ELRC660-22/23KZN

IN THE ELRC ARBITRATION
BETWEEN:
DEPARTMENT OF BASIC EDUCATION – KWAZULU-NATAL the Applicant
and
NGEMA DANIEL HLANGANANI the Respondent

ARBITRATION AWARD

Case Number: ELRC660-22/23KZN
Last date of arbitration: 08/11/2023

Date of award: 19/03/2024

Arbitrator: Scelo V Mkhize

DETAILS OF THE HEARING

1. The matter was enrolled before me for an inquiry by arbitrator proceedings in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (the Act). The arbitration was held at the offices of the Department of Education in Vryheid, KwaZulu-Natal. The arbitration was held on various dates being 20 January 2023, 10 March 2023, 20 and 21 April 2023, 05 and 06 September 2023 and 08 November 2023.

2. The Applicant, the Department of Basic Education, was represented by Ms. J Dumisa who is employed by the Applicant as a labour relations practitioner. The Respondent, Mr. Ngema, appeared in person and he was represented by Mr. L N Mseleku, a trade union representative from SADTU.

3. The proceedings were held in English and were interpreted by Ms. P Mabele. The intermediary services were provided by Ms. H A Phakathi. The proceedings were also mechanically recorded.

BACKGROUND

4. The Applicant is the Department of Education KwaZulu Natal, a governmental department dully fulfilling its mandate in terms of the Constitution and in terms of the South African Schools Act 84 of 1996, with its provincial offices at 247 Burger Street, Pietermaritzburg, KwaZulu Natal. I shall herein after refer to the Applicant as the “employer”.

5. The Respondent is Daniel Hlanganani Ngema, who is currently employed by the employer as the principal at Mondlo Secondary School. I shall herein after refer to the Respondent as the “accused”.

6. The accused was charged by the employer with one count of misconduct, in that on or about August 2022 at or near Mondlo Secondary School, the accused committed an act of sexual assault to a grade 11 female leaner of his school. In doing so, he contravened section 17 (1) (b) of the Employment of Educators Act 76 of 1998, as amended. I shall not disclose the name of the learner herein due to her age and shall refer to the leaner as the “SS”.

7. The accused denied the allegations against him and pleaded not guilty to the charge, hence this arbitration award.


ISSUE TO BE DECIDED

8. In these proceedings, I am required to decide whether the accused committed an act of sexual assault against SS, a grade 11 leaner of his school. If so, I am required to determine an appropriate remedy.

SURVEY OF EVIDENCE AND ARGUMENTS

Employer’s case

First witness

9. The employer’s first witness was the complainant, SS, who testified as follows:

10. She was a grade 11 learner at Mondlo Secondary School in the year 2022; the accused was her principal. On 17 August 2022, she went to the principal’s office with her friend “A” in the morning because the principal had told her to remind him about the RCL meeting. RCL means “Representative Council of Learners”. However, A was turned away by Mr. Masondo who told them that the only people to speak to the principal were the RCL members. The intention of going to the principal’s office was to remind him that they were going to have a meeting as per his request. She met the principal next to the admin office and he told her to wait for him at his office. When she got to the principal’s office the door was open. She then entered and sat on the first chair on the left-hand side. After waiting for about 3 minutes, the principal entered, and she stood right next to her as she was seated. She then told the principal that she had come to remind him about the meeting that was going to take place during the break. After telling him that, she tried to rise, but the principal pressed him down and grabbed her closer to him. She tried to resist but the principal overpowered her and kissed her on the mouth. She pushed him away with both hands and got out of the office. She felt very hurt and unsafe about this because she thought how many other children would have gone through this.

11. After the incident she told her three friends what had happened to her. On the following day she reported the incident to her class teacher Mr Dlamini. Dlamini undertook to support her, and she advised her to report the incident to her parents as well. She told Dlamini that she had already reported the incident to her farther and she was also going to report it to her mother as well.


12. During cross examination, she disagreed with the accused’s version that she was making these allegations because she wanted him to be removed from his position. She stated that she had nothing to gain by removing the principal from his position. She admitted that when she got to the accused’s office there was someone at the clerk’s office which is directly opposite the principal’s office. She also admitted that the doors for both the principal’s office and the clerk’s office were opened.

