads: On the 5th of April 2022 whilst on duty it is alleged that you committed a misconduct by hugging Learner B in front of her friends being Koketsao and Masego. Both these allegations are alleged to be contraventions in terms of section 17 (1) (b) of the Employment of Educators Act 76 of 1998 which reads as follows ‘committing an act of sexual assault on a learner.

40. It is common cause that Mohube taught Afrikaans to all the Grade 9 of which both Learner A and B attended the same class. It is common cause that both learners who testified herein know each other. It is common cause that on the 12th of April 2022, Mohube and Learner A was in the staff room where the alleged incident took place. It is also common cause that Mohube had authorization to have time off to collect his son’s report from another school.

Substantive Fairness – whether the alleged incidents took place -

41. I am guided by item 7 of the Code of Good Conduct on Dismissals contained in Schedule 8 to the LRA (hereinafter referred to as "the Code") which requires me to consider whether or not the employee contravened a rule regulating conduct in or of relevance to the workplace referring to misconduct in terms of section 17(1)(b) of the Employment of Educators, Act 76 of 1998 as amended which reads: ‘committing an act of sexual assault on a learner’
;
42. Mohube pleaded not guilty to the allegations levelled against him. In Moahlodi v East Rand Gold & Uranium Co Ltd (1998) 19 ILJ (IC) the court formulated the test as follows: an employer need not to be satisfied beyond reasonable doubt that an employee has committed the offence. We must remind ourselves that this is not a criminal trial and that the employer is therefore not required to prove the guilt of the Applicant beyond a reasonable doubt. The standard of proof in civil proceedings and arbitrations, is a balance of probabilities - see Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC). The test for deciding whether something has been proved on a balance of probabilities, is whether the version of the party bearing the onus, is more probable than not, - see Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A) at 157D.

43. In other words, the evidence must show that the existence of the fact in dispute is more probable than its non-existence. The difference between a possibility and a probability is that when something is possible, it can or could have happened. When something is probable, it most likely will or did happen. In determining probabilities, evidence is assessed against human experience, logic and common sense see Hoffmann en Zeffertt the South African Law of Evidence 4th ed 102. In order to resolve factual disputes, a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie 2003 (1) SA 11 (SCA) at 14I par 5. The Court further remarked as follows: “As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanor in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it…But when all factors are equipoised probabilities prevail " (at 14I - 15E par 5 per Nienaber JA)

44. The charges against the Mohube involve some form of sexual misconduct in relation to Learner A and B being the ages of 15 at the time during 2022. The Constitutional Court in Bothma v Els and Others 2010 (2) SA 622 (CC) par 47, has recognised that: sexual molestation of children generally takes place behind closed doors and is committed by a person in a position of authority over the child and that it is difficult to obtain eye-witness corroboration. We remind ourselves that we are dealing with grade 9 learners when the alleged transgressions took place and that the cautionary rule was developed with young children in mind and would be illogical to differentiate between the evidence of a 15-year-old and that of an adult based on a cautionary rule. In this instance the allegations direct to the staff room on the 12th of April 2022, where the Employer alleges the misconduct took place. It is also the Employer’s notion that it was only Mohube and Learner A in the staff room behind a close door.

45. In the first instance, Learner A stated that Mohube called her to the office being the staff room which Mohube denied stating that when he left the classroom being time for him to leave to fetch his son’s report, Learner A came after him to the staffroom. Learner A testified that when she reached the office (staffroom) Mohube asked her to stand in front of him which she did with Mathebula still there at the cupboard near the door where after Mathebula left and closed the door. Learner A did not indicate whether Mathebula was there on her arrival but merely that Mathebula was still there. Modihapula (for the Applicant) failed to present Mohube’s version that Mohube found Mathebula and Learner A in the staffroom to Mathebula and remained unopposed, Mathebula denied Learner A’s (which was not the correct version presented to Mathebula) version that he was there on her arrival and responded that he found Mohube and Learner A in the staff room which is the more reliable version. Mathebula stated that there was nothing suspicious when he left the staffroom and that it was common for Learners to be called to the staffroom. Mohube’s version is that he found Mathebula and Learner A both of them there cannot be accepted. In my view it is more likely that Mathebula found Mohube and Learner A in the staffroom and left them alone in the staffroom before Manamela arrived. In these two time frames Learner A alleges the alleged harassment took place.

