ELRC940-22/23GP

Panellist: Themba Manganyi
Case No.: ELRC940-22/23GP
Dates of Hearing: 02 May 2023; 22 June 2023; 01 August 2023;
07 & 08 September 2023 and 30 October 2023
Date of Arguments: 06 November 2023
Date of Award: 29 November 2023

In the Inquiry by Arbitrator Hearing between

GAUTENG DEPARTMENT OF EDUCATION EMPLOYER

and

SADTU OBO SIPHAMANDLA NGIBA EMPLOYEE

Employer’s representative: Ms Phindi Mokheseng

Employee’s representative: Mr Solane Mlambo

Details of hearing and representation

1. This is an arbitration award emanating from an Inquiry by Arbitrator process referred to the Education Labour Relations Council (“the Council”) by the Employer, the Gauteng Department of Education. The arbitration proceedings were conducted on 02 May 2023, 22 June 2023, 01 August 2023, 07 & 08 September 2023 and 30 October 2023 at Saxonwold Primary School in Randburg and at the Employer’s Head Office in Marshalltown, Johannesburg.

2. The proceedings only commenced on 07 & 08 September 2023 and finalized on 30 October 2023 due to the unavailability of the Employee’s (Mr Siphamandla Ngiba) representative and on other occasions the proceedings could not commence due to the unavailability of facilities to enable minor witnesses to testify.

3. Ms Phindi Mokheseng (“Mokheseng”), the Labour Relations Officer, represented the Employer and Mr Solane Mlambo (“Mlambo”), an Official from SADTU, represented the Employee. Ms Edna Shibisi and Mr Musa ka Myeza, the Intermediary and the Interpreter, respectively, assisted with their respective services.

4. The parties submitted bundle of documents, including the pre-arbitration meeting minutes, into the record and the contents of the documents were not in dispute. The Employer’s bundle was marked as Bundle A and the Employee’s bundle was marked as Bundle B. Parties were allowed to call and cross-examine witnesses. All the minor witnesses testified with the assistance of an Intermediary and an Interpreter during these proceedings. At the end of the proceedings, the parties agreed to submit the heads of arguments in writing on or before 06 November 2023. The parties have duly complied in this regard. The proceedings were digitally recorded and the recordings thereof were retained by the Council.

5. In this award, the names of the minor witnesses (learners) will not be disclosed to protect their identity. Only their initials will be indicated.
Issue/s to be decided

6. I am required to determine the veracity of the allegations that are preferred against Ngiba. In the event that I find that the allegations have merit, I will have to determine the appropriate sanction.

Rights and the procedure

7. All the rights commensurate with a fair process and the nature of the process were explained to the parties.

Charges

8. The Employer preferred the following charges against Ngiba:

Allegation 1:
It is alleged that on or about October 2022, while on duty, you conducted yourself in an improper or unacceptable manner in that you put your hand around Learner KM’s neck, a Grade 6 learner at the school. You also looked at her bums while she was picking a pen and uttered the following words to her: “Mamakhe” and “Mabhebheza”.

Allegation 2:
It is alleged that on or about September 2022 and on Heritage Day, while on duty, you conducted yourself in an improper or unacceptable manner in that you looked at Learner LM’s bums, a Grade 6 learner at the school, and winked at her.

Allegation 3:
It is alleged that on or about October 2022, while on duty, you conducted yourself in an improper or unacceptable manner in that you touched Learner OZ’s bums, a Grade 6 learner, by you hand whilst pulling her dress down.

Allegation 4:
It is alleged that on or about October 2022, while on duty, you conducted yourself in an improper or unacceptable manner in that while in the NS / Tech class, you told Learner AB that she reminds you of “nik naks” man because every time you look at her, you get hungry.

Allegation 5:
It is alleged that on or about October 2022, while on duty, you conducted yourself in an improper or unacceptable manner in that you touched Learner RL’s bum, a Grade 6 learner, and even called her “mamas” in front of another learners (sic).

Allegation 6:
It is alleged that on or about October 2022, while on duty, you conducted yourself in an improper or unacceptable manner in that you call Learner KM “Mamkele”, a Grade 6 learner, and even looked at her bums (sic).

In view of the above allegations, you are thus charged in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.

