ELRC308-23/24FS

SEC 188A-INQUIRY BY ARBITRATOR

Case Number: ELRC 308-23 24 FS
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 05th February 2024

In the ARBITRATION between

Free State Department of Education

(Employer)

And

SADTU obo S. Masiso

(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 Department of Education offices in Bloemfontein and sat on the following days namely the 7th of September 2023, the 12th of October 2023, the 19th, and 20th of October 2023 and the 24th and 25th of January 2024.

2. After completion of the inquiry the parties requested the opportunity to submit written closing arguments by the 1st of February 2024. Written submissions were timeously received, and my finding now follows.

3. Mr. M. Frans, a union official from SADTU, represented the employee.

4. Ms. L. Cweba, a labour relations official, represented the employer.

5. The proceedings were digitally recorded, and long hand notes were also kept of the proceedings.

6. Neither party made use of official bundles of documents but during the course of the inquiry both parties sought to hand in documents in support of their respective cases. These documents were admitted on the basis that they were relevant to the proceedings at hand. I too requested certain documents to be handed in during the course of the testimony of the school’s Deputy Principal Mr. Johannes A. Bothma.

7. An intermediary (Ms. T.P Mokgwemme) assisted the complainant (KM) and the said witness testified remotely from the hearing room where the inquiry itself took place.

8. A Xhosa/Zulu interpreter, Mr. G.S Khoza assisted as and when required during the course of the inquiry.

ISSUE IN DISPUTE
9. The employee pleaded not guilty to two counts of alleged misconduct in terms of section 18 (1) (q) and section 17 (1) (b) of the Employment of Educators Act, 76 of 1998 (as amended) (EEA).

10. It is common cause that the employer employs the employee as a PL1 educator at the Combined Agricultural School situated in the Fezile Dabi District, Free State.

11. It was alleged firstly that during November and December 2022, the employee conducted himself in an improper, disgraceful, or unacceptable manner when he proposed love to KM, a grade 12 learner at the school where he was employed.

12. Secondly, it was alleged that, on the 22nd of February 2022 that the employee committed an act of sexual assault on a grade 12 learner KM by putting his hand between her thighs and rubbing her.

PRELIMINARY ISSUE
13. At the commencement of the hearing the employer representative Ms. Cweba advised me that the complainant KM was reluctant to testify and had asked that the allegations against the employee be withdrawn.

14. After hearing submissions from both parties, I decided to hold a preliminary hearing to determine if KM really was intent on withdrawing the charge against the employee and to that end she testified in a separate designated room with the assistance of the intermediary and interpreter but in fact mostly spoke English.

15. KM stated that she was making this request for her own peace of mind. Her mind had been distracted with these events for five months during her matric year.

16. KM stated further that she felt guilty and did not want this to go on. She was receiving judgement from school mates who were becoming weird towards her.

17. Furthermore, she was under pressure from the teachers at school who were not treating her well because they had alleged that if she continued with the case the employee would lose his job.

18. The employee produced a voice note made by KM and the recording was played during the course of the preliminary hearing. What emerged is that a certain educator from the school had apparently encouraged the employee to approach KM’s parents to ask them to withdraw the matter.

19. KM also stated that a certain lady teacher (Ms Padi) from the school had spoken to her mother to withdraw the case because if the case continued the employee was going to lose his employment. KM specifically stated that she was under pressure from outside sources to withdraw the charges against the case against the employee.

20. I specifically put the following proposition to KM that if the incidents had not happened, she would be well within her rights to withdraw the charges. KM stated emphatically that the incidents had happened but that she wanted peace.

21. After hearing further submissions from both representatives, I took a decision that the inquiry should proceed, and that KM would be given a further opportunity to decide whether she wanted to testify.

22. The matter was adjourned to the 19th of October 2023 at which time the employee, through his SADTU representative raised a point in limine.

23. Frans alleged that the incident had happened in 2022 and that the hearing had been scheduled outside of the 60 days required by the relevant provisions of Collective Agreement 3 of 2018. Frans submitted that the Council did not have jurisdiction to hear the matter. After hearing submissions from both representatives, I dismissed the point in limine on an ex-tempore basis.

