Panellist: Themba Manganyi
Dates of Hearing: 15/08/2022, 03 & 04/10/2022,
17/01/2023, 07 & 08/03/2023, 25 & 26/04/2023
Date of Award: 08 May 2023
In the Inquiry by Arbitrator Hearing between
GAUTENG DEPARTMENT OF EDUCATION EMPLOYER
and
SADTU OBO KGADI ELLIOT MOFOKENG EMPLOYEE
Employer’s representative: Ms Noxolo Jiyane
Employee’s representative: Mr Thabo Monyatsi
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. This award emanates from a section 188A of the LRA (Inquiry by Arbitrator) process referred by the Employer, Gauteng Department of Education, to the Education Labour Relations Council (“the Council”). The proceedings were scheduled to be conducted on 15 August 2022, 03 & 04 October 2022, 17 January 2023, 07 & 08 March 2023, 25 & 26 April 2023 at various venues allocated by the Johannesburg East District. However, the matter could not proceed on some of the scheduled dates due to postponements applications.
2. Ms Noxolo Jiyane (“Jiyane”), the LR Officer, represented the Employer and Mr Thabo Monyatsi (“Monyatsi”), a SADTU Official, represented the Accused Employee, Mr Kgadi Elliot Mofokeng (“Mofokeng”).
3. The parties conducted a pre-arbitration meeting on 22 June 2022 and they exchanged bundles of documents. The Employer’s bundle was marked as Bundle A and the Employee’s bundle was marked as Bundle B. The proceedings were digitally recorded and I also took handwritten notes. The recordings thereof were retained by the Council.
Issue/s to be decided
4. I am required to determine whether Mofokeng misconducted himself as alleged by the Employer. In the event that I find Mofokeng guilty of the allegations levelled against him, I will be required to determine the appropriate sanction.
Rights and the procedure
5. All the rights commensurate with a fair process and the nature of the process were explained to the parties. Mofokeng confirmed that he was afforded all the rights that were commensurate with a fair process.
Charges
6. The Employer preferred the following charges against Mofokeng:
Allegation 1:
It is alleged that on 23 August 2021, you sexually assaulted PM, who was a Grade 12 learner at Katlehong High School at the time.
In view of the above, you are thus charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.
Allegation 2:
It is alleged that in 2019 and 2020, you had a sexual relationship with SL, who was a Grade 11 learner at Katlehong High School at the time.
In view of the above, you are thus charged with misconduct in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998, as amended.
Allegation 3:
It is alleged that in 2019 and 2020, you had a sexual relationship with MB, who was a Grade 11 learner at Katlehong High School at the time.
In view of the above, you are thus charged with misconduct in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998, as amended.
The names of the learners were concealed in this award to protect their identity.
Pleadings
7. Mofokeng pleaded NOT GUILTY to all the allegations.
Survey of evidence and arguments
The Employer’s case
8. PM stated under oath that in 2019 she was fifteen (15) years old. She stated that on 23 August 2021, Mofokeng stopped his vehicle next to her and rolled down his window. He invited her to get inside the car. She got into the car and Mofokeng drove to his place. Whilst at his place, Mofokeng forced her legs open and raped her. She stated that she did not inform her mom and sister about the ordeal on the same say. However, she informed her sister the following Monday. She stated that she reported the matter to the Principal on 18 November 2021. She went to Zonke Zizwe SAPS to report the rape case, but she was told that she must go to report it at Sky City. She stated that the case was not yet opened at SAPS, but her father was busy assisting her to open the case.
9. She submitted that SL and MB were former learners at Katlehong High School and that SL has a baby with Mofokeng and that MB had a relationship with Mofokeng. She stated that SL, MB and her had a conference call with Mofokeng and after the call, Mofokeng texted her to apologise. She referred to the WhatsApp conversation between herself and Mofokeng (see page 35 of Bundle A in this regard). In one of the texts, Mofokeng apologized for raping her. She stated a while after the rape ordeal, she got sick and she missed her periods. She took a pregnancy test and it came back positive. She informed Mofokeng, but Mofokeng told her that it was impossible because he was infertile. After a day, Mofokeng came with a bag full of medication and he gave her instructions on how to take the medication. After she took the medication, she started bleeding. When she went to the doctor, she was told that she was two months and one day pregnant.
10. Under cross-examination, she refuted the version that she was not in Mofokeng’s car on 23 August 2021. She reiterated that Mofokeng raped her and the WhatsApp message on page 35 of Bundle A was confirming her version. She was adamant that her version was not fabricated.
11. Mr Giyani Sydwell Mabasa (“Mabasa”) stated under oath that he was the Principal at Katlehong High School. He testified that he became aware of the allegations against Mofokeng on 18 November 2021 when Ms Thinane reported the incident. He stated that he called the two Deputy Principals and PM and SL into his office. PM stated that Mofokeng raped her in his apartment on 23 August 2023. He testified that SL stated that she has a baby boy with Mofokeng born on 09 August 2021. He stated that he saw Mofokeng’s WhatsApp status with a baby boy picture and a message that read “welcome Kgadi Junior”. He reported the allegations to the district on 18 November 2021.
12. Under cross-examination, he confirmed that he advised PM to open a rape case at SAPS, but she could not be assisted. He stated that he did not bring the allegations to Mofokeng’s attention because on the day the matter was reported to him, Mofokeng drove in and out of the school and that was the last time he saw Mofokeng.
