Panellist: Themba Manganyi

Case No.: ELRC882-22/23GP

Dates of Hearing: 27 March 2023, 09 May 2023, 25 July 2023,

08 & 09 February 2024, 11, 12 & 13 April 2024, 17, 18 & 19 July 2024,

27 & 28 August 2024, 10 October 2024, 20 November 2024,

15 January 2025 and 26 February 2025

Date of Arguments: 05 March 2025

Date of Award: 07 May 2025

In the Inquiry by Arbitrator Hearing between

HEAD OF DEPARTMENT: GAUTENG DEPARTMENT OF EDUCATION	EMPLOYER
and
MR JACOBE MOAGI MODISE	EMPLOYEE

Employer’s Representative: Mr Dumile Dube

Employee’s Representatives: Mr Christopher Nomandindi,

    Mr P.A. Mabilo and Ms Maranthi Kgomo

Details of hearing and representation

1. This is an arbitration award in terms of section 138(7) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended. The Employer, the Head of Department: Gauteng Department of Education, referred this matter to the Education Labour Relations Council (“the Council”) in terms of section 188A of the LRA (Inquiry by Arbitrator) against the Employee, Mr Jacobe Moagi Modise (“Mr Modise”).

• The arbitration proceedings were conducted on 27 March 2023, 09 May 2023, 25 July 2023, 08 & 09 February 2024, 11, 12 & 13 April 2024, 17, 18 & 19 July 2024, 27 & 28 August 2024, 10 October 2024, 20 November 2024, 15 January 2025 and 26 February 2025 at the Council’s Offices in Centurion.

• Mr Dumile Dube (“Mr Dube”), the Labour Relations Officer, represented the Employer. Mr Christopher Nomandindi (“Mr Nomandindi”), a SADTU Official, represented Mr Modise at the commencement of these proceedings and recused himself on 25 July 2023. Mr P.A. Mabilo (“Mr Mabilo”), an Advocate briefed by Maranti Kgomo Attorneys, represented Mr Modise for the better part of these proceedings and Ms Maranti Kgomo represented Mr Modise on 26 February 2025.

• The parties submitted bundles of documents, including the pre-arbitration meeting minutes, into the record and the veracity of the documents were to be tested during the proceedings. The Employer’s bundles were marked as Bundle A1and A2 and the Employee’s bundles were marked as Bundle B1, B2 and B3. Parties were allowed to call and cross-examine witnesses. All the minor witnesses testified with the assistance of an Intermediary and an Interpreter during these proceedings. At the end of the proceedings, parties agreed to submit their heads of arguments in writing on or before 05 March 2025 and same were received. The proceedings were digitally recorded and the recordings thereof were retained by the Council. In this award, the names of the minor witnesses (learners) will not be disclosed to protect their identity. Only their initials will be indicated.

Issue/s to be decided

• I am required to determine the veracity of the allegations that are preferred against Mr Modise. In the event that I find that the allegations have merit, I will have to determine the appropriate sanction.

Rights and the procedure

• All the rights commensurate with a fair process and the nature of the process were explained to the parties.

Allegations[1]

• The allegations that were levelled against Mr Modise were the following:

Allegation 1:

It is alleged that on or around 7 March 2002 at or near Himalaya Secondary School, you assaulted Learner MKZ, a Grade 8 boy learner from the same school by pushing and slapping him on the head. You further assaulted him by slapping him on the face.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(r) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 2:

It is alleged that on or around 17 May 2022 at or near Himalaya Secondary School, you assaulted Learner BM, a grade 9 girl learner from the same school by hitting her on the head and as a result, some of her traditional shells were broken, and her hat was torn in the process.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(r) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 3:

It is alleged that on or around 17 May 2022, at or near Himalaya Secondary School, you conducted yourself in an improper, disgraceful manner and / or unacceptable manner in that you sexually harassed Learner BM, by aggressively grabbing and squeezing her breast harder.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 4:

It is alleged that on or around 03 March 2022, at or near Himalaya Secondary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you insulted Learner BM1, a grade 8 boy learner from the same school, by saying he is black, stinky and is not bathing and is having a big head.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 5:

It is alleged that on or around 15 March 2022, at or near Himalaya Secondary School, you conducted yourself in an improper, disgraceful or unacceptable manner in that, you insulted Learner PRM, a grade 8 girl learner from the same school, by saying she is having a bad smell, she is not bathing and her hairstyle is ugly and old.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 6:

It is alleged that on or around 3 May 2022, at or near Himalaya Secondary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you insulted Learner OM, a grade 8 girl learner, by saying she looks ugly and asked her how her mother’s underwear looks like.

In view of the above allegations, you are thus charged in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.

Allegation 7:

It is alleged that on or around 5 May 2022, at or near Himalaya Secondary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you insulted Learner NFM, a grade 8 girl learner, by saying she does not bath, she is ugly, her hairstyle is ugly and further said her father is a Zimbabwean and he smells horrible.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 8:

It is alleged that on or around 14 June 2022, at or near Himalaya Secondary School, you conducted yourself in an improper, disgraceful or unacceptable manner, in that you insulted Learner KM, a grade 8 girl learner from the same school, by saying she does not look clean and is not bathing.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 9:

It is alleged that on or around 5 May 2022, at or near Himalaya Secondary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed Learner NFM, a grade 8 girl learner, from the same school, by saying she has a crush on you, she is beautiful and she must date you.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 10:

It is alleged that on or around 17 May 2022, at or near Himalaya Secondary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed Learner PRM, a grade 8 girl learner from the same school, by saying her looks says she loves you and she is too ugly to date someone like you.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.

