ELRC434-22/23GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case no: ELRC434-22/23GP

In the matter between:

RICHARD VAN RENSERG

(Union / Applicant)

And
GAUTENG DEPARTMENT OF EDUCATION
(Respondent)

 
DETAILS OF THE HEARING
1. The matter was heard over several sittings. The last sitting was on 4 August 2023. The Applicant Richard van Rensburg was represented by Werner van den Hevver an advocate instructed by YJVR Attorneys. The Respondent was represented by Matoditodi Modise an official from the Gauteng Department of Education. The proceedings were recorded electronically and in writing.
2. The Applicant referred an unfair dismissal to the council following his dismissal on allegations of misconduct.
BACKGROUND
3. The Applicant was employed by the Respondent on 1 January 2000. At the time of his dismissal on 21 July 2022, he was as a Principal at Rustervaal secondary school and earned a monthly salary of R52 000. The Applicant was dismissed for misconduct and had five charges levelled against him as per charge sheet. The Applicant would like to be reinstated for the alleged misconduct.
4. Prior to the disciplinary hearing commencing, the parties and I conducted an inspection in loco at the current school premises, the new school premises under construction and the site of an alleged protest on the R82 highway.

SUMMARY OF EVIDENCE AND SUBMISSIONS

The Respondent’s evidence
5. The Respondents first witness was Denroy Kok, who testified that he was a member of the local business forum and attended the meeting at the new school site as the sub-contractors were present. There had been allegations that the Applicant had laid his hands on him, however those allegations were incorrect, the Applicant had pulled him aside following arguments on site. The Applicant was a good Principal. The learners and the educators had come to the new school site on buses and there were other people on the site. He was not aware of who had arranged that the learners be brought to the site by bus. The new school site had not been completed.

6. Under cross examination, the witness testified that he had not seen the Applicant involved in any fight, however he could not pinpoint if there had been a fight or not as there had been a lot of people at the site. He did not know if the Principal had arrived at the school with the staff members and he was not aware of why the learners had come to the site or why they left the site.it was not fair that the Applicant had lost his job as the pass rate had gone down after he left the school. People had an issue with the Principal, and this was used as bait.

7. Mr Solomon Nel was the Respondent’s second witness and testified that he was part of the business forum, and on 3 September 2020, they locked the gates of the new school site and Mr Lewaak, Jerry Moloi opened the gate and there after the bus arrived with the learners. The learners were in school uniform. The educators and the business forum were also present. The Applicant was also present. He did not witness the protest as he was outside by the was told by Betty that there was a march. He had a child in grade 10 at the school at the time and had not received a letter from the school advising him that the children would be leaving or going out of the school premises. There had been no fight, there was just a commotion started by Godfrey Lawrence. The principal was standing with Lawrence, and it was just conversation. The school site is still incomplete, and the witness had not been paid his money. The initial assumption was that the learners were on their side, however it seemed the learners were against them.

8. Under cross examination the witness testified that he was not aware of who had authorised the learners to go on to the new school site, but the Applicant was on site with Lawrence, Victor and Mr Lewaak and the buses came with the learners and the educators, but he had found the Applicant at the site before the learners arrived. The Applicant did not hit anyone at the site, but he had heard that the Applicant had hit someone. Mr Lavack was the one who was behind this thing and he is a gangster. Th children went back to school after the protest and the address by the Applicant. The Applicant was responsible for the learners, and they had gone back to school after the address.

