Panellist: Themba Manganyi
Case No.: ELRC318-23/24GP
Dates of Hearing: 13 September 2023, 25 January 2024,
16 February 2024, 17 May 2024 and 11 October 2024
Date of Written Closing Arguments: 16 October 2024
Date of Award: 29 October 2024

In the Inquiry by Arbitrator Hearing between

GAUTENG DEPARTMENT OF EDUCATION EMPLOYER

and

SADTU OBO PREMPEH AGYEMANG EMPLOYEE

Employer’s representative: Ms Puleng Tafane
Employee’s representative: Mr Zweli Nonjabe

Details of hearing and representation

1. The Inquiry by Arbitrator proceedings were conducted on 13 September 2023, 25 January 2024, 16 February 2024, 17 May 2024 and 11 October 2024 at the Employer’s Head Offices in Marshalltown and at the Council’s Offices in Centurion and finalized at Johannesburg West District Office in Krugersdorp under the auspices of the Education Labour Relations Council (“the Council”).

2. Ms Puleng Tafane (“Tafane”), the Senior Labour Relations Officer, represented the Employer (Gauteng Department of Education) and Mr Zweli Nonjabe (“Nonjabe”), a SADTU Official, represented the Employee, Mr Prempeh Agyemang (“Agyemang”). Ms Eona Shibisi and Mr Musa Myeza, the Intermediary and the Interpreter respectively, assisted with their services.

3. Only the notification to attend a disciplinary hearing was submitted into the record. Parties relied only on oral evidence to lead their cases. At the end of the proceedings, parties requested to submit their closing arguments in writing on 16 October 2024 and they duly complied. The proceedings were digitally recorded, and the recordings thereof were retained by the Council.

4. In this award, the names of the minor witnesses (learners) will not be disclosed to protect their identity. Only their initials will be indicated.

Preliminary issue/s

5. Nonjabe submitted that the Employer placed Agyemang on a precautionary transfer in excess of ninety (90) days contrary to the prescripts of Schedule 2: Disciplinary Code and Procedures for Educators. He argued that the charges against Agyemang must be withdrawn, and the precautionary transfer be uplifted.

6. In response, Tafane submitted that the delay was due to the school recess and that she was hospitalized so the investigation could not be concluded on time. She stated that the delay did not prejudice Agyemang in any way as he was on precautionary transfer, and he was receiving all his benefits.

7. I ruled that the delay was warranted considering that there was an investigation that needed to be concluded before charges could be preferred against Agyemang and that it would not be in the interest of justice to uplift the precautionary transfer and withdraw the charges considering the seriousness of the charges levelled against Agyemang.

Issue to be determined

8. I have to determine if Agyemang has misconducted himself as alleged by the Employer. In the event that I find that he was guilty of the charges that that are preferred against him, I will have to determine the appropriate relief.

Rights and the procedure

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

10. The charges that were preferred against Agyemang were the following:

Allegation 1:
It is alleged that during February 2023 or anytime incidental thereto, as an educator at Westonaria High School, you sexually assaulted a female learner, OM in that you touched her breast, moved your hand on her backside and told her that she will fail at the end of the year, whilst you knew or ought to have known that it was wrong to do so. Your action constitutes misconduct.

In view of the above, you are thus charged in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 2:
It is alleged that during January 2023 or anytime incidental thereto, as an educator, you sexually assaulted a female learner, IN, in that you held her hand and rubbed her breast with your hand, whilst you knew or ought to have known that it was wrong to do so. Your action constitutes misconduct.

In view of the above, you are thus charged in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 3:
It is alleged that during February 2023, or anytime incidental thereto, as an educator, you conducted yourself in an improper, disgraceful and unacceptable manner towards an educator, S.L. Mncube, in that you tried to kiss her after she asked you about work-related issues and you uttered the following words to her, “give me a kiss and I will tell you”, whilst you knew or ought to have known that it was wrong to do so. Your action constitutes misconduct.

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

Allegation 4:
It is alleged that during February 2023 or anytime incidental thereto, as an educator, you conduced yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed a female learner, PN by looking at her bums and told her that her skirt is too long, she must wear a short skirt, whilst you knew or ought to have known that it was wrong to do so. Your action constitutes misconduct.

