07 August 2025 -ELRC935-24/25KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT PIETERMARITZBURG
CASE NO.: ELRC 935-24/25KZN
IN THE MATTER BETWEEN: –
KWAZULU-NATAL DEPARTMENT OF EDUCATION APPLICANT

AND

SIBISI M H RESPONDENT

INQUIRY BY ARBITRATOR

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 04 AUGUST 2025

Applicant’s representative : MS J. DUMISA
Telephone :
Fax :
Email :

Respondent’s representative : MS S.N. MEMELA
Telephone :
Fax :
Email :

DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for an Inquiry by Arbitrator which was referred to the Education Labour Relations Council (ELRC) in terms of the provisions of section 188A of the Labour Relations Act No. 66 of 1995, as amended, read together with the provisions of Collective Agreement 3 of 2018; and held at the offices of the KwaZulu-Natal Department of Education, 169 Hoosen Haffejee Street, Pietermaritzburg. These proceedings were digitally recorded.
[2] Ms J. Dumisa, a Labour Relations Officer, represented the applicant (employer) and Ms S.N. Memela from SADTU represented Mr M.H. Sibisi, the respondent (employee). The ELRC provided the services of an intermediary and interpreter who assisted with their respective services during the hearing.
[3] This matter was set down for hearing on 20 March 2025, 25 April 2025 and 24 June 2025. There was no appearance from Mr Sibisi or his representative on 20 March 2025 and attempts were made by the Council to contact Mr Sibisi however his phone remained unanswered. As it was established that Mr Sibisi had not provided his email address for service, the Commissioner handed down a ruling directing the Employer to effect personal service in respect of the Notice of Set Down on the employee. The hearing commenced on 25 April 2025 and was concluded on 3 July 2025 when the parties submitted their written mitigating and aggravating circumstances as well as their closing arguments which was duly taken into consideration.
[4] In keeping with the ELRC Policy, the names of the minor witnesses (learners) will not be disclosed to protect their identity.
[5] The employer handed in two bundles of documents which were marked as bundle “A” and “B” and utilized as common bundles.
[6] The nature of the process and all rights was explained to the parties.
[7] The commissioner before the inception of the matter and during the hearing explained to the parties about talking to the charges, challenging the evidence and putting their versions to the witnesses whilst they are on the stand.
ISSUES TO BE DECIDED
[8] I must determine whether the employee is guilty of the allegations against him, and if so, the appropriate sanction.
BACKGROUND TO THE DISPUTE
[9] Mr Sibisi is employed as an educator at Siqongweni Secondary School.
[10] Two learners made allegations against Mr Sibisi and the employer subsequently charged him with misconduct.
CHARGES
The employer preferred the following charges against Mr Sibisi;
[11] You are hereby given notice to attend a disciplinary hearing in terms of clause 5 of Schedule 2 of the Disciplinary Code and Procedures for Educators. The alleged misconduct is as follows:
CHARGE 1
In that during the period of 2024 at or near Siqongweni Secondary School, you committed an act of sexual misconduct and/or assault against learners in your school: by inappropriate talking to a learner with a language with sexual innuendoes.
Count 1
You asked Learner A, a grade 10 learner, her phone number. You told her that if you could be young again, you would try by all means to make her your wife.
Count 2
During break time, you asked Learner A to come to your car and gave her R50. You told her that she should think about considering you as her boyfriend while spending the money.
Count 3
You told Learner A that you are craving and yearning to have sex with her. You then asked to be her boyfriend and tried to kiss her.
Count 4
You always complimented Learner B, a grade 10 learner, that she is beautiful, and you asked for a phone number.
Count 5
You called Learner B to your car and told her that when you see her beauty you can’t control yourself. And that she is ready for you to have sex with her.
Count 6
In term four after your period, you called and informed Learner B that the way you feel about her hasn’t changed.
Thereby contravening Section 17(1)(b) and 18(1)(q) of the Employment of Educators Act No. 76 of 1998.
PLEADINGS
[12] Mr Sibisi pleaded not guilty to all the charges.
SUMMARY OF EVIDENCE AND ARGUMENTS
What follows hereunder is the summary of the evidence of the witnesses’ testimony and does not purport to be a verbatim account of all the witnesses’ testimony.