9. Betty Sandamela was the third witness on behalf of the Respondent. She testified that she was the SGB treasurer at the time in 2020. The new school site gates had been closed after the contractors had not been paid so they could get attention. Mr Lewaak, Piet Moloi and Victor Taks came, and force opened the gates and were swearing at the people around. The Applicant was by the gate and thereafter the buses arrived, and the learners and educators came out of the buses and went into the construction site. The Applicant told them to come closer and he went up a pack of bricks and addressed the children, he told them the reason they were there and that videos may be sent to the MEC and that the Department was not doing anything about the problems at the new buildings. The Applicant also said he was not afraid of the MEC and the children must tell their parents that their parents are useless and their principal had done it. The Applicant said the children must get onto the bus and go back to school and the educators must remain as someone was coming to address them. The contractor then came and addressed then, a fist fight broke out and the Applicant chased Cassim because Cassim wanted to throw bricks at the Applicant. The parents had not signed any consent form before the children left school. There was a video of the Applicant addressing the protest and he was at some point directing the march himself. He was the only person that had addressed the learners on the day. There was a march on the R82, the witness saw the learners as she was coming from Vereeniging, they were toy-toying for Mr Karmia and Mr Chingombingo, she asked the children to come out of the road as it was dangerous on a busy road.

10. The witness testified that MEN42 was the pin code that had been given to the Applicant when they had gone to open the bank account, if one is a signatory, you get a pass code and a pin code. The pin code is used to release the money from the account. The transaction list showed that the Applicant had released R3465 into his account using the code MEN42. Payment was made to Joleene Taks however she never set foot at the school to work under the Presidential Youth Programme. Jolene Taks had been paid R3465 and the payment had been releasee using pin code MEN42 which belonged to the Applicant. The list of people who worked on then Presidential Youth Programme included one Veshen Moses who worked at the school unauthorised as he had no documents, he was not even interviewed for the position.

11. Under cross examination the witness testified that she was an SGB member and a sub-contractor. The Applicant had come to the new school site on foot after Mr Lewaak. The Applicant did not arrive after the learners, Mrs Da Silva had arrived with Mrs Tose. The SGB was not informed that there was a problem, and she could not remember the nature of the problems at the school. After addressing the learners, the Applicant had told Mr Lewaak to take the children back to school and in one of the videos after the learners had left, the Applicant is seen chasing Mr Cassim. The Applicant was fighting on the day and she had seen him fight someone who was standing next to her. The Applicant during the protest said he was the one in charge. The witness denied that the Applicant had come to the construction site later with Ms Da Silva. The witness denied that the Applicant was addressing the children to get them back to school, he had said he was fighting for the school.

12. The Applicant had said that the payment that was made into his account was for Veshan Moses because Veshan did not have a bank account. Jolleen Taks also advised the SGB that the money that had been paid in her bank account on 31 March 2021 was for Veshan Moses. It was put to the witness that Mr Lewaak would testify that he had employed Mr Veshan Moses, she stated that she did not know about it. The witness stated that she was not aware that Veshan Moses had advised that his money no longer be paid to Joleen Taks’ account but into Applicant’s account. At the time they were advised that Joleen was getting paid for Vashen, however no affidavits to that effect were submitted to them during the investigation, therefore the Applicant was being dishonest. She stated that as far as she was aware the pin code was a secret and if a person gave it to someone else, it was his own problem.

13. James Kok testified that he became aware of the strike by the learners at the new school site from the teachers as he was not there at the school site on the day, however he had a child learning at the school at the time. He had not been given a consent for to sign confirming that his child could leave the school premises. Joleen Taks was employed under the Presidential Youth programme, however she never worked at the school but was paid a salary. A time sheet was sent to Joleen house to clock in but she never came to the school. The Applicant had paid himself an amount of R3465, and the money had been released using the code MEN42 which pin code belonged to the Applicant and only he was authorised to use the said code. The Applicant’s code was a release code, he had to release the money from the bank account. Joleen Taks was said to be paid for Veshan Moses who was employed by the school. Joleen Taks had been paid and so had the Applicant. When he asked about Veshan Moses, he was told that they had found a way to pay his salary via Joleen. According to the document, it was an affidavit by Veshan Moses confirming that he had lost his birth certificate and identity document. And there was also an affidavit by Joleen Taks stating that Mr Veshan’s salary would be deposited into her bank account.