Pleadings

• After Mr Dube read the allegations preferred against Mr Modise, he pleaded not guilty to all the allegations.

Survey of evidence and arguments

The Employer’s case

• Learner BM1 testified under oath that Mr Modise told him that he was black, stinking, not bathing and that he had a big head. Mr Modise told him that he could make him (Mr Modise) to vomit. He stated that Mr Modise would say all these things in class when he did not do his homework. He testified that he initially did not do anything about what Mr Modise said to him, but he eventually told his mother. He testified that he knew Learner KM and that he went to class with her in grade 8. He stated that Mr Modise would tell Learner KM that she did not bath, that she was not looking clean and that she had a big forehead.

1. Under cross-examination, he stated that he told his mother about what Mr Modise said to him and that his mother called the school to report. He confirmed that Mr Modise said all these things to him because he did not do his homework. When it was put to him that Mr Modise would testify that he was not telling the truth. He asserted that he was telling the truth. He stated that Mr Modise’s affidavit was a lie. He reaffirmed that he only reported the incident to his mother and that the Principal only interviewed him, but he did not write a statement. He stated that his mother wrote something to the school, but he did not see what she wrote. He disputed the version that he was coerced to testify against Mr Modise.

1. Learner FM testified under oath and stated that Learner BM1 was her class mate in 2022 and that Mr Modise would say to Learner BM1 in class with other learners present that he has a big head and he smelled badly. She stated that she viewed Mr Modise as a kind person, but after what he said to Learner BM1, she was scared that he would say the same things to her because she was also dark. She testified that she was not lying about Mr Modise. She witnessed what Mr Modise said. She stated that Mr Modise once said Learner BM1 was a stage 8 of load shedding. She said Mr Modise once said to her that she was blacker than the charcoal, but she did not report him at school, she only told her father. Her father did not report. She stated that the Principal interviewed her and she was told to write something on a piece of paper. The Principal also wrote something. She testified that she knew Learner MKZ as he was in her class and that she was kicked out of class together with Learner MKZ because they did not do their homework. When Learner MKZ tried to return to class to get a pencil, Mr Modise smacked him on the face and on the head. She stated that she was afraid because she thought Mr Modise would also slap her.

1. Under cross-examination, she stated that she sat at the back in class and that Learner BM1 used to seat at the back as well until Mr Modise moved him to the front. She confirmed that Mr Modise hit Learner BM1 on the face and head. She confirmed that the Principal read her statement back to her.

1. Learner MKZ testified under oath and stated that Mr Modise taught him Maths and that there was a day when he did not do his homework and Mr Modise kicked him out of class. When he tried to go back to class, Mr Modise hit him on the head and face. He stated that he was chased out of class together with Learner FM. He stated that before the incident, he viewed Mr Modise as a good person who would want his work to be done. However, after the incident, Mr Modise was a very bad person and he would use corporal punishment. He stated that he reported the incident to his grandmother when he got home. His grandmother reported the incident to the Principal and the Principal called him to his office and he narrated what happened. The Principal wrote down what he told him. He testified that it was not for the first time that Mr Modise hit him on the face. However, he did not report the first incident.

1. Under cross-examination, he confirmed that he told the truth in his examination in chief. He confirmed that he was expelled from class with Learner FM because they did not do their school work. He stated that Mr Modise taught him Maths in 2020. However, during re-examination he stated that he was in grade 8 in 2022.

1. Learner OM testified under oath and stated that Mr Modise was her Maths teacher in grade 8 during term 1 and 2 in 2022. She stated that Mr Modise had a habit of saying where have you seen such an ugly girl when she could not answer a question in class and he would also say that it looked like she did not take care of her hair. She stated that Mr Modise once said she did not look her age and that she could be older than all the learners in the class. She said that Ms Mncube came to Mr Modise’s class having a piece of paper with her and Mr Modise took a picture of the paper and then he pointed her to Ms Mncube. Ms Mncube called her harshly to go with her outside and Mncube asked her what was it that she was hearing about what she (Learner OM) was saying about her and said that Learner OM should not make her a fool. She stated that she then went to report the matter to the Principal. She went back to class and after the lesson, Mr Modise asked her about her white doek that she was wearing and she did not want to respond to his question. Mr Modise then asked her if her mother’s underwear were the same size as Ms Mncube’s. She reported the incident to her mother. Her mother was very furious. Her mother called the Principal, but she did not know what they discussed. She stated that it was not only her that Mr Modise insulted in the class. She testified that Mr Modise’s affidavit was not true. She stated that when she first met Mr Modise, he was respectful and she was happy to be in his class because he seemed to be strict. However, after the incident, she did not perceive him to be a kind person and she was afraid of him and to be in front of him.

