IN THE ELRC: INQUIRY BY ARBITRATOR BETWEEN:

THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer

and

C B Thenjwayo The Employee

Inquiry by arbitrator-finding

Case Number: ELRC19-22/23 KZN

Dates of Inquiry: 14 December 2022, 20 June 2023, 22 January 2024, 21 May 2024, 23 & 24 July 2024, 13 & 19 September 2024

Date for closing arguments: 26 September 2024

Date of finding: 3 October 2024

J KIRBY
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
DETAILS OF HEARING AND REPRESENTATION

1. The inquiry by arbitrator commenced on 14 December 2022, continued on 20 June 2023. 22 January 2024, 21 May 2024, 23 & 24 July 2024, 13 September 2024 and the hearing of evidence was finalized on 19 September 2024. An inspection in loco was held. The hearings were held at the premises of the Employer in Pietermaritzburg. The parties requested and were granted permission to submit written closing arguments.

2. The Employee, C B Thenjwayo, was represented by Mr Zulu, an official of his trade union, PSA. Mr Zulu submitted a bundle of documents marked exhibit A.

3. The Employer, the Head of the KwaZulu-Nata l Department of Education was represented by a departmental employee, Ms Mtetwa. A bundle of documents, marked exhibit B, was submitted on behalf of the Employer.

4. This inquiry is concerned with the alleged sexual assault by the Employee of two learners who are minors. I shall refer to the learners as Learner 1 and Learner 2 respectively.

5. The services of an intermediary were utilized for the evidence of Learner 1. Learner 2 did not testify.

6. The proceedings were interpreted and digitally recorded.

EXPLANATION OF THE EMPLOYEES’ RIGHTS

7. At the commencement of the hearing, I explained the following rights to the Employee, who confirmed that he was aware of and understood these rights:
7.1. The rights to question witnesses of the Employer and to dispute any documentary evidence. In particular, I stressed the need to ensure that any evidence with which he did not agree was disputed by his representative and the need to ensure that his version was put to each witness; and
7.2. The right to give evidence and to call witnesses.
8. The Employee confirmed that he had been given written notice of the alleged misconduct and that he had appointed his trade union to represent him. He had had sufficient time to prepare for this Inquiry.

9. It was explained to both parties, who indicated that they understood that:
9.1. A separate hearing in respect of sanction in event of a finding of guilty, would not be held. Evidence in mitigation and aggravation of sentence would be presented prior to a finding on the merits of the case having been given;

9.2. They could make closing arguments after all evidence had been heard; and

9.3. In terms of section 120 of the Children’s Act, no 38 of 2005 (as amended) (CA) I, as the arbitrator, acting on my own or on application of the Employer may make a finding that the Employee is unsuitable to work with children. It was further explained that as with the question of sanction, that a separate hearing would not be held.

THE CHARGE, PLEAS AND PLEA EXPLANATIONS

9. The charges are at pages 1-5 of exhibit B and read as follows:
“Charge 1
It is alleged that on or about 11th February 2022 you allegedly committed an act of sexual assault on Learner 1grade 7 B learner at Hlelingomusa Primary School, in that you asked her to follow you to the toilets where you then raped her. You thus committed an offence in terms of section 17(1)(b) of the Act.
(Reference to the Act in the charges and elsewhere are reference to the Employment of Educators Act, no 76 of 1998 (as amended) -my emphasis).

Charge 2
It is alleged that on or about 14 February 2022 you allegedly committed an act of sexual assault on Learner 2 grade 7 B learner at Hlelingomusa Primary School, in that you brushed her thigh with your hand while you were in her classroom. You thus committed an offence in terms of section 17(1)(b) of the Act.

Alternatively
On or about 14 February 2022 you allegedly whilst you were on duty at Hlelingomusa Primary School conducted yourself in an improper, disgraceful or unacceptable manner towards Learner 2, the then grade 7 learner at the school, in that you brushed her thigh with your hand while you were in the classroom. You thus committed an offence in terms of section 18(1)(q) of the Act.

10. The Employee pleaded not guilty to both main counts and the alternative count to count 2. All elements of the counts were disputed.

SUMMARY OF EVIDENCE AND ARGUMENTS

The Employer’s case

11. Learner 1 testified that she was currently in grade 9. In 2022 she had been a learner in grade 7 at the School but she had left the School in February 2022.
12. On 11 February 2022 after break, she had gone to the classroom of a certain Mr Madlala. . It was Mr Madlala’s period to teach her. The Employee came to the classroom to speak to Mr Madlala and he had then sent her to collect a green plastic bag from his car. She had done so and had handed the bag to the Employee. He had told her to report back to him again between 11 am and 12 noon. She had forgotten to do so.