Pleadings

9. Ngiba pleaded NOT GUILTY to all the allegations.

Survey of evidence and arguments

The Employer’s case

10. Learner KM1 testified under oath and with regard to allegation 1, she stated that it was on a Wednesday after school whilst they were walking next to the library, Ngiba told them to stay away from boys and he put his hand around her neck. She told him to remove it because she was not feeling comfortable. Learner MT commented when Ngiba put his hand around her (Learner KM). She stated that the following day she dropped her pen on the floor and when she bent to pick it up, she could feel Ngiba looking at her bums. She asked her friend if Ngiba was indeed watching her bums and her friend confirmed that Ngiba was watching her bums. She stated that Ngiba called her “mamakhe” and “mamas”. She stated that she felt belittled by Ngiba’s actions.

11. Under cross-examination, she submitted that she knew about the new teacher on the day Ngiba arrived at the school. She stated that Ms Mthiyane was their previous teacher and they were fond of her. She disputed that she held a conversation about Ngiba with her friends. She disputed that they wanted to make Ngiba feel uncomfortable. She submitted that on the day that Ngiba put his hand around his neck, it was after school and they were walking in two queues as a class and that she was at the back of the queue and that Ngiba was walking besides the queues next to her. She stated that Learner MT saw Ngiba put his hand around her neck. She confirmed that she did not see Ngiba looking at her bums. She disputed that Ngiba only taught them for only one week.

12. Learner MT testified under oath and stated that it was a Wednesday after school when Ngiba put his hand around Learner KM’s neck. She remarked about Ngiba’s action. She stated that on Tuesday, Learner KM requested Ngiba to explain a question to her. In response, Ngiba said “I am coming mamakhe, mabhebheza”. She testified that Learner KM’s pen fell and when she bent to pick it up, she saw Ngiba looking at Learner KM’s bums. Learner KM asked her if Ngiba was looking at her bums.

13. Under cross-examination, she stated that she could not recall the date of the Tuesday’s incident. She could recall that the incident occurred around October just after the school reopened. It was put to her that the incident of a Tuesday could not have been the 18th of October 2022 because Ngiba was already suspended. In her response, she was adamant that Ngiba was in class on that date. She stated that Ngiba would not be telling the truth if he would say that he did not look at Learner KM’s bums. She stated that Ngiba was coming from the back of the class and Learner KM was facing the chalk board when she was picking up her pen. She submitted that she only knew that they will be getting a new teacher on the day Mthiyane brought Ngiba to class. Then she changed and stated that they knew a few days about Ngiba’s arrival some few days before he arrived.

14. Learner LM1 testified under oath and stated that on Heritage Day she stood at the door to get fresh air. Her friend told her after school that Ngiba looked at her bums. She stated that she felt uncomfortable when her friend told her that Ngiba looked at her bums.

15. Under cross-examination, she stated that they were told a week before Ngiba’s arrival that he was coming. She disputed that she had a discussion with her friends about Ngiba. She could not recall when Ngiba arrived at the school. She stated that her friend (Learner LM) that saw Ngiba looking at her bums was coming from outside. She stated that she was on her desk when Ngiba winked at her.

16. Learner LM2 testified under oath and stated that she saw Ngiba looking at Learner LM1’ bums when they were in class. She stated that it was wrong for Ngiba to look at Learner LM1’s bums because he was a male and he was not supposed to look at kids’ bums. She stated that she was sure that Ngiba was looking at Learner LM1’s bums because his eyes were fixated on her bums.

17. Under cross-examination, she stated that she was looking at both Ngiba and Learner LM1 when she saw Ngiba looking at Learner LM1’s bums. It was put to her that it was not probable that she could have seen Ngiba looking at Learner LM1’s bums. She was adamant that she was telling the truth.

18. Learner OZ testified under oath and stated that it was after school when Ngiba pulled her dress down and touched her bum. She stated that her dress was pulled up by her school bag and she did not realize that. She submitted that she said nothing when Ngiba pulled her dress down. She stated that she did not feel comfortable. She did not tell Ngiba how she felt as she was afraid.

19. Under cross-examination, she stated that she knew about a week before that they were going to have a new teacher. She disputed that they she had a discussion with her friends that they were going to deal with Ngiba. She stated that the learners were walking in two queues and that Ngiba was walking behind her between the two lines. She stated that at first Ngiba was walking in front of the queue, but when they approached the hall, he was behind because he was waiting for other learners. It was put to her that Ngiba would not turn back and touch her in the presence of the principal and other teachers. In response, she stated that Mlambo cannot dispute what happened to her because he was not there. She stated that she did not report Ngiba to the principal and the teachers immediately because she did not want to get people into trouble.