THE EMPLOYER’S CASE
Only one (1) witness testified, namely Learner A.
LEARNER A
[13] She attended Siqongweni Secondary school in 2024.
[14] Referring to Count 1, she averred that during the assembly on that day, she was in the classroom as she was unwell. Mr Sibisi saw her and asked her why she was not attending the assembly; she told him that she was feeling unwell. He told her that she was lying and had probably taken drugs or was high. She responded that if that was the case, then could she go back to sitting down because she was not okay. He then complimented her on how beautiful she was and told her that if he could go back to being young again, he would have probably made her his wife. She felt uncomfortable and just looked at him but said nothing.
[15] Referring to Count 2, she averred that she was passing by the staffroom when Mr Sibisi asked her what he should bring for her while he was going out and she said anything. The following day while in class, he asked her to come to his car; she agreed but did not go and this is when she told her friend about what he had asked.
[16] She could not recall whether it was later the same day or the next day, when he asked her why she had not come to his car. She made an excuse that she was busy but she would come later. She then went and he handed her the money. She thanked him; he complimented her and said that she should think of him as a boyfriend while spending it.
[17] Referring to Count 3, she stated that Mr Sibisi gave the learners a second chance to present their oral presentations. While she was on the way to the class, she met him and asked if she could do her oral presentation but he said that she could not as she had arrived late. He then told her that if she ever wants to sober up, she should eat oranges and vitamins and; he told her that he was yearning for her and as much as he wanted to have sex with her, he couldn’t.
[18] On another day, after Mr Sibisi’s period, the learners were on the way to life sciences, and when everyone was out of the class, Mr Sibisi called her inside and complimented her. She was standing next to the door which was open and he was in front of her. He came close to her and told her; ‘come closer and give me a kiss’. When she moved back shocked, he looked at her and said, ‘I’m kidding. I would never do that to you, you are like my daughter’’; then she left. She was shocked, scared and felt weird.
[19] When she told her friend, Learner B about these incidents, she advised her to write a letter to the principal. She wrote the letter at the time when Mr Sibisi said he wanted to have sex with her. She handed the letter to Learner B to give it to Mr Xulu, her life orientation teacher. She did not know what Mr Xulu did with the letter.
[20] At the time of the incident, she was living with her stepmother’s mother and her daughter. She did not report this incident to her family as she was not close to them; they do not communicate about personal problems or anything like this.
Under cross-examination she testified that:
[21] In 2024, Mr Sibisi was her class teacher and had taught her English. There were approximately 26 learners in her class.
[22] Mr Sibisi also told the other learners how beautiful they were except that she was his main target. He never told the other learners that he wanted to sleep with them, he never gave them money and never asked anything from them.
[23] Learner B sits next to her and while they were sitting in class doing a class activity two learners turned and asked her if Mr Sibisi had told her anything and she asked them what he had said to them. One learner said that Mr Sibisi told her that he loves her and the other learner said that he told her that she was beautiful. She then asked them what they were thinking of doing about that and one of the girls told her that they were thinking of writing a letter that should be handed to one of the teachers.
[24] She was uncomfortable around Mr Sibisi but outside the classroom or when in class with other learners, she was a bit calm because she knew he would not try to do anything in front of the learners.
[25] On that day when she did not go to the assembly, no one else was in the classroom. She went to her place in the corner at the back of the class and sat down. When Mr Sibisi came in, he stood in front of the board and called her to the front of the classroom. He asked her why she had not gone for assembly; she told him that she was feeling unwell and that she had a headache.
[26] She did not report to anyone as it was a minor headache. The sun was hot and she was not feeling well but could learn in class. She did not have to go home, take medication, recover in two hours and then sit the whole day and do nothing.
[27] She is 17 years old; she does not take drugs but she drank alcohol at a school event due to peer pressure as most of her classmates were drinking and her friends were taking drugs. She had then lived a life of peer pressure but now she did not.
[28] Mr Sibisi asked for her number several times like when he insisted on getting her a phone or insisted on taking her out. She had told him that she did not have a phone and he said that he was thinking of getting her one. She refused and told him that her parents were strict and she would get into trouble and he said, ‘it’s fine never mind’.