24. Frans requested that I render my decision in writing immediately and this request too was refused. I find that there are prima facie concerns that serious unwarranted pressure and influence had been brought upon KM to withdraw the charges against the employee and it seems that this, inter alia, created delays in prosecuting the case.

25. Ms. Cweba advised me that she was the only official appointed in the whole of the Free State to handle sexual misconduct cases. This would, inevitably, have also caused delays in the proper investigation of this and other sexual misconduct cases.

26. I find that the delays in bringing the case to hearing are reasonable given the prevailing circumstances.

27. I also began to get the distinct sense that attempts were being made to delay the start and indeed the finalization of the hearing and many of my decisions going forward were made in an attempt to thwart this. Many of these justifiable decisions raised the ire of Frans and he made numerous outbursts towards me during the course of the inquiry.

28. Frans was guilty of grandstanding and contemptuous conduct by inter alia alleging that I had already decided the outcome of the hearing and that he would not take instructions from a white racist. The racial epithets were stated on numerous occasions to the shock, dismay, and embarrassment of the other participants at the hearing. The digital recordings will ably demonstrate the unacceptable and boorish behaviour encountered with Frans as a union representative.

29. I do not, however, wish Frans’ conduct to distract me from an objective evaluation of the evidence for and against in this case.

SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT

30. On the recommencement of proceedings after dealing with the employee’s point in limine on the 19th of October 2023, KM was present and decided that she would testify after all. KM is actually over the age of 18 years of age but requested to testify remotely with the assistance of the intermediary.

31. KM was clearly able to distinguish between right and wrong and took the oath.

32. KM testified in respect of count 1 that during the latter part of 2022 the employee had told her that he loves meat and that he loves her. He took her cell phone number off the learner group and had sent her various messages. She had shown these messages to her school friend Dineo Sibulane.

33. When asked during cross examination about the whereabouts of the phone KM testified that the phone had got lost.

34. KM testified that she told the employee to leave her alone and discount such ideas. The employee left her alone until November 2022 when she went to collect her report. She was alone in the class with the employee. When the employee handed her the report, he once again told her that he loved her.

35. On count 2 KM testified that the employee taught her computer studies and had done so for grade 10, 11 and 12. She related an incident that took place in the first term of 2023.

36. KM testified that she asked the employee for assistance, and when he came to her, he put his hand on to her right thigh and began to move his hand inwards. When she realized that his hand was going to touch her private parts, she pushed the chair backwards. After class she stood outside upset and crying with her friends around her.

37. KM admitted that she was not wearing school uniform on that day and instead was wearing cricket shorts. The employee had touched her on the flesh on the thigh and had slowly and inconspicuously moved his hand toward her private parts.

38. One Vuywelwa, who sat next to KM observed the employee’s action and when the employee observed this, he shouted at Vuywelwa to focus on her work.

39. KM testified that the employee had not touched her accidentally and nothing had fallen to the ground.

40. KM testified further that the employee had spoken to Vuywelwa and told her to tell KM that he asked for forgiveness.

41. During cross-examination KM testified that Ms. Padi was a teacher at the school and had spoken to her mother about the incidents. She testified that Ms. Padi had humbly pleaded with her mother on whats app to persuade KM to change her mind about the events. She testified that the employee had in fact asked Padi to persuade KM to withdraw the charges against him.

42. KM also testified that Ms. Padi had called her in to her class to personally persuade her to withdraw the charges against the employee stating that if she did not do so the employee would lose his job.

43. During cross-examination Frans frequently aggressively told KM that she was lying but KM defiantly denied this.

44. When it was put to her that Lindiwe and Zwandile would come and give different versions KM declared that these witnesses were friends of the employee, and they would go out with him on dates. There evidence was not to be trusted.

45. It was also put to KM that the Deputy Principal (M.S Mofokeng) had given her R1000 to fabricate a version against the employee which KM denied. It is notable that this version was never put to Deputy Principal Mofokeng when he testified later in the hearing.

46. The next witness was Dineo Sibulane. It was established that she was 22 years old, and she elected to give her testimony in person.

47. Her evidence in short was that towards the end of 2022 when they were collecting reports KM told her that the employee had told her that he loved her and was sending messages to her.