1. Under cross-examination, she refuted the version that Mr Modise would say she was beautiful and that he loved her as his daughter. She disputed that what she told her mother was an incident of one day and stated that it was not the first time that she reported to her mother. She stated that she did not know the learners that were stated on some of the allegations. She has seen Mr Modise hitting other learners even those that were not in her class. She stated that Mr Modise and his witnesses can come and say what they wanted to say, but they know the truth.

1. Ms Puleng Linah Tsotetsi (“Ms Tsotetsi”) testified under oath and stated that she was Learner OM’s mother and that she never met Mr Modise personally. She only knew that he was teaching her daughter Maths. She stated that Mr Modise had multiple chances to report the learners to the Principal, but he did not do that.  She stated that Mr Modise could have called her to discuss Learner OM’s behaviour. Instead, she offered to call Mr Modise, but he refused with his numbers. She testified that she felt Mr Modise was undermining her when he asked Learner OM about her underwear’s size. She stated that she wanted Mr Modise to be reprimanded and go to counseling or anger management because want he has done to the learners was unbecoming.

1. Under cross-examination, she conceded that she could be incorrect about her assessment of Learner OM since she was not a Psychologist or a Social Worker. She stated that she went to the Principal’s office on 05 May 2022 to lay a complaint against Mr Modise.

1. Learner BM testified under oath and stated that she knew Mr Modise as a teacher at her school and that he did not teach her. She testified that on 17 May 2022 they were supposed to go to Mr Nyoni’s class, but the class was locked. So the RCL went to find out where the learners should go for supervision. The learners decided to go to the netball court. Mr Paradzai Mugane (“Mr Mugane”) and the patroller found them at the netball court and Mr Mugane said that they have bunked a class. Mr Mugane escorted them next to Mr Modise class and made them to sit on the ground. Mr Modise came and asked what was happening and he saw her wearing a hat that was not a school uniform. He approached her and hit her very hard on the head and he pulled her traditional beads together with her hair. As she was trying to protect herself, he squeezed her breast very painfully and she tried to defend herself by elbowing him. She then ran under the stair case. Mr Modise then went to her and said that even if she can report him to the Principal; the Principal would do nothing to him. She ran to the Principal’s office being in tears. She requested the Principal to call her mother, but the Principal said she should explain first what was happening. After she had explained, the Principal called her mother and explained what happened. He then told her to go back to class. She testified that after the day of the incident, she did not go to school for days because she had to be cleansed by her ancestral mother (‘gobela’). She said she left her hat at her gobela and she fetched it when the Principal requested her to bring it to school. She stated that the hat was damaged during the tussle with Mr Modise.

• She testified that her mom and her gobela went to school and met with the Principal and the Deputy Principal – Ms Rikhotso. The feedback that she got from her mother was that the Principal will convene a meeting with the staff members to explain about her ancestral calling. After some time, her English and Afrikaans teachers, Ms Thabethe and Ms Ishmael respectively, spoke to her about her calling and encouraged her. She confirmed that that the red beanie that was marked as Exhibit X was the beanie that she was wearing on the day of the tussle with Mr Modise. She commented on Mr Modise’s affidavit and she disputed that Mr Modise told her to go to the office to get a written permission to wear the beanie that did not have the school logo. She restated that Mr Modise hit her very hard on the head. She stated that Mr Modise was not telling the truth in his affidavit.

• Under cross-examination, she disputed that they knew that they were supposed to go to Mr Mugane’s class for supervision. She conceded that the allegations that concerned her did not state everything that she testified about and stated that she told the Principal everything that transpired. She stated that Mr Modise wanted to take her hat because it was not a school uniform. She stated that other learners did not intervene during the tussle because they saw that Mr Modise was using force. However, two (2) learners reported the incident to the Principal. She stated that she did not write any statement, but the Principal wrote her statement. She disputed that she was at school on 18 May 2022 and that Mr Modise supervised her class. She stated that Mr Modise disrespected her ancestral calling.

• Learner OD testified under oath and stated that she was in grade 9 in 2022 and that Mr Modise did not teach her in 2022. She testified that on 17 May 2022 they were supposed to attend Natural Science period at Mr Nyoni’s class, but he was not present and so they decided to go to the netball court. Mr Mugane and the patroller came to the netball court and reprimanded them that they were bunking class. Mr Mugane took them next to Mr Modise’s class and made them to sit on the ground. Mr Modise came and saw Learner BM wearing a red beanie that was not a school uniform. Mr Modise told Learner BM to take off the hat. Learner BM tried to explain why she was wearing the hat. Mr Modise tried to pull the hat from Learner BM’s head. Learner BM was pulling the hat down and during the tussle, Mr Modise’s right hand touched Learner BM’s breast. Learner BM went and sat under the stair case whilst busy crying. She then went to the office. She stated that the teachers that taught them were aware why Learner BM was wearing that hat because the Principal had informed them about Learner BM’s ancestral initiation. She stated that after the tussle, Learner BM did not attend school for a few days.

• Under cross-examination, she confirmed that Learner BM was not at school for a few days after the tussle with Mr Modise and further confirmed that Mr Modise supervised her class on 18 May 2022. She conceded that she went to the Principal’s office only with Learner JM because other learners were reluctant to report the incident. She was adamant that she was telling the truth. She stated that the Principal wrote their statements, but he did not read the statements back to them. She reiterated that Learner BM was not at school on 18 May 2022.