[29] It was not wrong for her geography teacher to send her to go and get her a bottle of water, a file and a bag from her car.
[30] She reiterated that while she was passing by the staffroom, Mr Sibisi asked her what he should buy for her while he was going out and she said, ‘anything’. On a different day in class, he asked her to come to his car and on the following day, he asked her why she had not come to his car. She made an excuse that she was busy which was when she told Learner B about Mr Sibisi. Then the day after, during break time, she went to his car and he took out a R50 note and gave it to her. He told her that she should spend the money and think of him as her boyfriend. Mr Sibisi had folded the R50 so people would not see that he was giving her R50. It was wrong for a teacher to give a learner money because no other teacher does that thus why should Mr Sibisi do it.
[31] During break, the kids were all over, some were in the classroom, some in the kitchen and others were outside the tuckshop. Teachers were in the staffroom. The teachers park in front of the staffroom but the parking area exceeds the staffroom. When questioned if there were teachers going to the staffroom, she averred that she was not paying attention whether the teachers were around but no one was in the parking lot.
[32] It was not wrong for her father to compliment her and tell her that he loves her. It would not be wrong if her geography teacher who had once sent her to her car gave her money because her geography teacher never told her that she loves her or that she is pretty thus she would not suspect anything; but with Mr Sibisi it seemed like a bribe.
[33] She wanted to redo her English oral presentation as she was not satisfied with her marks. Mr Sibisi did not tell them their marks but had told the whole class during his period that if they were unsatisfied with their marks, they could go at a certain time to a certain class to redo their oral presentation.
[34] Her English is very good but the orals were unexpected hence she got stage fright and was unprepared because she did not know what she was going to talk about. Mr Sibisi had told them about the oral presentation some time ago and she thought that she was going to ace it until she came in front of the class.
[35] She was at the life orientation class and had just finished writing her exams. The other learners who finished early went to Mr Sibisi and did their orals again. When they came back, she asked them which classroom Mr Sibisi was in and they told her. While she was heading there, she met him and asked to do her orals again but he told her that she could not as she was already late.
[36] She did her Grade 8 at St Francis School and Grade 9 at Nomaswazi High School. In February 2024, she started attending Siqongweni Secondary School and she is currently at Imvunulo Secondary School.
[37] The school fees at St Francis were expensive and her dad was not working. She was thereafter sent to Nomaswazi High School; some of the terms were paid for by her step-mom. Her step-mom has three children and she felt it was a heavy load however her dad got the money and paid the fees. Then she was sent to Siqongweni Secondary School, a public school. Subsequently, her dad wanted her to find her roots and her mom hence he got into contact with her mom’s sister with whom she is currently living.
[38] She did not report the incidents to her parents or the geography teacher because it was really uncomfortable having these kinds of conversations with an adult; she was close to her friend and it was easier to communicate with a friend. Learner B was the one who gave her a warning about Mr Sibisi in the first place. During Mr Sibisi’s class period, the first time he began telling her how beautiful she was, Learner B told her that she needed to be careful of him.
[39] The first letter that she wrote, she showed it to Learner B who then took it to Mr Xulu. They both wrote the second letter together and handed it to the HOD who told them that it should be given to the principal. The principal told them that they should get case numbers and then she said that if they have to go to the police station, she will not get involved. Learner B said that she was going to proceed with the case but she never continued with it. The whole thing was on pause. She did not tell any of her family members about it.
[40] At school, she was part of a Club called Gold, where they speak about problems such as teenage pregnancy, peer pressure, etc. She told one of the educators about Mr Sibisi. The teacher told Phumla, who is her step granny’s daughter with whom she was staying; and Phumla asked her what was happening. She told Phumla everything and Phumla asked her whether she wanted to open a case as had been suggested at school; she agreed and that was when she opened the case. She went to the police station with Phumla to open the case.
[41] She thought that Learner B changed her mind because Learner B told her that her mom was unsatisfied with all these cases and with Learner B having to go to Court.
[42] She was surprised when Phumla came to school and met Mr Sibisi because Phumla had not told her that she was going to come to school and she had no idea what they were talking about. She just saw Phumla outside by the car with Mr Sibisi which was before she opened the case.
THE EMPLOYEE’S CASE
MICHAEL HYACINTH SIBISI
The salient aspects are recorded below.
