ELRC947-22/23KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No ELRC947-22/23 KZN

In the matter between

Department of Education KZN Employer
And
T. Nxongo Employee


ARBITRATOR: R. Shanker

DELIVERED: 09 November 2023


AWARD


DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995, as amended, and was set down for an Inquiry by Arbitrator process.

2. The matter was scheduled on 26 April 2023, 20 June 2023, 21 June 2023, 19 September 2023 and 20 September 2023. The parties thereafter submitted written closing arguments which I considered in making this award.

3. The employee (respondent) in this matter, T. Nxongo (“Nxongo”), was represented by K. Dlamini, an official of SADTU. The employer (applicant), Department of Education KZN, was represented by N. Nxumalo.

4. The matter against Nxongo relates to allegations of sexual assault of a learner who is a minor. In accordance with the protection of the rights of minors, the identity of the learners will not be disclosed. I will refer to the learners who were allegedly sexually assaulted as Learner “A” and Learner “B”. The Learners’ evidence was led via an intermediary and an interpreter.

ISSUES TO BE DECIDED
5. The issue to be determined is whether Nxongo had committed the misconduct for which he has been charged (Bundle A at page 1) and, if so, to determine an appropriate disciplinary sanction.

BACKGROUND TO DISPUTE
6. Nxongo is an educator at the school and was a Social Science teacher. As a result of the serious nature of the allegations, he is currently on suspension.

7. In summary, Nxongo is charged with contravening section 17 of the Employment of Educators Act 76 of 1998. The allegation against Nxongo is that during a social science period on 02 November 2022:
7.1. He kissed Learner A on her shoulder.
7.2. He held Learner B’s hand and told her that she has a small vagina.
7.3. He touched Learner B’s face and told her that he wants to have sex with her.

8. Nxongo denied that allegations made by Learner A and B are true.

9. The parties submitted bundles of document marked Bundle A – C. The employer called four witnesses to testify in support of its version. Nxongo testified and called two learners to testify in support it his version.

SURVEY OF EVIDENCE AND ARGUMENT
10. The evidence and arguments hereunder are not verbatim accounts of the proceedings but a summary of the evidence necessary to determine whether, on the balance of probabilities, Nxongo had sexually assaulted Learner A and B as per the charges. All evidence and arguments were considered prior to drafting this award.

11. During the arbitration hearing, Learner B made allegations of an incident during the second term where Nxongo bent over and tried to touch her vagina. Learner B also alleged that Nxongo used to have sexual conversations in class. These allegations arose during Learner B’s testimony and did not form part of the charges. Nxongo was not given an opportunity to prepare and respond to those allegations. This evidence is also not detailed in this award because the issue to be determined is whether Nxongo committed the misconduct set out in the charges.

12. C. Langa, an educator, testified that on 02 November 2022, before the morning tea break, he sent Learner A to deliver books to his classroom. He remembered that Nxongo was in his class at the time but he did not know if Nxongo was teaching or relieving. He saw Learner A leave with the books in her hands and he found the books in his class during the tea break.

13. Learner A testified that on 02 November 2022, Langa requested her to deliver some books to his classroom. She took the books to Langa’s class. When she got there, she found Nxongo with learners in class. Nxongo’s eyes were red and thought he was smoking again. She went to Nxongo’s desk and told him she was there to drop off the books. Nxongo was falling off the sleep and probably didn’t notice that she was there to deliver books.

14. She dropped off the books and, as she was about to leave, Nxongo called her to his desk. She went to his desk and he asked her to come closer. She went to the edge of his desk. Nxongo grabbed her hand and started pulling her. She tried to resist but he pulled her hard to the point where Nxongo kissed her on the side of her shoulder. The entire class said “sir, what are you doing”? Nxongo let her go. She opened the door and slammed it closed on the way out. Nxongo did not assist her to open the door.

