ELRC773-22/23KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No ELRC773-22/23 KZN

In the matter between

Department of Education KZN Employer
And
M.E. Mnkwanyana Employee


ARBITRATOR: R. Shanker

DELIVERED: 08 May 2024

AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995, as amended, and was set down for an Inquiry by Arbitrator process.
2. The matter was scheduled on 19 October 2023, 26 February 2024 and 26 March 2024. The parties thereafter submitted written closing arguments which I considered in drafting this award.
3. The employee (respondent) in this matter, M.E. Mnkwanyana (“Mnkwanyana”), was represented by S. Mthumkulu, an official of SADTU. The employer (applicant), Department of Education KZN, was represented by A. Ngonyama.
4. The matter against Mnkwanyana relates to allegations of sexual assault of a learner who is a minor. In accordance with the protection of the rights of minors, the identity of the learner will not be disclosed. I will refer to the learner as Learner “A”. The Learner’s evidence was led via an intermediary and an interpreter.

ISSUES TO BE DECIDED
5. The issue to be determined is whether Mnkwanyana had committed the misconduct for which he has been charged and, if so, to determine an appropriate disciplinary sanction.

BACKGROUND TO DISPUTE
6. Mnkwanyana is an educator at the same school as Learner A. As a result of the serious nature of the allegations, he is currently on suspension. Mnkwanyana is charged with contravening section 17 of the Employment of Educators Act 76 of 1998.
7. Learner A was a Grade 11 learner and Mnkwanyana was her English teacher at the time of the alleged infringements. In summary, the allegation against Mnkwanyana is that during 2022:
7.1. He requested nude pictures from Learner A.
7.2. He showed his private parts (genitals) to Learner A.
8. Mnkwanyana denied the allegations.
9. The parties submitted bundles of documents marked Bundle A and B. Mnkwanyana, Learner A and Learner A’s father testified under oath.

SURVEY OF EVIDENCE AND ARGUMENT
10. The evidence and arguments hereunder are not verbatim accounts of the proceedings but a summary of the evidence necessary to determine whether, on the balance of probabilities, Mnkwanyana had sexually assaulted Learner A as per the charges. All evidence and arguments were considered prior to drafting this award.
11. During the course of the investigation at the school, Mnkwanyana wrote the following statement:
I, M.E. Mnkwanyana have acted unprofessionally and diverged from my professional duties by behaving wrongly towards the child.
I spoke to the child unprofessionally and asked her to send be inappropriate photos and out of shame I deleted the photos on my phone. The parents came to the school and I did not refuse the information they brought forward about this matter.
I am profoundly apologetic and shameful of myself and actions. I spoke to the father and expressed my sincere apology.
I swear I never touched the child I acknowledge the wrong I have done by doing such to the child and family.
I can do whatever is needed to correct my wrong and assist the child and family in dealing with this situation.
I am humbly sorry and wish to be given a chance to correct all my wrongs.

12. Learner A testified that she started communicating with Mnkwanyana via WhatsApp when she and her classmates needed some corrections to be made. She and Mnkwanyana thereafter communicated on WhatsApp outside of the classroom for quite some time until her aunt found out. At first, they spoke normally and then Mnkwanyana started saying that he had feelings for her and that he loves her. He asked her if she was in a relationship with someone and she replied that she was not. She also asked him if he was in a relationship and he said it was complicated. She once told Mnkwanyana that she loves him. They then started speaking sexually. He gave her advice about not sleeping around and not getting pregnant and using condoms/contraceptives. She liked the attention she was getting even though she didn’t love him. He once bought her a chocolate which she collected from his office.

13. He requested for nude pictures which she shared with him and he liked it. He again requested for nude pictures on one morning but she had already dressed up and said that she will send it to him later. She shared about two or three of her nude pictures with him. The nude pictures were of her full body including her breasts and private parts. He said that the pictures were beautiful. She asked him for his nude pictures as well. He did not want to share a photo because he said that he wanted her to see it live. He showed her his penis on a video call and she responded by saying how big it was. That’s when her aunt found out.

14. She pointed out the WhatsApp messages in Bundle B and stated that Mnkwanyana told her “I’m going to have sex with you”. After she said “Please be hard”, Mnkwanyana said “I will be, babe”. On another occasion, Mnkwanyana said “I’m going to make love to you. I’m going to insert my penis fully inside you and you going to feel it”. When she shared pictures of her breasts, he said “I need this comfort”. Mnkwanyana would also say “Good morning my love” and “I love you babe”. There was also a conversation about the chocolate that Mnkwanyana had bought for her and left in his office for her to collect.

15. Under cross-examination, she stated that she was sure that it was Mnkwanyana in the video when he showed his private parts because she could identify his face and she was also sure that she chatted to Mnkwanyana during the WhatsApp conversations. She agreed that not getting pregnant and using condoms was good advice. She disputed that Mnkwanyana’s phone could have been hacked because there were about 3 other video calls in which she saw Mnkwanyana’s face on the phone. The conversation went on for days or weeks before Mnkwanyana requested the nude pictures. She agreed that they did not have sexual intercourse but maintained that they spoke about it.

