IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN MAHIKENG (NORTHWEST PROVINCE)
Case No ELRC 769-24/25NW
In the matter between
NORTHWEST DEPT OF EDUCATION EMPLOYER
and
MOLEFE PASEKA JOHANNES EMPLOYEE
ARBITRATOR: Monde Boyce
HEARD: 27 March 2025
CLOSING ARGUMENTS: 10 April 2025
DATE OF AWARD: 05 May 2025
AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION: [1] This is an inquiry by arbitrator scheduled by the ELRC in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and held at Ngaka Modiri Molema District offices at Nelson Mandela Drive in Mahikeng in the Northwest province. Parties attended the proceedings with Mr Tumelo Bahurutshe, the Labour Relations Practitioner representing the employer while Ms. Gontlefela Lekoko, a candidate attorney, represented the employee. The hearing was initially scheduled to proceed on 31 January 2025, but the hearing could not proceed on that date owing to a protest action at the district offices where the hearing was scheduled to take place. During the siting of 31 January 2025, I had directed, to the extent that Mr Molefe sought to be legally represented, that an application for legal representation be filed at least 14 days before the sitting of 27 March 2025. The application was however only filed a day before the date of arbitration. I nonetheless dealt with the application on the date of the hearing of 27 March 2025, and the employer did not oppose the application. I made a ruling ex tempore granting legal representation.
THE ISSUE TO BE DECIDED:
[3] I am required to decide whether the employee is guilty of the charges preferred against him by the department, and to make the appropriate award.
THE BACKGROUND TO THE DISPUTE:[4] The employee, Mr Paseka Molefe is employed as a principal at Letsatsing Secondary School in the Ngaka Modiri Molema District in Mahikeng. The employer preferred the charges against the employee in terms of Section 17(1)(b) and Section 18(1)(q) of the Employment of Educators Act 76 of 1998 (EEA) following a complaint of inappropriate conduct by the employee towards a learner at his school. As such, the following charges was preferred against him:
Charge 1:
“Committing an act of sexual assault on a learner, student or other employee
It is alleged that on or around the 17th of February 2023 while on duty at Letsatsing Science Secondary School you allegedly committed the misconduct in that you called a learner to your office whereby you grabbed her waist and uttered that you loved the shape of her boobs and also said that her waist is pleasurable to grab.
It is also alleged that on or around the month of September 2023 while on duty you called (learner name withheld) when she was outside the class on her way to the toilet, upon her arrival you held her hand and put it on your private part and said “e tsena neng” to her.
Charge 2:
While on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner
It is alleged that on or around the 17th of February 2023 while on duty at Letsatsing Science Secondary School you allegedly committed a misconduct in that you called a learner to your office upon her arrival at your office you asked her to come to your side whereby you grabbed her waist and uttered that you like the shape of her boobs.
It is alleged that on or around the month of September 2023 while on duty you called (name of learner withheld) when she was outside the class on her way to the toilet, upon her arrival you held her hand and put it on your private part and said “E Tsena Neng? to her.
Therefore, you have contravened section 18(1)(q) of the Employment of Educators Act which reads, “while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner.”
[5] The employee pleaded NOT GUILTY to the charge.
SURVEY OF EVIDENCE AND ARGUMENT:Employer’s Evidence
[6] Leaner A was called as the employer’s first and only witness. She testified that she is 15 years old and is a learner at Batswana Commercial Secondary School. She reported the alleged conduct against the principal, Mr Molefe. During February 2023 while a Grade 8 learner at Letsatsing Science Secondary School, during a Valentine Day’s event, a learner came to her class telling her that Mr Molefe was calling her. She went to Mr Molefe’s office and found Mr Molefe by himself. She greeted Mr Molefe who did not greet back but just stared at her. She asked Mr Molefe why he called her to his office, and Mr Molefe asked her to come to his side of the table. He grabbed her waist and said “Uh otswarega monate jang” loosely translated to mean she was pleasurable to touch. He then proceeded to tell her that that she had a very nice shape of boobs. She moved away from his side of the table and asked him why he called her to his office and said this while moving to the door. While about to exit the door, Mr Molefe told her not to forget to collect the R10.00 from the people who were wearing casual clothes on the day. She said “Yes sir” and walked out of the office. She went to the toilet and while inside the toilet, she had flashback of what happened to her, and she started crying and later went back to class.
