ELRC378-23/24EC

Case Number: ELRC378 - 23/24EC
Commissioner: MBULELO SAFA
Date of Award 09 May 2024
In the ARBITRATION between: -

EASTERN CAPE DEPARTMENT OF EDUCATION
Applicant/EMPLOYER

And

THOZAMILE SAULE
Respondent/EMPLOYEE


DETAILS OF THE HEARING AND REPRESENTATION

1. The matter set down for Arbitration on the 23 October 2023 and concluded on the 8 April 2024. The venue was Fort Beaufort Magistrates Court.

2. The Applicant(employer) was represented by Mr Mpakamisi Hlekani who is the Labour Relations Officer of the Employer and the Respondent(employee) was represented by Mr Aron Mhlontlo from the union, NAPTOSA.

3. Ms Violet Gwija was the interpreter and Ms Maquza Nxala was the intermediary and both of them were appointed by the ELRC.

4. The proceedings were recorded in an audio recorder.


ISSUES TO BE DECIDED


5. Whether or not is the employee guilty of the charges proffered against him, and if he is guilty impose an appropriate sanction in terms of the Employment of Educators Act.

BACKGROUND TO THE ISSUE

6. The employee is employed by the Respondent in terms of the Employment of Educators Act as an educator at Thubalethu High School.

7. He was charged in terms of section 17(1)(b) of the Employment of Educators Act in that he is alleged to have sexually assaulted the first complainant who was the learner at Thubalethu High School.

8. The proceedings here are in terms of ELRC Collective Agreement 3 of 2018 which provides that it is mandatory that in misconduct cases where the allegations against the educator relate to alleged sexual misconduct against a learner the matter must be dealt with as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act.

SURVEY OF EVIDENCE AND ARGUMENT

9. The employer led oral evidence through two witnesses and submitted one bundle of documents. The second witness of the employer was not cross-examined because it was reported (on the date scheduled for cross-examination) that she was no longer interested to be involved in the case.

10. The employee led oral evidence through three witnesses.

APPLICANT(EMPLOYER) ’S EVIDENCE

11. The first witness of the employer was a minor who is the learner at the school. For the benefit of this award and to protect her identity since she is a minor she will be referred to as first complainant.

12. The first complainant testified that she was a learner at Thubalethu High school and on the date of the arbitration she was sixteen (16) years old.

13. She testified that on the 17 November 2022(then she was in grade 10), after finishing the writing of the Geography examination she was called by her friend (second complainant) to accompany her to the office of the employee. When they got to the office they looked at their marks for IsiXhosa.

14. After checking their marks, the employee complained about the behaviour of her (first complainant’s) twin sister. The employee then took out a plastic bag with a bottle of Gordon’s gin and asked the complainants to help themselves in order to ‘cleanse the paper’. The witness said she was confused and looked at the other complainant not knowing why went there in the first place.

15. The witness testified that the employee then gave the door keys to the second complainant and asked her to go and lock the door. As the second complainant was going to the door the employee who was sitting on the chair he took out his hand and put it under the skirt of the first complainant. She said the employee put his hand through to touch her thighs and buttocks.

16. The first complainant reacted by asking what the employee was doing and told him not to take her for granted “sukundiqhela kakubi”. She said that since she was scarred she did not say this in a loud voice and another person, besides the employee, would not have heard her. The first complainant then went to the door whilst the second complainant was still locking. The first complainant told the second complainant that she was leaving. They both left. The first complainant said as they were leaving she was confused, scarred and angry.

17. When the version of the employee was put to her that the employee was going to deny that he ever touched her, she said the employee would be lying as he touched her in the way she described

18. She said they both went to the hostel where she cried as she told her friends what happened. She said she also called her mother who wanted to talk to the employee on her phone.

19. Before she(witness) could take the phone to the employee she went to the staff room to report. At the staff room she met two educators; Ms Ngxesha and Ms Ndziba. She said the educators appreciated that she went to report and promised to attend to the problem. The educators never had time to come back with the feedback as that day was the last day of the quarter. She said it was usual for them to report at the staff room and not at the principal’s office.

20. After reporting the witness went to look for the employee and found him with other educators. Though she could see that the employee was intoxicated she nevertheless gave him the cellphone to speak to her mother.

21. After the incident no one came to her or discussed anything with her about the incident. She said she was only invited to the office of the principal long after the incident had happened.

22. She said she has always looked at the employee she did with other educators and had nothing against him.

23. The second witness of the employer was the second complainant who testified that in 2022 she was doing grade 10 at Thubalethu High School but was currently at a school in East London.

24. She said the employee was her IsiXhosa teacher in 2022 and the first complainant was her friend.

25. On the 17 November 2022 after finishing writing the Geography paper she waited for the first complainant whilst the employee was standing outside. She said the employee asked her if she was interested to ‘cleanse the paper’ and when she asked how the employee said she must follow him. The witness saw the first complainant and asked her to join and they both followed the employee to his office.

26. When they got to the office the employee showed them their IsiXhosa scripts. After that the employee took out a plastic with a bottle of Gordons gin. After that he gave the witness the keys asked her to go and lock the door.