20. Learner AB testified under oath and stated that Ngiba called her Nik Naks and said that she reminded him of Nik Naks and when he sees her he gets hungry. She stated that Ngiba’s utterances did not sit well with her to be compared with food. She told her mom that she no longer felt safe at school.

21. Under cross-examination, it was put to her that Ngiba called her Nik Naks only once and the reason for calling her that was because he did not know her name. she refuted that version and stated that he called her Nik Naks a day before and he said she reminded her on the Nik Naks man.

22. Learner RL testified under oath and stated that she was walking down the stairs and Ngiba came from her behind and he touched her bum. She stated that another Learner saw Ngiba touching her bum. She stated that it made her feel uncomfortable.

23. Under cross-examination, she did not know that Ngiba was coming to their school. She disputed that she a discussion with her class mates about Ngiba. She submitted that the incident occurred around the fifth period. She stated that she did not see Ngiba touching her, but she felt him touching her.

24. Learner KM2 testified under oath and stated that she was in class on the day in question and she requested Ngiba to explain the task that he gave them. Ngiba smiled and said “mamakhe”. She said she did not tell Ngiba that she did not like to be called “mamakhe”, because that would have been disrespectful. However, she felt uncomfortable.

25. Under cross-examination, she knew about Ngiba coming to their school on the day that he arrived. She disputed that she a discussion with her friends that they were going to deal with Ngiba. She stated that Ngiba would be mistaken if he would say that he never touched her bum, called her “mamakhe” or looked at her bum.

26. Mr Sanjay Maharaj (“Maharaj”) testified under oath and stated that he was the Principal at Parkhurst Primary School. He stated that the learners reported the allegations to the educators and then to the School Management Team and himself. He stated that he made Ngiba aware of the allegations against him. He testified that the learners were not told who was going to be appointed as their new teacher. He stated that Ngiba indicated that there was a campaign against him. There were other male educators in the school.

27. Under cross-examination, he stated that Ngiba came to the school during the third term and that Ngiba was stopped from going to class on 18 October 2022. He stated it was announced that Ngiba would be joining them on the day that he came to school. He confirmed that he did not see Ngiba touching the learners.

The Employee’s case

28. Ngiba testified under oath and stated that the allegations that are levelled against him are untrue. He stated that whenever he led the learners, he always led them from the front and that he never had any discussion about boys with Learner KM1. He denied that he has ever called Learner KM1 “mamakhe” or “mabhebheza”. He testified that he has never put his hand around Learner KM1’s neck. He disputed that he has ever looked at any learner’s bums nor winked at any learner. With regard to Learner OZ, he stated that he did not recall her. However, he recalled that whilst he was leading the learners from the front, he heard some learners laughing and when he went at the back of the queue, he realized that Learner OZ’s dress was lifted up. Hence, the learners were laughing. He stated that he tapped on Learner OZ’s shoulder and told her to pull her dress down. He confirmed that he called Learner AB Nik Naks only once because she was making noise. The reason that he called her Nik Naks was because he did not know her name and that she looked like the cartoon on the Nik Naks chips. He denied that he said that whenever he looked at Learner AB she made him feel hungry. He stated that he these learners fabricated these allegations because they did not like him.

29. Under cross-examination, he stated that he did not know what these learners’ motive for these allegations was. He thought that somebody could have told them to fabricate these allegations. He stated that these learners were lying about these allegations. He disputed that the version that the learners were not friends. However, he did not comment about the fact that the learners were not in the same class.

Closing arguments

30. Parties submitted their heads of arguments in writing. I propose not to rehearse them herein. I will only refer to the arguments in my analysis where necessary.

Analysis of evidence and argument

31. This is an award in terms of section 138(7) of the Labour Relations Act 66 of 1995, as amended (“the LRAA”). Therefore, these are the brief reasons for my finding.

32. It is trite that the test that is applicable in employment law is that of “on a balance of probabilities” and not “beyond reasonable doubt”. It is trite that in proceedings where minors are involved, the arbitrator should endeavor to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify and facilitate the ascertainment of truth so that the best interests of the child are upheld and to promote maximum accommodation of child witnesses without prejudice to the rights of the accused educator. I am satisfied that the environment in these proceedings was conducive for children to testify.

33. Both Mokheseng and Mlambo, in their heads of arguments, correctly relied on the Stellenbosch Farmers’ Winery Group Ltd SCA judgment to enunciate three factors that a commissioner must grapple with when confronted by two conflicting versions. That is, the credibility of witnesses, the reliability of witnesses and the probability of the respective versions.