[7] The second incident occurred when Mr Molefe was telling other students to go to their classes. She met Mr Molefe next to the toilet while she was on her way to the toilet and Mr Molefe asked her when her period was going to finish, and she replied that she did not know. Mr Molefe told her that he was going to introduce a new topic and that when it was his period, she should go and fetch him because he wanted to introduce the new topic. While saying that Mr Molefe was holding her left hand and tapping it on his private part. Mr Molefe saw that she was not comfortable while tapping her hand on his private part, and she pulled her hand back. She left and went to the toilet and thereafter to her classroom. She does not remember the month that the second incident happened. She told her friend, learner B about the incident in February but did not tell anyone about the second incident. She got transferred to Batswana Secondary Commercial School because she did not want to be in the same environment as Mr Molefe that would give her flashbacks of what happened.
[8] On being asked during cross examination whether there were any other individuals inside Mr Molefe’s office and whether she was accompanied by anyone to the office, learner A’s response was that there was no one else inside Mr Molefe’s office and that she was called to the office by another learner. On being asked whether she was aware of any cameras at the school, her response was initially that she could not remember but later stated that there were some. When asked why she did not report the incident, her response was that she did not immediately report the first incident because she was nervous and was still nervous after the second incident. Asked whether she was comfortable talking to Mr Molefe after the incidents, her answer was that she was uncomfortable but had no choice because there were things that Mr Molefe would ask her to do as a student commercial representative. Also asked about when she reported the incidents, her response was that she only reported the incident when students from the Northwest University visited the school to do sexual harassment talks.
Employee’s Evidence
[9] The employee, Mr Paseka Johannes Molefe, testified that he is employed as the principal at Letsatsing Secondary School and has held this position for seven years. The school has twenty-four classes, and there are CCTV cameras at the school including inside his office and have been installed since 2018. He knows learner A. He is not responsible for collection of R10.00 casual money but class teachers are. There are multiple chairs in his office and there are two education assistants who usually collect books from learners and are the ones who address learners where he is unable to. There also is a general assistant who sits at his office. In the years he has been teaching, he had never faced similar charges. On 26 March 2024, he was called to Mr Bahurutshe’s office where he was informed about the allegations. He requested the recording of the meeting in order to prepare for himself and to arrange any witnesses as well as looking at CCTV footage.
[10] Regarding the first charge, his position is that he is always with the education assistants, and they are the ones who interact with learners. Where learners had to go to his office, they always do so in the company of the education assistants. He does not allow learners in his office when he is alone. What learner A said was not true. He has been an educator for 23 years and knows the consequences of any inappropriate conduct towards learners. He encourages education assistants never to allow learners in his office when he is alone. He never said the things that leaner A said he said and did.
[11] Regarding the second incident, he could not have taken the learner’s hand and put it on his private parts in front of other learners and teachers. All classes are facing each other, and everybody could see him when standing there. If he did take the leaner’s hand as alleged, everybody would have seen what was happening. The incident did not happen and could not have happened. Cameras would also have shown that, and he could not do what he is alleged to have done because it is behaviour that was unacceptable. He also left the school and was not there when the alleged second incident occurred.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
[12] In terms of Section 17(1)(b) of the EEA an educator commits serious misconduct when committing any act of sexual assault on a learner, student or other employee. Also, Section 18(1)(q), and as set out in the charge preferred against Mr Molefe, an educator conducts himself or herself in an improper, disgraceful or unacceptably manner where he or she engages in any sexual conduct that seeks to or have the potential of disrespecting the dignity of a leaner. Accordingly, the charges preferred against the employee are consistent with the abovementioned provisions.
[13] I hasten to mention that except for the learner who reported the conduct and who testified during the inquiry, the respondent did not call any further witnesses, leaving learner A to be the only witness. That being the case, I have before me the version presented by a single witness versus the version presented by the employee. Having heard evidence, it is my finding that the employer, on a balance of probabilities, has proven the allegations against Mr Molefe. I find leaner A to be a reliable and credible witness, and I had no reason not to believe her version. Firstly, the version presented by learner A could not have been manufactured for the simple reason that I was pointed to no evidence of anything the learner stood to gain by falsely implicating Mr Molefe. Secondly, even if it were to be argued that her version was a fabrication, the manner she presented her version did not at all appear to be practiced, and I find learner A to have given the account of what happened as she knew and recalled how instead of trying to present her version in such a manner that the employee is found guilty at all costs.
[14] An example that learner A’s version was neither manufactured not practiced was that while she could recall the month of February 2023 that the first incident occurred, she did not, despite the charge preferred against the employee making reference to the month of September 2023, change her version as to her not remembering the month that the second incident occurred. If her intention was not to tell the truth she could deliberately have tailored her version as to the month that the second incident occurred to align with the month of September reflected on the charge. Thirdly, if her intention was to mislead the hearing, she could have disputed that there were any cameras at the school and could have presented her version in such a manner that the location of where the two incidents occurred was where the cameras would not have been or focused. But learner A did not dispute that there were cameras at the school although she could not specifically state their exact location.