[43] He is an educator at Siqongweni Secondary School and in 2024, he was the register class teacher for grade 10A. Learner A was one of the new faces in his class who came around term 2.
[44] The school held a Miss and Mr Esiqongweni, an event held within the school premises. During his registration period, he noticed that all the learners were well behaved. Around break time, 10h30 to 10h45, the learners gathered in the assembly area for the event to start.
[45] On the same day, at around 12h30 to 13h00, he saw Learner A staggering in the yard. She was unable to stand on her own and she was getting support from the walls. While he was taken aback, Mrs Ndaba and Mrs Ndlovu, two lady educators helped her into Mrs Ndlovu’s car that was in close proximity to the Learner A at the time. He was relieved because he could see that she was in good hands.
[46] After school, at about 14h30 to 14h45, he saw Learner A moving with other learners, leaving the school premises. She was no longer walking in that clumsy gait that he saw during break time. The two educators gave the principal the two-litre bottle with a reddish solution inside which Learner A had been holding, which the principal kept in his office.
[47] The next day, while they were in the staffroom, the educators who helped Learner A said that there was nothing that was smelling; there was no bad breath or perhaps a repulsive odour from Learner A’s mouth but she was inebriated. She was not sober at all but they could not tell what kind of substance she had consumed.
[48] On the third day, when he was about to go to his class to teach, Learner A’s stepmother’s sister, Phumla came and told him that she wanted to have a word with him concerning Learner A’s behaviour. As the school bell had rung, he told her to come with him to his classroom which is a prefabricated room separated from the rest of the block. He took Phumla to his car which was parked near his classroom and asked her to wait there. He went into his class, gave the learners instructions and told them that he was with a parent outside. The classroom has 3 windows facing the car. Learner A sat at the back of the class in the corner and Learner B sat next to her. Phumla was visible to Learner A because the desk that she was occupying was visible to both him and Phumla.
[49] Phumla told him that she understood that Learner A was drunk a few days earlier. He told her that he suspected that, but the lady teachers took care of that. Phumla told him that they told her that he was Learner A’s class teacher thus she decided to have a conversation with him regarding her behaviour.
[50] Phumla told him that Learner A was a substance user from long ago. She told him that Learner A had attended a Roman Catholic school in grade 8 and drugs caused her to misbehave and the school decided to chase her out. Learner A’s father enrolled her at St. Francis Mission School to do her grade 9. She again misbehaved and was chased out because of drugs. Learner A was now at Siqongweni Secondary School doing her grade 10, because her father had decided not to send her to expensive schools anymore and she was not a respectful child.
[51] Phumla and Phumla’s mother received Learner A at their residence because she had quarrelled with her father with whom she had been staying because of her using drugs. Learner A was not happy about that and decided to run away from her father’s house. Phumla’s elder sister was married to Learner A’s father thus they were happy to accommodate her so that she does not cause any trouble in her sister’s marriage. The trouble that Learner A was causing them, she had been causing in Phumla’s sister’s marriage at Phumla’s sister’s house and she further said that blood was oozing in her veins. Phumla told him that Learner A’s father was not in control of Learner A anymore and she wanted to see Learner A helped but she did not know how.
[52] He decided to compel the social workers at Gold who are stationed at their school to intervene in the matter because he did not want to tackle it himself as he is also a father figure to Learner A as she might also be rude to him like she was to her father. After speaking to Phumla, she left.
[53] He went into the class and worked with the learners without saying a thing to Learner A because he was scared as her father had reprimanded her not to use drugs; what would happen to him because he would be saying the same thing as her father which had forced her to run away from home.
[54] He could see that Learner A was no longer happy and he sensed that she wanted him to say something about his meeting with Phumla. Since then, Learner A looked at him very badly because he had been with someone who knew about her behaviour but he did not tell her anything.
[55] When he was conducting the orals, they would all be together in the classroom and he would call each learner to come forward and he would ask them questions which they would answer without being heard by the other learners. Learner A’s first attempt was very good. He had assessed the learners for Term 3 and Learner A got 18 out of 20 for her oral mark hence there was no need for him to give her a second attempt. He only allowed those learners with valid reasons to redo their work.