Second witness

13. The Applicant’s second witness was Siyamukela Samuel Dlamini who testified as follows:

14. He is employed by the Department at Mondlo Secondary School as an educator for grade 9, 11 and 12. He knew the complainant, SS, and he was her class teacher. On 18 August 2022, after a debate they were hosting, SS and her two friends, A and O Z, came to him to report that on the previous day, SS experienced an awkward engagement with the principal which was scrambling and kissing which occurred at the principal’s office. SS told him that she had already reported the matter to her father. At that time, he realized that the matter was no longer in his hands. He remained silent about the matter because her father was coming to school. After that the matter was discussed in the school corridors.

15. During cross examination, he admitted that there was a reporting line in the school, and he was aware of it, but he did not report the matter. He stated that he was worried when the matter was discussed in the corridors because he realized that he was not the first person to know about it.

Third witness

16. The Applicant’s third witness was Thandeka Nkosi who testified as follows:

17. She stated that SS is her daughter, and she was attending Mondlo Secondary School in 2022. The accused was his brother’s friend and the principal of the school. The accused came to their homestead and advised that he received a call from the circuit manager, Mr Masondo, asking to see him. However, he could not find the circuit manager at his office. Upon telephoning him, the circuit manager advised him that there was a case involving a leaner of his school, SS. Therefore, he came to check what had happened to SS. She told the accused that he must ask Mr Masondo. The accused told her that they should have first reported to him as the principal of the school. He further told them that this was a minor issue; they could sort it out with him. She was very hurt by what the accused had said because she loves her child. The accused then left their homestead after SS had telephoned her farther.

18. During cross examination, she stated that on 18 August 2022, when SS came home, they notice that she was crying. When she asked her what had happened, she told her that the accused had called them to his office to advise them about the RCL meeting. When she was trying to leave the accused’s office, the accused told her to stay behind, and she stayed. She then tried to get up from the chair, but the accused pushed her down, grabbed her and forcefully kissed her. SS told her that she could not report the incident to her the previous day because she did not find her at home, but only her grandmother. She could also not report to her grandmother because her grandmother was very sensitive. She denied that her younger sister had an intimate relationship with the accused.


Fourth witness

19. The fourth witness was Ernest Nyathi. This witness was called at the instance of the arbitrator, and he testified as follows:

20. He is employed at Mondlo Secondary School as a Security Guard. On 30 September 2021 she found SS in grade 10 classroom kissing a boy. The boy was sitting on top of the desk and SS was sitting on top of the boy, inside his thighs, and they were kissing each other. He then took them to the principal’s office and left them with the principal.


Fifth witness

21. The applicant’s fifth witness was O Z who testified as follows:

22. She was a friend of SS and they had been friends since 2019 when they were doing grade 8. In the year 2022, she was doing grade 11. SS told her and her other friends that she went to the principal’s office and the principal forcefully kissed her. Before going to the principal, SS had initial asked her to accompany her, but she could not because she was busy. SS ended up going with one of their friends A. However, A came back first, and SS returned later. A told them that the principal requested to speak to SS only and not to both. When SS came back from the principal’s office, she told them that that principal turned her back and lifted her chin and forcefully kissed her. They then advised SS to report the matter to her family. The principal would also touch Sinothile in her body particularly her hands and ears. She stated that she was not being used by anyone and she had not come to lie.

23. During cross examination she admitted that she was not at the principal’s office when the alleged incident happened. A told them that the principal had asked to speak to SS, the class representative, not with her. When it was put to her that SS testified that she was turned away by Mr Masondo, she said she would not know.

Accused’s case

First witness

24. The Respondent was the first witness who testified in support of his case, and he testified as follows:

25. He is currently employed as the principal of Mondlo Secondary School. He had been employed as such since 1998. When the principal position became vacant at the school, he applied, and he got the position in 2008. When he became the principal, there were 16 educators at the school. Half or most of these educators were interested in the principalship position. There were numerous attempts to dethrone him from this position in such a way that he even faced disciplinary charges and he was acquitted of all those charges. From there he realized that there was an agenda to tarnish his name as the principal of the school.

26. During or about 2014, while he was still the principal, a certain Mr. Nkabinde who was a teacher at his school was charged with various allegations of misconduct. He was found guilty and subsequently dismissed in 2018. However, for unknown reasons, Nkabide did not comply with the dismissal order and even to date he is still at the school. In this regard the Respondent referred the council to pages 1 and 2 of bundle “B1”.