46. It is factually correct that Mathebula and Manamela was both at the staffroom but whether they met each other at the door with Mathebula leaving and Manamela arriving would be indicative to whether Mohube and Learner A was alone in the staffroom and if so, the time before Manamela arrived after Mathebula left. Learner A also stated that Manamela entered the staffroom which was after Mathebula left, effectively saying that during this period of time there were two people in and out of the staffroom whilst she was there with Mohube. Learner A’s version corroborate Mathubela’s version who failed to mention Manamela being at the staffroom who stated that when he left, it was only Mohube and Learner A effectively missing Manamela’s arrival. The only likelihood to Mathebula’s version is that he left the staff room before Manamela’s arrival leaving Mohube and Learner A alone in the staff room. Although Manamela’s version was not presented to Mathebula by Mohube’s representative during cross-examination, Manamela’s version (who testified for Mohube) corroborate the version of Learner A that Manamela was also present at the staffroom but in my view it was unlikely for Manamela to have entered the staffroom the moment Mathebula left leaving an open period of time.

47. Focusing then on Learner A’s version at the staffroom when Mathebula left and before Manamela entered, she stated that Mohube hugged her and she pushed him back not expecting it from him. To the question how Mohube hugged her, she responded that he grabbed her and placed his arms around her waist and she pushed him away and it was when Manamela entered the staffroom. Important is that this version corroborate to some extent with Learner A’s version in her statement on R35.

48. Back at the staffroom, Learner A’ s version that Mohube hugged her by grabbing her placing his arm around her waist. This she stated took place when Mathebula left and before Manamela arrived. The aforesaid is not part in the first charge against the Applicant and also not mentioned in Learner A’s statement. Being reminded that the evidence is that of a child more than a year ago from when the alleged misconduct occurred. At first it was a concern that Learner A failed to mention neither Mathebula nor Manamela in her statement however she did mention Mathebula’s name in her reporting to the Principal on the same date 12 April 2022 and both Mathebula and Manamela’s names in her discussion with Tau months later in October 2022 which contained much more detail that her statement on R35. It is most likely that she was assisted in her statement merely by comparing the handwriting of both statements on R35 and R36 of both Learner A and B to be similar.

49. Learner A was questioned during cross-examination about the lack of detail in her statement to which she responded she did not view it to be important and that the Employer’s representative, Tau told her to testify about all at the Inquiry. The evidence lead at the Inquiry by Arbitrator (IBA) by Learner A, goes much further than what she mentioned in her statement. The statements in my view were taken down by a third person in merely comparing the handwritings on R35 and R36. It is trite that inconsistencies between witness statements and statements given under oath before a court or arbitration, the witness statements are not taken under ideal circumstances, and are generally brief and would not always contain all the detail in relation to the viva voce evidence before a court or arbitrator. I am concerned about the statements because what Learner A testified about cannot be disregarded merely on inconsistent evidence in relation to her statement and her testimony.

50. During her evidence in main, Learner A testified that when Mathebula left, Mohube hugged her and she pushed him back saying that she did not expect it from him. She elaborated that he grabbed her and placed his arm around her waist and she pushed him away. It was when Manamela (the math’s teacher) entered the office with another learner. The explanation Learner A presented in her statement referring to the 12th of April 2022, when Mohube allegedly called her to his office, she stated in her statement that Mohube told her to close the door which contradicts her testimony where she stated that Mohube asked Mathebula to close the door. Mathebula stated that Mohube asked him to close the door but at this juncture the question is whether Manamela arrived whilst Mathebula was leaving or moments later because Learner A stated that Manamela arrived. I have accepted Mathebula’s version that when he left the staffroom it was only Mohube and Learner A.

51. As indicated earlier, Mohube’s representative, Modihapule failed to put Manamela’s version to Mathebula that Manamela arrived when Mathebula left at almost the same time which left Mathebula’s version uncontested that when he left the staffroom he left Mohube and Learner A alone at the staffroom closing the door. This brings me back to Learner A’s version when she stated that Mohube told her to stand in front of him which she did. Evidence directs that this was when Mathebula arrived finding Mohube and Learner A in the staffroom. For Mohube to have grabbed Learner A placing his arms around her waist the moment Mathebula closed the door, is likely to have taken place. This likelihood is strengthened by Learner A’s version where she stated how she felt after the hug (on 12 April 2022), she also stated that Mohube sat on his chair, pulled her closer and put his leg between her thighs. Should all of this have happened, on Learner A’s own version, it would have been before Manamela entered the staffroom after Mathebula left. On Learner A’s version she stated that when Mohube placed his arms around her waist and she pushed him away, it was when Manamela entered. Further to this is that should the door have been closed, Learner A responded that from the door one could see if someone was coming which means the door was likely to have been open and not closed.

