ELRC772-22/23FS

THE INQUIRY-BY-ARBITRATOR BETWEEN

THE SUPERINTENDENT-GENERAL
FREE STATE DEPARTMENT OF EDUCATION EMPLOYER

and

MR MOAHLODI ABEDNIGO MOTOTO EMPLOYEE

Case No: ELRC772-22/23FS
Dates: 17 Feb, 18 Apr, 31 Aug, 31 Oct & 01 Nov 2023
Venue: DOE Provincial Office, Bloemfontein


AWARD


DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award, in the disciplinary matter (Inquiry-By-Arbitrator) between, the Superintendent-General: Free State Department of Education (hereinafter ‘the employer’), and Mr Moahlodi Abednigo Mototo, ‘the employee’.

2. The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) was first scheduled for 17 February 2023, then 18 April 2023, then 31 August 2023, and finalised on, 31 October and 01 November 2023. Both parties attended the Inquiry. The employer was represented by, Ms Lindiwe Cweba, its Labour Relations Officer. The employee was represented by, Mr RP Dikotsi, an Official from the trade union, NAPTOSA.

3. The Inquiry was held under the auspices of the Education Labour Relations Council (hereinafter the Council), in accordance with section 188A of the Labour Relations Act (the LRA), read together with Clause 32 of the Council’s Dispute Resolution Procedure, as well as the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued in accordance with section 138(7) of the LRA.

4. The proceedings were digitally recorded, and Ms Philani Nyezi was the Interpreter. Mrs MA Mphatane was the Intermediary. The parties’ representatives requested at the end of the Inquiry, to submit closing arguments in writing by, 08 November 2023.

ISSUE TO BE DECIDED

5. I am called upon to decide whether the employee misconducted himself, as per the allegations levelled against him. If I find that he did commit the misconduct, I must decide on an appropriate sanction.

BACKGROUND TO THE DISPUTE

6. It is common cause that the employee is employed by the employer as an Educator, and teaching Accounting and EMS, since, 01 January 2011, at Mamelang Thuto Secondary School, in Bothaville to date. Following an alleged act of alleged misconduct on, 06 July 2022, the employee was then notified of the charge against him on, 25 November 2022.

7. The allegation levelled against the employee is as follows:

Charge 1
You have contravened Section 17 (1) (b) of the Employment of Educators Act, No 76 of 1998, in that on 06/07/2022, you committed an act of sexual assault on a grade 12 learner when you inserted your finger in her vagina

Alternative to Charge 1
You have contravened Section 18 (1) (q) of the Employment of Educators Act, No 76 of 1998, in that on 06/07/2022, you conducted yourself in an Improper, disgraceful or unacceptable manner when you hugged and touched the breast and buttocks of a grade 12 learner. [sic]

8. The employee pleaded not guilty to the charge, and its alternative. The employee was properly served with a notice to appear at the Inquiry, and was provided with sufficient time to prepare for the case. His rights and obligations were also properly explained to him at the commencement of the Inquiry.

9. For purposes of this award, the name of the learner involved in this case, shall be kept confidential. The learner was 20 years old, and in Grade 12 at the time when the alleged incident took place. It appears that the alleged incident took place in the office of the employee.

SURVEY OF EVIDENCE AND ARGUMENT

10. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.

Documentary Evidence

11. The employer handed-in as evidence, a copy of the notice of the disciplinary hearing, and a transcript of a telephone conversation between the employee and the learner.

Employer’s Case

12. The learner, testified as the first witness for the employer. She testified that it all started on, Monday 04 July 2022, when the employee asked her and two other learners to assist him with the marking of scripts. The learner stated that on the following day, the employee called her alone for more assistance with papers. She stated that the day thereafter (Wednesday 06 July 2022), whilst having their feeding scheme food, the employee asked her to see him in his office.

13. The learner testified that she immediately informed Blessing, a friend of hers, soon after the conversation with the employee, that she is uncomfortable with the employee always asking her for assistance and favours. She stated that she said this to Blessing because her fellow classmates also became suspicious of her sudden relationship with the employee. The learner stated that Blessing advised her to take a calculator with him to the employee’s office, and that he (Blessing) would come around and pretend to be looking for the calculator, just to check on her safety.

14. The learner testified that she then went to the employee’s office later on, as instructed by the employee. She testified that the employee asked her to accompany her to his office, of which they went. The learner stated that they had to pass through two doors, before they could reach the employee’s office. She stated that upon their entrance in the office, the employee also closed the second door behind him, and stood with his back towards the door and grabbed her.