• Learner JM testified under oath and stated that she was in grade 9 in 2022 and that Mr Modise did not teach her. She stated that on 17 May 2022 Mr Mugane made them to sit on the ground next to Mr Modise’s class. Mr Modise came and asked Mr Mugane what was happening. Mr Mugane told him that they were bunking class. Mr Modise noticed that Learner BM was wearing a beanie that was not a school uniform and he approached Learner BM and hit her on the head and forcefully tried to pull the beanie off. Learner BM was at the same time trying to pull the beanie down. Learner BM ran to sit under the stair case whilst crying and she told Mr Modise that she was going to report him to the Principal. Mr Modise said she can go and report and that he was not afraid of the Principal. She testified that after the break, Learner BM explained to Ms Ishmael that Mr Modise hit her and her beanie was torn and that Mr Modise also grabbed her breast. She further stated that Learner BM told everyone in class that Mr Modise grabbed her breast and that it was painful. She stated that she did not witness Mr Modise grabbing Learner BM’s breast because she was obscured. She testified that Mr Modise supervised them on 18 May 2022, but Learner BM was not at school for a few days.

• Under cross-examination, she conceded that there were discrepancies on the allegations on page 3 of A1 and the allegations on page 21 of A1. She stated that the Principal interviewed her together with Learner OM and Learner OD. She stated that Mr Dube also interviewed her and Learner OM and that Mr Modise was not called during the interview. She did not know if Mr Dube interviewed other learners. She confirmed that she did not witness Mr Modise touching Learner BM’s breast and that she did not see the ancestral shells. She further confirmed that Learner BM was not in class on 18 May 2022. She reaffirmed that she testified about what she knew and that she did not lie.

• Ms Segopotso M (“Ms Segopotso”) testified under oath and stated that she was Learner BM’s mother. She testified that she knew Mr Modise albeit not personally. She testified that on 17 May 2022, the Principal called her telling her that Learner BM was crying and she wanted to go home, but the Principal said he cannot let her go home without her parent. She then got a call from Learner BM who was crying heavily. She told her to calm down. Learner BM told her what happened. She stated that she was surprised how Learner BM’s beanie could be an issue because she went to school with the gobela in February 2022 and they met with the Principal and the Deputy Principal to explain Learner BM’s situation. The Principal undertook to address all the teachers. She confirmed that the beanie that was presented into evidence was Learner BM’s beanie and she recognized it by its muthi smell and that it was torn. She testified that Learner BM did not go to school because the gobela had instructed that Learner BM cannot go to school before she was cleansed. She refuted that Learner BM was at school on 18 and 19 May 2022 and stated that the register was incorrect.

• Under cross-examination, she did not dispute that the pictures on page 47 and 48 of B1 were Mr Modise’s family in traditional and spiritual clothing. She conceded that the shells were never presented as evidence in these proceedings. She disputed the version that her testimony was rehearsed. It was put to her that Mr Modise would testify that the hole on the beanie was not as big as it is now and that the beanie did not smell of muthi. In her response, she stated that the gapping on the beanie was the same as per her visual reference. She stated that if Mr Modise would testify that this incident did not happen, it would mean that he was not remorseful.

• Learner PRM testified under oath and stated that she was in grade 8 in 2022 and that Mr Modise was her Maths teacher. She stated that they were in class busy marking corrections and she wanted to borrow a pencil from another learner, Mr Modise said they were making noise and said that she was stinking and that she did not bath. Mr Modise further said that she had an ugly hairstyle and that the hairstyle was old. The other learners laughed and she felt embarrassed. She then went to the Principal after the bell rung to report the matter. She stated that she also told her mother about the incident. Her mother wanted to go to school, but she told her mother that the Principal said he would take the matter further. She testified that on the other incident, they were in class busy with corrections. Mr Modise was writing on the chalk board and when he turned, he found her looking at the chalk board and he said to her that her eyes says she loved him and said she was too ugly to date someone like him. She again reported the incident to the Principal when she got to the next class. She also told her mother about this incident and her mother asked her what happened with the first incident. After a few days, Mr Dube came to interview her.

• She confirmed that she knew Learner NFM as they were in the same class. She stated that Mr Modise told Learner NFM that she was beautiful and that she had a crush on him and that they should date. She testified that another day in class, when she was talking to Learner NFM, Mr Modise said Learner NFM was ugly with an ugly hairstyle and that her father was a Zimbabwean who smelled horrible. Learner NFM cried because her father was deceased. Learner NFM went to report the incident to the Principal.

• Under cross-examination, she conceded that there were discrepancies between the allegations on page 22 of A1 and the incident report on page 4 of A1. She stated that the Principal did not read to her what he wrote in the statement. She also stated that Mr Dube did not read or show her the statement that he wrote. She stated that they did not report these incidents to their class teacher, Ms Thabethe. She reaffirmed that she was not lying.

• Learner NFM testified under oath and stated that she was in grade 8 in 2022 and that Mr Modise was her Maths teacher. She stated that they were in class and Mr Modise saw her nail polish and said to her that she was beautiful, she was his crush and that she should date him. Only Learner PRM heard him. She stated that she did not report this issue at the office. However, she told her mother when she got home. The other incident also happened in class when she turned her back to borrow an eraser. Mr Modise said to her she was making noise and that she was ugly, her hairstyle was old and that her father was a Zimbabwean and that he smelled bad. She cried and went out of class and Learner PRM followed her and accompanied her to the Principal’s office.