48. Although she did not see the messages, she believed KM because KM was her friend and would not lie to her.

49. Vuywelwa Qhuba’s testimony was only heard on the 24th of January 2024 due to availability issues. Vuywelwa was 20 years old at the time she gave her testimony and also elected to give her testimony in person.

50. Vuywelwa testified, inter alia, that during computer studies with the employee KM requested assistance. She and KM sat next to each other, and the employee approached and came between them.

51. She observed the employee put one hand on the keyboard and the other hand on KM’s thigh. She noticed that the employee’s fingers were underneath the white shorts that KM was wearing.

52. When the employee noticed that she had observed his actions he shouted at her to focus on her own computer.

53. After class she saw KM crying outside the classroom. Her and other classmates gathered around, and KM explained exactly what had happened. Vuywelwa testified that she encouraged KM to report the matter and KM explained that she was scared to do so.

54. During cross examination it was put to Vuywelwa that there were contradictions in her version and that of KM about how the touching incident occurred. Vuywelwa denied the employee’s version that the employee had mistakenly dropped a pen and had accidently brushed KM’s thigh with the back of his hand as he bent down to pick up the pen.

55. The mother of KM (Mrs. Matsepe) testified on the 19th of October 2023 and stated that KM had approached her during November 2022 to say that the employee was proposing love to her. Matsepe admitted that she didn’t take the situation seriously at the time. When KM reported the second incident to her in February 2023, she could see that her daughter was upset, and she cried as she related the events of the employee putting his hand on her skirt.

56. Mrs. Matsepe testified that she had spoken to an educator from the school (Mrs. Padi) who had pleaded with her to feel sorry for Mr. Masiso and please drop the case.

57. Matsepe testified that she had initially been reluctant to allow her daughter to testify but had later relented because she saw how full of anger KM had become since the incidents. Previously KM was a cool girl but now she was angry all the time.

58. The next witness was Deputy Principal, Mr. Johannes A. Bothma. The principal had resigned in March 2022 and he and another Deputy Principal, Mr. M.S Mofokeng interchanged between performing the principal's duties.

59. Bothma testified that he received a complaint from KM and her friend Vuywelwa that the employee had touched KM’s thigh in class and had wanted to touch her private parts.

60. The following day KM’s parent accompanied KM and Vuywelwa to school to formally report the incident. Bothma testified that he reported the incident to his circuit manager, and it was later directed to Labour Relations in Bloemfontein.

61. It was at this point that the hearing took an unexpected twist. After asking a few clarification questions to the witness I then asked him if he had previously dealt with any sexual misconduct cases in the past. To my complete surprise he produced three handwritten statements from the file in front of him. All were statements were from the then Acting Principal, Mr. M.S. Mofokeng stating that on the 27th of May 2022 two learners from Grade 12 (Moholo Molebogeng and Mosina Tlotlego) had approached him to report the employee for inappropriate touching of their breasts.

62. Mofokeng had also made two additional statements about how he had dealt with the parents of the said two learners.

63. The parents of Mosina Tlotlego had later accepted an apology from the employee after he had indicated that he gave hugs to learners for good performance and was not aware that this makes learners feel uncomfortable.

64. The parents of Molebogeng Moholo on the contrary were incensed with the employee’s conduct and insisted that his conduct be reported to higher authority.

65. I provisionally admitted the hearsay statements written and oral as part of the evidentiary material.

66. The evidence of Mr. F.S Mofokeng was given later as part of the employee’s case on the 24th of January 2024 due to the unavailability of the witness on earlier days.

67. Mofokeng testified, inter alia, that on the 22nd of February 2023 the employee had brought KM to him for wearing the wrong school dress code. He was serving as Acting Principal at the time.

68. He reprimanded KM for wearing white shorts and would have sent her home to change but she lived far away on a farm and there was in any event another activity scheduled for that day.

69. Mofokeng testified that there had been an earlier event where he was obliged to reprimand KM for also not wearing the correct uniform to school.

70. Mofokeng was later questioned about his involvement with the reports of Moholo Molebogeng and Mosina Tlotlego. Mofokeng testified that on the 27th of May 2022 Moholo and Mosina both approached him complaining that the employee had touched their breasts.