[56] In Term 4, Learner A and Learner B were talking at the back of the classroom and disturbing his lesson. He decided to stop teaching them and give them a micro lesson about the dangers of drugs.
[57] He told them that if they take drugs at their age they will end up damaging their genes and will end up giving birth to invalids. When he said that, Learner A just stood up, pushed her desk mate away and came down the aisle to him in a very rough manner and he stepped aside for her to go past him. She opened the door, slammed it behind her, and that was the last time he saw her in his class.
[58] The following week the principal informed him of the allegations made against him by Learner A and Learner B. When he tried to explain, the principal told him that he will explain it in Court. The police arrested him and he served 32 days in prison before being given bail. The charges were dropped because the Learners did not attend at court to testify.
[59] He never complimented the learners individually, but if the top ten were called out at their assembly, then in class he would compliment them collectively.
[60] Referring to count 1, 2, 3, 4, 5 and 6, he averred that he read it, understood it but knew nothing about it. He was not guilty of these charges; it was a mere fabrication to let him down as Learner A had been doing with her father.
Under cross-examination he testified that:
[61] He confirmed that he had listened to Learner A when she had testified.
[62] He denied that he asked Learner A for her phone number.
[63] He could not say why Learner A was saying something that was a blatant lie. He knew nothing about what she was alleging.
[64] He denied telling Learner A that if he was her age, he was going to make her his wife. He knew that pronouncing those words to a female learner was sexual grooming which is why he did not do that in his school or to anyone else.
[65] When it was put to him that it was Learner A’s evidence that this is what he had said to her and she was shocked. He averred it was not true at all. Learner A saw him with Phumla and she knew that Phumla was telling him about her behaviour outside the school. Phumla was called to the school because of Learner A’s behaviour at school so she knew what they were talking out there. Learner A was not happy when he did not ask her anything about it because Phumla had alerted him that when her father reprimanded her about drug use, she just quarrelled with her father and she ended up running away from her home.
[66] When questioned if he had asked Learner A to come to his car, he stated that he did not ask Leaner A to come to his car but sometimes if he had left the handouts in his car and he was with a class, then he would send the child to collect the handouts for him to give out to the class.
[67] He admitted that it was a normal practice in his school for learners to be sent to teacher’s cars.
[68] When questioned if there was nothing abnormal about him asking Learner A to come to his car, he averred not to come to his car because if one says come it means as if he was there in the car; but maybe if he was in the class and he had forgotten something in his car, they do send a learner to their car to retrieve that item.
[69] When asked if it was part of his responsibility as an educator to give R50 to the learners, he averred that they do not give money to learners for no apparent reason.
[70] He denied that he gave Learner A R50 and averred that she was lying because he did not ask her about why she was behaving the way Phumla had told him and that had annoyed her to such an extent that she concocted these things against him, knowing very well which button to press for a male educator to be kicked out of the Department of Education, as she has done to her father by running away from her home. She was now coercing him to be pushed out of the system.
[71] It was put to him that it was part of his sexual grooming of Learner A because when he gave her the R50, he told her that she must think of him when she was spending this money and further, the reason why he gave her the money was to bring her closer to him and it was part of his game to sexually groom her because even his pronouncements were such that he was showing interest in her. He argued that it was a lie and he did not give her anything. She was manufacturing these things because she is a grown-up and knows that a male educator might be reprimanded for doing such a thing and she knew about some of the things that might end up pushing a male educator out because she was angry at him as he knew a bad side of her which is why when she was giving her testimony she has said that she was surprised to see him with Phumla because she knew that Phumla was there to tell him about her behaviour at home. She was expecting him to come back and ask her but he did not provide her with that opportunity which is why she became vexed to such an extent that she went to her friend and they ‘peppered’ all these things. He knew nothing about all these allegations and what he was being asked about.
[72] It was put to him that he had asked Learner A for her phone number, he called her to come to his car, he gave her R50 and then he ended up trying to kiss her in the classroom, he averred that it was not true. He stated that he never has an opportunity to be alone with a learner, especially a girl learner in his class. What she was saying was a blatant lie; she was trying to force him out of the schooling system. He never did that and he never said anything about it; he suffered a lot for sweet nothing.