15. She was in the class for about three minutes and Nxongo had kissed her shoulder for a second. She was sure that Nxongo kissed her because she heard the sound. She was really angry and had trouble opening the door. She was scared and she was afraid of what Nxongo could have done to her if other learners were not present and if she couldn’t have gotten away from Nxongo.

16. Under cross-examination, she denied that she had something in her hand and that Nxongo wanted to know what was in her hand. Nxongo pulled her hand with force and she felt a slight pain. She had to hold the desk but agreed that she didn’t previously mention this. The class was full but were not making a loud noise. She agreed that not everyone had said “Sir, what are you doing”. The door opened when she tried for the second time. She denied that before leaving, she spoke to two other learners.

17. Learner B testified that Learner A was her closest friend. Nxongo was her social science teacher. She was in the class when Learner A came to her class on 02 November 2022. She saw Nxongo hold Learner A’s hand and pull her towards him. Nxongo eventually left Learner A’s hand and Learner A left the classroom. The door was stuck but she didn’t see Nxongo help Learner A with the door. She didn’t see Nxongo kiss Learner A’s shoulder. There were learners in the classroom but they didn’t say anything. She didn’t hear learners say “Sir, what are you doing” and she didn’t make any comments in class about the incident.

18. When she was called to the principal’s office, she told them that the only thing she saw was Nxongo holding Learner A’s hand and could not confirm Learner A’s version that Nxongo had kissed Learner A on the shoulder. She agreed that in her statement, she said Nxongo “held’ and not “pulled” Learner A’s hand and that she did not mention that Learner A tried to pull her hand back.

19. Her incident happened on the same day as Learner A’s incident. During that class, Nxongo came to her, held her hand and told her that she has a small vagina. He also touched her face and told her that he wanted to have sex with her. Nxongo was at the front of her desk and she was seated. She didn’t say anything but her friend asked Nxongo to stop. She thought he was joking when Nxongo touched her face but realised that he was serious when he tried to touch her vagina. She felt very uncomfortable.

20. She denied that there was no social science period on that day and that Nxongo was relieving a maths class when the incident occurred. She remembered that Nxongo was teaching social science, doing corrections and, for about 30 minutes, Nxongo was marking work. She could not remember if that was before or after the break. She then remembered that it was before the break but didn’t know if it was the second or third break.

21. Her friend reported her incident and Learner A’s incident. She would not have reported her incident if her friend didn’t report it because she was scared and everyone knew that Nxongo always jokes around and plays with them in the classroom. The principal asked her to write her statement but didn’t tell her what to write.

22. She agreed that she and the other learners called to the principal’s office were the best of friends. When the secretary came to call them, the secretary said “… (learner B), you and your friends come to the office”. At the meeting, her friend said Nxongo also sexually harassed Learner B. She agreed that she was best friends with Learner A during and after school and that their families were also friends. She agreed that her mum is a social worker and brings food to school but denied that her mum and principal visits each other’s homes.

23. B.P. Mswale, the deputy principal at the school, testified he was present when Learner B and the other two learners, Learner C and D were interviewed about Learner A’s incident. The Learner B, C and D mentioned that Learner A had dropped off books and, on the way out, Nxongo called Learner A to his desk and pulled Learner A’s hand. Learner A didn’t like it and Nxongo released her hand. Learner B, C and D said that they did not see Nxongo kiss Learner A on the shoulder.

24. He maintained that Nxongo was not supposed to be in that class. It was a Maths period and Nxongo was relieving him. It was after the break between 11:30 and 12:30.

25. F.S. Tooray, the principal testified, that on 02 November 2022, Learner A reported that she was sexual harassed by Nxongo to another teacher which was then brought to her attention. She met with Nxongo who confirmed that he held Learner A’s hand but denied that he had kissed Learner A on her shoulder. In that meeting, Nxongo indicated in that when Learner A showed that she was unhappy and the class said “Sir, what are you doing”, he released Learner A’s hand as he realised that Learner A was uncomfortable.

