IN THE EDUCATION LABOUR RELATIONS BARGAINING COUNCIL

THE ARBITRATION BETWEEN

GERHARD LOUW APPLICANT

AND

THE SUPERINTENDENT GENERAL:
NORTHERN CAPE DEPARTMENT OF EDUCATION RESPONDENT

Case No: ELRC856-24/25NC
Dates: 08 April & 22 May 2025
Venue: Francis Baard District Office of Education, Education

AWARD

DETAILS OF THE HEARING AND REPRESENTATION

1. This is the arbitration award between Mr Gerhard Louw, the applicant, and the Superintendent General: Northern Cape Department of Education, the respondent.
2. The arbitration was held under section 191(5)(a)(i) of the Labour Relations Act (the Act) , and the award is issued in terms of section 138(7) of the Act, under the auspices of the Education Labour Relations Council (hereinafter the Council).
3. The arbitration hearings took place on 08 April and 22 May 2025 at the respondent’s district offices in Kimberley. The proceedings were digitally recorded, with Mr Brian Banga as the interpreter. The applicant was in attendance and without representation, notwithstanding the fact that legal representation was granted. The respondent was represented by Mr G Pisane, its Labour Relations Officer.

ISSUES TO BE DECIDED

4. I am called upon to determine whether the applicant’s dismissal was substantively fair.

BACKGROUND

5. The respondent is the Department of Education at the provincial sphere of government in the Northern Cape Province. It is common cause that the respondent employed the applicant on 1 January 2015, and held a position of Teacher level 1 at the time of his dismissal, with a monthly salary of R 25 000.00. The applicant taught Technology and Automotive at the respondent’s High Technical School in Kimberley.
6. The dispute follows the outcome of a disciplinary hearing on 28 November 2024, in which the applicant was found guilty and dismissed for calling two African learners ‘kaffirs’. The applicant lodged an unfair dismissal dispute (conduct) with this Council. A Conciliation took place, wherein the dispute remained unresolved. The arbitration subsequently took place on the dates mentioned above.
7. It is common cause that there was a workplace rule and that the rule was valid and reasonable, and known to the applicant. However, the applicant disputed having breached the rule which prohibits racial slurs. It was at the first sitting of this arbitration on 28 January 2025, where legal representation was granted before another commissioner.

SURVEY OF EVIDENCE AND ARGUMENTS

8. This section constitutes a summary of the relevant evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have considered all the submissions in arriving at my conclusions. Since dismissal is not disputed, the respondent started to lead evidence per subsection 192(2) of the Act. I have decided to conceal the identities of the child witnesses.

Documentary & Real Evidence

9. The parties agreed to use the respondent’s evidence bundle as the bundle for the arbitration.

Respondent’s Submissions

10. Ms O, who was in Grade 12 in 2024, testified as the first witness in the respondent’s case. She testified on how she was part of a group of seven girls, during the 2024 winter school, who were moved from the Northern Cape High School hostel, to the Technical High School hostel in Kimberley, in the evening of 23 June 2024 between 18:30 and 19:00.
11. Ms O testified that upon their arrival at the Technical High School hostel that morning, the applicant who happened to be one of the supervisors at that hostel, came out of his residence and was not pleasing with the idea of having them (the seven girls) moving from the NC High School hostel to ‘his hostel’. She testified that the applicant voiced his disappointment to the driver of their vehicle, one Mr Tshabalala.
12. Ms O testified that the applicant thereafter approached them (she and Ms R), whilst Mr Tshabalala went back to the vehicle, and accused them of dragging the school’s name through the mud, and called them ‘kaffirs’ whilst saying that. She stated that she and her fellow learner, Mr R, were shocked because they did or said nothing which could provoke the applicant to swear at them like that. Ms O testified that the applicant told Ms R that ‘al kan jy my so kak kyk, jy kan my vokol maak nie”. Ms O stated that a third learner might have also heard the racial attack launched on them.
13. In cross-examination, Ms O stood by her testimony, and added that they did not report the applicant immediately to Mr Tshabalala, but to their families and the centre manager. She stated that Mr Tshabalala advised them the following day to report it to the authorities when the schools re-open.
14. Ms L, the third learner who was nearby the scene, testified as the second witness of the respondent. She basically corroborated a large part of Ms O’s testimony, and explained that she was nearby when the applicant uttered the word ‘kaffir’ to Ms O and Ms R, out of anger. Ms L testified that the applicant yelled at the other two learners in the presence of his wife.
15. In cross-examination, Ms L stood by her testimony and added that Mr Tshabalala was not informed immediately, but that she too informed her family that same day.