13. The Employee had then approached her whilst she was attending Ms Nhleko’s class. He had shouted at her. Ms Nhleko had left the classroom and he had instructed her to follow him. She had done so. As they had approached Mr Xaba they had stopped and the two educators had greeted one another. Mr Xaba had entered classroom and the Employee had proceeded to a building that housed unused toilets. She had followed the Employee.

14. At the toilets the Employee had initially politely asked her to enter but when she had refused he had shouted at her, grabbed her by the arm and forced her inside.

15. Once inside, he had grabbed her by the neck and strangled her. When she resisted he had tripped her and she had fallen to the floor. He had continued to strangle her whilst she was on the floor. He had then proceeded to forcefully remove her underwear. He had unfastened his trousers and she had noticed that he was wearing a condom. Learner 1 had continued to resist but he had hit her, forced open her thighs and penetrated her. Afterwards, he gave her a cloth to clean herself and blood from the floor. The Employee had then left her and entered a toilet cubicle. Learner 1 had used this opportunity to dress herself, unloosen cloth that the Employee had used to restrain her and flee. She had then gone to the toilets that were in use at the time. These were near her classroom.

16. Whilst at the toilets Learner 2 had entered. Learner 2 had said that she did not like what the Employee had done to her. As she was still in shock, she did not pay attention to what was being said. They then left the toilets. On leaving they had come across the Employee. As learner 1 had passed him he had said to her that she must remember that he could kill her entire family. She then proceeded to her classroom where she found Learner 2 and others cleaning it. The class educator was not present.

17. She had not reported the assault to the School principal but had given some details to an educator, Ms Nhleko. She had told her that the Employee would touch them on their thighs in the classroom or when he sent them on errands. Whilst she initially could not recall when she had spoken to Ms Nhleko she subsequently stated that it had been on the day of the assault.

18. Learner 1 spent week-ends at her mother’s home. A grade 6 learner had heard rumours about the Educator touching girls’ thighs and she had told Learner 1’s grandmother. The grandmother had phoned her mother resulting in her mother asking whether the same had happened to her. She had denied that it had. Her mother had then said that she was going to have her virginity tested.

19. The mother had tried to do the testing herself but did not know what to do. Her grandmother had then told her mother to take a photograph and to send it to her. After a photograph had been sent to the grandmother, she had responded by stating that something had been disturbed. Learner 1 still did not implicate the Employee but after she had spoken to her father she had stated that the Employee had raped her. Her mother had then driven her to hospital.

20. Under cross-examination Learner 1:
20.1. Stated that she was outside her classroom in the corridor when the Employee had sent her to fetch the bag from his car;
20.2. Could not remember which other learners had been with her at the time. Other learners had, however, been present;
20.3. Could not recall where these other learners were in relation to where she had been when sent to the car by the Employee;
20.4. With reference to the first written statement made by her (at page 5 of exhibit B,) she stated that she had not stated that other learners had been close to her at the time as she did not know what their version would be. She had only included what she knew;
20.5. Agreed that in her evidence in chief she had stated that she had been in the classroom when initially approached by the Employee whereas under cross-examination she had stated that she was outside the classroom;
20.6. Contradicted her evidence in chief by stating that it had not been Mr Madlala’s period to teach her when the Employee had sent her to his car;
20.7. Agreed that in her statement to the police (at page 28 of exhibit A) she had stated that she had been inside the classroom when approached by the Employee;
20.8. Stated that Learner 2 is a classmate and friend. She had been in the classroom when she was approached by the Employee. She did not know whether Learner 2 had seen the Employee call her and send her to his car;
20.9. Stated that the Employee had been in front of the classroom when he had called her and given her his car keys. This was done in front of Mr Madlala and the other learners;
20.10. Could not say why Learner 2 had not stated in her police statement that the Employee had entered the classroom and sent Learner 1 to his car;
20.11. Could not comment when it was put to her that Mr Madlala had given a written statement in which he states that he had not been in the particular classroom at the time indicated by her;
20.12. Agreed that the timetable (at page 14 of exhibit A) recorded that her class, 7B, had a double natural science period immediately from 10:30 am after break on Fridays and that Mr Madlala was a Zulu and not a natural science educator;
20.13. Further agreed that on Fridays the double natural science period was followed by social science from 11:30 am-12:30 pm and that Mr Madlala did not teach natural science;
20.14. When it was put to her that the Employee would deny having entered her classroom or having sent her to his car on the day in question, maintained that he had;
20.15. Could not identify a witness who would confirm her version of the Employee having entered the classroom and having sent to his car;
20.16. Agreed that the disused toilets where the alleged rape had occurred were usually locked but stated that on the day in question they had not been locked but had merely been secured with a sack. The keys for the School were kept by the security guard, “Uncle Eric;”
20.17. Agreed that the grade R learners were usually outside playing at the time of the alleged rape but stated that on that particular day they had not been outside. If they had been, they would have seen her and the Employee;
20.18. Stated that she had not told anyone of the alleged rape on the day of the incident and could not recall when she had first reported it;
20.19. Stated that the Employee had also touched her thighs a couple of months prior to the alleged rape. She had not reported this to anyone;
20.20. Denied that she had colluded with Nhleko to falsely implicate the Employee.