71. Moholo Molebogeng told him specifically about messages that the employee had sent to her and in fact showed him a message on her phone. The message sent by the employee (paraphrased) stated that Moholo would be writing her computer technology (CAD) exam soon. The employee told Moholo that she should not answer all the questions because he would address the questions on her behalf in exchange for the giving of sexual favors. He then stated in Sotho “You look out for me”.

72. Mofokeng testified that he made a screen shot of the message onto his phone but a short while later his phone mysteriously disappeared.

73. Mofokeng confirmed his written statement that the parents of Mosina Tlotlego had accepted an apology from the employee on the basis that he had hugged their daughter as a good performer but that the parents of Moholo Molebogeng had insisted that he report the matter to higher authority.

74. Mofokeng testified further that he had prepared all the necessary documentation in the matter of Moholo Molebogeng and had forwarded it to his circuit manager. Mofokeng indicated that he had a copy of the complaint that he forwarded to the district office in his current possession.

75. Mofokeng testified that he does not know what happened to the case after it was dispatched to the district office and Ms. Cweba confirmed that she has, to this day, not received Moholo Molebogeng’s complaint against the employee from the district office. Moholo has since matriculated and left the school.


SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT

76. The employee’s version in effect was a bare denial of what was alleged against him.

77. The employee stated that he knew it was wrong to have sexual interaction with a learner and that it certainly was a dismissible offence. The employee stated further that he would not put his job at risk by engaging in such behaviour.

78. He stated that he loved his children and went the extra mile for them. Unfortunately, the school was plagued with ill-discipline, and he obtained permission from the Principal at the time to help control the gate where the learners entered the school.

79. The employee described the incident of the 29th of February 2023 where KM came in wearing a short white skirt and he reprimanded her and took her to acting Principal Mofokeng. The employee testified that KM got cheeky with him and told him that he (the employee) thinks that the school is his.

80. The employee described himself as a strict disciplinarian and the children were scared of him and often ran away from him. He was also known as a monster by some children because he policed them regarding their clothing.

81. The employee testified that he suspected that KM had concocted a false version against him because he had disciplined her for not adhering to the school dress code. He alleged further that KM and Dineo had planned things well against him.

82. The employee testified further that on the day of the alleged touching incident Vuywelwa requested assistance and not KM. KM is very quiet in class and is not talkative. He went to stand between Vuywelwa and KM as he was explaining himself. At one point his pen dropped to the ground and as he reached down for the pen and tried to lift himself up the back of his hand brushed against KM’s thigh. He immediately apologized and KM smiled at him and said, “It’s OK Sir”.

83. Shortly thereafter KM asked to go to the bathroom and upon her return the period ended.

84. The employee testified that he could not relate to the poor performers in his class, and he admitted that he had his favorites, but the favorites were all based upon their academic performance. KM and Dineo Sibulane were poor performers.

85. The employee handed in a number of whats app messages in Sotho where it was alleged that KM was plotting to frame the employee.

86. The employee stated that he got this information from the two learners that he intended to call to support his version. These witnesses were Zwandile Maduna and Lindiwe Tsubela.

87. The employee testified that he reported the issue of the alleged framing to Deputy Principal Mofokeng, but he did nothing about it.

88. In respect of count no 1 the employee initially admitted to telling KM that he loved her when she came to fetch her report because she had done well academically but later denied uttering the words.

89. It is common cause that KM cried outside the class after the alleged touching in the classroom. The employee could not explain why she did so.

90. On the 25th of January 2024 the employee led the evidence of two witnesses namely Mzwandile Maduna (21 years) and Lindiwe Tsubele (19 years). Both witnesses testified in person before the hearing, and both were administered the oath.

91. It is common cause that both witnesses did not complete/failed their matric exams in 2023 and did not return to school.

92. Both witnesses testified that they attended the same Computer Studies class as KM, Dineo and Vuywelwa. In fact, they shared a desk together. Both were in class during the alleged thigh touching incident. Both witnesses testified that they sat directly behind KM’s workstation and KM’s monitor faced them.

93. Both learners portrayed KM as a money hungry person that liked to take bribes. Both witnesses related an incident where KM’s mother had discovered that KM was having an affair with another adult. In punishment KM was banned from the house and deprived of food. Maduna testified that KM would ask him for food, and she said that if he did not help her, she would walk away from their friendship. They were no longer friends after she made false allegations against the employee.This version was never put to the KM’s mother when she testified.

94. The two also spoke about KM having a target amongst the educators at school from whom she would extort money. Both Maduna and Tsubela insinuated that this person was the employee. None of this was put to KM during cross-examination.

95. Maduna testified that Dineo raised her hand for assistance and so did he. The employee indicated that he would first come to Dineo and then to him. Maduna testified that he saw that the period was about to come to an end, and he turned to the front to watch the employee busy with KM.

96. Maduna testified that he noticed that the employee was standing between Vuyowelwa and KM. He put a pen down next to Vuyowelwa as he was explaining to her.

97. At some point the pen dropped to the floor and as the employee reached down to retrieve the pen, he brushed KM’s hand accidentally. The employee immediately apologized, and KM laughed and clearly did not take it seriously.

98. At about that time the bell went for the end of the period, and everyone left. Maduna testified that he remained behind so that the employee could finish explaining something to him.

99. When he left, he saw KM crying standing together with other classmates and he passed by.

100. Maduna and Tsubela both testified that they went to Mofokeng and reported their side of things to him, but he was not interested and indicated that he did not want to get involved in the incident.

101. Both witnesses admitted to being being viewed by other learners from the Computer Studies class as being the employee’s favorites and seemed proud to hold this status.

ANALYSIS OF EVIDENCE AND ARGUMENT

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

103. Crucial in this case is the credibility findings in respect of the various witnesses.

104. I find that KM after a shaky start was a strong and good witness. I find that extreme pressure was brought to bear upon her to withdraw the disputes against the employee. Nowhere was this more evident than the undue influence of educator Ms. Padi (probably at the exhortation of the employee) to KM’s mother and KM herself to withdraw the disputes. Interference of this nature is itself misconduct and should be appropriately dealt with.

105. KM threatened to buckle under the pressure but when I posed the question directly to her whether anything had happened that led her to lay charges it was quite clear that something had happened between her, and the employee and she purposed to tell us about it. The lights in her eyes went on when she realized that I had afforded her the opportunity to be heard despite all the voices shouting that she should remain quiet.

106. The essence of the version given by KM was that on a day in February 2023 she requested the employee to help her with her computer studies. The employee stood between her and Vuywelwa obviously focusing his attention on KM. He placed his hand on her thigh in a seemingly innocent gesture and moved it towards her private parts. When KM realized what was happening, she pushed her chair backwards. Vuywelwa noticed what was going on. When the employee got caught out, he loudly reprimanded Vuywelwa who sat next to KM and who was well placed to see what was happening. The loud reprimand was obviously intended to distract and deflect attention away from his own actions.

107. The version given by the employee and his two witnesses is rejected for the following reasons.

108. The employee’s version is highly improbable. If the employee had mistakenly dropped a pen and touched KM inadvertently and immediately apologized as he and his witnesses have contended, then this charge would never have progressed to the point that it has.

109. It is common cause that Tsubela and Maduna are firm favorites of the employee and would say and do almost anything to save him from the consequences of his actions. Their versions sound concocted and rehearsed, and they do a good job of providing a motive for KM to act in the way that she did. Something which the employee himself was unable to convincingly provide. Versions about KM’s intentions to extract money from the employee and other educators is derived from garbled whats app messages whose source could not be traced and authenticity verified. The messages were not even properly interpreted and as they stand, they are hearsay, unreliable and accordingly rejected.

110. Critical parts of Tsubela and Maduna’s version i.e. that Mofokeng had offered to pay KM R1000 to fabricate evidence against the employee were not put to Mofokeng or KM in cross-examination. Further, Tsubela and Maduna’s version that they approached Mofokeng with their vastly different version of what happened with the thigh touching in February 2023, was never put to Mofokeng.What reason would Mofokeng have to ignore their submissions and interfere with the investigation into the events involving the employee on the side of KM. I find that he has no such reason.