26. She interviewed Learner B, C and D. They confirmed that Nxongo had pulled Learner A’s arm and Learner A felt uncomfortable. They said that Nxongo released Learner A’s arm when the class told him to let go Learner A’s arm. In that same meeting Learner B mentioned the what had happened to her during class.

27. She agreed that she wrote in her report that the three learners confirmed Learner’s A version but this was not true. She maintained that she phased it incorrectly because it was a traumatic time. She agreed that there would not have been a sexual assault case if she had worded her report differently. At that stage there was only a case for Learner A. She was not aware that there was a case for Learner B until she was informed by the circuit manager. She then got Learner B to write a statement. She did not instigate Learner A or B to make allegations.

28. Regarding Learner A’s case, she took into account that learners were saying contradictory things but learners said they were busy and not focused. She denied that it was unfair to take Learner A’s word regarding the kissing when the three learners contradicted Learner A’s version.

29. She had an arrangement with Nxongo to deposit school money into his account and Nxongo would draw the money and give it to her. Nxongo had agreed to this. They did not have a cheque system. It was difficult to make EFT payments. Teachers would use their personal money to purchase items and give her the receipt. On the 15th or at the end of the month, she would deposit the money into Nxongo’s account and, when he gave her the cash, she would the teacher/staff. The last deposit was on 28 October 2022. She stopped depositing money into Nxongo’s account after the allegations of sexual assault arouse.

30. She agreed that depositing money into Nxongo’s personal account amounted to maladministration and was irregular. She did not know it was Nxongo’s son’s bank account. She denied that she had a personal relationship with any of the parents.

31. Under re-examination, she maintained that the arrangement she had with Nxongo was a decision with the SGB but could not produce and documents. She maintained that it was not her fault that the circuit manager did not conduct an investigation regarding the allegations of Learner B.

32. T. Phakathi, the circuit manager, testified with regard to the investigation process. He confirmed that he did not conduct any investigation with regard Learner B.

33. Nxongo testified that on 02 November 2022, he was free after the break and Mswale, asked him to relieve in his (Mswale’s) class. He sat at the desk. After a few minutes, Learner A came into the class. She had something in her hand and was looking for something. He grabbed her arm to see what was in her hand. He held her at the wrist. He was seated and did not pull her towards him. He did not see what was in her hand because she did not open her hand. She asked him to let her go and she pulled her hand. He released her hand. She went to the door but could not open it because there was a problem with the door. He went to the door and assisted her to open it. He did not kiss her. He did not find any books on the desk when he got to the classroom after the break and Learner A did not have any books with her when she came to the class room.

34. Nxongo denied that he held Learner B’s hand and told her that she has a small vagina or that he touched Learner B’s face and told her that he wants to have sex with her. Learner B was class 9B. On 02 November 2022, he did not have a social science with class 9B and he did not meet the 9B class before the break. He taught social science at class 8A in the morning at 08:00 and class 9A at 09:00. At 11:30, after the break, he was relieving Mswale. He sat at the desk the whole time except when he assisted Learner A to open the door.

35. Under cross-examination, he maintained that Learner A came straight to his desk and he did not call her. He maintained that the version that Learner A went straight to Learner B, as put by his representative to Learner A, was incorrect. He “grabbed” Learner A’s hand with a bit of force but did not pull her. He wanted to see what was in Learner A’s hand because children have a way of sending messages to each other. He agreed that Learner A did not first go to Learner B and the other learners.