52. Learner A’s statement ended with incident’s on different dates of which the one on 4 February 2022, 11 and 12 April 2022. The 4th of February 2022, she made off to be not harassment or serious when Mohube asked her about her torn dress. Her evidence lead to uncertainty when Tau needed to lead her on what occurred on which date specifically the 11th and the 12th of April 2022 in relation to the hug and the rubbing of the thighs. Her testimony refers to the hug and the touching but on the same date the 12th of April 2022 with another hug on the 11th of April 2022. Her testimony at the arbitration in my view was focused on what occurred on the 12th of April 2022 which lines up with the Principals report.

53. It is an established principle that the evidence of children should be treated with caution and that a tribunal must fully appreciate the dangers inherent in the acceptance of such evidence - see Woji v Santam Insurance Co Limited (A) at 1028B – D. As indicated above we are dealing with grade 9 learners when the alleged transgressions took place and that the cautionary rule was developed with young children in mind and would be illogical to differentiate between the evidence of a 15-year-old and that of an adult based on a cautionary rule. Being mindful that victims of sexual assault do not generally concentrate much on peripheral issues, there are often inconsistencies, precisely because of the shock and trauma that they had to endure, I have indeed approached both learners’ s evidence with caution also bearing in mind that their testimony took place in a Court Building more than a year after the alleged misconduct.

54. An important part of Learner A’s version is that only during cross-examination she stated that when Manamela left, Mohube then moved the chair towards her and placed his leg inside her thighs and went upper and upper to reach her pantycote. Another version that Mohube grabbed her around the waist when he hugged her, she stated was before Manamela arrived which she mentioned to Tau reporting that Mohube hugged her tightly in perusing Tau’s investigation report. To the question why she did not report the version where Mohube placed his leg inside her thigh moving it upwards, she responded that she told a friend, Morris Kesana where after they went to the Principals office. The Principal, Tlhapane was not aware of this version of Learner A and only that Mohube called her to the office where he touched her and rubbed his thigh on her thigh which in my view considering Learner A to have been 15 year of age at the time and more than a year passing the Principal was informed of the essence avoiding peripheral issues. During October 2022 some months later Learner A presented more detail to Tau which in my view was less strenuous on her.

55. The rubbing of the thigh against her thigh during cross examination became pushing his thigh whilst seated between the legs of Learner A upper and upper till it touched the pantycote. (the pantycote is like an underneath ski pant for the dress not to be seen through). Even though peripheral issues do not occur in the Principal’s report it would be essential to carefully approach Learner A’s version in relation to Mohube and Manamela. At the initial stages of her testimony being calm and assisted by an intermediary, in my view she captured the crux when she stated: Mohube harassed her when he hugged and touched her in his office on the 12th of April 2022. Referring to touching, she stated that the Employee placed his leg inside her thighs. She stated that Mr. Mathebula was present but did not see everything because when he left, because Mohube requested him to close the door which he did. What Modihapula took as new evidence during cross-examination when Learner A stated that Mohube whilst seated pushed his leg upper and upper was not a new version but rather more accurate evidence from Learner A.