15. The learner stated that the employee started to touch her breasts and buttocks. She stated that she asked the employee what he is doing, and the employee did not answer her and continued to do what he was busy with. She stated that the employee tried to unzip her pants (which she was wearing at the time), but it was too tied. The learner stated that when the employee realised this, he then decided to put his hands inside the pants, and touched her vagina, and inserted his finger inside her vagina.

16. The learner testified that it was then when Blessing knocked at the first door, and opened it. She stated that the employee stopped immediately, and grabbed a marksheet and gave it to her, to pretend as if they were busy going through papers. She stated that Blessing then entered the office, and asked her for the calculator, and told her at the same time that Mr January would like to see her. The learner stated that the employee responded to Blessing, and told Blessing to tell Mr January that she (the learner) would go to Mr January later.

17. The learner stated that she left the office, and called Blessing, and ran to the toilet. She stated that she was scared and in tears of what happened. She stated that Blessing and Lucky (an assistant teacher) came to her. The learner stated that she narrated to them what happened, whereafter they told him that they will take her to the employee, in order for the employee to apologize for what he did. She stated that this so happened, and the employee apologized for what he did.

18. The learner stated that she reported the matter to her parents, even though she left out the details of the penetration of the vagina with the finger. She stated that her parents visited the school, to formally report this to the principal. She stated that after the meeting held at the school, the employee told her again that she is intelligent, and must not disclose what happened between them. The learner stated that she decided to record the second whatsapp voice communication between her and the employee, where the employee begged him not to reveal what really happened between them.

19. In cross-examination, the learner stood by her testimony, and added that her trouser even teared, when the employee forced his hands inside her private parts. She added that the employee was not aware of the voice recording, and that the employee tried to manipulate the truth. The learner added that she has no knowledge of Mr Moepi and other colleagues of the employee, trying to thank his mother for reporting the incident.

20. Mr Tshediso Benedict Makaota ‘Blessing’, a former learner at the school, testified as the second witness for the employer. He confirmed the version of the learner, and narrated how the learner constantly told him about the employee inconvenienced her, by constantly asking for work related favours. Blessing stated that on the Wednesday of the incident, the learner told him that the employee wanted her to visit him again in his office. He stated that it was then when he (Blessing), and the learner agreed to put him (Blessing) on standby, with a calculator, just to walk onto them.

21. Blessing testified that it so happened that the learner went to the employee’s office, and that some time later, he decided to go to the employee’s office, and passed two doors. He stated that upon entering the office, he found the employee pretending to look for papers on a table, whilst the learner was standing nearer to the door. Blessing confirmed that he told the learner that Mr January is looking for her, and the employee replied: ‘the learner will come’ and chased him out of the office.

22. Blessing stated that he went back to his class, and sat in the front row. He stated that the learner then passed by his class, and called him out. He stated that he went out, and that he and the learner went to another block, near the toilets, where the learner narrated to him what happened, and also showed him the torn trouser. Blessing stated that the employee then came around, and disrupted them. He stated that moments later, the employee asked him what he knows, and after telling the employee what he knew, the employee then told him that he (the employee), would like to apologise to the learner. Blessing stated that the details of the penetration was not yet made known to him by both the learner, and the employee.

23. Blessing stated that as a COSAS member at the school, he sought advice from a certain Mr Mashoeng, who then told him that the incident must be reported. He stated that he, the learner, the employee and Mr Mashoeng then had a meeting in Mr Mashoeng’s office, where the employee apologised to the learner, without disclosing the details of the penetration. Blessing testified that the learner’s parents visited the school the following day.

24. Blessing stated that whilst the parents were at the school the following day, the employee then called the learner to his office, and pleaded with the learner to conceal the truth. He stated that the learner decided to secretly record their conversation, and played the recording to him, after the learner met with the employee in his office on the Thursday, before the meeting with the parents could start. Blessing stated that it was then when the learner disclosed the details of the penetration to him. He stated that they immediately sent the voice recording to the learner’s mother. Blessing stated that he insisted to be part of the meeting with the parents, and insisted that the learner, in the absence of the employee, told her side of the story too.

25. In cross-examination, Blessing stood by his testimony, and added that the employee was a strict, and rude teacher. He stated that the employee’s rude utterances towards learners nearly drove one learner to commit suicide. Blessing stated that in their meeting with Mr Mashoeng, the employee said that he (the employee), did not know what evil came over him, and that the employee apologised.