36. Learner F, testified that she was a learner in the same class as Learner B and was present when Learner A came into the class on 02 November 2022. This was after the break and Nxongo was relieving Mswale for maths. She did not have any social science period with Nxongo before the break. Nxongo was seated at his desk as he does not teach maths. Learner A went straight to Nxongo’s desk. Learner A had her fists closed and Nxongo wanted to know what was in Learner A’s hands. Nxongo held her hand and Learner A pulled back her hand and said “Sir, let go of me”. Nxongo let go of Learner A’s hand. Learner A went to the door but couldn’t open it. Nxongo then went to the door and opened it for Learner A. Learner A left. Nxongo did not pull Learner A’s hand and did not kiss Learner A on her shoulder. Learner A asked Nxongo to let of her hand because Nxongo was holding it tightly.

37. During that period, she did not see Nxongo touch Learner B on her face or hold Learner B’s hand and she did not hear Nxongo tell Learner B that she has a small vagina or that he wanted to have sex with Learner B. She sat one row away from Learner B. It was not a Social Science period and she did not see Nxongo stand up and go to Learner B.

38. Learner G testified that she was a learner in the same class as Learner B and was present when Learner A’s incident took place on 02 November 2022. Learner A came to the class and went straight to Nxongo. She saw Nxongo hold Learner A’s hand at the wrist. Learner A’s hand was closed and Nxongo was trying to find out what was in Learner A’s hand. Nxongo did not pull Learner A’s hand. Instead, Learner A pulled her hand and told Nxongo to let her go. Nxongo left her hand and Learner A went to the door. Learner A could not open the door because it was jammed. Nxongo stood up, went to the door and opened it. Learner A then left. Nxongo did not kiss Learner A. Learner A came to the classroom after the break. Nxongo was relieving the deputy principal for maths and was not teaching them social science during that period.

39. She maintained that Learner B’s version, that Nxongo held Learner B’s hand and told her that she had a small vagina or that Nxongo touched Learner B’s face and told her he wanted to have sex with her, was a lie. Nxongo did not go to Learner B during that period. He sat at his desk during that period except to open the door for Learner A. It was not a social science period. When Nxongo held Learner A’s hand, everyone in class became interested in what was in Learner A’s hand. She was certain that Learner A had something in her hand. Nxongo held Learner A’s hand without force. She sat two desks away from Learner B and would have heard if Nxongo said anything to Learner B because there was no noise. Learner A did not bring any books with her to the class.
ANALYSIS OF EVIDENCE AND ARGUMENTS

40. The key issue to be determined in this matter is whether Nxongo had sexually assaulted Learner A and Learner B as per the charges. Nxongo denied that he had done so. As to whether Nxongo had sexually assaulted the said learners would depend on the credibility and reliability of the witnesses and the probabilities of their versions being true.

41. The history of this matter is that after the principal became aware of Learner A’s complaint on 02 November 2022, she requested the admin clerk to go to the classroom and call the first three learners that sat closest to Nxongo’s desk. These learners included Learner B and Learner C together with another learner, whom I will refer to as Learner D. The deputy principal, Mswane, was also present. At that meeting, these three learners confirmed that Nxongo had pulled Learner A's arm but did not see Nxongo kiss Learner A on her shoulder. The principal then asked the three learners if Nxongo had normally behaved like that, ie, by pulling learners’ hands. At that stage, Learner D asked Learner B to “say what Sir did to you”. Learner B then related her version.

42. In determining whether Nxongo committed the misconduct as alleged by Learner A and B, I note that it is not the number of witnesses that counts in matters of this nature but the quality of their evidence. I also note that the employer has the onus to prove the allegation against an employee on the balance of probability. In this instance, Learner A and Learner B were the only witnesses to testify in support of their versions and there was no other corroborating evidence. Learner A’s and Learner B’s cases were separate and distinct and they did not give evidence in support of each other’s versions. In respect of both their cases, there were many learners in that classroom that the employer could have easily called to support its version but the employer failed to do so. With regard to Learner A, a possible inference to be drawn is that no other witnesses would have supported her version. In respect of Learner B, the employer failed to call Learner D who may have witnessed the alleged incident.

