IN THE ELRC ARBITRATION
BETWEEN:
THE HEAD OF DEPARTMENT FOR THE DEPARTMENT
OF EDUCATION – KWAZULU-NATAL the Applicant
and
DLAMINI BONGINKOSI EMMANUEL the Respondent

ARBITRATION AWARD

Date of award: 27/06/2024

Arbitrator: Scelo V Mkhize
Education Labour Relations Council
ELRC Building, 261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF THE HEARING

1. The matter was enrolled before me for an inquiry by arbitrator proceedings in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (the Act). The arbitration was held at the offices of the Department of Education in Kokstad, as well as in Pietermaritzburg, KwaZulu-Natal. The arbitration was held on various dates being 23 March 2023, 26 April 2023, 10 and 11 August 2023, 14 and 15 September 2023 and 27 November 2023.

2. The Applicant, the Department of Basic Education, was represented by Ms J Dumisa who is employed by the Applicant as a labour relations practitioner. The Respondent, Mr Dlamini, appeared in person and he was initially represented by Mr Makhathini from SADTU. However, during the proceedings he changed his representative, and he was later represented by Mr Mvelase, also from SADTU.

3. The proceedings were held in English and were interpreted by Mr B A Hadebe. The intermediary services were provided by Ms H Z Mabaso. The proceedings were also mechanically recorded.

BACKGROUND

4. The Applicant is the Head of Department for Department of Education KwaZulu Natal, a governmental department dully fulfilling its mandate in terms of the Constitution and in terms of the South African Schools Act 84 of 1996, with its provincial offices at 247 Burger Street, Pietermaritzburg, KwaZulu Natal. I shall herein after referring to the Applicant as the “employer”.

5. The Respondent is Bonginkosi Emmanuel Dlamini, who is currently employed by the employer as an educator at Blessed Luanda Primary School. I shall herein after referring to the Respondent as the “accused”.

6. The accused was charged by the employer with one count of misconduct, in that during 2020/2021 at or near Blessed Luanda Primary School, the accused committed a sexual misconduct against the leaner in his school, thereby contravening Section 17 (1) (b) of the Employment of Educators Act 76 of 1998.

7. The accused denied the allegations against him and pleaded not guilty to the charge levelled against him, hence this arbitration award.

ISSUE TO BE DECIDED

8. In these proceedings, I am required to decide whether the accused committed an act of sexual misconduct against the learner of his school, SM. If so, I am required to determine an appropriate sanction.

SURVEY OF EVIDENCE AND ARGUMENTS

Employer’s case

First witness

9. The employer’s first witness was the learner who alleged that she was sexually assaulted by the accused. I shall not disclose the name of the learner herein due to her age, but I shall hereafter refer to the leaner SM. The learner SM testified as follows:

10. She was 14 years old at the time of giving evidence. In 2020, she was a learner at Blessed Luanda Primary School doing grade 6. At that time, she was 11 years old. The accused was her class teacher.

11. The accused sexually assaulted her in various instances in 2020 and 2021. The first incident happened on the 03 November 2020 at about 14:00. What happened was that the accused came to her while she was in the classroom waiting for her friend, Slindile Mchunu, who had gone to the toilet. He asked why she had not gone home at that time. She told him that she was waiting for her friend who had gone to the toilet. The accused then went to his table, and he took a Zulu book called Masihambisane. When he came back from his table, he then asked her to hug him. She initially refused because it was during corona virus, but the accused said there was no such thing. She eventually hugged him, and the accused then told her not to tell anyone the children of his school are talking too much. After that her friend Slindile arrived and they left.