• She further testified that she heard Mr Modise saying to Learner PRM when she was borrowing a pencil that she was making noise, her hairstyle was old and ugly. Learner PRM cried and she comforted her and she accompanied her to the Principal’s office. On another incident, she stated that they were in class and they were busy with corrections when Mr Modise turned and told Learner PRM that her look was saying that she loves him, but she was too ugly to date him. Learner PRM cried and she took her to the Principal’s office.

• Under cross-examination, she stated that she was not friends with Learner PRM, but they sat next to each other. She wanted Mr Modise to be found guilty on the allegations that related to her. She stated that her version and Learner PRM could be different because the incidents occurred in 2022. She stated that on the dates of the incidents, they went out of class without Mr Modise’s permission. She disputed the version that she was lying.

• Mr Vilasen Padyachy (“the Principal”) testified under oath and stated that he wrote the document on page 1 of A1 addressing it to the District Office regarding the learners’ complaints. He stated that the learners complained that Mr Modise has subjected them to corporal punishment, he sexually harassed them and also that he assaulted them. He stated that he was disappointed that a person of Mr Modise’s calibre would sexually harass and assault learners. He stated that he wrote notes of the learners’ complaints and he did not make the learners to write statements. He testified that he wrote page 2 of A1 after Ms Segopotso came to school on 04 February 2022 to explain her daughter’s condition. He stated that he briefed the educators about Learner BM’s condition on 09 February 2022 and that Mr Modise was present during the briefing. He found it strange that Mr Modise would tell Learner BM to get a letter whilst he was at the briefing meeting. He said page 3 of A1 was a report that he wrote to the District Office. He explained that he wrote page 3 of A1 on 25 May 2022, but when the incident of 14 June was reported, he included it on the report and left the date unchanged.

• He confirmed that the hat belonged to Learner BM and that it did not have the school emblem. He stated that Learner BM told him that Mr Modise assaulted him and the hat got torn and her beads were broken during the tussle. He testified that he did not tell learners to write anything about Mr Modise. He refuted that he had a vested interest in Mr Modise and that what he has reported was what the learners told him.  Regarding the WhatsApp message where he asked Mr Modise about his resignation letter, he stated that it was because Mr Modise indicated in the presence of Ms Rikhotso that he was going to resign. So he was checking if he had submitted the resignation letter to the HR Department so that he can find a replacement for him.

• Under cross-examination, he stated that the reports that he wrote were given to the Labour Unit at the District Office. He did not recall who investigated the allegations against Mr Modise, but he stated that it was the officials from the District Office. He disputed that he discussed the allegations with the officials who were investigating the matter. Regarding Learner BM’s allegations, he stated that there were two (2) learners who witnessed the incident. He stated that he did not have any interest in hating Mr Modise. He conceded that both Mr Modise and the learners must be afforded the same treatment in terms of fairness. He affirmed that learners were not made to write statements. He stated that he was aware of the document in page 22 of B1 from 2017 and that the report was based on fabrications. He disputed the version that he pointed Mr Modise with his finger on the forehead and threatened to shoot him.

The Employee’s case

• Ms Tshepang Phetola Letoaba (“Ms Letoaba”) testified under oath and stated that she was an English Educator at Himalaya since 2019. She stated that there was a girl learner who said the office said she must request permission to go to the office. When the learner returned from the office, she sat down and wrote something on a piece of paper. After she was done writing, she wanted to go out without requesting permission. She stopped the learner and took the piece of paper that she wrote and took a picture of the paper. She showed Mr Modise the message. The message was talking about Learner BM1. The girl learner said the Principal told her to write something about Mr Modise.

• Under cross-examination, she could not remember the name of the girl learner. She stated that the note was stating that Mr Modise has said to Learner BM1 that he was dirty, dark and that he did not bath.

• Ms Lizzy Thabethe (“Ms Thabethe”) testified under oath and stated that she was an English Educator at Himalaya. She testified that she knew Learner BM, but she was never told about Learner BM’s condition. She stated that she was never told about Learner BM’s allegations.

• Under cross-examination, she stated that she did not know about the Principal’s briefing to the staff members regarding Learner BM’s condition. She refuted that Learner BM’s condition was ever discussed at the staff meeting.

• Mr Mugane testified under oath and stated that he was an Educator at Himalaya. He stated that he was supposed to supervise the grade 9 learners, but not the whole class came for supervision. He went to fetch the remainder of the learners from the tennis court. The learners ran and they were making noise. Mr Modise stopped them. He (Mr Mugane) made the learners to sit on the ground whilst he was sorting out the issue of the supervision. He did not see Mr Modise touching or grabbing any learner unless if he touched the learner in his absence.

• Under cross-examination, he stated that he did not know if Mr Modise remained with the learners after he left. He reiterated that Mr Modise did not touch or assault any learner.