43. Nxongo’s version, on the other hand, was corroborated by Learners E and F. I considered whether they gave their evidence truthfully or whether they were just well-coached witnesses that were told what to say by Nxongo. In this instance, I prefer the former as they gave their evidence clearly, without contradictions and could not be found wanting under robust cross-examination. Both of them were reliable witnesses that were present in the class when Learner A’s and Learner B’s incidents took place.

44. With regard to Learner A, I accept from the common cause facts that Nxongo held Learner A’s arm at the wrist. I did not consider Learner A to be a credible witness. Learner B, the employer’s witness, sat at the front of the class and witnessed the whole incident. Learner B saw Nxongo pull Learner A’s arm but did not see Nxongo kiss Learner A on the shoulder. Learner A contradicted her evidence by saying that the whole class said “Sir, what are you doing” suggesting that the whole class had seen Nxongo kiss her on the shoulder. She later changed her version by saying only some learners had said so. Learner A’s version was contradicted by Learner B who, did not hear any learners say “Sir, what are you doing”. It is common cause that when Learner C and D were interviewed by the principal and deputy principal, they too said that they did not see Nxongo kiss Learner A on her shoulder. Learner E and F also testified that they did not see Nxongo kiss Learner A on her shoulder. Nxongo testified that he pulled Learner A’s arm but did not kiss Learner A on her shoulder.

45. Learner A’s version stands alone in the face of strong evidence that does not support her version. It is probable that Learner A fabricated her version because she was very angry and possibly embarrassed at the time when Nxongo pulled her arm in front of the class. Learner A confirmed that she very angry with Nxongo and slammed the door when she left the classroom and immediately went to complain. Her evidence at this arbitration hearing demonstrated that she was bent on discrediting Nxongo by saying things like “Nxongo’s eyes were red and she thought he was smoking again” and “Nxongo was falling off the sleep and probably didn’t notice that she was there to deliver books”. None of this evidence was corroborated by any other witnesses. In fact, Learner B’s version that Nxongo was busy teaching during that class contradicts her version.

46. In conclusion of Learner A’s allegations, I find, as the more probable version, that Nxongo did not kiss Learner A on her shoulder. I do not consider Nxongo’s holding of Learner A’s hand at the wrist, to be an act of misconduct, sexual or otherwise. I accordingly find that Nxongo did not sexually assault Learner A.

47. With regard to Learner B, the charge against Nxongo is that he held Learner B’s hand and told her that she has a small vagina and he touched Learner B’s face and told her he wants to have sex with her. I accept that young learners’ recollection of dates and times can be hazy sometimes and this normally does not go to their credibility or negatively affects the probability of their version being true. This, however, was not the case with Learner B. She was absolutely certain and adamant that her incident occurred during the same period that Learner A’s incident took place. Nxongo denied the allegations. Nxongo testified and accordingly called witnesses who were also present in that class to rebut Learner B’s version.

48. Learner B testified that Nxongo approached her desk whilst he was teaching. Nxongo’s version is that he did not go anywhere near Learner B during that period – he remained seated at his desk as he was relieving Mswane for a maths class and was not teaching. Whether Nxongo was teaching or relieving is relevant as it goes toward the probability of whether Learner B’s version, that Nxongo approached her desk, is true. It would be more likely that Nxongo would have been seated at his desk if he was not teaching during that period. I accept Nxongo’s version that he was not teaching but relieving Mswane’s maths class during that period. Nxongo’s version was supported by Mswane who testified that he requested Nxongo to relieve his maths class during that period. His version was also supported by the version of Learner E and F who testified that Nxongo was relieving a maths class during that period and that he did not leave his desk (except to open the door for learner A). Nxongo’s version was also, to some extent, supported by Learner A who testified that Nxongo was at his desk falling off to sleep when she entered the classroom. I therefore find, as the more probable version, that Nxongo did not approach Learner B’s desk during that period.