[73] It was put to him that his testimony was totally new evidence which was never put as a version to Learner A that she was a problematic child, a drug user, her stepmother had come to school to report her drug use and that she was moved from schools because of drug use; and the only thing that Learner A admitted before the Tribunal was that she drank liquor but the issue of the drugs she never admitted and the whole story that he had narrated was never put to Learner A to respond to. He stated that what he was saying was the truth. What Leaner A had said were things that were new to him; he did not know anything about that. He averred that Learner A saw her step-mother’s sister at school and she was not happy ever since. She said that she was puzzled, she was confused but she showed that she was not happy about seeing them together and for that she decided that she will tell him maybe something when he asks her but he did not provide her with that opportunity. He just kept quiet. He just relied on the expertise of people from GOLD to work out the whole situation and to help her out because he did not want to be like her father to her because she had decided to leave her father as he was reprimanding her, trying to stop her from taking drugs.
ANALYSIS OF EVIDENCE AND ARGUMENT
[74] Where there is an allegation of misconduct, the employer bears the onus to prove the allegations against the employee on a balance of probabilities.
[75] Section 17(1)(b) of the Employment of Educators Act 76 of 1998 (as amended) (EEA) provides that an educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employees.
[76] Section 18(1)(q) of the EEA stipulates that misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner.
[77] ELRC Collective Agreement 3 of 2018 provides for compulsory inquiries by arbitrators in cases of disciplinary misconduct against educators charged with serious misconduct in respect of learners.
[78] All educators are enjoined to adhere to the SACE Code of Professional Ethics. Clause 3 of the SACE Code of Professional Ethics provides that in terms of the conduct between the educator and learner, an Educator inter alia; …3.5 avoids any form of humiliation, and refrains from any form of abuse, physical or psychological; 3.6 refrains from improper physical contact with learners; … 3.8 refrains from courting learners from any school; 3.9 refrains from any form of sexual harassment (physical or otherwise) of learners; 3.10 refrains from any form of sexual relationship with learners from any school; … 3.14 uses appropriate language and behaviour in his or her interaction with learners, and acts in such a way as to elicit respect from the learners.
[79] Section 28[2] of the Constitution Act 108 of 1996 provides that a child’s best interests are of paramount importance in every matter involving the child.
[80] One of the objects of the Children’s Act 38 of 2005 is to give effect to the constitutional rights of children. Section 120[2] supra provides that; “a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of the state or any other person having sufficient interest in the protection of children.”
[81] In Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC), the court held that: “The credibility of the witnesses and the probability and improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondent’s version, an investigation where questions of demeanour and impressions are measured against the contents of a witness’ evidence, where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against facts that cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety.”
[82] Learner A testified about the allegations pertaining to counts 1, 2 and 3. She gave a clear account of what transpired in respect of each count. She testified about Mr Sibisi asking for her phone number, telling her that if he could go back to being young, he would make her his wife, he asked her what he could get for her, he called her to his car, gave her a folded R50 note and told her to think of him as a boyfriend while spending the money, he told her that he was yearning for her and wanted to have sex with her and he had asked her to kiss him. Learner A testified that she felt weird, uncomfortable and scared around Mr Sibisi and she was shocked at his behaviour.
[83] Mr Sibisi failed to challenge any of the allegations and put his version to Learner A while she was on the stand. When he tendered his evidence, he gave different versions from that of Learner A. Mr Sibisi’s defence was a bare denial to all the allegations.
[84] Learner A testified about wanting to do her oral presentation again and she presented clear evidence regarding this which again was unchallenged while Mr Sibisi when he testified, he never denied Learner A’s version but alluded that he always does orals in the classroom with all learners present and that there was no need for Learner A to redo her oral presentation as she had scored 18 out of 20.
[85] Mr Sibisi did not deny Learner A’s version that on one day when the learners were on the way to life sciences and no one was in the classroom, he had called her inside and asked her to kiss him. Under cross-examined he averred that he never has an opportunity to be alone with a learner, especially a girl learner in his class.
[86] Learner A’s testimony regarding the events leading up to Mr Sibisi calling her to his car and giving her R50 was clear and consistent while Mr Sibisi appeared to be evasive pertaining to the issue of Learner A going to his car.
