ELRC713-23/24GP

Case Number: ELRC 713-23/24 GP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 04th of June 2024

In the ARBITRATION between

Gauteng Department of Education

(Employer)

And

T. Tsese

(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 Gauteng Department of Education Head Office in Johannesburg and sat for hearing on the following days namely the 27th of February 2024, the 3rd, 22nd and 23rd of April 2024 and finally the 20th and 21st of May 2024.

2. After completion of the inquiry the parties requested the opportunity to submit written closing arguments by the 28th of May 2024. The employee’s written closing arguments were submitted by the 28th of May 2024, but the employer representative requested a two day extension for the forwarding of her submissions due to other work pressures. The employer representative’s submissions were received on the 30th of May 2024.

3. Mr. Tankiso Kabi, a union official from NATU, represented the employee.

4. MS. Valerie Mnisi, a labour relations official, represented the employer.

5. The proceedings were digitally recorded, and long hand notes were also kept of the proceedings.
6. The employer made use of a bundle of documents consisting of 25 pages (marked Bundle ‘B’) and the employee made use of a bundle consisting of 15 pages (marked Bundle ‘A’).

7. An intermediary (Ms. Edna Shibisi) assisted the minor witnesses and the said witnesses testified remotely from the hearing room where the arbitration hearing itself took place.

8. A Zulu interpreter (Mr. Marvin Seale) was present and assisted the parties and witnesses where necessary. A Venda interpreter also assisted adult witnesses on the 20th and 21st of May 2024.

ISSUE IN DISPUTE
9. The employee pleaded not guilty to three counts of alleged misconduct in terms of section 18 (1) (q) 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 PL 2 (HOD) Mathematics educator at the Lufhereng Primary School.

11. It was alleged firstly that on or around June 2023 or anytime incidental thereto while on duty at Lufhereng Primary School, the employee conducted himself in an improper, disgraceful, and unacceptable manner in that he sexually harassed OM, a grade 7 learner by hugging her and touching her breast.

12. Secondly, it was alleged that, on the 14th of February 2023 or anytime incidental thereto and while on duty at Lufhereng Primary School, the employee conducted himself in an unacceptable, disgraceful, and improper manner in that he told OL, a grade 7 learner that “kwala moo owa rekgadisa rona bashimane” (meaning close your thighs you are arousing us boys while looking at your thighs).

13. Thirdly it was alleged that on or around June 2023 or anytime incidental thereto while on duty at Lufhereng Primary School, you sexually assaulted a grade 7 learner AM, a grade 7 learner, by touching her private part during his Mathematics class.

SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT

14. The employer led the evidence of three minor witnesses who were complainants in the matter namely OM, OL and AM.
15. All three witnesses who were in grade 7 at the time of the alleged incidents (now grade 8) were clearly able to distinguish between right and wrong and took the oath.

16. The employer also lead the evidence of the current Principal of the school namely Mr. M.E Rwairwai.

17. Please note that I will not necessarily be surveying the evidence of all the witnesses (both departmental and employee) in the order that they gave their testimony.

18. Two minor witnesses and alleged complainants, OM and AM testified that the employee touched them inappropriately and in a sexual manner whilst in class. OM testified that when one of the employee’s Mathematics classes ended and as he was on his way out of the class she approached the employee to assist her with a Maths problem and in addressing her he touched her on the shoulder and on her breast and this made her feel uncomfortable.

19. AM testified that during a Mathematics class in June 2023 the employee pinched her inside her thighs. AM did not give context why the employee did this.

20. AM also testified that the employee had also pinched another learner between her thighs inside the classroom. It later transpired that this learner was one PK. No explanation was given why the employer did not add a fourth charge to the list of charges that the employee was facing or why PK did not testify as a witness in support of AM’s allegations.

21. OL testified that the employee uttered the inappropriate words mentioned in the third allegation of misconduct when addressing the way she was sitting in class on Valentines day (14TH of February 2023).

22. Principal Mr Rwairwai testified, inter alia, that OM, OL and AM all approached him together with their respective complaints against the employee. The complaints were later reported to the District office for investigation.

23. Rwairwai also testified that the employee was a dedicated HOD, an extrovert, outspoken and they had a sound working relationship.


SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT

24. The employee testified under oath and lead the evidence of two minor learners who were in the same class as the complainants at the time that the alleged incidents occurred. The two minor witnesses were MP and TM.

25. The employee also lead the evidence of two adult witness who currently worked at the school. The adult witnesses were Ms. Bangi Lufhugo and Ms. Paulina Sothoane.

26. The employee gave detailed testimony under oath that ran for a whole day.

27. The employee confirmed that he had commenced employment at Lufhereng Primary School as an HOD (PL 2) educator in 2013.