• Mr John Marakalala (“Marakalala”) testified under oath and stated that he was the Labour Relations Officer at Tshwane South District. He stated that Mr Dube was reporting to him and that Mr Dube was appointed to investigate this matter. He confirmed that he accompanied Mr Modise to Himalaya and they were accompanied by the Admin Lady to Mr Modise’s classroom. He stated that they found the cupboard in the classroom not locked (broken) and Mr Modise said he was looking for a file that he left in the cupboard, but the file was not there. He refuted that he made an undertaking that he would investigate and report back to Mr Modise and stated that it was not the responsibility of the Labour Relations Unit to investigate the lost file.

• Under cross-examination, he stated that Mr Modise did not tell him what was contained in the file that he was looking for.

• Ms Glenda Mncube testified and stated that she was an Afrikaans Educator at Himalaya. She stated that Mr Modise brought it to her attention that there were learners who were talking about her and Mr Modise in the bus. She asked Learner OM about these utterances and Learner OM denied having said anything about her and Mr Modise and stated that it was other learner who said those things. After a while, Learner OM came back with the Principal and the Principal told her that Learner OM said she (Ms Mncube) threatened her. She testified that Learner OM was a withdrawn child. Hence, she believed Learner OM when she said she did not say anything about her.  She stated that the learners said she was romantically involved with Mr Modise and that made her furious.

• Under cross-examination, she stated that she worked with Mr Modise as labour officials at SADTU and that they were friends. She stated that the Principal was made aware by Learner OM of this incident. She stated that she did not remember Mr Modise saying anything ugly to learners.

• Mr Modise testified under oath and stated that he has been an Educator since 1990 and he has been at Himalaya since 2009. He stated that he had a good relationship with his colleagues. However, his relationship with the Principal became very sour in 2017. He testified about the discrepancies between the allegations on page 21 of A1 and the report on page 3 of A1 and said the Principal was pushing some kind of an agenda. He commented on the date of the report on page 3 of A1 that was dated 25 May 2022 and the incident of 14 June 2022 that was included in the report. He stated that he lodged a grievance and he received the outcome thereof on 03 March 2022 and the allegations that are levelled against him started in March 2022 to June 2022.

• He testified that he reported to the Principal that he would not be at school and in his response, the Principal demanded his resignation. He stated that the Principal has said it on many occasions that he must resign. He stated that there was a reporting protocol at school and that it has never happened that a learner would go directly to the Principal to report an incident. He testified that he respected tradition and that two (2) of his daughters were traditional healers. He refuted that Learner BM was wearing the beanie that was submitted as evidence on the day of the incident. He stated that she was wearing a yellowish or mustard beanie. He disputed that there was any confrontation between him and Learner BM. He only told Learner BM to get a slip from the office to indicate her reason for wearing a beanie that was not a school uniform. He testified that if indeed the incident with Learner BM has taken place, there would have been an uproar from the learners and the community would have been involved. There was no CCTV footage to substantiate this allegation.

• Under cross-examination, he stated that when he was issued with a precautionary transfer letter nothing was explained to him. He was made to read the letter and to acknowledge it. He averred that he made several oral requests to Mr Dube to be accompanied to school to collect his belongings, but to no avail. He was only accompanied in June 2023 by Mr Marakalala. He stated that he recorded every incident in the ledgers and the diaries that he left in the cupboard. He indicated that he did not respond to some allegations in his affidavit because they did not happen. He disputed that he would be angry if a learner did not do his / her homework. He disputed that Learner OM requested his numbers and stated that he suspects that Learner OM lied about him because the Principal told her to say that. He confirmed that he did not raise an issue about the colour of the beanie during the pre-arbitration meeting and during the testimony of the Employer’s witnesses. He maintained that all the allegations levelled against him were fabricated. When he was given the precautionary transfer letter, he discussed it with his wife and his wife said that there was no smoke without fire. They are currently getting divorced because of these allegations. He conceded that he did not rebut Learner BM1 and Learner PFM’s allegations because he knew that he would be given a chance to take the witness stand.

Closing arguments

• Parties submitted their heads of arguments in writing.  I do not find it necessary to rehearse the closing arguments herein as they are a matter of record. I will only refer to the arguments in my analysis where necessary.

Analysis of evidence and argument

• This is an award in terms of section 138(7) of the Labour Relations Act 66 of 1995, as amended (“the LRA”). Therefore, these are the brief reasons for my finding.

• The Courts have recognized that the evidence of children cannot be assessed in the same way as the evidence of adults, that it may be wrong to apply adult tests for credibility to the evidence of children, that a fair trial must not only take into account the rights of the accused but also the rights and capabilities of children, that a contradiction in a child’s testimony should not necessarily be given the same effect as a similar flaw in the testimony of an adult and that evidence if given by an adult may have had a deficiency so grave as to require rejection of it as incredible, may in the case of a child be explicable as due to the limitation of a child’s immaturity rather than lack of rationality.

• It is common cause that the test that is applicable in employment law is that of “on a balance of probabilities” and not “beyond reasonable doubt”. It is common cause that the Employer preferred ten (10) allegations against Mr Modise and the allegations involved minor witnesses. I have endeavored in these proceedings to create and maintain an environment that allowed children to give reliable and complete evidence, to minimize trauma to children, to encourage children to testify and facilitate the ascertainment of truth so that the best interests of the child are upheld and promoted the maximum accommodation of child witnesses without prejudice to the rights of Mr Modise. I was confronted by two conflicting versions. Therefore, I am required to consider the credibility of witnesses, the reliability of witnesses and the probability of the respective versions[2].