'16. She denied Mnkwanyana’s version that he lived with his brother and that his brother used his second phone. Mnkwanyana told her during the video calls that he lived alone. She denied that she had any feelings for Mnkwanyana. She agreed that she did not have a recording of the video calls. Mnkwanyana informed her that he goes jogging every morning at 04:00 – 05:00, showers and then gets ready for school. She denied that the conversations could not have taken place at, eg, 10:53 because Mnkwanyana would have been asleep.

17. Learner A’s father testified that his sister brought the WhatsApp communication to his attention and they decided to then go to the principal. He requested the principal to call Mnkwanyana. He asked Mnkwanyana what his intentions were with his daughter and Mnkwanyana continuously apologised. He later stated that Mnkwanyana said that he could see his mistake but never apologised. Mnkwanyana agreed to certain things that happened. He never threatened Mnkwanyana and only asked the principal to escalate the matter. He cannot trust Mnkwanyana to teach his daughter.

18. He confirmed that the messages in Bundle B were from his daughter’s phone. He was very hurt when he saw the messages because he was not expecting a teacher to be communicating with a learner in that way. The pictures could have been leaked on social media and could have damaged the child. Mnkwanyana once called him and asked him to drop the case and resolve the matter.

19. Under cross-examination, he maintained that Mnkwanyana agreeing to his mistakes meant that he was apologising. He denied Mnkwanyana’s version that he never had the WhatsApp conversations with his daughter because Mnkwanyana admitted to him that he could see his mistakes. He denied that Mnkwanyana had admitted to his mistakes because Mnkwanyana had been threatened.

20. Mnkwanyana testified that Learner A was a good, respectful, punctual, cooperative and hardworking learner that produced good results. He treated her just like all other learners. He was surprised by the accusation that he had a relationship with her. The parents came to school angry and asked him when last he had a conversation with Learner A. He was confused and could not remember because he did a 30 km jog that morning and was trying to find out what it was about. When he said that he could not remember, the father’s brother said “We are not here to play, you want us to remind you. You spoke to her at 06:00”.

21. He did not use WhatsApp that morning because he had to prepare for school and had left his phone at home. He had two phones – he always carries the first phone that does not have the new technology (WhatsApp/email/internet). He leaves the second phone at home because he hardly uses it. He does not use WhatsApp. His brother mostly uses the second phone and it was his brother that downloaded WhatsApp on the second phone. There are times, however, when he does carry it to school, eg when there are races. When he brings the phone to school, he leaves it at the staff office so that other people can use it. He does not know who downloaded TikTok and some games on his phone. He doesn’t do WhatsApp chats because he is not good at typing. If someone sends him a chat, he would call them.

22. He tried to help the parents because he could see their pain. They were very angry and the father said that he could hit him right there but was respecting the principal. They read out the messages on the phone and he could see it was very vulgar language. He does not use vulgar language and he was confused because it was not on his phone and he did not have a relationship with any learner at school. He was never at a place with any learner alone or even spoken to them privately. He did not know what the messages were about apart from what her parents had told him. He said he was sorry because of the threats and he wanted to prevent being beaten up. He did not video call Learner A or send her WhatsApp messages. He didn’t know anything about the allegation of buying a chocolate for Learner A.

23. Under cross-examination he agreed that he leaves home for school at about 07:00 to 07:15. He denied that he had any sexual conversations with Learner A or told Learner that he loves her or spoke to Learner A via video call. He only sent homework on WhatsApp. He denied that he sent Learner A to his office to collect a chocolate. He does not dispute the conversation but whoever Learner A was talking to was not him. He leaves his office open with his phone there and people come and go. Learner A assumed that it was him but it was not.

24. He did not report to the SAPS that someone had hacked his phone or sent messages from his phone because he was told not to go to any government department. He understood the parents’ anger and therefore he did not report to the SAPS that Learner A’s father/uncle had threatened him.

25. With regard to his statement in Bundle B, he was hurt and emotional when he wrote the statement and was not given an opportunity to consult his union. They came to him and said just write something. He agreed that no one put words in his mouth. He wrote the statement after the principal had read from his notebook about what the parents had said. He apologised because he didn’t know what to write and thought that apologising would appease the angry parents. Sometimes he apologises for something he did not do because he does not want to aggravate the situation. He was under pressure from the principal when the principal came to him after 20 minutes.

26. With regards to the words on his cell phone “I’m with Zulu in my car” was not written by him because Zulu had his own car. The words “I’m with the guys formally training” was not written by him because people know what is going on in his life and they could have written it. His phone could have been hacked.
27. Under re-examination he stated that someone used his phone to frame him and that someone had bad intentions against him. He did not believe that it was his brother that used his phone to send the messages because his brother denied it and he believes his brother.

ANALYSIS OF EVIDENCE AND ARGUMENTS
28. The key issue to be determined in this matter is whether Mnkwanyana had WhatsApp conversations with Learner A that were of a sexual nature, whether he had requested nude photos from Learner A and whether he had a video call with Learner A in which he had exposed his private parts to Learner A.