27. The witness said before she could finish locking the door the first complainant came to her and said she was leaving. When asked the reason why she was leaving she did not say but looked angry.

28. She said they then went to the hostel and when they got there and were together with other learners the first complainant was crying and she informed them that the employee touched her thighs and buttocks. After that the first complainant called her mother and informed her. The witness said she believed what the first complainant said

29. After that the witness together with the first complainant went to the staff room where they found two educators; Ms Ngxashe and Ms Ndziba to whom they reported. After reporting to the two educators they(educators) went to look for the employee.

RESPONDENT’S EVIDENCE AND ARGUMENT

30. The first witness of the employee was himself, Thozamile Saule. He testified that he was employed as an educator at Thubalethu High School and was teaching IsiXhosa and English in grade 8 and 10. He also said he knew both complainants as he taught them in 2022.

31. He said that on the 17 November 2022 he was invigilating Geography paper together with another educator.

32. After finishing the invigilation, he collected the scripts and went out of the classroom. On his way out he said he met the second complainant who asked to see her IsiXhosa script. He asked her to follow him to the office and she followed together with her friend, the first complainant. When he showed the script to the first complainant she was not happy with her marks and questioned the employee about some questions. He said he responded to the questions and even showed the first complainant the memorandum. After that both complainants left his office.

33. After the two complainants have left he also went out and met two educators outside who told him that a learner was alleging that he(employee) offered them with alcohol. He said he denied that allegation. The two educators then said they were going to report to the principal. When it was put to him(employee) that the first complainant testified that she told the two educators about both the touching and the alcohol, he said the two educators only told him about the alcohol incident.

34. The witness denied that he fondled the thighs and buttocks of the first complainant. He said he only showed the complainant her scripts and after that she left. He also denied that he offered alcohol to the two complainants. He also denied that he ever gave the keys to second complainant to lock the office. He also stated that the first complainant was not crying when she left the office. He also denied that he ever spoke to the parent of the first complainant.

35. After the incident of that day he was never called by the principal and no person of authority ever talked to him about the incident. When a question of clarity was asked he said a year later he was asked by the principal to write a statement about the events of the 17 November 2022. He wrote the statement stating the events as he stated at the arbitration. He said he submitted the statement to the Labour Relations Officer of the employer.

36. The other witness of the employee was Noma-India Ngxesha who in 2022 was working as an educator at Thubalethu High School but has since retired. She said she was teaching English in grade 10 and 11.

37. She also testified that besides teaching she was also responsible for the discipline of learners and also assisting an educator who was the Teacher Liaison Officer. She said she knew only the second complainant whom she taught and did not know the other complainant.

38. On the 17 November 2022 the learner, who was later identified as the first complainant, came to the staff room to report that she went to the office of the employee to check her scripts and what she did not like was the fact that the employee offered her alcohol. She said she told the learner that it was good that she reported. Together with another educator, Ms Ndziba, they decided to attend to the problem and approached the employee who they met at the stairs. The employee denied that he offered alcohol to the learner. He said the learner only came to look at his IsiXhosa scripts. After that they went to report to the principal.

39. She said she first went to the employee in order to get his side and also to assure the learner that the matter was being attended to.

40. She also testified that when the first complainant came to her to report she (first complainant) had a demeanor of someone who came to report something serious. She disputed that the complainant was hysterical and crying when she came to report. She also disputed that the complainant reported about the touching as well.

41. She also said when the first complainant came to report she did not know her(complainant) and did not ask her what her name was and also when they approached the employee they did not know the name of the complainant. When they approached the employee it was he who said the name of the learner was the first complainant. When it was put to her that it was strange that she did not enquire about the name and class of the learner who came to report about something so serious she said she did not see it strange as she could not know all the learners at the school.

42. The other witness of the employee was Nomvuyo Ndziba who is an educator at Thubalethu High School. She said she knew the first complainant but did not know the first complainant but did not know the second complainant.

43. She said the first complainant came to the staff room crying reporting that she did not like what the employee did when he offered her alcohol when she (first complainant) went to enquire about her marks. The complainant reported that the employee asked if the complainant did not want to ‘cleanse’ the examination paper. Whilst the employee was asking that he took out a bottle of liquor. She said after the report Ms Ngxesha told the complainant that it good that she came to report. They then both went to report to the employee and the principal.

44. She said they both went to the employee and asked him about the allegations but he denied knowledge of the incident(alcohol). She said the first complainant only reported the alcohol incident and not the incident of inappropriate touching.

45. She said she thought Ms Ngxesha knew the first complainant and did not see the need to ask what her name was.

46. Asked about the state of mind of the first complainant when she came to report, the witness reiterated that the first complainant was visibly crying to the extent that she(witness) comforted her.

47. Asked if being offered alcohol could lead to someone crying to the extent of being comforted the witness said the complainant would cry maybe because she was young and did not know anything about alcohol.

ANALYSIS OF EVIDENCE AND ARGUMENT

48. Since this was the enquiry the onus was on the employer to prove the allegations on a balance of probabilities.

49. Much as there was evidence led on issues that have no direct bearing on the charges faced by the employee, I will focus in the evidence that has a direct bearing on the charges.