• It is common cause that Mr Mugane collected the learners from the netball court on 17 May 2022 and made them to sit on the ground next to Mr Modise’s classroom. It is common cause that whilst the learners were seated on the ground, Mr Modise came to their vicinity and approached Learner BM who was wearing a beanie that was not a school uniform. All the Employer’s witnesses who testified about the beanie were consistent that the beanie was red and did not have the school logo / emblem. Under cross-examination, the contention with regard to the beanie was that Mr Modise did not cause the beanie to be torn as he did not tussle with Leaner BM. There was no version that was put to the Employer’s witnesses that the beanie that Learner BM was wearing was not red. It was only during Mr Modise’s evidence in chief were it was suggested that the beanie was actually yellowish or mustard. This version was not tested with any of the Employer’s witnesses. I therefore find that this version was an afterthought on Mr Modise’s part and therefore, it is not a true version in my view. I must emphasize that Mr Modise was legally represented in these proceedings and as and when Mr Modise and his representatives needed to consult during cross-examination, they were afforded that time. If indeed the beanie was not red, that version should have been put to the Employer’s witnesses and Mr Modise could have stated that in his affidavit as well. For reasons best known to Mr Modise, that was not canvassed with the Employer’s witnesses. I therefore conclude that the beanie was red and it is the same beanie that was presented as an exhibit in these proceedings.

• It is alleged that Mr Modise hit Learner BM on the head and caused her traditional shells to break and the beanie to tear. It is further alleged that Mr Modise aggressively grabbed and squeezed Learner BM’s breast. Mr Mugane testified that in his presence, there was no altercation that occurred between Mr Modise and Learner BM. However, it was his (Mr Mugane) testimony that he left Mr Modise with the learners to attend to his class. On the other hand, Learner OD and Learner JM testified that they witnessed Mr Modise hitting Learner BM and Learner OD further testified that she saw Mr Modise hitting and grabbing Learner BM’s breast. Mr Modise denied touching Learner BM in any way. Mr Modise did not call any learner who was part of the group that Mr Mugane brought to corroborate his version. Instead, he wanted the CCTV footage to be presented since there was a CCTV camera around that vicinity where the alleged incident occurred. Unfortunately, the CCTV footage was not available and as per the Principal, there were times where the CCTV system was dysfunctional. Learner BM, Learner OD and Learner JM were consistent during their examination in chief and cross examination. The Principal and Ms Segopotso narrated Learner BM’s story as they were told by Learner BM after the incident. The only version that I have from Mr Modise was bare denial.

• It is also concerning that Mr Modise alleged that all that he did when he saw that Learner BM was not wearing the school beanie he advised her to go seek a note for wearing the said beanie. He also alleged that Learner BM was at school the following day (on 18 May 2022) and he supervised her class. This was confirmed by the attendance register[3] that Mr Modise brought into evidence to show that Learner BM was at school on 18 May 2022. However, for reasons only known to Mr Modise, he did not enquire or follow up with Learner BM on 18 May 2022 if she went to acquire the note from the office as he had advised. The assertion that Learner BM was at school on 18 May 2022 was vehemently disputed by Learner BM, Ms Segopotso, Learner OD and Learner JM. It is further concerning that the attendance register that Mr Modise relied on to substantiate Learner BM’s attendance on 18 May 2022 mysteriously found its way to him during his precautionary transfer through an unknown source under the office door. Mr Modise did not bring any witness to corroborate his version that Learner BM was indeed at school on 18 May 2022. I can therefore conclude that the attendance register was doctored and that Learner BM was not at school on that day. In light of the above conclusions, I find Mr Modise guilty of allegation 2 and 3.

• In his affidavit[4], Mr Modise stated in paragraph 1 that some grade 8 learners informed him that the Principal told them to write anything about him and they will not get into trouble. The inference that I could draw from this statement was that the Principal wanted learners to write anything that will incriminate Mr Modise. He failed to call these learners to testify on his behalf. Ms Letoaba testified that she saw a girl learner (who she did not remember her name) busy writing something and she took the note that the girl learner was writing and took a picture thereof. She then sent the picture to Mr Modise. Allegedly, this unknown girl wrote something about what Mr Modise said to Leaner BM1. Again, for reasons only best known to Mr Modise, this note was not presented in these proceedings to corroborate this version. It is therefore safe to conclude that there was no such a note that was written by this girl learner or any other learner for that matter on the instruction of the Principal. 

• There is no dispute from the evidence that was presented that there was a mention of underwear that was made. In Mr Modise’s version[5], it was the learners that talked about Ms Mncube’s underwear in the bus. Ms Mncube confirmed that the discussion that she and Mr Modise had with Learner OM related to the learners’ discussion in the bus about Ms Mncube’s underwear that were left in Mr Modise’s house. On the other hand, Learner OM and Ms Tsotetsi’s version was that Mr Modise asked Learner OM about Ms Tsotetsi’s underwear’s size. Mr Modise did not dispute that Learner OM requested his phone numbers and that he refused to give them to her. Ms Mncube conceded that she did not believe that Learner OM could have said what she was accused of. Hence she did not take the matter any further. According to Mr Modise, three (3) learners[6] approached him to tell him what the other learners were saying in the bus about him and Ms Mncube. Mr Modise did not call these learners to testify on his behalf.