26. Mrs Mampho Paulina Montwedi ‘Mrs Montwedi’, the learner’s Aunt, testified as the third witness in the employer’s case. She also narrated on how the learner reported the incident to her on a Wednesday, the incident of which she reported further to the rest of the family. Mrs Montwedi stated that they (the family) decided to visit the school the following day, in order to report the matter to the principal. She stated that the following day at the school, whilst waiting for the principle, the employee also came to them, and told them that he (the employee) has already apologised to the learner.

27. Mrs Montwedi stated that the employee was emotional and told them that he only hugged the learner. She stated that she asked the employee on whether it is a habit of him to hug learners, and the employee told them that he only hugged learners when he was excited. Mrs Montwedi stated that the employee told them that he does not know what evil got into him, but that he apologised to the learner.

28. Mrs Montwedi stated that after the meeting with the principal, they left, and upon her arrival at home, she found a voice recording on her cellphone’s whatsapp, from the learner. She stated that she questioned the learner about the voice recording, and the learner told her that she (the learner), wanted her to hear for herself. Mrs Montwedi stated that it was only after listening to the recording, where the details of the penetration, and the touching of the breasts became known to them.

29. Mrs Montwedi stated that they went to the school again, when the schools reopened, and found officials of the employer in a meeting at the school. She stated that the officials were shocked to learn from them (the family) that the employee committed the act. Mrs Montwedi stated that the employee was busy resigning from his work, and the officials decided to reject the resignation of the employee, and insisted that the employee must account first for what he did to the employee. She stated that it is unlikely that an educator, who only gave a learner an innocent hug, would want to resign urgently.

30. In cross-examination, Mrs Montwedi stood by her testimony, and denied that two of the employee’s colleagues, Mr Moepi, and Mr Letsie, ever visited her home to discuss this case. She stated that it was only the principal who visited her as part of the investigation. Mrs Montwedi stated that the incident affected the learner negatively, especially on social media, to a point where the learner failed matric. She stated that the learner clarified to her what they (learner and employee) meant in the voice recording by “ka pele”, which means “the employee inserted his finger in the learner’s vagina”. Mrs Montwedi stated that the learner was in such as state after the incident, that the learner feared to go to school, or to be in proximity with the employee.

31. Mr LA Ramathibe ‘Mr Ramathibe’, the Principal, testified as the fourth witness for the respondent. He explained how he was urgently called to go to the school on, 07 July 2022 by the employee, when the learner’s parents wanted to see him (Mr Ramathibe) at the school. Mr Ramathibe stated that the employee was a departmental head at the school, and that the employee admitted to them in the meeting that what the learner them was indeed the truth.

32. Mr Ramathibe stated that they had two separate meetings with the learner and the employee, in order to capture their versions separately. He stated that the learner told them how the employee touched her breasts, and how the employee also touched/tried to inserted his finger in her vagina. Mr Ramathibe stated that the employee later changed his version, and said that he (the employee) only hugged the learner. He stated that a voice recording was also played, whereafter he reported the matter to the respondent.

33. In cross-examination, Mr Ramathibe stood by his testimony, and confirmed that the employee was a branch chairperson of NAPTOSA at the school, and did not appoint staff members at school based on union affiliations. He stated that he knew about the employee’s attempt to resign, as well as the employee’s health issues.

34. Mr Lucky Mashoeng ‘Mr Mashoeng’, Former Educator Assistant, testified as the fifth witness for the respondent. He confirmed that he was approached by Blessing about the discomfort which the learner had in relation to the employee. Mr Mashoeng testified that the incident was reported to him by Blessing, and that a meeting took place in his presence where the employee apologised to the learner, after which the learner accepted the apology. He stated that he only became aware of the true details of the incident (the fingering), after the voice recording went viral on the school premises.

Employee’s Case

35. Mr Moahlodi Abednigo Mototo, the employee, testified as the first witness in his case. He gave an overview of his career, and how he progressed as a teacher, and moved from SADTU to NAPTOSA, and the politics which went along with it. The employee also stated how he knew the learner, and how he taught the learner Accounting. He denied having ever inserted his finger in the learner’s vagina, and confirmed that he was alone with the learner in his office, when Blessing came in and looking for a calculator. The employee stated that Blessing and the learner left together.