12. On the following day on Wednesday, in the morning, the accused arrived while she was cleaning his desk. He asked her if she had not told anyone about what happened the day before. She told him that she had not told anyone. The accused then told her not to make a mistake and tell anyone because she would not be happy if the accused is no longer working and end up smoking a raw pipe tobacco. Shen then assured the accused that she would not tell anyone. After that the accused asked her whether she would see her in the afternoon. She told the accused that of course she would see her because they always stayed behind when cleaning. When the conversation was taking place there were other children in the classroom, but they could not hear what was being discussed because the accused was speaking softly, and the other leaners were about five meters away. In the afternoon of the same day the other children had already left; she was with Slindile and Nontobeko and it was raining. The accused approached while standing at the door and asked if she likes rain. She told him that she likes rain. Slindile and Nontobeko were in front of them. The accused kept on touching her with his right-hand elbow. She tried to ignore him and tried to avoid him. She did not say anything, but he kept pointing Slindile and Nontobeko with his eyes implying that they were disturbing them. This was the second incident.

13. The third incident happened the following day, on Thursday. On this day their classroom was not cleaned. The accused told them that in the meantime they would use the park home while their class was being cleaned. The accused asked her to go first to the park home to see if it was clean. She also said she must carry his bags and put them on the table in the park home. She then went to the park home and did what the accused had asked her to do. When she was about to exit the park home to give feedback to the accused, she met him at the door. The accused called her inside. Thereafter, he asked her to hug him, and he also asked her if she knew what the baby kiss was. She told him that she knew what the baby kiss was. Consequently, she hugged him, and the accused kissed her on her left cheek. At that time, it was only her and the accused at the park home. Thereafter, he told her to go and call other learners, which she did. She told her friends about this incident viz: Samkele Dlamini, Asiphile Sithole, Aphelele Memela and Zekhethelo..

14. The fourth incident happened on the same day, Thursday. What happened was that the women who was cleaning their class came to advised that their classroom had been cleaned; they can now go back. The accused again asked her to take his bags to the classroom and she must come back to take other papers. She then went to the classroom and left the accused’s bags. When she came back to the park home to take the other papers, other learners had already left the park home to the classroom. When she got inside the park home the accused closed the door; he hugged her and kissed her in the mouth. She was shocked by what the accused had done to her. She then asked the accused where were the papers that she was supposed to take to the classroom. He told her that he wanted to hide it from the other learners.

15. The fifth incident happened on Friday, the next day. What happened on this day, the accused came to their class while it was Ms Mthiyane’s period. He asked what the leaners were busy with. Mthiyane told him that they were doing nothing because they were already done what they were doing. He then asked Mthiyane if she could send her somewhere; Mthiyane agreed. The accused then told her to go to the park home, he would come shortly. She then went to the park home. While on his way to the park home, the accused met Ms Gumede and he then pretended as if he was checking if his car was fine. After that he followed her to the park home. He entered the park home; he hugged her and kissed her on the mouth. Thereafter, he told her to hold his hand and he asked her if she knew that he loved her. In response, she told the accused that she knew that he loved her because he was calling her his child. He then told her that she must behave herself; he would see her on Monday.

16. The sixth incident happened on Monday. It was in the afternoon, and she was about to leave the school. The accused asked her to stop at the door and she stopped. Her friend Slindile said she would wait for her, and she waited for her near the park home. The accused then stood behind the door, and he asked her to come inside. When she got inside the accused hugged her and kissed her on the mouth. She then left. He told her friend Slindile about this incident.

17. The seventh incident happened in 2021 but she could not remember the date. At that time, she was doing grade 7. The accused asked her if she had never told anyone about what was happening between them. She told him that she had never told anyone, and she left her. On another day which she could also not remember, one of her friends Samkelo Dlamini said they must go to the accused to ask for some money. She refused and told her friend that she did not need money because her granny always gives her money for lunch; she can go and ask for money for herself. Then she accompanied her friend to the accused. The accused told them that he did not have money at that time; he would bring the money the following day. On the following day they went to the accused again. They found the accused while coming from the staff room and he was holding a yellow lunch box and a book in his hand. He then asked her friend to take his lunch box and the book to his car. He then sent her to the staff room to take a similar lunch box. She then went to the staff room as per the accused’s request and there were no teachers at the staff room, but she could not find the lunch box that the accused was referring to. When she was going to give feedback to the accused, she met the accused at the door. He entered and closed the door. He stood next to the fridge. Thereafter, he hugged and kissed her on the mouth. When he saw that her friend was coming back, he pretended as if he was looking for a lunch box and shouted that he could not recall where he had put it.