49. I accept, as the more probable version, that Nxongo did not hold Learner B’s hand and tell her that she has a small vagina or touch Learner B’s face and tell her that he wanted to have sex with her. Nxongo testified that he did not do so. Nxongo’s version was supported by Learner E and Learner F. Learner B’s incidents were of such a nature that it is likely that other learners in class would have heard and seen the incident, if it took place. There was no dispute that the class was not noisy on the day. Learner E and F were in the same class and they both sat within a reasonable distance from Learner B to have seen Nxongo approach Learner B’s desk, to have seen Nxongo touch Learner B’s hand and face and to have heard any conversations that Nxongo may have had with Learner B. They both testified that Nxongo did not approach Learner B during that period, he did not hold Learner B’s hand and tell her that she has a small vagina and he did not touch Learner B’s face and tell her that he wanted to have sex with her.

50. The employer had the onus to prove the allegations against Nxongo. Learner B’s version stands alone in the face of strong evidence that does not support her version. The employer did not call any witnesses to corroborate the version of Learner B. This is not one of those incidents that took place behind closed doors. Neither the principal nor anyone else actually conducted an investigation into Learner B’s allegations to check the veracity thereof. No reasons were provided as to why Learner D could not give evidence at this hearing.

51. Arbitrators are required to determine whether there are plausible reasons why a learner who alleges that she had been sexually assaulted, would lie. This is not always easy for a teacher to prove as there may be so many variable possibilities involved. It is clear that Learner A and B were friends and it is very coincidental that both their incidents occurred during the same period. Learner B was also friends with learner D. It is clear from the evidence that Learner B had no intention of lodging a complaint against Nxongo until she was called to the principal’s office and questioned as to whether “the teacher normally behaves like this” and she was encouraged by Learner D to “say what Sir did to you”. Learner D was not called to testify. Nxongo’s version is that the principal wanted to get rid of him and therefore got learners to fabricate versions against him.

52. It is plausible that the principal may have wanted to get rid of Nxongo. It is clear that the principal wanted to push forward a case of sexual assault against Nxongo despite knowing that the witnesses she interviewed (Learners B, C and D) had seen the incident but none of them had seen Nxongo kiss Learner A on her shoulder. The principal then dishonestly wrote in her investigation report that “I engaged with three female learners who were present in the grade nine class at the time and they confirmed the incident as reported by … (Learner A). She agreed that a case of sexual assault would not have proceeded if she had correctly worded her investigation report. The principal’s investigation report was misleading and mischievous and her conduct in this regard points in the direction that she may have wanted to get rid of Nxongo.

53. Further, it is common cause that the principal and Nxongo were engaging in an unprocedural and irregular activity where the principal would deposit the school’s money into Nxongo’s son’s personal account and Nxongo would withdraw and hand the cash to the principal. Nxongo’s version is that the complaints against him arose a few days after he informed the principal that he no longer wanted to participate in this activity. The principal denied this and indicated that she put an end to the arrangement after the allegation of sexual misconduct arose. Given the conduct of the principal mentioned above, it is plausible that this may be the reason why the principal may have wanted to get rid of Nxongo.

54. In conclusion of Learner B’s allegation, I find that Nxongo’s version is more probable than Learner B’s version. I accordingly find that Nxongo did not hold Learner B’s hand and tell her that she has a small vagina or touch Learner B’s face and tell her that he wanted to have sex with her. Nxongo therefore did not commit the misconduct as alleged by Learner B.

55. In conclusion, I find that Nxongo did not sexually assault Learner A and B and that Nxongo, therefore, did not contravened section 17(1)(b) of the Employment of Educators Act, 76 of 1998.

AWARD
56. In the circumstances I make the following award:
56.1. The employee, T. Nxongo, did not contravene section 17 of the Employment of Educators Act, 76 of 1998.
56.2. The employer, Department of Education KZN, must with immediate effect return T. Nxongo to work.

Raj Shanker
Senior ELRC Arbitrator
Kwazu