[15] Fourthly, learner A could remember that she did tell her friend, a fellow learner about the first incident but clearly stated that she did not tell anyone about the second incident. Again, if she intended malice or to mislead the hearing, she could have tailored her version to indicate that she told someone about both incidents. Fifthly, learner A did not immediately report the two incidents and only reported them when students from the Northwest University visited the school to raise awareness and do talks about sexual harassment. It thus appeared to me that while learner A may have felt uncomfortable to the extent that she cried inside the toilet after both incidents, she may have been unaware or was unsure of how to go about reporting the incidents of sexual assault against her or was nervous as she stated during cross examination. If she was not telling the truth and if the two incidents did not occur as alleged and if her testimony was a mere fabrication, I am of the considered view that her conduct would have been completely different and her account of what happened would have been more practiced than how she recounted the two incidents during the inquiry. She, for an example, would not only have been emboldened to report the two incidents after the talk by the visiting students from the Northwest University but would have done so immediately after they happened to suit any narrative to deliberately falsely implicate Mr Molefe.
[16] Sixthly, learner A, on being questioned during cross examination on whether she continued talking to the employee after the two incidents, responded that she did and that she did so because she did not have a choice because there are things the employee would have asked of her to do as a student commercial representative. That, to me, showed that learner A did not intend any malice or fabrication. That learner A left the school and sought transfer to another school because she found it difficult to be in the same environment as the employee because of the flashbacks she would have about the two incidents point to the possibility that she was telling the truth. On his own account, the employee had little interaction with learners including learner A and that his contact with learners was mostly limited to the engagements he had during classes. The question that then begs an answer is why learner A, who had limited contact with the employee, would bring up such serious allegations against him if they did not happen. I find the version of learner A to be highly probably than the version presented by Mr Molefe.
[17] On a question I posed as to what he (Mr Molefe) thought made learner A to make such allegations, he could not provide an explanation except stating that there were hints that some adults may have whispered things in the learner’s ear, and he alluded to rumours about meetings held by teachers outside school and referred to recordings that were sent to him on some of the people who had something to say about the allegations. But he conceded that he did not have evidence to support that theory. It took me to seek the clarity on why learner A would falsely implicate him if he did not engage in the conduct alleged for him to at least explain why learner A would single him out. His response, as I stated during the inquiry, was important to the extent that it would shed light, at least from his perspective, on why the learner would claim that he sexually assaulted her. But the response he gave, as alluded to above, was simple unconvincing to the extent that he does not appear to have taken any steps to follow up on the rumours he heard and the suspicion that an adult may have whispered in the learner’s ear, to quote his words.
[18] I was left unconvinced that he did not engage in the conduct as alleged. During his evidence in chief and during cross examination, he appeared more concerned about the existence of CCTV cameras at the school and at his office as well as the presence of education assistants and a general assistant who were present at all times and who would accompany learners who visited his office. His concern about the impossibility of the two incidents happening in the view of the CCTV cameras and the presence of education assistants suggested to me that his concern was more about showing that the two incidents could not have happened in instances where there were cameras and people around than explaining why learner A, out of all the male educators at the school, picked him as the perpetrator if he did not engage in the conduct alleged. Also, during cross examination, the employee disputed that it was possible for the education assistants and the general assistant to leave his office, an assertion I find highly unlikely as it is not possible for the education assistants and the general assistant not to leave the office when circumstances so dictate. It is highly unlikely that the education assistants and the general assistants would have sat inside their offices from morning till the afternoon without existing the office for whatever reasons. But even if there were education assistants and the general assistant at his office, and even if there were CCTV cameras, such could be no suggestion that the two incidents did not happen.
[19] Mr Molefe is the principal of the school and was a principal still at the time learner A reported the allegations. He did not provide any plausible explanation on why learner A would accuse him, especially him as the principal of the school, of sexually assaulting her. Also, while he denied that the two incidents of sexual assault occurred, his version to the effect that there was a Valentine’s Day celebration at the school and that R10.00 would be collected was not in any material respects different from the account given by learner A. But he conveniently denied any involvement in the collection of the R10.00 and stated that it was schoolteachers who were involved in collection of the R10.00. It is my finding that he denied involvement in and having said anything to learner A about collection of the R10.00 as such would confirm the learner’s version that there was such a conversation when she was about to exit his office.