18. After some time, the accused asked her what was going on with their thing. She told him that she did not know. On that day she decided to go and tell one of the teachers about what was happening. She then went and reported it to Mr Skhosana. Mr Skhosana undertook to resolve the issue. On the same day he went to the accuse with the intention of informing him that she had reported all what he was doing to Mr Skhosana. But when he got to him, she became scared and lied that there were children who said they saw them kissing. The accused asked if she knew those children. She told him that she did not know those children. The accused then told her that they must reduce seeing each other quite often. However, he never got any feedback from Mr Skhosana. When she went to make a follow up, Mr Skhosana told her that the matter was continuing.

19. She stated that she did not report the matter to his family members because she was scared that her granny had a heart condition; she did not know how she would react on this issue. He also stated that she had also tried to warn the accused to stop what he was doing. What she did she asked her friend Yoliswa Mbatha to write a letter to the accused and she told her what to say in the letter, in particular that they saw what was happening between them, if accused did not stop what he was doing, they would report to the principal. She then took the letter herself to the accused. The accused asked her where she got the letter, she told him that she found it on top of her desk. The accused told her that the person who was writing the letter was dreaming; he or she would not take the letter to the principal.

20. After she had seen how the accused reacted to her warning, she decided to write a letter in bundle B3 to the principal to report what the accused was doing to her. But she could not find the principal on that day. As a result, she took the letter home with her. When her grandmother was looking for something in her school bag, she found the letter. The granny asked her about the letter, and she told her that the letter was written by her. The granny then asked her aunt to read it for her. After the letter was read and translated to her, she said she would take the letter to school.

21. She also testified that one day she collapsed at school. What had happened was that there was another child that was doing grade 6 and she was doing grade 7. The name of this child was Lonathemba Mkhize. Lonathemba told her that her mother was talking to the accused through whatsapp. The accused told Lunathemba’s mother that she was no longer coming to school because she (SM) had lied about him. The accused also said he had been admitted to hospital because of her. But the principal had told him to pay R20 000.00 so that this matter would disappear. The R10000.00 out of this R20000.00 was going to be for the principal and the other R10000.00 was going to be compensation payable to her parents. She was shocked because the principal was talking to her the previous day and undertook to help her. She confirmed that the affidavit appearing in bundle A1 was her affidavit.

22. During cross examination, she admitted that an affair is a relationship between two people, but she denied that she had an affair with the accused. She stated that the hug initially meant nothing to her, but she started to be uncomfortable after the accused had asked her a baby kiss.

23. When she was asked why she did not mention that the accused was also rubbing her back during the hug, she stated that she thought mentioning the hug was enough. She was not comfortable when the accused was hugging her as she would quickly move away from him. When it was put to her that that she did not mention this in the letter, she stated that she only wrote about things that happened every day.

24. When she was asked why she did not report, she stated that she first started by giving warning, but later on, she stated that she did not know who to report to. She admitted that she had friends, but she did not report to them either because she had not realized the accused’s true intentions.

25. It was put to her that the hugging incident always happened after school, it was her behavior to always stay behind. In response she stated that their transport was coming late to fetch them.

26. She admitted that the accused did not hug or kiss her when he gave her a lift to Gumbu store. When she was asked why would the accused hug and kiss her when they were at school and not do it when they were alone in the car. In response, she stated that at Gambu store, there were cameras and the accused parked next to the cameras.

27. She admitted that she lied in paragraph 12 of her statement in Bundle A1. But she lied because of the situation the accused put her in. She admitted that she lied about the dustbin issue in paragraph 11. She lied because it was the first warning she gave to the accused.