[87] Learner A testified that she had informed an educator at the Gold Club who then contacted Phumla and informed her about the allegations made by her against Mr Sibisi while Mr Sibisi testified that he had compelled the social workers at the Gold Club to intervene and assist Learner A. Learner A’s version was unchallenged and Mr Sibisi’s version was never put to Learner A.
[88] Mr Sibisi testified about Learner A staggering around the school inebriated while holding a 2-litre bottle filled with some liquid. He failed to put this version to Learner A and he failed to call any witness to substantiate these claims.
[89] Mr Sibisi during his testimony repeatedly testified that Phumla had told him about Learner A’s bad behaviour and drug usage which was never put to Learner A. Mr Sibisi continually testified that after speaking to Phumla, he never disclosed to Learner A what they had discussed which had vexed Learner A hence she fabricated all these allegations against him.
[90] Importantly, Learner A had testified that Phumla had come to the school and had spoken to Mr Sibisi prior to the opening of the charges against Mr Sibisi and that Phumla had assisted her with the opening of the charges at the police station. Had Phumla come to complain or discuss Learner A’s bad behaviour, drug taking and causing problems in Phumla’s sisters marriage, it then begs the question why then would Phumla assist and support Learner A in opening false charges against Mr Sibisi.
[91] Learner A admitted to drinking alcohol at school due to peer pressure but denied that she took drugs.
[92] As habitual, in cases of sexual incidents, there are no witnesses. Learner A in her evidence-in-chief and under cross-examination gave a consistent account of the incidents and what had transpired.
[93] I have considered the relevant cautionary rules relating to child witnesses and single witnesses which requires that the evidence accepted should be substantially satisfactory in respect of material aspects.
[94] It is trite law that in a disciplinary hearing both the employer and employee parties will be afforded an opportunity to cross-examine the other parties’ witnesses and during that cross-examination a party needs to challenge any evidence that they disagree with and put their version to the witness on the stand.
[95] In ABSA Brokers (Pty) Ltd v Moshoana NO & others (2005) 10 BLLR 939 (LAC) the LAC held, “that it was an essential part of the administration of justice that a cross-examiner must put as much of his case to a witness as concerns that witness. He has not only a right to cross-examination but, indeed, also a responsibility to cross-examine a witness if it is intended to argue later that the evidence of the witness should be rejected. A failure to cross-examine may, in general, imply an acceptance of the witness’ testimony.”
[96] In Potgietersrus Platinum Ltd v CCMA and others [1999] JOL 5246 [LC], the Court held that the employer may merely show through circumstantial evidence that the employee is guilty of the misconduct and that the possibility that they did commit the misconduct in the circumstances is overwhelmingly more plausible. The onus is discharged if the employer can show by sufficient evidence that its version is the more probable and acceptable version. Where the employer on a balance of probabilities has provided evidence to implicate the employee and a constant denial by the employee without providing a version to rebut or answer to the evidence of the employer does not offer the employee a defence and does not prove anything. Accordingly, a consistent denial by the employee of the employer’s version is not an alternative persuasive version in contrast with consistent, convincing and unchallenged evidence adduced by the employer. Once the employer has on a prima facie basis adduced evidence to implicate the employee then the employee has the onus to provide a defence and not provide mere statements of a possible defence without providing proof to substantiate his defence.
[97] Mr Sibisi did not challenge, dispute or deny any knowledge about the allegations made against him by Learner A and neither did he put his version to her during her testimony. During his testimony he simply claimed he knew nothing about these allegations. The failure and omission by Mr Sibisi to disclose his version during the cross-examination of Learner A and only presenting his narrative during his evidence shows evasiveness, a lack of candour and transparency. His argument that Learner A had fabricated and concocted all these allegations because he did not tell her what he and Phumla had discussed has no substance. The question is why would Learner A who is now attending a different school pursue these allegations or be seeking revenge against Mr Sibisi.
[98] Learner A described each incident pertaining to Mr Sibisi’s improper and unacceptable behaviour; when it occurred, where it occurred, how it occurred and what had happened. Learner A testified that other learners also told her that Mr Sibisi also complimented them and one learner had told her that Mr Sibisi told her he loves her. She described her uncomfortableness and her fear of being alone with Mr Sibisi. Learner A explained what she had done to report Mr Sibisi’s improper actions towards her.
