IN THE LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
IN THE SEC 188A INQUIRY BY ARBITRATOR
Arbitrator: Retief Olivier
Case No.: ELRC 360-23/24 WC
Date of Award: 9 October 2024
In the INQUIRY BY ARBITRATOR between:
Western Cape Education Department
(Employer)
and
Gideon M Luwalala
(Employee)
Employer’s representative: Ms Nelsonia Hlathuka – WCED
Employee’s representative: Mr Andre Strydom – PSA
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. This is an inquiry by arbitrator convened in terms of section 188A of the Labour Relations Act 66 of 1995, as amended (the LRA). The employee, Mr G Luwalala, is charged with the misconduct related to alleged sexual offences of learners of the Betel School in Kuilsriver. Mr Andre Strydom, PSA official, represented the employee. Ms Nelsononia Hlathuka, labour relations official, represented the employer, the Western Education Department. In this ruling I shall refer to Mr Luwala as “the employee” and to the Western Education Department as “the employer”. Ms Eunice Mabynya acted as an intermediary, as all the employer’s complainant learner witness were minors when the alleged incidents occurred. An interpreter was also present at all times.
2. The matter was heard on 18 October 2023, 13 February 2024, 9 April 2024, 24 April 2024, 30 July 2024, 31 July 2024, and 2 September 2024. A site visit was also conducted on 30 July 2024. Parties agreed to submit written closing arguments on 25 September 2024. In the event I only received the respondents’ submissions by 25 September 2024. The employee’s submission was only received on 2 October 2024. The proceedings were recorded digitally. It was noted that prior to the enquiry there was a pre-hearing held on the 12th of September 2023 where the employee was informed of the charges. The employer indicated that the matter was investigated by the Department on the 26th of May 2023 and the 1st of June 2023 and the submission for a Section 188 Inquiry to be held signed and approved by the Department on the 18th of August 2023. The employee was subsequently suspended.
THE CHARGES AGAINST THE EMPLOYEE
3. The employee Mr Luwalala was charged with numerous offences relating to sexual misconduct of learners, all who were minors at the time, and in respect of some charges there were alternative charges framing the alternative charges as a statutory and criminal misconduct;
3.1 In the first charge it was alleged that the employee was guilty of misconduct In respect of article 17(1)(b) of the Employment of Educators Act, Act 76 of 1998, in and about the second school term of 2023 he committed an act of sexual assault on learner, Learner A, a year two to learner at Bet-El by touching her across her breast. An alternative charge to charge one was also framed in respect of misconduct in terms of section 18(1) (q) of the Act in that he acted in an improper, disgraceful and an unacceptable manner in that he sexually harassed learner A.
3.2 In the second charge it was alleged that the employee was guilty of misconduct in respect of article 18 (1)(q) of the Act, in that during the second school term of 2023, while on duty, he conducted himself in an improper disgraceful or unacceptable manner in the sexually harassed learner, Learner A, a year two learner at Bet-El by.
(a) saying to her don’t mess with me I will smack you in the face, rascal, and/or
(b) blocking the door with his right leg and holding her by the wrist and/or
(c) asking her if she has a boyfriend and/or
(d) asking her if she was too scared to have a boyfriend and/or
(e) asking her when can she visit him
3.3 In the third charge it was alleged that the employee was guilty of misconduct in respect of section 17 (1)(b) of the Act, in that during the second school term of 2023, while on duty, he committed an act of sexual assault on learner B, a year 2 learner at Bet-El School by pushing her on the buttocks,
3.4 In the fourth charge it was alleged that the employee was guilty of misconduct in respect of article 18 (1)(q) of the Act, in that during the second school term of 2023, while on duty, he conducted himself in an improper disgraceful or unacceptable manner towards B, a year two learner at Bet-El by enquiring from her when can she visit him in the classroom.