28. The employee denied all the charges against him as being false and concocted.

29. The employee spoke about various problems
 that he had encountered with the trade union SADTU and various departmental and school officials that belonged to SADTU.

30. The employee referred to pages 1.1 and 1.2 of the employee’s bundle ‘B”

31. This document emanates from the South African Democratic Teachers Union (SADTU’s) Matla- Matimba Branch and is dated the 8th of November 2018. The letter is addressed to the then Acting Chief Director and the then Head of Department.

32. At the pre-arbitration hearing the parties agreed that the documents contained in the bundles of documents were what they purported to be. The employer at no stage challenged the veracity of this document.

33. The letter makes a series of demands one of which refers to the employee and witness Ms. Paulina Sothoane herself and describes them (together with two others) as troublesome teachers.

34. The union then threatens to shut the school down should the four educators remain at the school.

35. The employee described this and a series of other events where he was victimized and mistreated by officials aligned with SADTU for no apparent reason. When he took up matters with the District and Circuit office he was ignored.

36. The employee admitted that he did not always do as he was told and as a devout Christian he often refused to do things that he was told to do that were in breach of his Christian ethics. This did not always make him popular, and his superiors saw him as a threat.

37. The employee described how the Deputy Principal at the school (who was appointed in 2016 under irregular circumstances) made his life a misery/living hell.
38. The employee admitted that he was originally a SADTU member but later changed affiliation to NATU when he saw how he was being prejudiced and tormented by SADTU aligned superiors.

39. At one point in time whilst giving his testimony the employee broke down in emotional distress and the proceedings had to be adjourned for a short while.

40. The employee also testified about being falsely charged and arrested for alleged assault with intent to do grievous bodily harm by a colleague in years gone by when it was alleged that he had pushed her. Besides having to spend time in jail and having to spend R7000-00 on a lawyer to assist him to get bail, the case was eventually withdrawn. The employee testified that he believed that the false charges were supported by his enemies.

41. In desperation he wrote to the Member of the Executive Committee (MEC) about his victimization and received no reply. He suspected that he was dealing with a cartel in the Department of aligned SADTU members who were intent on victimizing him until he resigned or died because he refused to play by their rules.

42. The employee referred to the medical conditions supported by doctors’ letters caused by the ongoing victimization.

43. The employee testified that the current Principal Rwairwai had begun investigating the first allegation of sexual misconduct as early as the beginning of the second term in April 2023. The employee stated that Rwairwai’s testimony that he had not investigated the case against him was a lie. Rwairwai was also a SADTU union member.

44. The employee referred to a certain educator known as Ma’am Omaki Bautlanye who was at one time prior to these events charged with unduly influencing children to make false claims against educators and making children unmanageable. The employee stated that at this time he was still a SADTU member, and he was asked to represent Bautlanye at her disciplinary enquiry. Before this could happen the Department of Education mysteriously withdrew the charges against Bautlanye.

45. The employee testified further that it was well known that the complainants in this matter were friends of Ma’am Omakie and had consulted with her before reporting his alleged misconduct to the Principal.

46. The employee then moved his attention to the learner AM.

47. The employee testified that AM was a troublemaker in his class. In Grade 6 AM and her friends had been responsible for vandalizing a classroom. She was disruptive and unmanageable in class.

48. It is common cause that AM’s mother is the treasurer of the School Governing Body (SGB) at the school and AM had regularly claimed that her mother is the boss of the school. The employee deposed that AM had never respected him and for example frequently refused his instructions to stop chewing gum in class.

49. The employee denied that he had touched the complainants in any way. He was a Christian man of integrity and would not resort to touching and commenting about girls inappropriately in front of a full class or at all.

50. The employee admitted to addressing OL and the class generally to sit properly but he certainly had not used the inappropriate words that the complainant had alleged in allegation 2.

51. The employee testified that the alleged sexual misconduct charges were fabricated against him by AM instigating her friends to falsify charges for the simple reason that she did not like him.

52. The employee testified further that it was highly improbable that he would touch AM in any way sexually knowing that her mother served on the SGB.

53. The employee also testified that the charges were additionally politically motivated and supported by the enemies he had made within the ranks of SADTU over the years by refusing to support conduct that did not meet his Christian standards of integrity.

54. MR (the first minor witness to testify for the employee) testified that he was in the same Mathematics class as the complainants for a time in 2023.
55. MR testified that he sat behind OM to the side and deposed that he never saw the employee touching her breasts in class in June 2023 or at all during the year.

56. MR confirmed that the three complainants were all friends together with one PK and others.

57. MR denied that the employee had touched AM’s private parts in class. He had seen no evidence of this. He testified that he had been in class with AM since grade 1.