21. Zinhle Shembe (Shembe) is the mother of Learner 1. During the school week Learner 1 would stay near the school with her paternal grandmother and then go to Shembe’s home on Friday for the week-end.

22. On 15 February 2022 (Tuesday) she had received a call from the paternal grandmother in which she stated that Learner 1 had complained of sexual harassment in that the educator would touch their thighs. She had then spoken to Learner 1 who had confirmed the truth of what the grandmother had said.

23. As she was concerned for Learner 1 when she had come to her home the following Friday she had decided to ascertain if anything more serious had happened to Learner 1. Her mother had told her that Learner 1’s “virginity had been tampered with” after she had sent her a photograph of Learner 1. On the Sunday she had taken the Learner to Edendale Hospital for her to be examined and subsequently a criminal case had been opened. She had also gone to the School to report the alleged rape to Nhleko.

24. Under cross examination Shembe stated that the investigating officer had informed her that charges had been withdrawn against the Employee due to lack of evidence.

25. The next witness was Sibusiso S Zikhali (Zikhali) who is employed at the School as a vice-principal. When he joined the School in the beginning of 2022 there was no principal in place.

26. The allegations of misconduct by the Employee were brought to his attention on 21 February 2022 by Learner 1’s grade educator, Nhleko. He had compiled a report dated 23 February 2022 (at page 7 of exhibit A) and which is an accurate reflection of what had been told to him. it had been reported to Nhleko that the Employee had touched Learner 2 inappropriately on her thigh. Once he had been informed that the chairperson of the SGB had called the School requesting a meeting, he had called a senior management team meeting to advise it of the allegations. The Employee had attended the meeting. He had not revealed the identity of the alleged perpetrator at this meeting but after the meeting he had been contacted by the Employee who informed that he had been told by other educators that the allegations concerned him. The Employee informed him that he was not feeling well and had left the School. Shortly thereafter the District Manager contacted him saying that he and the police were at the School gate. The police had questions staff and learners and the District Manager had instructed him to prepare a report. the father of Learner 1 had also come to the School on that day. Learner 1 had not returned to the School.

27. Under cross-examination Zikhali:
27.1. Stated that officials from the Respondent had visited the School as had representatives of SACE;
27.2. Confirmed that attorneys for Learner 1 had also visited the School to observe footage from the School’s CCTV. Initially he had been informed by the person responsible for installing the CCTV cameras that the footage could not be retrieved but the attorneys had managed to do so. The two attorneys, the CCTV installer and himself had viewed the footage;
27.3. When it was put to him that the evidence was that the incident had occurred at about 11 am, Zikhali stated that the footage showed the Employee entering and exiting classrooms but that nothing untoward was observed. The footage did not show the Employee walking towards the toilets, which had not been in use since he had been appointed;
27.4. Stated that Nhleko had reported the incident to him on 21 February 2022 stating that it had occurred at 7:30 am on 16 February 2022. Given the nature of the allegations, they should have been reported to him immediately;
27.5. Submitted that had the CCTV footage been viewed by the officials of the Respondent who had visited the School, the Employee would not have been charged.

28. Under re-examination Zikhali:
28.1. Stated that the CCTV cameras did not cover the toilets where the incident allegedly occurred but that they did cover the area where the Employee had taught;
28.2. Conceded that he did not know which incident had allegedly occurred first; that involving Learner 1 or that involving Learner 2. He stated that even from reading his report, it was confusing.