36. The employee denied having teared the learner’s trouser, and stated that he apologised to the learner for the hug and work he gave her, at a meeting where the four of them were together (him, Mashoeng, Blessing and the learner). He denied having attempted to resign, and believed that SADTU members were conniving against him by trying to stop him from being promoted. The employee denied that his resignation had to do with the learner, and stated that his resignation was accepted the first time around, but after the school holidays, Mr Ramathibe informed him that the resignation was not accepted.

37. The employee cited a number of names (fellow colleagues), and accused them of trying to stop him from running for deputy principal. He stated that one of his colleagues even gathered the school children at the school’s hall, and played the voice recording to them.

38. In cross-examination, the employee stated that his cases at the police, and SACE were still pending, and stated that they were encouraged at a workshop to hug learners, and that he stood back when the learner gave a negative reaction to the hug he gave her. He denied having asked the learner to change her version pertaining to the recording, and confirmed that the learner was not part of the conniving by his colleagues.

39. Mr Gift Ramatema ‘Mr Ramatema’, COSAS Secretary, testified as the second witness in the employee’s case. He stated that he was a former learner in 2022, and that COSAS, SADTU, and the ANC were in coalition. Mr Ramatema stated that in early March 2022, Mr Ndlovu, and Mr Manji of SADTU had a meeting with him, and wanted him to investigate the employee. He stated that in that meeting, he was told that the employee must be brought down, because the employee was a NAPTOSA member.

40. In cross-examination, Mr Ramatema said that he was told what happened to the learner, and also wanted to investigate the incident, but that Mr Ramathibe stopped him from doing that. He stated that he and Blessing was pressurised by SADTU to investigate the employee.

41. Mr Mogeseng Khotso ‘Mr Khotso’, a fellow educator, testified as the third witness for the employee. He testified about a deputy principal’s post at the school which the employee also applied for. Mr Khotso elaborated on the irregularities in the selection processes, and how the school’s gate keeper told him and the employee on how a certain Mr Nzunga promised him, that they will do the same to him (Khotso), as what they did to the employee. In cross-examination he stated that he knows nothing about the allegations of the learner, and heard about the incident for the first time in the school hall.

42. Mr Itumeleng Ephraim Letsie ‘Mr Letsie’, a fellow teacher, testified as the fourth witness of the employee. He stated that he once gave a certain Mr Moepi a lift to Moepi’s home, and that on the way, they stopped at the learner’s parents’ tuck shop, in order for Mr Moepi to buy something. Mr Letsie stated that Mr Moepi then came back to the car, and took some of the snacks which he bought, and went and gave it to the learner. Mr Letsie stated that he found it quite strange that Moepi would buy these snacks for the learner, whereas the learner may easily access it at their tuck shop. In cross-examination, he stated that ride was given to Mr Moepi before the incident could take place, and do not think that the given of snacks was unrelated to the incident. Mr Letsie stated that he was not part of the conversation between the learner and Mr Moepi.

ANALYSIS OF EVIDENCE AND ARGUMENT

43. As stated previously, the employee pleaded not guilty to the charges levelled against him. The employer called five witnesses. The employee called three witnesses in his case.

44. The employer’s case is that the employee committed an act of sexual assault on the learner, when he inserted his finger in her vagina. The employee contended that he is not guilty of the allegations, and that he was framed by fellow colleagues who are affiliated to SADTU. I shall now proceed to consider the allegation(s), the facts and evidence of case, as well as the application of the law on the facts.

Charge 1
You have contravened Section 17 (1) (b) of the Employment of Educators Act, No 76 of 1998, in that on 06/07/2022, you committed an act of sexual assault on a grade 12 learner when you inserted your finger in her vagina

Alternative to Charge 1
You have contravened Section 18 (1) (q) of the Employment of Educators Act, No 76 of 1998, in that on 06/07/2022, you conducted yourself in an Improper, disgraceful or unacceptable manner when you hugged and touched the breast and buttocks of a grade 12 learner. [sic]

45. I am finding the employer’s witnesses to be credible, and reliable, in that their versions were closely linked, and it corroborated one another well. Even the employee also placed him on the crime scene (for lack of a better phrase), and where he only blatantly denied the insertion of the finger in the vagina, as well as the touching of the buttocks of the breasts.