29. It is not in dispute that Mnkwanyana’s phone was used to send and receive WhatsApp messages from Learner A. The content of the WhatsApp messages is also not in dispute. Mnkwanyana’s version is that it was not him that was communicating with Learner A on his phone but either someone else used his phone to frame him or that his phone was hacked.

30. It is not in dispute and I accept that Mnkwanyana had apologised/admitted to his mistakes to Learner A’s father at the principal’s office. This is a clear admission that it was Mnkwanyana and not someone else that used his phone to communicate with Learner A via WhatsApp.

31. I reject Mnkwanyana’s version that he apologised because he was threatened by Learner A’s father or uncle. He put this version once to Learner A’s father and did not take the matter any further when it was denied. His version that Learner A’s father said he “could hit him right there but was respecting the principal” was not put to Learner A’s father. His version that the uncle said “We are not here to play, you want us to remind you” was not put to Learner A’s father who was present in the meeting at that time. Untested evidence cannot be relied upon. I find that Mnkwanyana’s version that he apologised because he felt threatened, is not probable.

32. Mnkwanyana wrote a statement in which he admits that he was the one that asked Learner A to send him inappropriate photos of herself and that he deleted the photos from his phone. This is a clear admission that it was Mnkwanyana and not someone else that used his phone to communicate with Learner A via WhatsApp. I’m not convinced that Mnkwanyana wrote his statement under pressure from the principal. His version in this regard was not substantiated. The only issue alleged by Mnkwanyana is that the principal read some notes of what Learner A’s father/uncle had stated in their meeting and that the principal came back after 20 minutes and asked him to write the statement. He agreed that he was told to just write something and no one put words in his mouth. This, in my view, could hardly be considered as undue pressure. I find, therefore, that he wrote the statement voluntarily and freely.

33. I considered Learner A to be a credible witness. She gave her evidence clearly and without contradiction. Learner A and Mnkwanyana had enjoyed a good teacher-learner relationship prior to these incidents and there was no reason for Learner A to fabricate a version against Mnkwanyana. I, therefore, accept her version that during the various video calls she could see that she was talking to Mnkwanyana and not someone else.

34. Mnkwanyana contradicted himself with regard to whether it could have been his brother that used his phone to communicate with Learner A. His final version is that it was not his brother. It then comes down to whether it was someone else that wanted to frame him or whether his phone was hacked. There was no suggestion as to who had wanted to frame him and for what reason. His version that he would just leave his cell phone in his office or in the staffroom unattended for everyone to use is highly improbable. This is also contradictory to his earlier version that he mostly left his cell phone at home. The personal nature of the conversations suggest that it could be no one else but Mnkwanyana that sent the messages – example “I’m with Zulu in my car”, “I’m with the guys formally training” and when he asked Learner A to collect a chocolate from his office. Given the serious nature of the allegation, his reason for not reporting to the SAPS that his phone was hacked is unacceptable. There was no other evidence to convince me that his phone was hacked.

35. Having regard to the above, I find that Mnkwanyana had communicated via WhatsApp with Learner A. I accept from the reliable evidence of Learner A that there was a video phone call in which Mnkwanyana had exposed his penis to Learner A. The other WhatsApp messages are not in dispute. I accept that Mnkwanyana lured Learner A into sending him photos of her completely naked body and had other inappropriate conversations with Learner A.

36. The misconduct that Mnkwanyana committed is, therefore, of a sexual nature and is dealt with in section 17(1)(b) of the Employment of Educators Act, 76 of 1998. In terms of Section 17, the misconduct is regarded as serious misconduct for which dismissal is a mandatory sanction irrespective of any mitigating factors. Having regard to the gravity of the misconduct in this case, the rights of learners to be treated with dignity and that Mnkwanyana is an educator who works closely with learners, I am satisfied that the employment relationship has irretrievably broken down.

37. I therefore find that a sanction of dismissal is appropriate in the circumstances. In addition, given the nature of the sexual misconduct involving a vulnerable learner, I find that Mnkwanyana is unsuitable to work with children in terms of section 120 of the Children’s Act. The General Secretary of the ELRC is, in terms of section 122(1) of the Children’s Act, is hereby directed to notify the Director-General: Department of Social Development of the findings of this forum so that the Director-General can, in terms of section 122(2) of the Children’s Act enter his name as contemplated in section 120 in part B of the register.

AWARD
38. In the circumstances I make the following award:
38.1. The employee, M.E. Mnkwanyana, contravened section 17 of the Employment of Educators Act, 76 of 1998.
38.2. The employer, Department of Education KZN, must with immediate effect impose the sanction of dismissal on Mnkwanyana in terms of the said Act.
38.3. The ELRC General Secretary must, in terms of section 121(1) of the Children’s Act, forward this award to the Department of Social Development for Mnkwanyana’s name to be included in the National Child Protection Register as contemplated in section 120, Part B, as unsuitable to work with children and to the SA Council for Educators (SACE) for appropriate action.

Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal