ELRC271-23/24GP

SEC 188A-INQUIRY BY ARBITRATOR

Case Number: ELRC 271-23/24 GP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 27TH September 2023

In the ARBITRATION between


Gauteng Department of Higher Education


(Employer)

And

S.Khumalo

(Employee)


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

Telephone:
Telefax:
E-mail:

Respondent’s representative:
Respondent’s address:

Telephone:
Telefax:
E-mail:


DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for an inquiry by arbitrator at the Respondent’s Head Office in Johannesburg. The inquiry ran over two days namely the 23rd of August 2023 and the 15th of September 2023.
2. After completion of the inquiry the parties requested the opportunity to submit written closing arguments by the 22nd of September 2023. The closing arguments (which dealt with the merits and submissions on an appropriate sanction) were timeously received, and my award now follows.
3. Mr. Christopher Khoza, a union official from SADTU, represented the employee.
4. Ms. Racel Jiyane, a labour relations official, represented the employer.
5. The proceedings were digitally recorded, and long hand notes were also kept of the proceedings.
6. Only the employer made use of a bundle of documents.
7. An intermediary assisted the minor witnesses and the said witnesses testified remotely from the hearing room where the arbitration hearing itself took place.

ISSUE IN DISPUTE
8. The employee pleaded not guilty to two counts of alleged misconduct in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 (as amended) (EEA).
9. It is common cause that the employer employs the employee as a PL1 educator at the Ikemeleng Primary School, Johannesburg Central.
10. It was alleged firstly that on or around the year 2022 and 2023 the employee conducted himself in a disgraceful unacceptable and improper manner in that, on different instances, you touched each of the four female learners, LT, LK, AM, and NM on their bums and held them inappropriately on their waists to the extent that you made them feel uncomfortable around you.
11. Secondly, it was alleged that, on or around the year 2022 and 2023, the employee conducted himself in an unacceptable, disgraceful, and improper manner in that he pulled LT’s sports bra at a athletics session pretending to be fixing her participation badge.

SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT

12. The employer led the evidence of five witnesses, four of which were minor witnesses.

13. The first witness was the deputy principal of Ikemeleng Primary School, Ms. Faith Mbete.

14. Mbete testified that on a day in 2023 she was in her office when she was approached by a grade 7 learner NM. NM was crying and indicated that Sir (the employee) had touched her inappropriately in class from her waist down to her upper leg.

15. NM also indicated that she was not the only learner and there were three others that had come with her to the office. Mbete testified that she called the other girls in to hear their versions as well. Two of the pupils (LT and LK) stated that they were in a bus/at an athletics meeting and the employee touched them inappropriately, but they did mention to Mbete where they were touched.

16. The fourth pupil AM also mentioned to Mbete that the employee touched her inappropriately but did not mention where she was touched.

17. Mbete called the employee to her office on the same day and the employee denied that he touched any of the learners inappropriately.

18. All learners who were pupils in the employee’s grade 7 technology class in 2023 were clearly able to distinguish between right and wrong and they were advised to tell the truth, the whole truth and nothing but the truth.

19. In surveying the evidence of the minor witnesses, I am not following the order in which they testified.

20. NM testified that at the time of the incident she was 13 years old. During technology class in March 2023, she testified that she approached her class teacher the employee and asked him for permission to go to the bathroom. He gave permission. When she returned to class the employee asked why she was coming in from outside. As she returned to her chair the employee stood in front of her, put his right arm on her shoulder and ran it down until it touched her bum.

21. NM testified that she felt most uncomfortable and as the period ended, she began to cry. AM approached her and asked why she was crying. AM suggested that she report the incident to the deputy principal which NM did.

22. NM testified further that on the following day the Principal and the Deputy Principal approached her, and she mentioned that there were other learners that this had happened to.

23. During cross-examination NM mentioned that she liked the employee as an educator and regarded him like a father figure. NM stated that the difference was that her father does not touch her on her bum like the employee did.

24. NM stated further during cross examination that that she had experienced a similar incident in 2022. LT had suggested that they approach the deputy principal.

25. NM stated emphatically that all the four learners went to the deputy principal at the same time. NM stated further that the deputy principal had asked the others to wait outside whilst she spoke to her first. NM testified that she felt a bit pressurized by the other learners to report the incident to the deputy principal. All she had really wanted to do at that stage was to report the matter to her parents.

26. NM testified that the incident involving her had occurred towards the end of the school day after she went to the toilet.

27. The next witness LT (13yrs old) testified that earlier in 2023 she had gone to an athletics meeting by bus with other learners from the school. Whilst on the field with people all around the employee was showing her how to put a tag on her lapel. Instead, he opened her blouse, looked in and touched her breast.

28. LT recounted an earlier event the previous year (2022) where the employee had put his hands on her right shoulder down to her waist and buttocks.
29. LT testified that she observed the employee touch NM in class in the same way in 2023. NM then approached her and other classmates and indicated that she did not like the way she was touched. They had all agreed that the employee made them feel uncomfortable.

30. When it was put to LT in cross examination that the employee would say it was a friendly touch LT replied that the employee did not touch boys in the same way only girls.

31. LT indicated that she had not told her mother about the incidents because they were not close, but she had spoken to her aunt a few days later. Her aunt had wanted to go to school, but she got busy and the matter was forgotten.

32. The next witness to testify was LK (13 years old). She stated that on the 21st of February 2023 she went by bus on a school excursion to a stadium. Whilst inside the bus the employee approached her and said to her that she must sit down. He then touched her on the waist and pulled her closer. LT testified that she pushed herself backwards to sit down.

33. When it was put in cross-examination to her that the employee had only intended the gesture as a friendly touch LT testified that the way and where he touched her made her feel uncomfortable. She later reported the matter to her friend LT.

34. LK stated that she NM had spoken to her and others and was crying about the way the employee had touched her in class. LK also mentioned to NM how Sir had also touched her in a similar fashion.

35. The next witness was AM (also 13 years old). AM testified that on a certain day she took a book to the employee. The employee had then spanked her on the bum, and she was not sure why.

36. The witness recalled speaking to NM who told her and others that the employee had touched her on the side and buttocks. AM testified that NM went to report the incident first since she was feeling hurt. During cross examination AM testified that her and the rest of the minor witnesses had reported to the deputy principal at the same time.


SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT

37. The employee testified that he was an educator at Ikemeleng Primary School as a PL 1 educator and had been so employed for a period of five years.

38. He taught grade 7 pupils Technology, grade 5 and 6 Isizulu and grade 5’s Life skills.

39. The employee denied touching any of the minor witnesses inappropriately or at all. Furthermore, he stated that there were no signs of the witnesses being uncomfortable around him. The employee indicated that it was not in his character to do what the minor witnesses had alleged, and his colleagues had expressed similar sentiments that this was probably not the truth.

40. The employee denied touching NM on the day and further denied that he had seen her at all.

41. In respect of LT the employee stated that at the athletics event LT had to affix a name tag to her uniform and for that purpose they needed a safety pin. When they eventually obtained a safety pin from another pupil, he pointed to her where she should attach it. He had not assisted LT to affix the badge or touched her in any way.

42. The employee denied that he had touched LK in the bus at all and likewise denied smacking AM on the buttocks.

43. The Applicant testified that he had heard from another educator that NM did not like him.

44. When asked in cross-examination why these allegations arose the employee stated that he was not really welcomed at the school as he was a Zulu speaking person in a Sotho school. He suggested that perhaps some adult had influenced the learners to lay false charges against him.


ANALYSIS OF EVIDENCE AND ARGUMENT

45. The onus rests on the employer to prove all allegations of misconduct against the employee on a balance of probabilities.

46. Crucial in this case are the credibility findings in respect of the various witnesses. I was impressed with the four young witnesses for the employer. Given their tender age they were all confident witnesses who were able to answer questions quickly and without hesitation.

47. The only aspect that remained unclear was whether NM had reported to the deputy principal on her own or whether she took all of the other complainants with her.

48. Deputy principal Mbete testified that NM brought LT, LK and AM with her and all the learners had briefly described what had happened to them. It is common cause that only NM’s incident was reported on the same day that it occurred. The other learners’ allegations had occurred sometime before.

49. It was argued on behalf of the employee that the testimony of all the minor witnesses was inconsistent with the question of whether all four learners reported their respective incidents to Mbete at the same time.

50. I find that all four minors attended the employee’s technology class, and all were in class when the incident with NM happened. I find that all four minor witnesses either saw the incident involving NM or were brought together, with NM’s reaction to her event serving as a catalyst for the others witnesses to come forward and share their unpleasant shared past experiences with the employee.

51. It is highly probable that all four minor witnesses made their way to the deputy principal at the same time but probably spoke to the deputy principal individually.

52. Mbete, who I found to be a reliable witness, testified emphatically that she had spoken to all four minor witnesses on the same day.

53. LT, LK and AM were all single witnesses in respect of their respective assertions of the employee touching them in inappropriate ways making them feel uncomfortable.

54. In South Africa, children’s evidence was treated with caution historically due to concerns about children’s ability to accurately understand, recall and communicate information. However, the South African judicial system has undergone significant reforms, such as the adoption of the Children’s Act 38 of 2005 (as amended).

55. The Children’s Act recognizes the importance of involving children in matters that affect them and encourages their participation in legal proceedings relevant to their well-being. The legislation seeks to ensure that the children’s best interests and rights are considered during the process. Over time, the courts have become more inclined to accept children’s evidence, provided that their testimony is deemed credible and reliable. The cautionary rule is now applied with increased flexibility concerning child witnesses and the evidence is assessed on a case-by-case basis.

56. I have carefully assessed the evidence of both LT, LK and AM in particular their performance when questioned initially about their respective events, their performance under rigorous cross examination and the general probabilities of their versions.

57. I found them to be strong credible witnesses whose testimony generally remained consistent throughout the course of their testimony. I find that any imperfections in their testimony provide a safeguard that they have not fabricated any evidence against the employee.

58. There is, in any event, no evidence to suggest that the minor witnesses had any motive to give false evidence against the employee

59. LT witnessed NM’s incident and corroborated NM’s version of events. Given the similarity of the minor witnesses’ testimony in respect of the employee’s conduct I find that it is probable that the employee had a propensity to touch young girls entering puberty in an inappropriate manner causing them to feel uncomfortable. I also find it proven on a balance of probabilities that the employee did not touch the boys in his class in a similar manner.

60. The employee’s version amounted to a bare denial in some respects but was also characterized by reliance on hearsay evidence (other teachers saying that they did not believe the truth of the allegations against him and hearing that NM did not like him) and speculation (that false allegations were raised by an adult which influenced the children to lay false charges against him). The employee also speculated without foundation that because he was a Zulu speaking educator in a predominantly Sotho speaking school that this could have motivated the formulation of false allegations against him.

61. I reject the version of the employee on the basis that it unreliable, vague, and improbable.
62. I find the employee guilty of both counts of unacceptable, improper, and disgraceful conduct involving all four minor witnesses in terms of section 18 (1) (q) of the EEA.

SANCTION

63. Both parties have submitted short submissions on what the appropriate sanction should be in this matter.

64. The employer submitted that the employee should have pleaded guilty to the charges but instead wasted the employer’s time and resources. Further the employee had shown no remorse for his actions.

65. The employer argued further that the employee had emotionally and socially harassed the learners and that this would have a long-lasting scar in their minds and make them uncomfortable around males. The employee had also violated the learners right to human dignity

66. The employer argued that the relationship between the employee and the employer had irretrievably broken down and could not be mended and that the only appropriate sanction to be imposed was dismissal.

67. It was argued on behalf of the employee that the employee had never been summoned to a disciplinary enquiry nor found guilty of any misconduct.
68. The employee is the sole provider for his family and extended family financially. He is the father of two girls and one boy.

69. The employee depends on the continued availability of his medical aid funds for his mother’s chronic illness.

70. It was submitted further that the employee had served the Department of Education with dignity and pride upholding all its policies.

71. The employee indicated that he regards these allegations as a personal attack on his person, values and reputation and had suffered emotionally in a way that he cannot describe.

72. Finally in mitigation the employee denied all allegations and asked for them to be withdrawn.

73. It is noticeable that even in making his submissions in mitigation the employee has emphatically denied the allegations against him. I have already found that the Applicant guilty of the two counts of misconduct levelled against him.

74. I appreciate that the employee has a family and commitments and has probably already suffered embarrassment and rejection within his family and society because of the inappropriate sexual misconduct charges leveled against him.

75. However, the aggravating factors clearly outweigh the mitigating factors.. The charges of inappropriate behaviour are spread over a period of approximately two years and emanate from four different young female learners in the same class. Also, the allegations are consistently the same and the employee continues to profess no wrongdoing.

76. I find that the relationship of trust has irretrievably broken down and the only appropriate sanction is that of dismissal. It is so ordered.

77. The employee is found to be unsuitable to work with children in terms of section 120 (4) of the Children’s Act no 38 of 2005.


MARK HAWYES
PART TIME SENIOR PANELIST
27th September 2023