13. Ms Beverley (“Beverley”) testified under oath that she was PM’s sister and that she only heard about Mofokeng from PM. She stated that PM informed her that Mofokeng was making her uncomfortable with his gestures. She stated that PM told her that Mofokeng raped her. She said that PM missed her periods and started to bleed and she (Beverley) suspected that PM could have had an abortion or miscarriage. She testified that PM once came back with some medication that she said she got from Mofokeng for her to drink. She stated that there were four men who once came to her place and the men introduced themselves as Mofokeng’s uncles and they came to pay damages because their son wronged her family. She stated that one of the men was Dlamini – Mofokeng’s friend and colleague.
14. Under cross examination, she stated that they went to open a SAPS case, but they could not be assisted as they were sent from pillar to post. She confirmed that PM visited a doctor and she was told that she has miscarried. She reiterated that Mofokeng’s ‘uncles’ came to her house to pay damages.
15. Ms Makgabo Dikgale (“Dikgale”) stated under oath that she was an Educator at Katlehong High School and confirmed that she authored the document on page 16 of Bundle A. she stated that PM sent her WhatsApp messages on 17 November 2021 informing her that Mofokeng raped her and that Mofokeng has a child with SL. She stated that PM also informed her that Mofokeng impregnated MB. She testified that she informed PM to come to school the following day to report the allegations. Indeed, PM and SL came to the school the following day (18 November 2021) and she took them to Thinane’s office.
16. Under cross-examination, she stated that she did confirm the information that PM told her about SL, because she had already referred them to Thinane. He stated that she did not have any reason to disbelieve PM. She submitted that she never had any altercation with Mofokeng.
17. Ms A.M. Thinane testified under oath that she was the Deputy Principal at Katlehong High School. She testified that Dikgale brought PM and SL to her on 18 November 2021. PM told her that Mofokeng raped her and SL said that she has a child with Mofokeng. She then escalated the matter to the Principal and the other Deputy Principal. She confirmed that Dikgale showed her the WhatsApp messages on page 30 to 34 of Bundle A. She was referred to a picture on page 33 of Bundle A and she stated that the way Mofokeng was touching MB was very inappropriate. She stated that she concluded that the child on the picture on page 32 of Bundle A was Mofokeng’s as she did not see any reason why would he take a picture with a child that was not his.
18. Under cross-examination, she confirmed that Pamela informed them that she went with Mofokeng in his car to his apartment in Sky City. She confirmed that she saw the WhatsApp conversations first on Dikgale’s phone then on PM’s phone. She stated that Mabasa informed them that there were people, including Dlamini, who went to PM’s place to pay damages.
The Employee’s case
19. Mofokeng did not testify nor call any witnesses in these proceedings. On 26 April 2023, Monyatsi submitted that Mofokeng informed him that he was no longer willing to participate in these proceedings and that he was not even going to attend these proceedings any longer. I explained the adverse consequences of staging a walk-out in such proceedings to Monyatsi. I afforded Monyatsi time to consult with Mofokeng. Upon his return, he stated that Mofokeng was not interested in participating in these proceedings. I must hasten to mention that the Employer’s witness that was about to testify on this day was SL who it was alleged that she has child with Mofokeng.
Analysis of evidence and argument
20. Section 138(7) of the LRA prescribes that a commissioner must issue an award with brief reasons. Therefore, I will only deal with salient points that I find most relevant for me to arrive at a reasonable decision in this matter. However, I have considered all the submissions that were made in these proceedings.
21. All the Employer’s witnesses impressed me as reliable and credible witnesses. Their evidence was corroborative and unshaken even during cross-examination. As stated above, I did not have the luxury of observing Mofokeng nor his witnesses in these proceedings for me to be able to make any credibility findings. It is trite law that the audi alteram partem principle is a cornerstone of our employment law. This is also enshrined in Schedule 8 Item 4 of the Code of Good Practice: Dismissal attached to the LRA. Item 4 prescribes that an accused employee must be afforded an opportunity to be heard. In this present case, Mofokeng was afforded that opportunity and he attended the proceedings during the previous scheduled dates except during the last sitting of 26 April 2023.
22. The Supreme Court of Appeal in the Old Mutual Life Assurance Co. (Pty) Ltd vs Gumbi (2007, 8 BLLR 699) case found that the employer had the right to proceed with the case in the absence of the employee and that the dismissal was not procedurally unfair because the second medical certificate had been offered under questionable circumstances and that it had little value. In this case, Mofokeng elected to abandon the process without any justifiable reasons. Hence, I proceeded with the case in his absence.
23. The evidence that was tendered in these proceedings was so overwhelming against Mofokeng and I must mention that during the cross-examination of the Employer’s witnesses nothing came out of it to rebut the allegations levelled against Mofokeng. The WhatsApp messages also confirmed that Mofokeng had sexual relationships with PM, SL and MB. Mofokeng also conceded that he had raped PM and he apologized in a WhatsApp text on page 35 of Bundle A. Mofokeng did not rebut any of the WhatsApp conversation. Instead, he went to town about how access was gained to his apartment and that he was not with PM on 23 August 2021. His not guilty plea was disingenuous to say the least.
24. In his Audi letter on page 38 of Bundle A, Mofokeng vehemently denied the allegations that were levelled against him and stated that the allegations were baseless, unfounded and not true. He also labeled his precautionary transfer as illegal. I am of the strong view that Mofokeng from the onset did not comprehend the seriousness of the allegations levelled against him. Consequently, based on the uncontested evidence that was presented in these proceedings, I award as follows:
Award
I find that
25. Mr Kgadi Elliot Mofokeng GUILTY of all the allegations levelled against him.
26. Dismissal would be appropriate as prescribed in section 17(1) of the Employment of Educators Act 76 of 1998, as amended.
27. Mr Kgadi Elliot Mofokeng 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 Kgadi Elliot Mofokeng 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.
28. Mr Kgadi Elliot Mofokeng as a consequence to the transgressions as referred to in paragraph 6 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 Council’s 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