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

Allegation 5:
It is alleged that during January 2023 or anytime incidental thereto, as an educator, you sexually assaulted an educator, Mpho Rampai, in that you approached her and hugged her, kissed her on the right side of her neck, whilst you knew or ought to have known it was wrong to do so. Your action constitutes misconduct.

In view of the above, you are thus charged in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.

Pleadings

11. The charges were read into the record and Agyemang pleaded not guilty to all the charges preferred against him.

Survey of evidence and arguments

The Employer’s case

12. Ms Mpho Rampai (“Rampai”) testified under oath and stated that she was an Educator at Westonaria High School since 13 January 2023. She stated that in the middle of January 2023 she went to Agyemang’s office to look for Ms Nkopane who she used to hang around with during lunch times and that she used to travel with her and Agyemang after work. She did not find Nkopane in Agyemang’s office and Agyemang informed her that he did not know where Nkopane was. She testified that Agyemang approached her and kissed her on her on the neck. She stated that she did nothing after he kissed her. However, she was shocked as she did not expect that from him. She did not immediately tell anyone about this incident. The learners started protesting against Agyemang around February 2023 and other educators came forth with allegations against Agyemang. Then, Mr Jonker, the Principal, requested them to write statements.

13. Under cross-examination, she confirmed that she used to travel with Agyemang and Nkopane after work and that they (Agyemang, Nkopane and herself) went to a car wash in Carletonville. She denied any knowledge of Agyemang and Nkopane’s relationship. She knew them as colleagues. She stated that she only travelled with Agyemang for about two (2) weeks in January 2023 and never travelled with him in February 2023.

14. Ms Sympathy Mncube (“Mncube”) testified under oath and stated that she started teaching CAT at Westonaria High School in January 2023. She stated that Agyemang conducted himself in an improper manner by making sexual advances towards her and made sexual remarks by saying that her body shape was nice and that he would marry her. There was an instance where Agyemang tried to kiss her, but she moved her chair so that his mouth did not make contact with hers. She stated that during the initiation of the Grade 8 learners, she heard rumours about her employment status. When she asked Agyemang about her employment status, he said she should kiss him and he would tell her. She testified that she confined to Ms Rampai and Ms Ramashamole about Agyemang’s conduct. She stated that Ramashamole indicated to her that she also has similar experiences with Agyemang and that she has reported him.

15. Under cross-examination, she stated that Agyemang tried to kiss her toward the end of January or the beginning of February 2023. She confirmed that there were other incidents before he attempted to kiss her. He once came to her car and told her that it was nice to have black female educators. She reiterated that Agyemang said he wanted to marry her. She refuted the version that she once said that Agyemang had a nice body. She confirmed that she reported Agyemang’s conduct to the Department. However, she could not recall when she reported.

16. Learner OM testified under oath and with the aid of an Intermediary that she was a Grade 11 learner at Westonaria High School. She stated that she accompanied her friend (Learner N) to the office because her friend has lost her spectacles. On their way to the office, they met Agyemang. Agyemang looked at her and told her that her skirt was too long and that she must make it short. Agyemang then touched her breast and her back and said that if she does not give him what he wanted, he will make sure that she fails. He further said that his mother was a big witch and he will bottle her up. She stated that her friend was at the bathroom, but her friend saw when Agyemang touched her. She testified that she did not do anything when this happened, but she told her friend (Learner PN) after school. Learner PN took her to the office to report the incident. She testified that there was a video that was made by another learner where she was narrating what Agyemang did to her. She was adamant that she was telling the truth and that what she testified about is what happened.

17. Under cross-examination, she restated that on the video she was talking about the incident between her and Agyemang.

18. Learner NT testified under oath with the assistance of an Intermediary and she stated that she was Learner OM’s friend. She testified that when she was with her friend, Agyemang told her friend that her skirt was too long and that she should make it short. She saw Agyemang touching her friend’s breast and back.

19. Under cross-examination she stated that the video was taken in Agyemang’s class in his absence. She stated that the video was taken by a learner who was a Representative Council of Learners (“RCL”).

20. Learner IN testified under oath with the assistance of an Intermediary. She stated that she was a Grade 11 learner at Westonaria High School. She stated that she almost bumped into Agyemang when she went out of class. She stated that Agyemang held her hand next to her breast and he rubbed his hand on the other breast. There was a male learner who saw what Agyemang did to her. She stated that she reported the incident to Mr van der Westhuizen and they were told to write statements. She stated that Agyemang did not teach her, but he was responsible for the Saturday’s classes.