56. As part of the Respondent’s bundle, is the investigation report of Ms. Tau from R18 to R23 done during October 2022 some months after the 12th of April 2022. In perusing the report, Learner A Informed Tau of the version she presented during cross-examination that Mohube pushed his thigh against her thigh. Should this have been so, Manamela would have caught Mohube on the spot. Manamela who testified for Mohube corroborated Mohube to the tee (perfectly) which is concerning. Scrutinising the evidence of Mohube and Manamela, Mohube stated that: Whilst he was busy to put his stuff together in order to leave, he was seated. Mathebula left and when he stepped out Manamela walked in to fetch a book for another period. Manamela was in the staff room for more or less 5 minutes with Learner A still busy. They talked and he shared with him that he was leaving to collect his son’s report during which time Learner A left where after Manamela left. Manamela’s version fits Mohube’s version perfectly when he stated: When he wanted to entered the staff room to open the door, another teacher, Mathebula came out. The door was open and he entered. In the staff room he found Mohube seated at his desk and a girl, Learner A, busy with files. After pulling files Learner A went out where after he took his books. Mohube told him about him leaving to fetch his son’s report at another school. He stated that when he entered the staffroom, there were two and with him, 3 people. All this took place in less than 5 minutes. Learner A was approximately 2 meters away from Mohube. Learner A left whilst he was still talking to Mohube where after he left Mohube alone in the staff room. Manamela’s version in my view was an attempt to close the gap from where Mathebula left, and Manamela entered the staff room not leaving Mohube and Learner A alone in the staffroom. Manamela’s evidence was short and brought the impression that he was couched in his evidence. Learner A’s version that from the door one could see if someone was coming remained uncontested by Mohube which leaves the likelihood that Mathebula left without Manamela entering at the same time which support Mathebula’s uncontested version. In essence, Manamela and Mohube’s perfectly corroborating versions in my view negate Mohube’s version of what took place on the 12th of April 2022.

57. In relation to the second allegation concerning Learner B, Mohube merely denied the allegation to have hugged Learner B. He also responded that nobody came to him referring to the two learners mentioned in the second charge only presenting a bare denial. Mohube’s representative left Learner B’s version uncontested where she stated that: Mohube called her asking how she was feeling when she was sick and he said he did not want to miss her because of being sick. Another version that remained uncontested was that: because of the flu she had, Mohube called her again on the 7th of April 2022 asking if he must buy her medication. Learner B’s statement on R36 that Mohube harassed her and her evidence during the Inquiry that Mohube hugged her, lined up with Tau investigation report months later during October 2022. She also testified that she did not report it to any teacher but told Learner A which line up with the Principal’s report which does not mention Learner B’s name and directs to Learner A not to have informed the Principal. Even though the two potential eye witnesses Koketso and Masego’ whom is mentioned in the charge, did not testify in support of Learner B’s allegation the versions which remained uncontested directs to Mohube having a motive onto Learner B being more concerned about her wellbeing than what was required on him. Some versions in respect of Learner A also remained uncontested by Mohube such as the 4th of February 2022, when he offered to buy her another skirt which was not acceptable from a male teacher. This was also contained in Tau’s investigation report. Modihapula referred to the 4th of April 2022 during cross-examination but left it when Learner A referred to it as nothing serious but in my view indicative to a more holistic picture.

58. The question to be determined is not whether Learners A and B is wholly truthful in all they say, but whether the Arbitrator in this instance, can be satisfied that the story which the witnesses tells, are a true one in its essential features (see Nicholas J in S v Oosthuizen 1982 (3) SA 571 (T) 576) Witnesses who reconstruct their observations frequently make mistakes (see Frank J in Johannes v South West Transport 1994 1 SA 200 (Nm HC) at 202C-D, quoting Lambrechts v African Guarantee & Indemnity Co 1955 3 SA 459 A). Again I am reminded that the evidence of a child witness is as a rule viewed with caution and should be scrutinized with care. In this instance, Mohube presented a bare denial in respect of Learner B. In Shange v MEC for Education, Kwazulu-Natal (15860/08) [2013] ZAKZDHC 32 (17 May 2013) the court warned that while a bare denial is easy to maintain to stonewall further interrogation during cross-examination, the risk of a bare denial defense is that a more credible version trumps a bare denial with equal ease. Manamela’s evidence which fitted perfectly with Mohube’s version created doubt to Mohube’s version in respect of Learner A. Learners A and B had incidents not on the same day but in close vicinity being days and weeks apart. The Principal also reported other Learner’s complaining as well as Tau in her investigation report of which one Learner (the third allegation) was withdrawn against Mohube. An important response from Learner B during cross examination was that she only told Learner A about it because she was not sure what happened to her (when Mohube hugged her in a different way) and it happened to others thinking it was only to her. This fits in with children talking amongst each other rather than two or three colluding together to fabricate evidence towards a teacher. Children do not merely lie about being sexually abused and no evidence was presented to reach such conclusion of fabrication neither colluding with one another.

59. I find Learner A and B to have been credible in their evidence being reliable and trustworthy. There is no evidence that directed them to be capable to collude or that they colluded with each other neither to have fabricated evidence against Mohube. The Employer proved its case on a balance of probabilities that Mohube failed to refrain from improper physical contact with Learner A and B. It therefore flows that the Mohube’s case is less probable. I find Mohube guilty on both the allegations levelled against him and that he contravened an offence in terms of Section 17(1)(b) of the Employment of Educators Act 76 of 1998.