• In essence, Mr Modise’s defence centered on the animosity between him and the Principal. According to Mr Modise, this was as a result of the financial maladministration that he reported to the District Office and the District Office did not apply consequence management against the Principal. Mr Modise even went to an extent of implicating Mr Dube and Mr Marakalala that they did not assist him in ensuring that he prepares his defence thoroughly. Mr Modise is a seasoned trade union representative and if he did not find joy from the local Labour Unit District officials, he reasonable ought to have known what avenues to follow within the Department to address his dissatisfaction. He further alleged that the Principal was hell bent in ‘dealing’ with him. True, Mr Modise went to the Police Station to complain about the Principal that he was abusing him emotionally and that the Principal threatened his life. There was a version that the Principal pointed Mr Modise with his finger on the forehead and also threatened to shoot him. Threatening to shoot somebody is a serious criminal case. However, he did not open a criminal case against the Principal. It is my considered view that Mr Modise knew what he needed to do to ensure that his rights as an employee and as a citizen are protected, but he chose not to pursue those avenues simply because his version is improbable.

• I must concede that there were a few discrepancies on the details of the incidents from the learners. However, I am mindful of the fact that the alleged incidents occurred a while back (in 2022) and it is to be expected that minor witnesses would not pay attention to minute details. Most of the learners corroborated each other and they were all assertive that what they were telling was the truth. They also understood what would be the likely consequences if they lied under oath.

• It was the learners’ testimony that Mr Modise said what is stated in the allegations. Obviously, Mr Modise denied in his oral testimony and in his affidavit that he said all those things. The only allegations that I find contradictory are the ones that relate to Learner NFM. I find it absurd that Mr Modise could have said that Learner NFM did not bath, she was ugly, her hairstyle was ugly and her father was a Zimbabwean who smelled horrible and on the same day, say that Learner NFM had a crush on him, that she was beautiful and that she must date him. It has to be one of the two statements or none at all. Mr Modise in his affidavit did not deal with allegations 1, 5, 7, 9 and 10. After considering all the evidence that was presented in these proceedings, I find, on a balance of probabilities, that Mr Modise assaulted Learner MKZ and Learner BM. Mr Modise insulted Learner BM1, Learner PRM, Learner OM and Learner KM. Mr Modise further sexually harassed Learner BM and Learner PRM.

The appropriate sanction

• In determining the appropriate sanction in this matter, I will be guided by Schedule 8 of the Code of Good Practice: Dismissal (“the Code”). In Item 7 of the Code, the aspects that I need to consider are the following:
• whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
• if a rule or standard was contravened, whether or not-
• the rule was a valid or reasonable rule or standard;
• the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
• the rule or standard has been consistently applied by the employer.

• Having returned a guilty verdict, it therefore follows that Mr Modise had breached the workplace rules. There were no arguments that were advanced during these proceedings that these rules were invalid or unreasonable. It is my considered view that Mr Modise knew or ought to have known of these rules because of the length of his service and that he was a Trade Union Representative.

• In terms of chapter 3 of the South African Council of Ethics (“SACE”) Code of Professional Ethics, an Educator must:
• respect the dignity, beliefs and constitutional rights of learners and in particular children, which includes the right to privacy and confidentiality;
• avoid any form of humiliation and refrains from any form of abuse, physical or psychological;
• refrain from any form of sexual harassment (physical or otherwise) of learners;
• use appropriate language and behaviour in his or her interaction with learners and act in such a way as to elicit respect from the learners

• Clearly, Mr Modise contravened the prescripts of the SACE Code and throughout these proceedings he was not remorseful about his actions. Schedule 8, Item 3(2) of the Code state that the Courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counseling and warnings.

• Mr Modise has an unblemished disciplinary record and he has been in the employ of the Employer for over thirty (30) years. He is also Trade Union Representative. It is my considered view that his long service, his leadership role and the gravity of the misconducts does not make him a suitable candidate for progressive discipline. Instead, they are aggravating. In terms of Schedule 8,  Item 3(5) of the Code, when deciding on whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and circumstances of the infringement itself. Regard must also be held to the Constitutional Court judgment of Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) per Navsa AJ [at para 78] held that:

“In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.”

• It is common cause that Mr Modise was charged in terms of section 18 of the Employment of Educators Act. However, having considered that he was entrusted with the care of children and that it was expected of him to act with the utmost good faith in his conduct towards learners as society must be able to trust him as an educator unconditionally with children, I find that dismissal is the only appropriate sanction.

Award

• I find Mr Jacobe Moagi Modise GUILTY on allegation 1, 2, 3, 4, 5, 6, 8 and 10.

• In view of my guilty finding on these allegations, I find that dismissal would be appropriate under the circumstances. 

• I also find that Mr Jacobe Moagi Modise is unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the Council must, in terms of section 120(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the finding of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005 that Mr Jacobe Moagi Modise 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.

• I further find that the Educator, Mr Jacobe Moagi Modise, as a consequence to the transgression as referred to in paragraph 62 herein-above is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.

­­­­­­­­­­­­­­Arbitrator: Themba Manganyi                                                  

[6] Page 3 of B1 par 8(a)