29. The next witness was Nomvuso Nhleko (Nhleko) is an educator at the School and at the relevant time had been the class teacher of both Learner 1 and Learner 2.

30. She recalled that the alleged incidents had occurred on Valentine’s Day, 14 February 2022 and had been reported to her by the two learners on 15 February 2022. The two learners had approached her indicating that they wanted to speak to her whilst she was on gate duty on the morning of 15 February 2022. She had attested to an affidavit on 22 February 2022.

31. She had not been able to immediately accommodate the learners and later she had been approached by Learner 1 alone who stated that Learner 2 wanted to tell her something. Learner 1 stated that she had seen the Employee touch Learner 2’s thigh.

32. Nhleko had met with the two learners the following day. Learner 1 had initiated the discussion. They learners stated that the Employee had touched the thigh of Learner 2.

33. The following Monday, 21 February 2022, Nhleko was contacted by the father of Learner 1 and told that she had been raped. Nhleko’s response was that that was a police matter. Learner 1, her mother and step-father had later arrived at the School. Learner 1 had said that previously she had been too scared to allege that she had been raped.

34. Under cross-examination Nhleko:
34.1. Confirmed that all discussions were initiated by Learner 1, whom she regarded as the most extroverted of the learners;
34.2. Reiterated that she had first learnt of the alleged rape on 21 February 2022 when told of it by Learner 1’s father;
34.3. Indicated that there was internal conflict at the School over positions. The post of Head of Department had been advertised in 2018 but there had not been an appointment as grievances had been lodged;
34.4. Confirmed that she had viewed the CCTV footage and that the footage did not show the Employee moving from the classrooms towards the toilets in question; and
34.5. Denied having told the Employee during a phone call that the learners had admitted that they had lied.
35. Under re-examination Nhleko stated that in viewing the CCTV footage they had focused on the period after the break as that was when Learner 1 had alleged that the incident had occurred.
36. On being questioned by me Nhleko stated that she had viewed the CCTV footage with the Chairperson of the SGB as he had wanted to look at the evidence.

The Employee’s case

37. The Employee testified that he commenced teaching at the School in 2014. When the alleged incident had occurred, he was a department head.

38. On the day in question, he had spent the first period in the classroom of grade 7C as that was where his desk was. The class teacher was present. He had then gone to the classroom of grade 7A, which period had taken him to the break, which he had spent with 2 other educators. Immediately after the break he had returned to his desk at the classroom of grade 7C. He remained there until the close of school, which was at 12 noon on Friday’s. He had then left the School in the company of a colleague, Madlala.

39. At page 14 of exhibit A is the timetable that was applicable for February 2022. According to the timetable during 7:45-8:45 grade 7C had Zulu, which was taught by Madlala; during 8:45-9:45 he (the Employee) had taught grade 7A English; 9:45-10:30 had been the break he had spent with 2 colleagues; from 10:30-11:30 grade 7 C was due to be taught Mathematics by Ndlovu. He had gone to the classroom of grade C at this time as his desk was there. Ndlovu, however, was not present. He had remained at the classroom of grade 7C until the end of the school day. The timetable further records that grade 7B (Learner 1’s class) was taught natural sciences from 10:30-11:30 and social sciences from 11:30-12:00. This contradicted the version of Learner 1that during these latter periods she was being taught Zulu by Madlala.

40. He had not interacted with or seen Learner 1 on 11 February 2022. Were her version to be true, they would have had to have walked past 7 classrooms to reach the disused toilets. Further. at the alleged time of the incident grade R would have been on their break and playing in the open area in front of the disused toilets under the supervision of their educators.

41. It was only on 22 February 2022 that he became aware of an alleged sexual assault at the School. Educators were called to a meeting by Ms Ndaba, the acting principal, at which she stated that she had been contacted by the School Governing Body chairperson, Mr Mkhize, who had asked her what she planned to do about the alleged assault that he had already reported to the MEC for Education. At the meeting the alleged perpetrator had not been identified. Later that day Nhleko had called him and asked him to come to her home. He had done so. Nhleko had told him that she had been approached by 2 learners who had alleged that he had touched their thighs and that she had thereafter been approached by the two parents of a learner who had alleged that he had raped her. The following day he had gone to the School and found Nhleko in the company of two ANC Youth League members. As he no longer felt safe he had told Zikalala that he was leaving and he never returned to the School. He was subsequently arrested and initially denied bail. He was granted bail after the Court had viewed the video footage obtained by the investigating officer. The criminal charges were later withdrawn.