21. Under cross-examination, she confirmed that there were CCTV cameras on the 2nd and 3rd floor at the school. She stated that there were rumours from the learners that Agyemang was looking at the learners inappropriately and also touching them. She did not know if other learners saw Agyemang when he touched her, but she was certain of only one learner who saw him.

22. Learner PN testified that she was a Grade 11 learner at Westonaria High School and that there was nothing that happened between her and Agyemang, but she has witnessed Agyemang touching her friend’s (Learner KP) thighs and Agyemang told her friend that her skirt was too long. Agyemang told her friend that she should shorten her skirt so that he could see her thighs.

23. Under cross-examination, she confirmed that Agyemang did nothing to her. She stated that Agyemang would ask her friend personal questions like where she stayed and what mode of transport she was using to come to school and go home. She stated that Agyemang told her friend that if she slept with him, he would make her pass his subject.

24. Ms Keletso Bogatsu (“Bogatsu”) testified that she was an Educator at Westonaria High School for over three (3) years. She stated that Agyemang found her making coffee and he stood in front of her and complimented her that she was beautiful. She took the compliment very well. She testified that Agyemang then stood behind her and she felt uncomfortable. She took her coffee and stormed out and ran to the kitchen. She stated that there was a time when Agyemang stared at her with a funny look and he took out his tongue. She testified that they reported the matter to Mr Jonker and Mr Jonker asked them if they wanted to take this matter any further or did they just want Agyemang to be reprimanded. After a while, Mr Jonker reported back to them that he held a meeting with Agyemang and that he was reprimanded.

25. Under cross-examination, she stated that she did not feel uncomfortable when other male educators stood behind her. She felt uncomfortable with Agyemang when he complimented her that she was beautiful and that she should not tell anyone. She submitted that Agyemang never said anything to her that she did not like.
26. Ms Elestinah Ramashamole (“Ramashamole”) testified under oath and stated that she was an Educator at Westonaria High School and that there was a time when she was invigilating the Grade 10 learners, and she had to accompany a girl learner to the restrooms. When she was waiting for the learner, Agyemang came to her and made facial sexual gestures and tried to touch her. However, his actions were interrupted by the learner when she came out of the restrooms. There was a second incident when they were in the kitchen. On that day, Agyemang was wearing traditional attire, and he came to whisper directly in her ear saying that she was beautiful. She told Mr Letlhake (another Educator) that she did not feel comfortable around Agyemang. Letlhake told her that Bogatsu has also complained about Agyemang’s conduct. She told her partner about the incident and then told her HOD (Ms Narister). Her HOD reported the matter to Jonker. Jonker promised them that he would talk to Agyemang man to man. After Jonker spoke to Agyemang, Agyemang apologized to her in passing. There was a second incident when Agyemang requested her to assist him with his Management Plan. Whilst she was busy typing on his laptop, Agyemang came closer to her. Then there was a fourth incident where she intentionally parked where the SMT’s parked. Agyemang came screaming asking who parked in his parking? She testified that she was telling the truth and stated that Agyemang pursued a few female educators, and he finally succeeded with one Mathilda that he had a relationship with.

27. Under cross-examination, she stated that Agyemang did not touch her on the first incident. She refuted that when she teaches CAT she got closer to the learners as she maintained her posture and Agyemang wanted to get closer to her. She stated that she intentionally parked in Agyemang’s parking because she wanted to expose him as other female Educators were afraid to challenge him. It was put to her that she parked in his parking because she wanted to make Agyemang angry. She stated that she wanted to make him feel how it felt when one invades someone’s privacy. She confirmed that Agyemang made sexual advances to her by whispering in her ear and by making facial gestures. She confirmed that Agyemang did not propose to have a relationship with her.

The Employee’s case

28. Agyemang testified under oath and stated that he was from Ghana, and he came to South Africa in 2010 to look for greener pastures. He stated that he was a SIIP Coordinator. In November 2022, he started at a new school (Westonaria High School) as a HOD. He stated that when he started at this post, twenty five (25) teachers resigned because they were not comfortable with him being black and a foreigner. He then assisted the Principal to recruit new teachers. He testified that in the middle of February 2023, he received a letter alleging that he has misconducted himself. He stated that it was the first time that he had allegations levelled against him. He was shocked when he learnt that he told a learner to shorten her skirt. All the allegations levelled against him were fabricated. He stated that it was a culture to hug the Educators that he was travelling with, and he would say to them they are his junior wives. He went with Rampai to his brother’s funeral on 05 February 2023. He averred that the black female Educators reported him because they were panicking that they will not get temporary posts.