[99] There was no evidence of a vendetta against Mr Sibisi or that Learner A had lied or fabricated evidence against him. I accordingly find no probable motive for Learner A to have lied at the arbitration hearing. Importantly, Mr Sibisi did not provide any probable evidence that would support his notion that Learner A was indeed lying. Learner A came across as a credible witness.
[100] The test in determining whether something has been proved on a balance of probabilities is whether the version of the party bearing the onus is more probable than the other party.
[101] In Mudau v MEIBC & Others [2013] 13 ILJ 663 [ LC] the court held that the task of an arbitrator in terms of section 188A is to determine on the balance of probabilities whether an employee has committed an offence for which he or she has been charged with and if so whether there exists a basis in fairness to terminate the employment relationship.
[102] Section 28 [2] of the Constitution Act 108 of 1996 provides that a child’s best interests are of paramount importance in every matter involving the child.
[103] Having regard for the totality of the evidence, I find the version of the employer more plausible, logical and the more probable version, and that Mr Sibisi is guilty.
[104] The employer did not call witnesses in respect of Charge 1 Count 4, Count 5 and Count 6. As there was no evidence presented in respect of Charge 1 Count 4, Count 5 and Count 6, I find Mr Sibisi not guilty of these Charges.
[105] The testimony by Learner A pertaining to charges are compelling for me to find on a balance of probabilities that Mr Sibisi is guilty of Charge 1 Count 1, Count 2 and Count 3.
[106] Sexual grooming refers to the actions or behaviours of an individual who targets a vulnerable person, generally a minor child in order to build an emotional connection and reduce the child’s resistance, with the ultimate aim of committing sexual abuse in a manner or circumstances that violates or undermines the child’s sexual integrity or dignity. Offenders often attempt to form a close bond by portraying the relationship as romantic, convincing the child that they are in a boyfriend-girlfriend relationship to quickly establish trust and emotional dependence.
[107] Educators have a duty to care for and protect learners while they are at school as a consequence of their in loco parentis status. Section 32 of the Children’s Act 38 of 2005, as amended provides that a person acting in parentis in loco, such as an educator must, whilst the child is in that person’s care.
(a) safeguard the child’s health, well-being and development; and
(b) protect the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation, and any other physical, emotional or mental harm or hazards.
[108] As in loco parentis, the community and society at large expects an educator to conduct himself/herself in a trustworthy manner. Mr Sibisi had a legal and moral obligation to safeguard and protect Learner A and not breach the trust placed in him as in loco parentis.
[109] Accordingly, a contravention of section 18(1)(q) implies that Mr Sibisi’s inappropriate, disgraceful comments and behaviour created an intimidating environment towards a learner. These actions violate the established standards that prohibit misconduct toward learners. Educators have an obligation to ensure a safe, respectful, and supportive learning environment, free from abuse and infringements on personal dignity.
[110] Sexual assault involving a learner is addressed under Section 17(1)(b) of the EEA. According to legal definitions, assault refers to an unlawful and intentional act that either impairs another person’s bodily integrity or creates a reasonable belief that such harm is about to occur. Therefore, sexual assault is a form of assault that occurs in a sexual context, where the victim’s sexual integrity is either violated or threatened.
[111] In terms of Section 17 of the EEA, it is mandatory that an educator convicted under this section must be dismissed. There is no discretion to impose a lesser sanction than dismissal. Dismissal is a statutory sanction.
AWARD
[112] The employee, Mr M. H. Sibisi, is found guilty of contravention of section 17(1)(b) and section 18(1)(q) of the Employment of Educators Act.
[113] The employee, Mr M. H. Sibisi is dismissed with immediate effect.
[114] The employer, the KZN Department of Education must inform the employee, Mr M.H. Sibisi of his dismissal immediately on receipt of this Award.
[115] Mr M.H. Sibisi is found to be unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005.
[116] The General Secretary of the ELRC must, in terms of section 122 of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum for the Director General to enter Mr M. H. Sibisi’s name as contemplated in section 120 in Part B of the register.
[117] The ELRC must also send a copy of this award to the South African Council for Educators (SACE) to consider revoking Mr M.H. Sibisi’s SACE certificate.