46. The learner gave a proper account of what happened, and I could not pick up anything in the evidence which could suggest that the learner fabricated her version, in order to advance a certain agenda against the employee. None of the employee’s witnesses could establish a direct link between the rivalry between SADTU and NAPTOSA members, and how the learner came to make the allegations against him.

47. The employee’s witnesses have made out a prima facie case, that perhaps the employee might have been a victim of unfair labour practices, as far as the promotional post of deputy principal is concerned. However, I will be misconstruing the enquiry before me, if I should regard that as a valid defence for what transpired in the employee’s office on, 06 July 2022. What is before me is a platform where the employee has to account for his conduct, in his office, alone with the learner (as confirmed by him in his testimony), on 06 July 2022.

48. Though the employee denied having touched the learner’s breasts and buttocks, and having inserted his finger in the learner’s vagina, he did not put it to any of the employer’s witnesses what really transpired behind those closed doors, other than to corroborate the learner’s and Blessing’s versions that he was busy looking for papers on a desk in his office, at the moment when Blessing entered the office.

49. The applicant also did not deny having apologised to the learner during in informal meeting between him, the learner, Blessing, and Mr Mashoeng. He also did not deny having apologised to the parents before the meeting with Mr Ramathibe could start, albeit for a ‘hug’ which he apparently gave to the learner, behind closed doors. The employee could also not give details of the ‘workshop’ where he was encouraged to hug learners. Be that as it may, I tend to agree with the learner’s Aunt, Mrs Montwedi, that why would a teacher like the employee weep, and want to resign for simply giving a learner an innocent hug.

50. The evidence answers this question in the negative, in that there was more to what the employee did to the learner, than a mere innocent hug. The voice recording in which the employee pleaded to the learner not to disclose about the vagina, says it all. Now irrespective of the interpretation which the employee wants to give to the conversation between him and the learner in the recording, the fact of the matter remains that the learner’s version is far more probable than that of the employee, in that the employee did not just give her a mere innocent hug, but that he penetrated the learner without her consent.

51. The learner gave evidence that she was fearful to heed to the employee’s call to visit him in his office, to a point where Blessing had to be asked to be on standby. The two doors through which Blessing had to pass, seems to be what signalled the employee to stop with that which he was busy with, and to pretend to be looking for papers. Two witnesses (Blessing and Mrs Montwedi) confirmed that the learner’s trouser (the zip) was damaged. This once again proves that the learner’s version about the event, in the office of the employee cannot be doubted.

52. Even if SADTU and its members had issues and perhaps scores to settle with the employee, there is no evidence before me that the learner lied about what happened in the employee’s office. If the employee only gave the learner an innocent hug, there would have been in my opinion, no reason for the employee to ask the learner to conceal certain information from the public, and for fear of losing his job.

53. The evidence is clear that the employee had a sexual desire, which he wanted to satisfy on the learner. The giving of an innocent hug cannot be termed ‘an evil which got into him’. An evil must be something more serious than just an innocent hug. The evil here was the sexual assault on a learner, which is my finding that it has taken place.

54. Section 17(1)(b) of the Employment of Educators Act 76 of 1998 (hereinafter the EEA), provides the following:

Serious Misconduct
17. (1) An educator must be dismissed if he or she is found guilty of -
(b) committing an act of sexual assault on a learner, student or other employee;

33. It is common cause that the employee is an educator. I have found that he indeed sexually assaulted a learner. It follows that the governing legislation requires that the employee be dismissed, for the serious misconduct committed by him. This is a sanction by operation of law, following a guilty finding, based on the evidence, which was placed before me, on a balance of probabilities. The EEA dictates that the employee be dismissed for this serious misconduct.

VERDICT

34. The employee is hereby found guilty on the main charge of having sexually assaulted the learner.

35. In the premise, I make the following award:

AWARD

36. Mr Moahlodi Abednigo Mototo is guilty of Charge 1, as levelled against him, by the Superintendent-General: Free State Department of Education.

37. The mandatory sanction of dismissal is imposed on Mr Moahlodi Abednigo Mototo with immediate effect, for having sexually assaulted a learner.

38. Mr Moahlodi Abednigo Mototo is found 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 122(1) of the Children's Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children's Act 38 of 2005, that Mr Moahlodi Abednigo Mototo 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.

39. The Council is further directed to serve a copy of this award on the South African Council of Educators.


This is done and dated on, 16 January 2024, at Kimberley.


Adv. David Pietersen
ELRC COMMISSIONER

Inquiry-By-Arbitrator