Second Witness

28. The Applicant’s second witness was Thandi Christina Mbotho who testified as follows:

29. She was the grandmother of the learner SM. On 23 September 2021, she told SM to take out her books and put them on top of the sofa and put her school bag and clothes so that she would wash it for her. She then recalled that it was Tuesday, that was the day SM had been asked to bring her birth certificate to school and she had not brought it back. She then checked the certificate in her books and found it. She also found a very long letter in the envelope. She noticed that it was signed and addressed to the principal. She then took it.

30. Subsequently, she called SM and asked whose letter this was. She told her that it was for the principal. She then asked her who gave it to her, and her answer was that no one, but she suddenly cried and told her that there was a teacher who was abusing her at school. She asked her who was that teacher. She told her who the teacher was, and she explained how the teacher was abusing her, in particular that the teacher would hug and kissing her. Consequently, she called SM’s aunty to read and interpret the letter for her. After interpretation she told her that she would take the letter herself to the principal.

31. The following day she went to the school and found the principal in the meeting. After the meeting she met with the principal, and she introduced herself. She told the principal that she found the letter in the book bag of the child SM. He then gave the letter to the principal to read it.

32. After reading the letter, the principal asked the lady working in her office to call Mr Mazeka. Mr Mazeka came, and the principal explained everything to him. The principal then asked Mr Mazeka to call other teachers who were with them in the meeting. There were five teachers in total. The principal explained to them who she was and the letter. The learner SM was then called, and she confirmed that she knew the letter. After that they said the child must go and the accused was called.

33. After the accused had come, the principal asked him what relationship he had with SM. In response, he stated that he had a learner child relationship. The principal then gave her a chance to ask questions from the accused. She then asked the accused if he had ever called SM and sent her to the staff room, which he agreed. She further asked if he had ever hugged and kissed SM. The accused did not answer but looked down. After that he said SM would when he arrived meet him and carry his bag. The principal said all the children normally do that. After that the accused said he was sorry. He further said he told the child that they must stop this. She asked him what was it that they had to stop, but he did not answer her, and he kept on saying he was sorry. The principal told him that he must apologize to the grandmother to show that he was truly sorry. She told him that she had no decision to take because the child had his parents, she will call them and advise them what had happened.

34. The following day she came to school with the parents of the learner, but the accused was not present at school. They were told that he did not even report his absence. After a week, at about 18h30, the principal of Bulwer primary school and Mr Skhakhane, accompanied by the accused’s wife came to her home. They met in the principal’s car. The principal introduced the accused wife to her and told her that they decided to come with her so that it would be woman to woman. The accused wife told her that he came to understand as to what had happened to the accused and the child. She went on to say if the accused loose his job they would also suffer the consequences. She told the accused’s wife that she did not have authority on the matter, but the child’s parents. The accused wife went on to say that they can even pay her money if she can go to the school principal and tell him that they have discussed the issue. She told him that she did not want their money, this was about the life of my child.

35. During cross examination she was asked whether she knew why the accused apologized. In her response she stated that the accused apologized and said he thought he was just playing with the child.

36. She was further asked if she asked the learner why she never reported this matter. In response she stated that the learner did not know how she was going to report because she was fearing for grandmother’s health because the learner knew that the grandmother was sick. She could also not report to her parents because her father was working in Pietermaritzburg and her mother is also working as well.

37. She insisted that she trusted the learner because she had never done something wrong. The leaner told her about the accused having given her lift to Gambu store. She also told her about the incident where she collapsed at the school.

Third witness

38. The Applicant’s fourth witness was Samukelisiwe Gumede who testified as follows:

39. She is employed as an educator at Blessed Luwanda Primary School. The accused was his colleague. She also knew the learner SM because she was teaching her.

40. Mr Skhosana from her school advised her that the learner SM reported to him that the accused was harassing her. Therefore, the learner had asked Skhosana to speak to the accused to stop what he was doing. Consequently, they met with the accused to discuss the issue together with Mr Skhosana. The accused denied that he sexually assaulted the learner. He told them that he regarded SM as his child. This meeting happened during term 2.