50. At the room where the incident of the 17 November 2022 allegedly occurred there were three people; the first complainant, second complainant and the employee. When the actual incident occurred there was only the first complainant and the employee. This effectively means that, typical to many sexual related offences we rely on the mutually destructive versions of two witnesses; the complainant and the alleged perpetrator.

51. When faced with the mutually destructive versions, like in this case, the Supreme Court of Appeal in Stellenbosch Farmers Winery Group Ltd & Another v Martel et Cie & Others provided a technique where it said the court must make findings on the (i) credibility of the various factual witnesses, (ii) their reliability and (iii) probabilities.

52. In this case, save for a bare denial, the employee did not succeed to rebut the evidence of the complainant, even at cross-examination. The version of the employee was that after showing the first complainant her IsiXhosa marks there was a dissatisfaction on the part of the first complainant about the marks after which both complainants left. This version of the employee was crucial as it may have been said to be the basis of the relationship between the employee and the first complainant when they were together in the classroom just before the alleged incidence occurred.

53. During cross-examination the first complainant was asked whether she was happy or not with the marks she got in IsiXhosa and she said she got what she deserved. If the first complainant had protested her marks, as the employee testified, it was the opportune time for the employee to put his version to the first complainant. However, the applicant who was represented by an experienced union official, did not put this version to the first complainant when she testified. Putting the version to the first complainant would have ensured that it is tested. The failure to put it then points to the credibility finding against the version of the employee. This effectively means the version of the employee is not probable.

54. In her evidence the witness of the employee Noma-Indiya Ngxesha testified that when she and her colleague approached the employee about the allegations they did not mention the name of the first complainant as they did not know it then. It was not a coincidence that the employee immediately identified who of the two learners who visited his office earlier has made the allegations against him. That he was able to state to the two educators that it was the first complainant who made allegations shows that the employee knew something.

55. No evidence was led that there was any issue in the relationship between the employee and the first complainant, which may have caused the first complainant to falsely accuse the employee. In her evidence the first complainant stated that she regarded the employee like all other educators and did not have anything against him. In fact, even the circumstances leading to the incident are that of people who related well. It was common cause that the first and the second complainant freely went to the office of the employee to get their marks. It was further testified that all other learners got their marks in class, but because of the easy relationship between the complainants and the employee they were able to go and get their marks from the office of the employee. There can therefore be no motive for the first complainant to falsely accuse the employee.

56. In her evidence the first complainant testified that when she left the office of the employee she was angry and started crying when she got to the hostel. This was corroborated by the witness of the employee, Nomvuyo Ndziba, who testified that when the first complainant came to report to them (with a colleague) she was crying and Nomvuyo even had to comfort her. Nomvuyo testified that the first complainant came to report that the employee offered her alcohol. It is not probable that the first complainant would react the way she did; angrily storming out of the classroom shouting at the employee that she was taking her for granted, report to other learners in the hostel and starting and continue to cry and be hysterical when she went to report to the two educators, just because she was offered alcohol.

57. The evidence of the first complainant was consistent and straight forward and was not shaken even at cross-examination. On the other hand, there was a contradiction in the evidence of the two witnesses of the employee. One witness, Nomvuyo Ndziba, testified that the first complainant was crying when she came to report to her and her colleague. The other witness of the employee, Noma-India Ngxesha, was adamant that the first complainant was not crying when she came to report to them.

58. In view of the contradictions, credibility findings against the employee and the findings of improbabilities I have to prefer the version of the first complainant. The preferred version is that the employee touched the thighs and buttocks of the first complainant. The conduct of the employee in touching the thighs and buttocks of the first complainant amounted to sexual assault as contemplated in section 17(1)(b) of the Employment of Educators Act. On a balance of probabilities, the employee is found guilty of the charges proffered against him.

59. In terms of section 17(1) of the Employment of Educators Act an educator must be dismissed if found guilty of committing an act of sexual assault on a learner. As I have found the Respondent guilty of sexual assault it is prescriptive that I impose a sanction of dismissal.

60. Section 120(1) of the Children’s Act provides that a children’s court, any court in civil or criminal proceedings or any platform recognized by law in disciplinary proceedings may make a finding that the person is not suitable to work with children. The finding may be made the court or platform on its own volition or on application by the relevant official of the state involved in the protection of children .

61. In this arbitration no evidence was led by parties on the suitability or not of the Respondent to work with children. However, the Children’s Act allows that the arbitrator can make the finding on his or her own volition. I have therefore decided that I am making the finding that the Respondent is, in terms of the Children’s Act, not suitable to work with children.

AWARD

62. The employer has succeeded to prove on a balance of probabilities that the employee, Thozamile Saule, is guilty of the charges proffered against him.

63. The appropriate sanction being imposed is DISMISSAL which must be effected within seven (07) days from the date of receipt of this award.

64. The Respondent, Mr Thozamile Saule, is hereby found unsuitable to work with children in terms of section 120(4) 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 (Thozamile Saule’s) name as contemplated in section 120 in part B of the register.
Mbulelo Safa: ELRC Panelist