111. I find that the versions of Tsubela and Maduna are recent fabrications concocted after the events themselves. Tsubela and Maduna’s version that KM had this elaborate scheme to blackmail the employee and other educators is all smoke and mirrors lacking substantiation. Their attempts to corroborate the version of the employee is rejected.

112. The versions of KM, Vuywelwa and Dineo are not perfect in terms of exact detail, but their evidence was materially consistent with each other. Timelines are verified by Mofokeng and KM’s mother.

113. The imperfection in their evidence is, if anything, a safeguard to me that they are telling the truth.

114. Of course, this case is not only about count 2 but also about count 1 something which Lindiwe and Maduna are unable to help the employee with.

115. The employee admitted to telling KM that he loved her when she went to collect her report in November/December 2022 and a short while later denied having said that at all. What are we to believe?

116. The evidence of KM in respect of count 1 is that the employee obtained her cell phone number and began declaring his love for her which advances she promptly rejected. Although these messages are not available as proof of her submission’s corroboration for this type of conduct on the part of the employee comes from an unexpected source.

117. That source is the earlier complaints lodged by Moholo Molebogeng and Mosina Tlotlego with Mofokeng in his then role as acting Principal. It will be recalled that both grade 12 learners accused the employee of touching their breasts. Moholo Molebogeng went further and alleged that the employee had sent her a message that he would give her good marks for sexual favors.

118. These allegations were admitted as relevant on the basis of similar fact evidence. The evidence given by Mofokeng in this regard is virtually unchallenged and has the ring of probability and truth about it. Mofokeng’s evidence corroborates that of KM that the employee has a propensity to make use of whats app messages to communicate inappropriate sexual suggestions and corrupt comments to grade 12 learners.

119. I find that the employer has proven on a balance of probabilities that the employee is guilty of sending KM inappropriate sexual messages, making inappropriate declarations of love, and touching her in an inappropriate manner.

120. I find the employee guilty of misconduct in terms of section 18 (1) (q) and section 17 (1) (b) of the EEA.


SANCTION

121. A finding of guilt in terms of section 17 of the EEA leaves an adjudicator with no alternative options when it comes to sanction.

122. A sanction of dismissal is prescribed as the only appropriate sanction in terms of the relevant legislation and thus it would serve no purpose to call for submissions in mitigation and aggravation of sanction.

123. The employee is dismissed from the employment of the employer with immediate effect.

124. 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.

MOTIVATION FOR SENDING THIS AWARD TO THE HEAD OF THE DEPARTMENT (HOD) AND MEMBER OF THE EXECUTIVE COUNCIL (MEC) OF THE FREE STATE PROVINCE
125. A number of disturbing facts have been revealed during the course of this inquiry.

126. The first relates to the interference by the educator, Mrs. Padi with KM and her mother in this matter which I have found to be a proven fact.

127. Padi made a concerted effort to bring undue influence on witnesses to encourage them not to testify so that the employee could be left to continue his sexual exploits with learners at the school. In my view this amounts to unacceptable and disgraceful conduct at the very least possibly more and is deserving of investigation.

128. Secondly and perhaps more serious is the question why the complaint of Moholo Molebogeng, reported on the 27th of May 2022, was not forwarded to Ms. Cweba in Bloemfontein for investigation.

129. The testimony of Deputy Principal Mofokeng, which I accept as correct and truthful is that he prepared the complaint of Moholo Molebogeng and dispatched it to his circuit manager for action and the matter was not heard of again.

130. The fact that the parents of Mosina Tlotlego accepted an apology from the employee in this matter does not mean that such complaint should not nonetheless have been referred to Labour Relations in Bloemfontein to determine if there were general merits in the complaint worthy of investigation.

131. I recommend an investigation into why Moholo Molebogeng’s complaint did not find its way to Ms. Cweba in Bloemfontein and whether any corrupt activities were responsible for this omission.

132. My final comment is more of an observation. Ms Cweba advised that she is the only official dealing with sexual misconduct disputes in the Free State. Surely it cannot be the interests of learners that only one official is available to investigate all sexual misconduct matters in a vast territory and present all inquiries by arbitrator in the province on behalf of the Department of Education.

MARK HAWYES
PART TIME SENIOR PANELIST
5th of February 2024