14. Ms Mellane Birkenstock testified on behalf of the Respondent and stated that she was an educator at the school since January 2019. On the day of the protest, she reported for duty, the usual morning briefing as held, the Applicant came and addressed the staff and told them that they would take a stance as they had had enough with the stand still at the new school. The Applicant told the educators to make posters and they would all go down to the construction site because they wanted answers. At the site, he showed everyone around the school and how it would look, then he had a conversation with the contractors and the learners were sent back to school and the educators were also then sent back to school by the Applicant. The learners used the bus to get back to school. She had gone onto the bus to go to the construction site because she wanted answers as the project had been going on for a very long time. The buses to go to the construction site had been organised by the Applicant as no one could have organised the buses and the learners without his authority.

15. Under cross examination the witness testified that she did not have the minutes of the Applicant’s address to the educators. The witness denied that it was Mr Lewaak and the educators who had spearheaded the protest, the Applicant had spoken to the educators. When the learners and the educators arrived at the site, the Applicant was already at the site. The witness did not hear the Applicant physically give the bus driver instructions to take the learners to the site, however he is the only one who can give instructions regarding the bus. The educators were instructed to leave their vehicles at the school that is why no one used their cars to go to the new site. Mrs Da Silva had come to the site on the bus together with Madam Tosi and had not walked with the Applicant to the school site. It was denied that the Applicant had addressed the children to get them back to school and there was a video out there.

16. The Respondent’s last witness was Shamaine Denise Tose who was employed by Respondent and was an educator at Rustervaal secondary school since 1 August 2019. The school they are currently at is old, dilapidated and in a bad state and is not conducive for anyone to be there. The Department was in the process of building a new school, however the school is half complete. There was a protest at the new school in 2020, on the morning of the protest, the Applicant had come to the morning briefing and addressed the educators and had said the educators must make posters and they must take the learners down to the new school to demonstrate. Some educators went on foot and others went on the bus with the leaners. She got onto the bus with Lilian Da Silva and they went down to the new school site. The Applicant was already at the school site standing on top of bricks which were elevated, and he addressed the learners and educators. In addressing the school, he said parents were slack in standing up for the learners and that videos and photographs must be taken so that the MEC is aware of what was happening at Rustervaal secondary school. After the address the Applicant said the learners must go back to school by bus and the educators to remain so that some contractors would speak to them. The parents were not advised that the learners would be leaving the school site as no consent forms were sent out as per normal procedure when there is a trip. After the address the learners when onto the bus and went back to school.

17. Under cross examination, the witness denied that the Applicant was not involved in the decision to go down to the school site as he had come into the morning briefing and instructed them to make posters. The witness stated that the morning briefing was minuted, however she did not have a copy of the minutes as she was not the secretary. She did not see or hear the Applicant make arrangements with the bus drivers to take the learners to the school site. When they arrived at the site, the Applicant was already at the school site, and it was not true that he had arrived at the site after the buses arrived and had walked to the site with Mrs Da Silva as she had used the bus with Mrs Da Silva. It was not true that the Applicant wanted to salvage or save any situation, when the Applicant addressed the children, they were cheering him on and when he was done with what he wanted he sent the learners back to school.

The Applicant’s case
18. Four witnesses testified in the Applicant’s case and below is a summary of the witnesses’ testimony.

19. The first witness to testify was Jolene Taks. The witness testified that she was unemployed but had applied for the Presidential Youth Unemployed Programme at Rustervaal secondary school. The school’s SGB and Mr Laverk were responsible for the appointments under the youth unemployment programme. She, Monique and her husband Victor Taks had applied for the programme, however the school did not want two people to be employed under the programme so Veshan Moses was put in her place and he was appointed by Mr Lewaak, the salary per month under the programme was R3500,00 and she received payment in behalf of Veshan Moses as he did not have an ID and a bank account. The salary was processed and paid into her bank account by Mrs Van Wyk and the SGB and Mr Lewaak were aware of the arrangement and no one had issue with the payment arrangement. No other person benefited from the arrangement as the money was given to Veshan Moses. Affidavits was signed by her and Veshan Moses to confirm the payment arrangement.