58. He described AM as a disruptive learner with the employee and other educators. He himself had asked to be moved from her class in grade 7 because of her conduct. She was disrespectful and he and other learners could not concentrate on their learning when she was around.

59. MR testified further that when AM discovered that he would be testifying in favour of the employee at the hearing and in April 2024 she scornfully stated that the employee had bought groceries for him and his family. He categorically denied that the employee had brought them groceries or in any other way induced him to come and testify at the hearing. He had done so freely and voluntarily.

60. The second and last minor witness for the employee was TM. She testified that in 2023 she was in class 7B, and the employee taught them Mathematics.

61. TM testified that there were 59 pupils in class, and she sat with OM and OL and PK. AM sat behind them.

62. All three charges were read out to the witness, and TM denied having witnessed any misconduct committed by the employee during 2023 or at all.

63. Shortly after the alleged incident involving AM, AM together with OL came to her and stated that the employee had touched AM’s private parts and PK’s buttocks. Both asked her to testify as a witness in support of these allegations.

64. They also stated that the wanted to take out the employee like they had taken out another educator Ma’am Taung. AM and OL mentioned to her that the employee was boring, and he pinched them when they misbehaved in class. They did not like that, and it was time to take him out.

65. TM testified that she refused to testify against the employee because according to her he had done nothing wrong. Her grandmother also advised her that testifying could get her into trouble.

66. When AM discovered that she would be testifying in support of the employee AM stated that she would “deal” with her if she came to the hearing and told lies.

67. During cross examination it was put to the witness that she had been coached as to what she should say at the hearing and was also offered some inducement to testify. The witness denied this. TM testified that when the employee approached her grandmother to request permission for her to testify and tell the truth he brought nothing with him, and she was not told what to say other than to tell the truth.

68. TM conceded that the employee sometimes pinched learners when they misbehaved in class. The employee had even pinched her on her arm on occasion.

69. Lufhugo testified that she is an administrative assistant at Lufhereng Primary and has been employed for eleven (11) years.

70. Lufhugo testified that she knew the employee since he joined the school as an educator in 2013.

71. She knew the employee to be a calm and professional person and a dedicated Christian.

72. Lufhugo gave character evidence that the employee was completely incapable of committing the misconduct that had been alleged against him based upon her knowledge of the person that he is which she had observed over many years.

73. In all the years that the employee had been at the school no other allegations of sexual misconduct had ever surfaced against him.

74. Lufhugo then testified about the learner AM. AM’s mother is currently a member of the SGB (treasurer), and she (the mother) comes to school often (two to three times per week) to speak to the Principal.

75. Lufhugo testified that AM is a very forward learner and when she comes to the office everyone notices her. She is somewhat obnoxious, and the witness observed that AM would call her by her first name and not respectfully “Ma’am” as other learners would do.

76. The next adult witness was Ms. Paulina Sothoane. She testified that she is a PL 2 educator (HOD) for the Foundation phase. She knows the employee since they both started at the school as HOD’s in 2013.

77. The witness was also referred to pages 1.1 and 1.2 of the employee’s bundle ‘B” referred to in paragraph 29 above.

78. To recap this document emanates from the South African Democratic Teachers Union (SADTU’s) Matla- Matimba Branch and is dated the 8th of November 2018. The letter is addressed to the then Acting Chief Director and the then Head of Department.

79. The letter makes a series of demands one of which refers to the employee and witness Sothoane herself and describes them (together with two others) as troublesome teachers.

80. The union then threatens to shut the school down should the four educators remain at the school.

81. Sothoane gave lengthy testimony and testified inter alia that she does not know how she got involved on the wrong side of SADTU and has no idea how the employee himself fell afoul of the union as well.

82. Sothoane testified that she was initially a SADTU member but later changed to a NATU member after being treated badly by the union (for no reason).

83. The various allegations of misconduct were read to Sothoane who testified in response that she knew the employee well and he was certainly not capable of committing such acts of misconduct.

84. Sothoane testified further that she had seen the employee in action teaching in class on many occasions since they shared an office, and he (the employee) was responsible for the safekeeping of the office key.

85. Sothoane denied that she had been coached as to what to say and indicated that if she had any doubts about the integrity of the employee she would not have come to the arbitration to testify in his favour. She was also a family person with girl children and together with the employee she was a devout Christian.

ANALYSIS OF EVIDENCE AND ARGUMENT

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

87. I carefully observed the demeanor of the minor witnesses who testified on both sides of the spectrum.

88. The three complainants did not give the impression that they had suffered any trauma when they recounted the events that had led to the charges being levelled against the employee. I got the sense that it was almost a big game to them.