[20] Also, when asked during cross examination about whether he was aware of the sexual harassment awareness talks by Northwest University students, the employee evaded giving an answer stating that there were too many issues with the question and asked that the question be repeated. He then gave an answer to the effect that he could not recall such an event and that he would need to check his records at the school as learner A did not give a date on when the visit occurred. This was a straightforward question seeking to understand whether he was aware of the specific event where Northwest University students visited the school to address the learners on sexual harassment. But he later stated that he was aware of an incident where police arrived to conduct searches at the school although he believed the visit by the police to have been in August and not in September 2023. This was an answer that I found to be convenient to the extent that where he agreed that there was a visit by the students and the police in September 2023 such would accord with learner A and the charges reference to the month of September 2023 as the month that the second incident occurred. It is my finding that the employee was not a credible witness and that the learner was more reliable a witness than the employee.
[21] Incidents of sexual harassment rarely happen in the presence of witnesses, and it is usually the victim and the perpetrator that would be present. As such, it is usually easy for perpetrators to plead innocence knowing that the victim’s account is unlikely to be corroborated. This is even more so in the school environment where learners are subjected to sexual assault by educators who either believe that learners, given their age and innocence, would either keep quite and not report the incidents or the educators believing that even if the learners report such incidents they are unlikely to face sanction as the incidents often happen in the presence of only an educator and a learner. In my considered view, heightened levels of vigilance must be exercised mindful of the fact that in the school environment, it is mostly learners who need protection, given their vulnerability and to ensure that a message is sent to perpetrators of any inappropriate conduct against learners, potential or otherwise, that they are going to be held accountable and sanctioned for their conduct. It is no secret that inappropriate conduct and sexual assault by educators on learners is so prevalent to a point where it has almost reached a crisis point. At all times where perpetrators are found guilty, a very strong message must always be sent out.
[22] In the present case, it is likely that learner A would not have reported the principal had the visit by the Northwest University students to give awareness talks on sexual harassment not happened. It does appear that learner A was traumatised by the two incidents. Her version was that on both occasions and after each of the incidents, she went to the toilet and cried. It also does appear that the extent of the trauma lingered on even after she reported the incidents because she later took transfer to a different school because, on her own version, she could no longer remain in the same environment as the principal as she would have flashbacks of what happened. This is just but one of the painful experiences that most learners subjected to such conduct go through. If the visit by the Northwest University students did not happen, learner A probably would have kept quiet and not report the two incidents, to her own detriment.
[23] In terms of the South African Council of Educators’ Code of Professional Ethics educators must: ““respect the dignity, beliefs and constitutional rights of learners and in particular children” and must: “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school.” The above provision accords with the provision in the Constitution to the effect that children have a right to protection of their dignity and bodily integrity and protection from “maltreatment, neglect, abuse or degradation.”
[24] The employee, Mr Molefe is found guilty on both charges as the employee not only sexual assaulted the learner, but he also conducted himself in an improper, disgraceful or unacceptable manner as provided for in Section 18(1)(q) of the EEA. The employee was not just an educator at the school but is a principal charged with the responsibility of not only overseeing the affairs of the school but to primarily ensure that an environment conducive to development and protection of learners is created. His conduct breached this core responsibility by his failing to show exemplary conduct. The seriousness of the conduct he engaged in warrants that, to the extent that he has been found guilty, he be dismissed as per the provision of Section 17(1) of the EEA. As a result, Mr Molefe is found to be unfit to work with children, a finding that is consistent with the provisions of the Childrens Act 38 of 2005 .
[25] In the premises, I make the following award:
AWARD
[26] The employee, Mr Paseka Johannes Molefe is found guilty of serious misconduct in terms of Section 17(1)(b) of the Employment of Educators Act by sexually assaulting a leaner and is further found guilty of misconduct in terms of Section 18(1)(q) of the Employment of Educators Act by, while on duty, conducting himself in an improper, disgraceful or unacceptable manner by grabbing a leaner’s waist, telling her that she was pleasurable to touch and making in appropriate comments to the effect that he liked the shape of her boobs as well as tapping the leaner’s hand on his private part.
[27] The sanction of dismissal is imposed effective immediately.
[28] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE for its consideration of appropriate action to be taken.
[29] The employee, Mr Paseka Johannes Molefe is found unsuitable to work with children in terms of Section 120(40 of the Children’s Act 38 of 2005.
[30] The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children’s Act 38 of 2005, that Mr Paseka Johannes Molefe, is unsuitable to work with children, for the Director general to enter his name as contemplated in Section 120 in Part B of the register.
[31] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and must do so within the prescribed timeframe.
Monde Boyce
Panelist: ELRC