20. Under cross examination the witness confirmed that she was employed at the school in 2021/2022 but she did not work there but received a salary on behalf of Veshan Moses. The contract of employment had been brought home for her to sign and was thereafter taken back to the school. The Applicant did not receive money on behalf of Veshan Moses as ait was sent to her. As soon as the salary was paid into her account, she would withdraw it and give Veshan Moses as she had been asked to assist him by Mr Lewaak. It was illegal to have such an arrangement in place and there was an element of corruption in her appointment. The Applicant had deposed to her affidavit after the Applicant had received an audi letter from the Respondent. In re-examination the witness confirmed that no one had signed her contract on behalf of the Respondent.

21. Jerry Piet Moloi testified that he used to be employed at the Rustervaal Secondary School as a general assistant. In September 2020 there was a protest by educator and learners regarding the working conditions at the school. He saw the educators make posters and say that they are going to the new school site, however he did not know who had arranged the protest. The learners had gone to the school site by bus and the Principal had arrived after him at the site on foot with Mrs Da Silva. The Applicant went to the learners and had a briefing with them and told the learners and educators to go back to school thereafter there was a briefing by business forum and the site manager. There was a fight at the site, and it was alleged that he and the Applicant was part of the fight, however he was not part of the fight. Dishonest evidence had been given at the arbitration as people do not like how the Applicant had been running the school.

22. Under cross examination, the witness testified that he did not know who had arranged for the transportation of the learners to the new school site or who had arranged the march. The Applicant had addressed the learner however the witness did not hear what the Applicant had said about the MEC or the parents.

23. Godfrey Lawrence testified that he was self-employed and the ANC ward chairperson and the chairperson of the Rustervaal business forum. There was a protest and picketing at the new school site, the learners arrived by bus and the principal arrived thereafter. Before the Applicant arrived, there was an address by Mr Lewaak on what was going to happen. When the Principal arrived, they thought he was the one who had arranged the protest and therefore he mobilised some educators to speak against the principal, however upon further investigations, it turned out it was in fact the SGB that was behind the protest. The witness was the reason behind the Applicant’s dismissal, they mobilised witnesses to testify against him, however with the information available now, it was not the Applicant who had organised the protest. He did not see the Applicant fight but was told that the Applicant tried to stop a fight.

24. Under cross examination the witness testified that he did not see or hear the Applicant address the learners and educators. He was also not aware of what may have happened at the school prior to the learners and educators going to the new school site. He had not come to testify at the Applicant’s disciplinary hearing as he had not been invited to come, however he requested to come and testify today as he wanted to tell the truth.

25. The last witness to testify in the Applicant’s case was the Applicant, Richard Van Rensburg. He testified that he was an educator who had been employed by the Respondent in 1998 and became a Principal at Rustervaal Secondary School and performed excellently in his duties at the school. The school was in a bad state, the classrooms were broken, ceilings falling, and the toilets were in an unsanitary state. A new school building is under construction since 2018, however it has to date not been completed because of fighting in the community.

26. On the morning of 3 September 2023, the educators were complaining regarding the construction site, he advised them that the SGB was better placed to address them on the issue, the learners and the educators then went to the construction site to protest, however he did not know how or who had organised the protest. He had not given an instruction to protest in the morning briefing as testified by the Respondent’s witnesses. The learners had gone to the construction site by bus; however, he did not know who had organised the buses, he had walked to the construction site with Mrs DaSilva. He had participated in the demonstration as he wanted better conditions for the school, and he also wanted the learners and educators to get back to school. As demonstrations sometimes get prolonged in Rustervaal. After he addressed the learners, they went back to school, and he stayed behind with some educators for a meeting with the business forum and the site manager. He had not participated in any fight at the construction site.