Applicant’s Submissions

16. Mr Gerhard Louw, the applicant, testified as the only witness in his case. He testified that as the Hostel Father at the time, the hostel was full of boys who resided there for the winter school, and that he found it inappropriate to have the few girls living amongst the boys during that period. The applicant stated that he told the girls that they would be chased away if they did not behave, just like NC High hostel chased them away.
17. The applicant stated that he cannot remember having called the girls those names. He explained that Mr Tshabalala was the groundsman and responsible for security at the time. The applicant stated that neither the school management not Mr Tshabalala ever went to him to inform him about the allegations. He stated that he became aware of the rumours some weeks later, and when the respondent’s representative went to his school (HTS) to serve documents on him. He stated that he never saw the girls again after that incident.
18. In cross-examination, the applicant conceded to having been angry at the time of his interaction with the girls, and that he accused the girls of having dragged the school’s name through the mud, told Ms R that ‘al kan jy my so kak kyk, jy kan my vokol maak nie”. However, he denied having uttered the word ‘kaffirs’ to the girls. The applicant stated that he could call his wife and a certain Mrs v/d Lith to testify in his favour, because they too heard the whole conversation.

ANALYSIS OF EVIDENCE AND ARGUMENTS

19. This is an unfair dismissal dispute relating to the applicant’s conduct on 23 June 2024. The respondent contends that the dismissal was fair because of the seriousness of the misconduct. The applicant is of the view that he did not utter those words, and wants a reinstatement as relief for the alleged unfair dismissal.
20. Section 188 of the Act provides the following:

188 Other unfair dismissals
(1) A dismissal which is not automatically unfair, is unfair if the employer fails to prove-
(a) that the reason for the dismissal is a fair reason-
(i) related to the employee’s conduct or capacity, or
(ii) based on the employer’s operational requirements, and
(b) that the dismissal was effected in accordance with a fair procedure [my emphasis added]

21. It is clear from the provisions of section 188 that an inquiry by this Council into the decision of the respondent to dismiss the applicant is permitted by law and is allowed. I shall now determine the substantive fairness of the dismissal within the meaning of section 188.

Substantive Fairness

22. In order to determine whether the dismissal was substantively fair, I had regard to the Court’s decision in Woolworths (Pty) Ltd v SACCAWU and Others , and Item 7 of Schedule 8 of the Act. I shall deal with these factors under different headings, which will conclude whether the respondent had a fair reason to terminate the applicant’s services.

Did the applicant breach a rule?

23. The respondent called the two female learners who claimed to have been victims of racism and racial attacks at the instance of the applicant. These two learners gave credible testimonies without contradictions, which in essence made them reliable witnesses. The applicant, on the other hand, was the only witness in his case, notwithstanding the fact that he had two people (his wife and Mrs v/d Lith) who could have corroborated his version. As things stand, the applicant’s version of the event is not corroborated.
24. This, by itself, also brings me to the principle of caution as provided for by the single witness evidence rule. Be that as it may, a mere denial by the applicant is not enough to sustain a plea of not guilty when faced by allegations of this nature. The usage of the word ‘kaffir’ is not just illegal and degrading to the humanity and dignity of the learners, but it reminds us all of the horrible past of our country.
25. The applicant agreed and admitted to almost everything which the learners accused him of, except the usage of the word ‘kaffirs’. If the applicant was really truthful about this, surely his wife and Mrs v/d Lith would not have deemed it troublesome to come to this Council and to corroborate his version. The state of anger within which the applicant was, and the vulgar language he used against Ms R, makes it probable that he could have used the word ‘kaffirs’ as well. Why else would Ms R give him an ugly/nasty look if he did not say something untoward to them?
26. I am not persuaded by the applicant’s defence that he did not utter the word ‘kaffirs’ to the two young African learners that early evening during the winter school. It is my finding that the respondent, through the victims, has demonstrated that the applicant has made himself guilty of the charges laid against him, and that the respondent had a fair reason to terminate the services of the applicant.
27. In this democratic South Africa, people like the applicant are anti-transformation and should not be allowed near children and the good citizenry of our society. His conduct on the evening of 23 June 2025 was despicable to say the least. I find the sanction of dismissal as a matter of last resort was appropriate under these circumstances.
28. Section 185 of the Act provides the following:

185 Right not to be unfairly dismissed or subjected to unfair labour practice
Every employee has the right not to be-
(i) Unfairly dismissed; and
(ii) Subjected to unfair labour practice

29. In the final analysis, it is my finding that the respondent did not breach the applicant’s right to a fair dismissal.
30. In the premise, I make the following award:

AWARD

31. The dismissal of the applicant, Mr Gerhard Louw, is substantively fair.
32. His dismissal by the respondent, Superintendent General: Northern Cape Department of Education, is hereby confirmed.

This is done and dated on 05 June 2025 at Warrenton

David Pietersen
ELRC Commissioner