34. Courts have recognized that the evidence of children cannot be assessed in the same way as the evidence of adults, that it may be wrong to apply adult tests for credibility to the evidence of children, that a fair trial must not only take into account the rights of the accused but also the rights and capabilities of children, that a contradiction in a child's testimony should not necessarily be given the same effect as a similar flaw in the testimony of an adult and that evidence if given by an adult may have had a deficiency so grave as to require rejection of it as incredible, may in the case of a child be explicable as due to the limitation of a child's immaturity rather than lack of rationality. I was impressed by the learners’ consistencies even during cross examination. I am mindful of the incorrectness on the peripheral issues, such as time and dates, in the learners’ evidence. However, they maintained their versions on what really transpired during their evidence in chief and under cross examination. I therefore find that they were credible and reliable witnesses.

35. Ngiba’s defence turned on a supposition that the learners concocted their versions even prior to him reporting for duty at the school. It was his version that the learners held a discussion about him before he came to the school planning to deal with him. According to him, there is a boy learner who heard the girl learners conniving against him. He attempted to call this boy learner as his witness in these proceedings. Unfortunately, he could not secure this boy learner as a witness because he did not know his name; he only knew where the boy sat in class. It was Maharaj’s unchallenged evidence that the school did not announce to the learners about Ngiba’s arrival prior to his actual arrival. It therefore follows that if indeed the learners connived against Ngiba, it would be during his presence at the school. I find it farfetched that the thirteen (13) year olds would pre-plan the downfall of an educator that they have not even met.

36. It must be noted that these allegations were reported during October 2022 and these proceedings only commenced during May 2023. I therefore do not have any reason to doubt the inaccuracies on the learners’ evidence in respect of the exact dates. What is of importance is that the learners were able to recall the critical aspects of their allegations. In all the allegations that were levelled against him, Ngiba only conceded to have called Learner AB as Nik Naks and simply because her dreadlocks reminded him of the cartoon on the Nik Naks chips pack. Was it appropriate to call her that? Definitely not. Name calling alone is sufficient to make a learner feel uncomfortable. Ngiba also unwarily conceded that he tapped on Learner OZ’s shoulder to warn her that her dress was up. His conduct in this instance, in my view, it was inappropriate.

37. Learner KM1 and Learner MT testified that Ngiba put his hand on Learner KM1’s neck. Ngiba denied this allegation. In his heads of arguments, he stated that Learner KM1 and Learner MT contradicted each other on the issue of where would Ngiba lead the class from and again on who commented first about Ngiba’s hand around Learner KM1’s neck. In his testimony, Ngiba stated that on the day of Learner OZ’s allegation, he went to the back of the queue. It is therefore not correct that Ngiba always led the class from the front. Whenever the need arose, he would go to the back of the queue if there were issues that he needed to address with the learners. It is therefore probable that on the day of his hand around Learner KM1’s neck, he went to the back of the queue. I align myself with Mokheseng’s argument that no thirteen (13) year olds would be that sophisticated to plan a downfall of an educator with such precision. It must be noted that during the preliminary investigations of 18 October 2022, the learners were told that they needed to tell the truth because these allegations could put them into trouble if they were lying. In my view, this warning would have sent the girls packing if indeed they were conniving against Ngiba.

38. What would these learners’ objectives be in conniving against Ngiba who they did not know? According to Ngiba, he was informed about this conspiracy about him by a certain boy learner. If indeed this version is correct, it was upon Ngiba to act upon this information and report the conspiracy against him to the authorities. It is evident that the reason that he did not report this conspiracy because none existed. Ngiba’s defence was bare denial in all the allegations that were levelled against him. Ngiba testified that he did not know the learners’ names because he was a new educator at the school. In my view, it would not be farfetched that he would call the learners with pet names like he called Learner AB Nik Naks. In all likelihood, he could have called the learners as ‘mamakhe” and “Mabhebheza”. It is therefore my finding that Ngiba is guilty on all allegations.

Award

I find
39. Mr Siphamandla Ngiba GUILTY on a balance of probabilities of all the allegations preferred against him.

40. In view of my guilty finding on allegations related to sexual harassment, I find that dismissal would be appropriate under the circumstances.

41. I also find that Mr Siphamandla Ngiba is unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the Council must, in terms of section 120(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the finding of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005 that Mr Mpho Masinga 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.

42. I further find that the Educator, Mr Siphamandla Ngiba, as a consequence to the transgression as referred to in paragraph 7 herein-above is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.


Arbitrator: Themba Manganyi