27. The Applicant knew Mr Moses as a Presidential Youth Programme employee at the school, and he had been introduced to him by Mr Lewaak. He had not ben involved in his employment, as the Presidential Youth Employment programmes was dealt with by the SGB and Mr Lewaak as he had been instructed by the District Office. He was asked to step aside as the district did not want a situation similar to what had happened in Roodepoort. Veshen Moses replaced Ms Taks as it was said two people from the same household could not be employed on the Presidential Youth Programme. Lyn Van Wyk handled the payment of salaries, and he was aware that Veshan Moses’ salary was paid into Ms Taks’ bank account. Payments were made electronically, there was a pin to upload payments and one to release payments. Veshan Moses had signed an affidavit in line with the arrangement that he had with Joleen Taks. In March 2021, Veshan approached the Applicant and said he needed assistance with the payment of his salary as it would no longer be going into Joleen’s account, and Mr Le Vark was not able to assist. The Applicant gave him his Capitec bank account, and the payment was then made into the bank account, there was nothing dishonest about the arrangement.

28. Under cross examination the Applicant testified that as the head of the school, he was also the accounting officer. The Applicant did not always give instructions at the school as some instructions came from the district office. MEN42 was a code that the school was given by the bank when they went to sign for tokens and but was used by the finance clerk Ms Van Wyk. A payment was made to Joleen Taks for the salary that she received on behalf of Veshan Moses. Veshan Moses also received payment from the Applicant after he had asked him that he receive his salary on his behalf. The Applicant did not have proof that he had withdrawn and given money to Veshan Moses. He had been advised of the arrangement between Veshan Moses and Joleen Taks by the SGB. The Applicant stated that he was aware that two salaries had been paid for Veshan Moses, however Joleen had given the money back to Lyn. He however did not know why the question regarding Joleen paying back the money had not been put to Joleen, he also did not have evidence that Joleen had paid the money back to Lyn. The Applicant denied that he had been negligent in his duties.

29. The Applicant admitted that he had said that he was not afraid of the MEC and that the learners’ parents were useless, he had done what he did that day to get the learners back to school and that it might attract attention on the terrible circumstances of the school. He did not know who had told the learners and the educators to protest, he had even called Madam Mathai at the district office and had informed her about the disruptions. He had joined in to make everyone happy that he was also participating with them and showing frustration regarding the circumstances. The Applicant did not ask who was behind the protest when he saw the educators make the placards. The educators were not reprimanded for participating in the protest; however, he had advised Madam Mathlari that the educators and learners had come back at the school. The comments he had made were not to disrespect the MEC but to get attention. The witness denied that he refused to take responsibility for his actions or that the Department was correct in terminating his contract.

ANALYSIS OF EVIDENCE AND SUBMISSIONS

30. The Applicant was charged with five charges a s per charge sheet that was filed in these proceedings. In this hearing, evidence was lead in respect of charge 1, 3, 4 and charge 5. An inspection in loco was held prior to the arbitration commencing. I noted the state of the current Rustervaal school. We also inspected a site on the R82 Vereeniging road, where it was alleged, the students had protested to and the new school site which remained incomplete to date.

31. At the outset, I wish to note that certain versions were put to the Respondent’s witnesses that certain people who included Mrs Da Silva, Mr Lewaak and Mrs Van Wyk would come and testify at the proceedings. I note that the Applicant closed his case, these individuals testifying in the proceedings in respect of these versions.

32. It is common cause that a demonstration took place at the site of the new school with educators and learners participating. The Applicant addressed the educators and learners during this protest and stated that he was not afraid of the MEC and that the learners’ parents were useless. His reason for addressing them, he says was so that he would be seen to be in union with the community and their plight, to get attention and to get the learners back to school as soon as possible. The question is who permitted the learners to leave the school in the first place. The Applicant’s disputed testimony is that he arrived at the site on foot after the learners and educators had left the school on buses. The learners and educators left the school on buses. If indeed he was at the school when the buses left, it begs the question, why did he not stop them from leaving if this protest was without his knowledge and/or consent. He was the head of the school and in charge of the learners, however, his case is that someone unknown to him organized the learners, the educators and the buses to take the learners to the site. It is improbable. My view is the Applicant was aware of the protest at the school site that is why he permitted the learners and educators to go to the new school site and further he addressed them at the school site. It was testified that the Applicant had asked the educators to male placards to take down to the new school site, that evidence was undisputed, further the Applicant did not testify that when he saw the educators make placards, he made any attempts to stop them at all.