41. In term 3, Skhosana advised her that the learner came back to him to report that the accused was still continuing with his conduct. They discussed the matter amongst themselves and decided that it was now beyond their control, they would report it to the school principal. However, they both had personal commitment at different times, and they could not report the matter to the principal up until it was reported by the child’s grandmother.

42. She also stated that she was also involved in the incident where the child collapsed at school. She was the one who interacted with the child. In this regard, he referred the Council to her statement in Bundle A5.

43. During cross examination she was asked why they did not report to a senior person who was present at the school. In response, she stated that they regarded the matter to very saw the serious in that it must now be reported to the principal. She was also asked whether they spoke to the learner who was talking to SM when she collapsed. In response, she stated that they did speak to the learner and confirmed what she said to SM. When it was put to her that there was a witness who would say that the learner concerned did not say what she is alleged to have said when SM collapsed. She disputed this.

Fourth witness

44. The Applicant’s fifth witness was Simphiwe Abednigo Mncwbe who testifies as follows:

45. He is employed at Blessed Luwanda Primary School as the principal. He has been the school principal for the past eight years. He knew both the accused and the learner, SM.

46. He stated, with reference to his statement in Bundle A3, that the allegations against the accused were reported by the learner’s grandmother in September 2021. The grandmother came with a letter which she found from the learner’s school bag. The letter was written by the learner herself. The letter had the principal’s name on the outside. He then read letter which had all the incidents of the sexual assault against the leaner.

47. Consequently, he called the school management team members, Mazeka, Cele, Madiba. After reading the letter to SMT they then called the learner to check if she knew the letter. The learner confirmed that she knew the letter. Thereafter, they called the accused and explained the letter to him. He denied the letter and what was said in the letter. The learner’s grandmother mentioned the incidents where the accused allegedly sexually assaulted the learner, and the grandmother was crying.

48. The accused tried to apologize to the learner’s grandmother, and he said their thing had taken another direction. The grandmother asked him what he was talking about because he was so old. On 28 September 2021, the parents of the child also came to school, and they were very angry. As a result, he reported the issue to the circuit manager Mr Xulu. Xulu advised him not to take this matter very lightly. That is why he also reported the matter to Mr Nhleko who was the circuit manager.

49. Under cross examination he stated that the school had 34 teachers and 28 classes. The surplus teachers sit in the staff room if they are not in class. But it happened that there would be no one in the staff room because they encourage teachers to work as a team.

50. He confirmed that the accused apologized at the meeting with the learner’s grandmother. However, he stated that the accused was the one who can say what he was apologizing for. He denied that he was the one who organized the home visit to the learner’s grandmother’s place.

Accused case

First witness

51. The accused, Bonginkosi Emmanuel Dlamin was the first witness who testified in support of his case, and he testified as follows:

52. He was employed as an educator at Blessed Luwanda Primary School, and he was employed in June 2019. He knew the learner SM as he was teaching her in grade 6.

53. On one Monday at about 14h00, Mr Mazeka (deputy principal) advised him that he was being called to the office of the principal. When he got to the office, he found the other members of the SMT and a parent that he did not know. After he had greeted and sat down, the principal advised him that there was SM’s grandmother who came with a complaint against him. The principal said the grandmother had a letter and they read the content of the letter to him. The first sentence was saying the learner had a relationship with him which started with kissing and hugging. He then asked that the learner should be called to confirm that the letter was really coming from her.

54. Thereafter, the grandmother was given a chance to speak. However, she was speaking like someone who was drunk because she would even swear at him and call him the rapist. That was when he apologized and said he was sorry for having sent the child and that the child would carry his stuff when he came to the school. That is what he was apologizing for.

55. He stated that the learner was not the only learner he would send to staff room and to park home. He used to send other children as well. SM was staying in the front row, so whenever he wanted to send someone, SM would volunteer first. He denied that he would follow the learner to the park home. It never happened that the staff room would have no teacher. He stated that he was a new teacher. When Skhosana was teaching he would not go and would stay at the staff room. He denied that the teachers were sometimes working as the team. He denied also any knowledge of the talks that lead to SM’s collapsing.