27. In 2017, Mr Nkabinde and certain educators from the school fabricated allegations against him that he was corrupt, and he had administered corporal punishment against a leaner. The allegations were report to the Public Service Commission and the South African Council for Educators. Both institutions conducted investigations against him. However, he never received any outcome from these institutions.

28. He denied the allegations by SS that he forcefully kissed her. He stated that what had happened was that on 16 August 2022, SS came to him to complain that she was being isolated by the chairperson and the secretary of RCL. He told her that on 17 August 2022, they would have RCL briefing after school, and they would discuss this issue. Indeed, on 17 August 2022 there was the RCL briefing after school. SS attended the briefing with other leaners. One of the issues discussed at the meeting was the funds collecting event that RCL members were going to host at the school. SS indicated that she might not attend the event because she did not have money. He suggested that the RCL executive should attend without paying. That is where the matter ended. It would have been impossible for him to do what is alleged to have done. This was so because SS had alleged that this incident happened in the morning before break. Normally, in the morning before the break he would attend to parents who came to school for various reasons, or he would be checking around the school.

29. He further testified that on 30 September 2022, SS was brought into his office by the security guard reporting that she was caught kissing with a boy in one of the classrooms. He reprimanded both SS and the boy. He believes that SS held a grudge against him arising from this incident.

30. He admitted that he attended SS’s homestead. But reason for attended was that he had received a call from the circuit manager that SS had a problem at school. Since he knew SS’s family, he thought it would be proper to visit them and find out what had actually happened. He denied having visited the family in order to bribe them.

31. During cross examination, he denied that when the security guard brought SS and the boy into his office, he instructed them to kiss each other in front of him. What he did was to give both leaners orientation to make them understand how their conduct would be detrimental to their schooling. He also gave them a verbal warning. He stated that even though the issue was serious, he decided not to report it because as principals they also act in the place of parents. He denied that he forcefully kissed the learner. He stated that the issue of his relationship with SS’s aunt was a contributory factor to these allegations. When it was put to him that if the incident did not happen why SS would have been so consistent in reporting the incident. In response, he stated that the consistent reporting was so selective because it was never reported to the deputy principal. When he was asked as to what SS would stand to gain about this incident, he stated that she would gain vengeance to somebody who disciplined him and would gain glory from those using her.

Second witness

32. The Respondent’s second witness was Samuel Sabelo Nxumalo employed at Bhekuzulu CMC under the Zululand district. He testified that he is employed as the chief education specialist. He had been trained to carry out investigations into the teacher’s conduct. They were appointed to conduct investigations into the allegations against the Respondent. They conducted thorough investigations although there were some limitations. It was a serious misconduct because corporal punishment was not allowed in terms of the schools Act. The investigation was concluded. Their findings and recommendations were sent to the official who had appointed them, which was the district director. It would not be proper for him to disclose the findings and recommendations as he was not authorized to reveal such. He thought the allegations of sexual misconduct were indeed of a serious nature and he did not support educators in his CMC who abuse leaners sexually. He was not aware of any conspiracy of any kind involving the Respondent.

CLOSING ARGUMENTS

33. Both the Employer’s and the Accused’s representatives submitted written closing submissions. I would not repeat their submissions herein, but I have considered their submissions in my analysis below.

ANALYSIS OF EVIDENCE AND SUBMISSIONS

34. In these proceedings, I am required to decide whether the accused is guilty of the offence levelled against him, in particular, whether he sexually assaulted the leaner, SS, by forcefully kissing her.

35. The general rule applicable to all civil litigation and arbitrations is that whoever alleges a fact must prove it on a balance of probabilities. In David Johan Randles v Chemical Specialities Case No D28610, the Labour Court held, with reference to Pillay v Khrishna 1946 A 946, that – “if one person claims something from another in a court of law, then he has to satisfy the court that he is entitled to it. Therefore, the employer bears the onus to prove that the accused is guilty of the offence.

Whether the accused is guilty of the offence

36. The employer’s version through its main witness, SS, was that the accused, who is the school principal, forcefully kissed the learner in his office during or about August 2022. The accused, on the other hand, denied these allegations. The basis for his denial was that the alleged incident never happened at all. The allegations against him were motivated by a conspiracy of certain people within the school who wanted to get rid of him from the school. This then raises a dispute of facts between the employer’s version and the accused’s version.