89. Nowhere was this more evident than in the demeanor and testimony of AM. She seemed almost gleeful in her rendition of events, and I got a glimpse of her disruptive conduct during the course of her testimony. She would often stand up and move around the chair where she was seated and physically demonstrate aspects that did not contribute to the flow of the case. She also did not properly answer questions at times, and she did not always listen to my instructions to sit down after demonstrating a point.

90. I can physically see how she might be disruptive in a large class surrounded by her friends and emboldened by the knowledge that her mother is an influential figure at the school. The feeling of power generally and specifically over the career of an educator must have been intoxicating.

91. The two minor witnesses MR and TM that testified on behalf of the employee impressed me as good honest witnesses. They corroborated each other in most material aspects and their evidence had the all-important ring of truth about it.

92. The employer representative took up on AM’s attempt to discredit MR by contending that the employee had influenced and coached his testimony by buying him and his family groceries. I find no evidence of that. I find that the employee courteously approached the families of both MR and TM and requested them to release their children to testify at the inquiry by arbitrator. I find further that he encouraged the families to release the children on the basis that they told the truth and this without any type of inducement to do so.

93. The employee has a right to prepare a defense against allegations levelled against him and given his earlier concerns about being hated by SADTU renegades the employee could not be expected to run his attempts to source witnesses entirely through the employer where his efforts could be potentially blocked.

94. There is absolutely no evidence that the employee in any way met with or influenced the complainants in this case.
95. The employer has provided no hard evidence that the employee made any inducements and even the testimony of AM does not go further than speculation in this regard.

96. TM testified that AM approached her to give evidence against the employee for allegedly touching her private parts and touching one PK’s buttocks. The reason that AM gave for encouraging this behavior is because she did not like the way that the employee pinched them, he was boring, and she “hated” him.
97. I find it to be a red flag that a fourth charge was not levelled against the employee and why PK did not testify as a witness at the hearing.

98. TM testified that she had not seen or heard any of the allegations of inappropriate sexual misconduct allegedly committed by the employee.

99. The employer conceded during the course of his testimony that he sometimes pinched naughty kids who did not want to listen to him, but he did so on their shoulder or arm. TM herself testified that she had been disciplined by the employee in class by pinching her on the arm when she misbehaved.

100. It is important to note that the employee has been charged for acts of a sexual nature and not for breaches of the corporal punishment policy and I will therefore give no further attention to the pinching aspect other than to say that it seems that the pinching was fully justified as a moderate measure to discipline unruly children in a large class.

101. I accept the version of TM that AM attempted to recruit her to testify in support of the sexual allegations against the employee. TM’s testimony is decisive in enabling me to conclude that AM on a balance of probabilities concocted false charges against the employee.

102. I find that AM also influenced her friends to fabricate false charges of sexual misconduct against the employee well knowing that these charges are always taken seriously and are difficult to refute. The default situation is that a minor child should always be believed as they are young and vulnerable.

103. The fact of the matter is that all three complainants in this case are old enough to fabricate evidence against someone they dislike and would like to get rid of. In this case the initial influence probably came from another educator (Ma’am Omaki Bautlanye) who probably, without proper evaluation of the surrounding facts, supported the children in their concocted stories and encouraged them to report everything as gospel truth to the Principal of the school. OL admitted during cross examination that AM, OM and she had spoken to Bautlanye, as an educator that they liked and respected.

104. The final driving force was AM herself who influenced her friends to run with the false narrative knowing that she had the support of educator Bautlanye and her mother. What was there to stop her? Certainly not a perceived boring Maths teacher attempting to enforce firm Christian values in his endeavors to keep order and having the temerity to restrain and discipline her from running amok in class.

105. My final comments relate to the two adult witnesses from Lufherang Primary School that testified in support of the employee.

106. Their testimony included a heavy dose of character evidence in support of the employee. Normally character evidence is inadmissible on the basis that it is irrelevant in determining whether the employee committed misconduct or not.

107. In this case the witnesses’ evidence of the employee’s good character was not contradicted by evidence of poor character.

108. Having had the opportunity to observe the demeanor of the Applicant over many days I find that the character evidence is admissible and carries weight in proving that the employee is generally a man of integrity and good character.

109. The character evidence aligns with the other exculpatory evidence and the general improbabilities of the complainants versions, and I find in conclusion that the employee is not capable of and did not commit the acts of sexual misconduct that he was charged with.

FINDING ON THE MERITS
110. I find the employee not guilty of the three counts of misconduct brought against him in terms of section 18 (1) (q) of the EEA.
111. I recommend that the school consider disciplining the complainants for their false testimony which threatened to jeopardize the career of a dedicated and competent Mathematics educator.

MARK HAWYES
PART TIME SENIOR PANELIST
04th of June 2024