42. During December 2021 he had raised the issue of the School having possibly registered “ghost” learners. He had refused to approve a document listing the alleged number of learners at the School. This had been a major issue at the School. The bulletin advertising the post in which he had been acting was published on the day of his arrest. These incidents might explain why others might have conspired against him.

43. Under cross-examination the Employee stated that a decision had been taken in 2021 to lock the disused toilets. He had not gone to them to ensure that this instruction was being followed. He did not know where Khumalo kept the keys. It was put to the Employee that he was not teaching at the time of the alleged rape and thus he had an opportunity to commit the rape. The Employee maintained that he was in the classroom of grade 7C at the time.

44. The next witness for the Employee was Sibusiso Xaba (Xaba)who is a grade 4 educator at the School where he has been employed since 2016. He was at the School on 11 February 2022. He had not seen or been with Learner 1 or the Employee on that day. He also had no need to be walking towards any of the mobile classrooms in the vicinity of the disused toilets.

45. Under cross-examination Xaba could not remember his timetable for the day in question. He was, however, able to confidently state that he had not seen the Employee and the Learner together as the alleged rape had been a big issue when the allegation had been made known and he thus would have remembered if he had seen the alleged victim and perpetrator together on the day of the alleged rape. The School’s CCTV footage would also have shown the alleged meeting between himself, the Learner and the Employee if it had occurred.

46. The next witness for the Employee was Bhekumuzi Eric Khumalo (Khumalo) who has been the security guard at the School for approximately 5 years. He confirmed the correctness of the content of a statement of his at page 2 of exhibit A. The toilets at which the alleged rape had occurred had not been in use since the beginning of 2022 and the gate to them had been locked. He is responsible for locking the classrooms and other rooms at the end of each day. The keys are kept by him in a classroom, which he then locks. The disused toilets’ keys were amongst these keys. The Employee had not asked to be given the keys to the toilets.

47. Under cross-examination Khumalo stated that during the day of 11 February 2022 he was stationed at the School gate and he had not gone to the disused toilets to ensure that they were locked. He stated further, however, that he still had the key in his possession and could see that the gate was locked.

48. The final witness for the Employee was Thulani David Madlala who was an educator at the School from 2011 until shortly after the arrest of the Employee. He had made the written statement at page 3 of exhibit A and he confirmed the correctness of its content including that on 11 February 2022 and between 10:30 and 12:00 he was not in grade 7B’ s classroom and that at no time did the Employee come to his class and ask for Learner 1. He had taught her class Zulu during the period from 8:45-9:14 on 11 February 2022 and not from 11:00-12:30.

49. Under cross-examination he stated that he had left the School as he had received information that he was to be the next educator to be ‘targeted.” He thus did not feel safe. He had reported this information to the Department and his trade union. He further stated that as far as he knew Learner 1 was related to the former SGB chairperson, Mkhize, who is now deceased. He did not know whether the grade R learners were playing outside the disused toilets on 11 February 2022 at the time of the alleged rape but assumed that they would have been as they usually did.

SUMMARY OF ARGUMENTS

50. The Representatives of both parties submitted written closing arguments.

51. The submissions made on behalf of the Employer include that:
51.1. The Employee was guilty as charged in respect of the first count;
51.2. Learner 1 had been steadfast in her evidence despite having been subjected to vigorous cross-examination;
51.3. There was no reason for Learner 1 to have falsely implicated the Employee and her evidence that she had been raped by him ought to be accepted; and
51.4. The Employee could not adequately account for where he had been at the time of the alleged rape.

52. The submissions made on behalf of the Employee include that:
52.1. An adverse inference should be drawn by the failure of the Employer to call witnesses who could and should have been in a position to corroborate the version of Learner 1;
52.2. Similarly, an adverse inference should be drawn from the failure of the role players from the School to have informed those from the Department who were tasked with the investigation, that CCTV footage was available;
52.3. The evidence of Madlala contradicted that of Learner 1 that she was in his class after break when the Employee interrupted the class and took her away. Further nobody from the class of 50 had been called to corroborate her version;
52.4. Xaba contradicted the evidence of Learner 1 that he had seen her and the Employee walking towards the disused toilets. Further, despite all the classrooms they would had to have passed, nobody was called to corroborate the evidence of Learner 1.