37. Our Courts have developed guidelines on how to deal with the dispute of facts in a particular case. In SFW Group Ltd and Another vs Martel et Cie and Others 2003 (1) SA 11 (SCA), it was held that in order to come to a conclusion on the disputed facts the court must make findings on the credibility of various factual witnesses, their reliability and probabilities. In Sasol Mining (Pty) Ltd vs Commissioner Ngeleni NO & Others (2011) 32 ILJ 723 (LC), it was held that the proper approach when resolving factual dispute is to make findings on the credibility and reliability of witnesses, which in turn entails finding on the witnesses’ condor, demeanor, contradictions in their evidence and an assessment of the probability of their testimony.

38. In the present case, the employer called three witnesses. The first witness was the complainant, SS. She stated that on 17 August 2022 at about 09:00 am she went to the principal’s office with her friend A to remind the principal (the accused) about the RCL meeting that was going to take place during the break. She found the accused next to the admin building and the accused told her to wait for him at his office. However, her friend A was turned away by a certain Mr Msondo. When she arrived at the accused’s office the door was open. She entered and sat on the first chair on the left had side. Then the accused came, and she told him that she had come to remind him about the RCL meeting. When she was trying to rise from the chair, the accused suddenly pressed her down and grabbed her closer and forcefully kissed her.

39. During cross examination she conceded that when she went to the accused’s office there was someone at the clerk’s office which is directly opposite the principal’s office. She also admitted that the doors for both the principal’s office and the clerk’s office were opened. From the inspection in loco that was conducted in the presence of the parties, I observed that the first left hand side chair is right next to the door. In my view, it is highly improbable that the accused would have kissed the learner in the manner described by the learner while the door was open. I say so because anyone could have easily entered the office while he was still busy kissing the leaner. I do not think that the accused would have left the door open if he really wanted to kiss the leaner, especially since there was someone at the clerk’s office, which is directly opposite the principal’s office.

40. Despite the above, there was a material contradiction in the leaner’s version about her reasons for going to the principal’s office. At the hearing she testified that she went to the principal’s office to remind him about the RCL meeting because the principal had asked her to do so. This implies that the learner already knew as to when the RCL meeting would be held. She went on to say that when she got to the principal’s office, she told him that she had come to remind him about the RCL meeting which was going to take place during break as the principal had asked her to remind him. However, in her statement dated the 06 September 2022, she stated that when she got to the principal’s office on 17 August 2022, the principal told her that the meeting would be held during the break. According to the statement, on the previous day, the 16th of August 2022, the leaner and another member of the RCL had gone to the principal to ask when the RCL meeting would be held. The principal told her that she must come to him in the morning of the 17th of August 2022. This implies that the learner did not know when the RCL meeting would to be held, which is contrary to her earlier evidence. If the leaner can lie about her reasons for going to the principal, there is nothing that prevents her from lying about the core incident.

41. In my view, there was no other evidence to corroborate the learner’s version except the evidence of Mr Dlamini, the class teacher, Thandeka Nkosi, the learner’s mother and O Z, the learner’s friend. All these witnesses were told by the learner what had actually happened, and their evidence remains hearsay evidence.

42. On the other hand, the accused denied the allegations against him, and he testified that what the learner had alleged never happened at all. The accused was very bold and consistent in his version, and he stood his ground even during cross examination. I had no reason to disbelieve his version. He also testified that there was a conspiracy to get rid of him out of the school. In this regard he testified that the conspiracy was orchestrated by one Mr Nkabinde who was also an educator at the same school. The Applicant did not call Nkabinde to refute these allegations. As a result, the Applicants version in this regard remained unchallenged.

43. Therefore, in the absence of any other evidence corroborating the learner’s version, and in light of the probabilities and material contradiction in the learner’s version, I find the learner’s version unbelievable and highly improbable. I therefore prefer the accused’s version over the learner’s version. As a result, I am of the view that the employer has failed to discharge onus, on balance of probabilities, that the accused forcefully kissed the learner on 17 August 2022. Therefore, I accordingly find the accused not guilty of the charge that was levelled against him.

AWARD

44. The accused, Daniel Hlanganani Ngema, is not guilty of the charge that was levelled against him.

45. There is no order as to costs.

Scelo V Mkhize - Panelist