56. During cross examination he stated that it never happened that there would be no one in the staff room. On Friday he was the first teacher to leave school. The reason was because he had to fetch his wife because her school was finishing at 13h00. In fact, he denied all the allegations that were made by the learner against him.

57. He stated that these allegations were not coming from the learner. This started after he had questioned some financial matters of the school. The principal once said he can put a person out of the job. He could not give a clear answer when asked as to how the grandmother featured in that plot. He denied that he sent his wife to the grandmother to beg her not to pursue this case any further.

Third witness

58. The Respondent second witness was Zinhle Sweet Nature Dlamini who testified as follows:

59. She is the principal at Mzwendaba primary school under Bulwer circuit. She is the wife of the accused, and she was aware of the incident.

60. In September 2021, she was called by the principal of Blessed Luwanda primary school and told her that the accused was involved with a learner and there was evidence. This child even wrote a letter to say that they are in a relationship. He told her the child’s name and said she could go and speak to her parents. The following week he saw the Blessed Luwanda principal in the car park of her school, and they spoke. He suggested that when she goes to speak to the child’s parents, she must go with the local principals who are respected in the area.

61. Consequently, she organized the people she was to go with to the child’s home and they met the grandmother. She explained that they came to hear about the issue of the child. The grandmother said they must speak to the school. After that she started swearing at them. She denies the principal’s version that he was not communicating with her. She also denied that they offered to pay money to the grandmother.

Third witness

62. The Respondent’s third witness was Vela Mbhele who testified as follows:

63. He was the Chairperson of the school governing body of Blessed Luwanda primary school. He had been the chairperson from 2018 to 2021. At the time of the hearing, he was no longer a member of the SGB because he resigned. But he was still the chairperson when this incident happened.

64. He stated that this issue was never reported to the SGB. In 2022, he requested a meeting with the principal, but the principal refused to have a meeting with him. After that there was an SGB meeting. In that meeting the accused asked the principal why he was claiming an amount of R130 000,00 from the school. The principal told them it was his money that he had used for the school. The accused then asked for the receipt, that was where the conflict between the accused and the principal started. According to his assessment, the letter was not written by the child but by a teacher. He further denied any knowledge of the letter in Bundle B 8.

65. During cross examination he conceded that he could not say whether the accused committed the offense or not because he was not present when the alleged incidents happened. He also stated that the letter in bundle B3 was written by the learner, but when he was asked who could have written the letter, he said he did not know.

CLOSING ARGUMENTS

66. Both parties submitted their closing arguments. However, I would not repeat their submissions herein, but I have considered their arguments in my analysis below.

ANALYSIS OF EVIDENCE AND SUBMISSIONS

67. In these proceedings, I am required to decide whether the accused is guilty of the offence that was levelled against him, in particular, whether the accused committed an act of sexual misconduct against, SM, the leaner in his school during the 2020/2021. If it is so, I must determine an appropriate sanction in the circumstances.

68. The general rule applicable to all civil litigation and arbitrations is that whoever alleges a fact must prove it on a balance of probabilities. In David Johan Randles v Chemical Specialities Case No D28610, the Labour Court held, with reference to Pillay v Khrishna 1946 A 946, that – “if one person claims something from another in a court of law, then he must satisfy the court that he is entitled to it. Therefore, the employer bears the onus to prove that the accused is guilty of the offence.

Whether the accused is guilty of the offence

69. The employer’s witness, SM, testified about seven instances of sexual assault that the accused committed against her during the period 2020/2021.The accused, on the other hand, denied these allegations in their entirety. The basis for the accused’s denial was that these alleged instances never happened at all. In fact, the accused defense was a bare denial. The accused seemed to be contending that the school principal, Mr Mcwabe, had a personal vendetta against him. This then raises a dispute of facts between the employer’s version and the accused’s version.