29. Under cross-examination, he disputed that he was precautionary transferred when he was employed at Ithuteng. He denied that he knew all the learners that testified in these proceedings because he was new at the school. He refuted that the learner that testified as Learner PN was not the correct / true Learner PN. He conceded that he did not tell Mncube and Rampai that they were not telling the truth. He maintained that he was innocent.

Analysis of evidence and argument

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

31. It is trite that the test that is applicable in employment law is that of “on a balance of probabilities” and not “beyond reasonable doubt”. It is trite that in proceedings where minors are involved, the arbitrator should endeavor to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify and facilitate the ascertainment of truth so that the best interests of the child are upheld and to promote maximum accommodation of child witnesses without prejudice to the rights of the accused educator. I am satisfied that the environment in these proceedings was conducive for children to testify.

32. At the commencement of the proceedings, I took pains to explain the process to the parties. I put more emphasis on the purpose of cross-examination and what was expected of the parties in this regard. However, it would seem that my explanation fell on deaf ears, particularly on the side of the Employee party.

33. In essence, the Employee did little, if not nothing at all, to challenge the Employer’s witnesses’ testimonies. It was held in the President of the Republic of South Africa and Others v South African Rugby Football Union and Others judgment that:

The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witnesses attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity while still in the witness box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct.

34. Ramashamole unchallenged testimony was that Agyemang apologized to her after Jonker spoke to him. If indeed there was nothing that was inappropriate that Agyemang did to her, there would not have been a need for him to apologise at all. Agyemang did not dispute that he whispered in her ear that she was beautiful and that he made facial sexual gestures. In my view, that conduct was inappropriate. I am mindful that there was no charge that was levelled against Agyemang for his conduct against Ramashamole. However, Ramashamole’s testimony illustrates the manner in which Agyemang carried himself at the workplace.

35. Similarly, Agyemang did not challenge Rampai’s evidence when she was still on the witness stand. Agyemang preferred to employ a bare denial strategy when he testified about what transpired between them. Rampai testified that Agyemang hugged and kissed her on her neck. Agyemang conceded in his evidence in chief that he hugged his colleagues as this was a culture at the school. He even stated that he called her his junior wife.

36. Also, with Mncube, her evidence was not challenged at all. The only version close to challenging her evidence was that she would be seated closer to the learners when she was teaching them CAT. Needless to say, that this version was vehemently disputed.

37. All the learners that testified in these proceedings had a comprehension of the consequences of not telling the truth. Their testimony was not rehearsed and in some instances, their testimony was corroborated by witnesses who observed the incidents. Agyemang, for the first time in his evidence in chief, stated that he did not know these learners. He even went to an extent of suggesting that Learner PN who testified was actually not Learner PN. A suggestion which I do not believe. This, in my mind, suggests that Agyemang knew these learners and for him to state that an incorrect learner testified is very opportunistic and misleading.

38. Sexual harassment is defined as an unwelcome and inappropriate conduct of a sexual nature that creates a hostile or intimidating environment for the victim. It involves any unwanted verbal, non-verbal, or physical behavior of a sexual nature that interferes with an individual’s well-being, dignity, and ability to work or study. Clearly, Agyemang’s conduct was unwelcome to the complainants, and it made them feel uncomfortable.
39. Agyemang’s assertion that he was targeted because he was a black foreigner is without any merit and is not supported by any evidence. His argument that the new educators were threatened that their temporary contracts of employment would not be renewed is baseless. I therefore find that the Employer succeeded to prove on a balance of probabilities that Agyemang misconducted himself.

Award

40. Mr Prempeh Agyemang is GUILTY of all the allegations that are levelled against him. In view of my guilty finding for contravening section 17(1) of the Employment of Educators Act no 76 of 1998, I find that dismissal would be the appropriate sanction.

41. I also find that Mr Prempeh Agyemang 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 Prempeh Agyemang 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.

42. I further find that the Educator, Mr Prempeh Agyemang, as a consequence to the transgression as referred to in paragraph 10 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