60. Mohube misused his position as teacher, and made himself guilty of the allegations levelled against him. The South African government ratified the UN Convention on the Rights of the Child (CRC) in 1995. The CRC therefore forms part of South Africa’s international law obligations which means that the South African government is under an obligation to ensure that the CRC is implemented and complied with. In line with South Africa’s obligations under international law, the South African Constitution states that:
“Everyone has inherent dignity and the right to have their dignity respected and protected”
“Everyone has the right to be free from all forms of violence and not to be treated or punished in a cruel, inhuman or degrading way”
“A child’s best interest is of paramount importance in every matter concerning the child”
‘Every child has the right to be protected from maltreatment, neglect, abuse or degradation.’.

61. Mohube is guilty of sexual harassment as defined in section 17(1)(b) of the Employment of Educators Act, and in relation to both allegations, dismissal is mandatory. Neither the employer, nor I, or the Labour Court has any discretion to impose any other sanction than dismissal for this misconduct for as long as the conviction on section 17 in relation stands. Even though Modihapule failed to submit mitigating factors, same are completely irrelevant once an educator is convicted of this form of misconduct. For an educator to grab a learner and rubbing thighs with a learner constitute serious misconduct. Adults are expected to help protecting all children from sexual abuse. In this regard Borchers J remarked in S v G 2004 (2) SACR 296 (W): There is general outrage in South Africa at the moment over child abuse, and the prevalence thereof and the damage done by such crimes to society justifies that outcry. People are being exhorted to adopt the motto, ‘your child is my child’. All that this amounts to is that the public knows that its children are vulnerable and often cannot be protected for every moment of their lives. Decent people recognise these facts and help and protect children. They do not harm them, as the accused had done” (300h-301b);

62. After having committed the acts of misconduct, Mohube subjected Learner A and B to further trauma to testify about the harassment he had subjected them to in the arbitration hearing. Learner A stood strong during her time testifying but got emotional shortly after being cross-examined. In order to show true remorse, a person must be willing to accept guilt for his wrongdoing, must accept that he has done wrong and must accept that some sanction must be imposed for it (see S v G 1993 (2) SACR 359 (C)). Mohube was not willing to do that in respect of both Learners.

63. The SACE Code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). Our Courts have recognized that where the misconduct is of such a serious nature that from itself the inference could be drawn that the trust relationship and therefore the employment relationship has been destroyed, an arbitrator may on this basis find that the trust relationship has been destroyed, and that dismissal is justified, see Grogan Dismissal (2nd ed 2014) 201, M Brassey et al The new Labour Law (Juta) at 96-7; Electrical & Allied Workers Union v The Production Casting Co (Pty) Ltd (1988) 9 ILJ 702. Conduct like this makes a continued employment relationship intolerable as teachers who act in this manner, cannot be trusted, especially when they in denial.

64. I am satisfied that Employer has succeeded in proving on a balance of probabilities that Mohube has irreparably destroyed the relationship of trust and had made the continuation of the employment relationship intolerable. I confirm dismissal as an appropriate sanction and find dismissal as sanction to be substantively fair. Tlhapane stated that she called Mohube on the 12th of April 2022 instructing him to report at the circuit office because of the angry parents and denied the statement that she did not inform him about the allegations. Mohube failed to question Tlhapane’s version during cross-examination in relation to the angry parents. It is highly likely that Mohube knew exactly the reason for him to report to the circuit office and failed to establish that Tlhapane failed to inform him the reason for his suspension.

AWARD

65. In the premises, I find summarily dismissal of Mohube from the employment of the North West Department of Education to be effected from 31 August 2023.

66. Mr Shadrack Mohube (Persal No 90180488) is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the Children's Act 38 of 2005.

67. The General Secretary of the ELRC must, in terms of Section 122(1) of the Children's Act 38 of 2005, 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. Shadrack Mohube (Persal No 90180488) 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.

68. The ELRC is directed to forward a copy of this award to SACE. The attention of SACE is drawn to the fact that an educator Mr. Shadrack Mohube (Persal No 90180488) has sexually harassed Learner A in rubbing his thigh against Learner A and hugging Learner A and B inappropriately.

Adv. S Fourie
ELRC Arbitrator
North West