ANALYSIS OF EVIDENCE AND ARGUMENT

43. The Employer is required to prove on a balance of probabilities that the Employee is guilty of the alleged misconduct with which he has been charged.
36. No evidence was led in respect of count 2, save for the hearsay evidence of the Learner and Nhleko, which was heard in the anticipation of Learner 2 testifying. No reasons were provided for the failure of Learner 2 to testify and I accordingly disregard this hearsay evidence.

37. With regards to count 1 I am faced with two mutually destructive versions. On the one hand, Learner 1 testified that on the day of the alleged rape she had interacted with the Employee before he had fetched her from class and taken her to disused toilets where he raped her during the school day. On the other hand, the Employee denies that any such interaction or rape occurred.

38. Learner 1 gave her evidence in a calm and emotionless manner. She was consistent in her evidence and no significant internal contradictions were revealed under cross-examination. There are, however, a number of improbabilities associated with her version that I shall detail in the paragraphs that follow.

39. Firstly, it was common cause that the toilets where the alleged rape took place were not in use and had been locked. The version of Learner 1 was that on the day of the alleged rape the gate to the toilets had been unlocked but secured with a bag. This version would entail the Employee having gained access to the key; having unlocked the gate and then drawn attention to this fact by then wrapping a bag around the gate when there was no need to do so. On the other hand, it was the evidence of Khumalo that the key to the toilets was kept under lock in a classroom; he had the key to gain access to the keys and at no time had he given the key to the Employee. Further he testified under cross-examination that he could see the toilets from the gate where he was stationed during the day and the gate had appeared locked. He had also not been asked whether he had noticed that the gate had been secured by a cloth at any stage during that day as alleged by Learner 1.

40. Secondly, it was not disputed that the usual practice was for the grade R learners to have been at break and playing under the supervision of educators in the open space in front of the disused toilets when the alleged rape occurred. This would mean that the Employee and Learner 1 would have entered the disused toilets in clear sight of the learners and educators. No reasons were advanced on behalf of the Employer as to why on the day of the alleged rape, the grade R learners and their educators would not have been in the vicinity of the disused toilets as was usually the case.

41. Thirdly, Learner 1 testified that prior to the rape the Employee had removed her from her class; engaged in conversation with Xaba, an educator, (which Xaba denied.) These actions would only have drawn attention to himself when there was no reason for him to be in the company of Learner 1 who should have been in class. Learner 1 states that they had entered the disused toilets; that he had then bound and physically assaulted her before the rape. After he had raped her, he had left her alone allowing her to remove the restraints, get dressed and leave. All this had allegedly taken place without the Employee having locked the gate, which he could easily have done had he obtained the key to unlock the gate in the first place. Learner 1 states that the Employee had then caught up with her in the passage after she had been to the toilets where she had met Learner 2 and that he had only then threatened her not to disclose the rape.

42. Fourthly, it is the evidence of Zikhali, who testified for the Employer, that the CCTV footage viewed by him did not support the version of Learner 1.

43. Further with regards to the issue of video footage, it is clear from the evidence that it was well known that the School had CCTV cameras in place. One purpose of having the CCTV system in place would be to secure evidence of any misconduct. Despite the CCTV system having been in place it would appear as if no effort was made to view the footage until prompted to do so by the Employee’s attorneys. No evidence was given as to why the footage was not viewed immediately after the allegation of rape had been made. No reference is made to the possibility of video footage being available in the reports of Zikhali and the circuit manager, D R Hlongwane, at pages 7-9 and 10-11 of exhibit B respectively. It may well be that the footage was not referred to for the reason stated by Zikhali; namely, had it been viewed, the Employee would not have been charged.

44. For the purpose of this award, I do not need to determine whether the Employee was the victim of a conspiracy to have him falsely accused of rape and effectively removed from the School, as alleged by him. The undisputed evidence of the Employee would, however, indicate that the response of the Employer to the alleged rape was preceded by coordinated activities by others to have the Employee removed. Nevertheless, for the reasons detailed above I am not satisfied that the Employer has established on a balance of probabilities that the Employee is guilty of having raped Learner 1 as alleged in count 1 (or of having otherwise assaulted her in anyway)and he is found not guilty.

45. No evidence was led in respect of count 2 and the Employee is also found not guilty of count 2.

FINDING

46. The Employee, Thenjwayo, is found not guilty of counts 1 and 2.

J Kirby
Arbitrator 3 October 2024
ELRC19-22/23 KZN