70. Our Courts have developed guidelines on how to deal with the dispute of facts in a particular case. In SFW Group Ltd and Another vs Martel et Cie and Others 2003 (1) SA 11 (SCA), it was held that to come to a conclusion on the disputed facts the court must make findings on the credibility of various factual witnesses, their reliability and probabilities. In Sasol Mining (Pty) Ltd vs Commissioner Ngeleni NO & Others (2011) 32 ILJ 723 (LC), it was held that the proper approach when resolving factual dispute is to make findings on the credibility and reliability of witnesses, which in turn entails finding on the witnesses’ condor, demeanor, contradictions in their evidence and an assessment of the probability of their testimony.

71. In the present case leaner SM testified on how the accused sexually assaulted her at the school. She stated that it started as a hug, but the accused ended up kissing and eventually telling her that he loved her. This evidence appears in paragraphs 11 to 17 of the survey of evidence. Although these incidents always happened when it was only the two of them, the leaner was very bold and consistent in her testimony. She stood her ground even during cross examination and I could not find any reason to disbelieve her in this regard. In fact, her evidence was corroborated by her grandmother and the principal Mr Ncwabe. Her grandmother was also very consistent in her testimony. She clearly elaborated how she became aware of this incident and how she reported it to the principal, which clearly corroborated the leaner’s evidence. She was also very bold in her testimony, and she stood her ground during cross examination. I could not find any reason not to believe her.

72. Similarly, Mr Mncwabe, the principal, was very consistent in his testimony. He clearly elaborated how the grandmother came to school and reported the incident. In this regard he corroborated both the leaner’s and the grandmother’s evidence. I could not find any reason to disbelieve his evidence in this regard. Although the accused and his third witness claimed that the principal had a vendetta against the accused, their evidence was never put to the principal while he was on the witness stand so that he could comment on it. The evidence of Miss Gumede was largely hearsay, and I did not put much weight on it, except that it corroborated the leaner’s evidence as far as the reporting the matter to Mr Skhosana is concerned.

73. On the other hand, the accused denied the allegations that were made by the leaner against him. However, his denial in my view was just a bare denial. The accused did not dispute the grandmother’s version that when she asked him whether he had ever hugged and kissed SM he did not answer and he looked down. In my view this was a simple question. If the accused really did not do anything wrong, he would have easily disputed this right at that time. The accused also did not dispute that he apologized to SM’s grandmother. According to him, he apologized for having sent SM and that she would carry his staff when he was arriving at school. In my view, the accused is not telling the truth. I say so because there was no need to apologize for that because he had done nothing wrong. The accused also did not dispute the grandmother’s version that when he was being questioned further about this issue at the principal’s office, the accused told them that he had told the child that they must stop this. When the grandmother asked him what was it that they had to stop, he could not answer. In my view, the only reasonable inference to be drawn from this is that the accused was referring to the act of hugging and kissing that was happening between him and the child.

74. Although the accused and his third witness testified that the principal had a vendetta against him because the accused questioned the principal about the school finances, in my view this did not take the accused case any further. I say so because this was never put to the principal when he was on the stand. The only reasonable inference to be drawn from this failure is that it was just an afterthought sought provide an excuse for the accused’s conduct.

75. In light of my findings above, I find the employer’s version more probable than the accused version, and I accordingly find the accused guilty of having committed the act of sexual assault against the learner SM, during 2020 and 2021.

AWARD

76. The accused, Bonginkosi Emmanual Dlamini, is hereby found guilty of having committed sexual misconduct against the learner of his school, SM, thereby contravening section 17 (1) (b) of the Employment of Educators Act 76 of 1998.

77. The accused, Bonginkosi Emmanual Dlamini, is hereby dismissed from work with immediate effect.

78. The accused, Bonginkosi Emmanual Dlamini, is found unsuitable to work with children in terms of section 120 of the Children’s Act 38 of 2005.

79. The General Secretary of the ELRC, in terms of section 122 (1) of the Children’s Act, is hereby directed to notify the Director General: Department of Social Development, in writing of these findings.

80. There is no order as to costs.

Scelo V Mkhize – Panelist