33. It was the Applicant’s testimony that he had advised one Madam Mathlari from the district office that the learners and the educators were leaving the school to attend a protest at the school site, however the Applicant did not call madam Mathlari to corroborate his version that the District Office had been made aware of this protest by the educators and learners. It was not disputed by the Applicant that ordinarily the parents must be informed if there is an excursion and consent letter must be signed by parents if learners are to leave the school at any time, notwithstanding this the Applicant permitted the learners leave the school premises on the buses to participate in a protest while fully aware that their parents had not given permission that they travel outside of school as is standard practice.

34. The Applicant denied that he had transported the learners to the new school site, it is common cause that the learners had gone to the site on the buses used for learner transport, the Applicant is the Principal and in charge of the school, when he saw the buses leave the school, he on his disputed version did nothing but followed to the site on foot. In my view the Applicant was aware of the protest and permitted that the learners be transported on the learner transport buses to the new school site.

35. It was testified by the Respondent’s witnesses that a fight broke out at the new school site, however it was denied that the Applicant was involved in a fight but that he had in fact tried to stop a fight that had taken place at the site. In my view on the evidence before me, the Applicant did not participate in a fight at the new school site.

36. It was not disputed that the Applicant had received payment of R3465,00 which he contended was payment for one Veshan Moses, a man in the community who is said to be without an identity document or bank account and who was employed at the school under the Presidential Youth Employment Programme using Joleen Taks’ contract of employment. On 31 March 2023, the Applicant received payment of the said amount which he testified Veshan Moses had asked that he receive on his behalf and Joleen Tas who was receiving a salary on his behalf could no longer do so and Mr Lewaak was unable to assist him. On 31 March 2021, a payment was however also made to the Applicant and to Joleen Taks supposedly on behalf of Veshan Moses. Joleen Taks testified that she had always given Veshan Moses his money as soon as she received it, the Applicant testified that in March he had paid Veshan Moses and Joleen had paid back the money she received back to the school. No evidence was tendered of the Applicant’s withdrawal of the said money pursuant to it being paid into his bank account and further no evidence or proof was tendered that Joleen had paid back the money she had received to the school. Affidavits signed by Veshan Moses were tendered as evidence, however no reason was given on why he did not attend to testify in these proceedings when there was no agreement that evidence by affidavit would be admitted. The Respondent was denied an opportunity to test Veshan Moses’ version of events regarding the said payments and salary arrangements. I am inclined to accept that the Applicant had been paid and/or authorised payment to himself an amount of R 3465,00.

37. In respect of charge 5, I am inclined to accept the Applicant’s version regarding the employment of Veshan Moses as the Respondent did not seriously contend with this charge during the arbitration. I will therefore not make a determination in respect of this charge.

38. I have no doubt as the Applicant sought to convince me that he was a good educator, however I am called to determine whether the Applicant committed the alleged acts of misconduct. In my view, yes, he committed acts of misconduct under allegation 1(a) and (b), 3. In my view these offences are very serious offences. The Applicant permitted an unlawful protest involving learners to take place under his watch, throughout these proceedings he professed not to know or have information about this protest, yet he addressed the protect and expressed very strong views, it is improbable that the Applicant did not permit learners and educators to partake in this protest or make or authorise transport arrangements for the learners with the buses, he was in charge of the school. The Applicant as the accounting officer of the school, trust is of paramount importance and the foundation of that relationship. The Applicant failed to account that he had paid over the money to Veshan Moses as alleged or produce proof thereof. If indeed Joleen Taks had repaid the school as alleged by the Applicant, the Applicant should have provided proof that it had indeed been repaid at this arbitration.

39. I am of the view that the Applicant’s dismissal was substantively fair for the reasons I have mentioned above.


AWARD

40. The Applicant Richard Van Rensburg’s dismissal by the Respondent, the Gauteng Department of Education, was substantively fair.

41. The Education Labour Relations Council is directed to close the file.

Dated at Johannesburg on this 06th of September 2023.




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