3.5 In the fifth charge it was alleged that the employee was guilty of misconduct in respect of article 18 (1)(q) of the Act, in that during the second school term of 2023, while on duty, he conducted himself in an improper disgraceful or unacceptable manner towards D, a year 2 learner at Bet-El by
(a) Instructing her to go to his classroom when she has a free period and or
(b) Telling her that she is old enough she must be aware of what’s been done by old people
3.6 In the sixth charge it was alleged that the employee was guilty of misconduct in respect of article 18 (1)(q) of the Act, in that during the second school term of 2023, while on duty, he conducted himself in an improper disgraceful or unacceptable manner towards E, a year two learner at Bet-El by asking from her what is it that she is fearing from dating.
3.7 In the seventh charge it was alleged that the employee was guilty of misconduct in respect of article 18 (1)(q) of the Act, , in that during the second school term of 2023, while on duty, he conducted himself in an improper disgraceful or unacceptable manner towards E, a year two learner at Bet-El School by asking her when can she visit him in the classroom.
4. When these charges were put to the employee, he pleaded not guilty to the charges. An alternative charge to charge 3 was not dealt with. Subsequent to the enquiry having started on 10 October 2023, learner C, who had attended as a witness on that first day, declined to testify when the inquiry proceeded next. Charges three and four therefore fell away, as it was not dealt with and no evidence was led.
SUMMARY OF EVIDENCE AND ARGUMENT
5. This ruling does not contain a complete summary of the evidence and argument presented during the proceedings, although I have considered all of it, I summarize salient points in as far as is necessary to substantiate my findings. Learner A testified about charges 1 and 2, learner C was to testify about charges 3 and 4, learner D testified about charges 5 and learner testified about charges 6 and 7. Learn if testified that he was a friend of learner E and testified about the incident relating to the charges. He was not a complainant. Learner G was a learner who testified about some of the incidents that she indicated she had witnessed, but was not a complainant herself.
EMPLOYER EVIDENCE
6. The first witness was Mr Nefdt, principal of BET-EL School for Epileptics, and Special Needs Institution. He has held this position since 2009, initially as acting principal and later as permanent principal in 2010. The school caters to learners aged 7-18, including skills learners (14-18 years old). He clarified that learners are referred to his school due to learning challenges, hearing impairments, or special needs – stating emphatically not because of behavioral issues.
7. He testified to how the allegations was brought to his attention, noting Ms Dees, the school counselor, informed him that learner E reported to her that the employee asked from her if she has a boyfriend, which made her uncomfortable. This occurred prior to a public holiday in April 2023. Later the counsellor also reported that other learners had approached her and complained about the employees’ actions that made them uncomfortable, making allegations of touching and inappropriate conversations and he referred the matter to the Western Cape Education Department for further investigation, as he was aware of the severity of such allegations. He was not involved in the investigation.
8. Following a site visit to determine and check the layout of the school and the logistics involved in learners moving about on the premises and from classes, Mr Nefdt the principal, was recalled to address some issues that were raised during this visit. It was put to him that evidence was led that the employee was smoking in the corridor. He was asked whether the learner was lying or telling the truth and he replied no as he was not there to witness it. He further stated the reason the employee had more than one assistant teacher was because he maintained a very high absenteeism rate, therefore they always had to plan for his class, and they utilised the assistant teachers to assist in his absence. He also stated he cannot guarantee if there was always an assistant teacher with the employee, as there were occasions that the assistant teachers had other priorities. He could not testify us to the allegations of what happened in the corridors as he was not present. Regarding the movement of learners during classes he testified that teachers are expected to send a note to the learner or a card to prove permission, but could not guarantee that these rules were always followed.
9. Ms Sandy Dees testified she is the school counselor at Bet-El School, responsible for providing psychological services and guidance since 2018. Her roles include screening and placing learners at the school, and she is the coordinator of the school-based support team. She testified about her interactions with learners, noting learner E initially reported to her that the employee had inappropriate conversations with her, asking if she has a boyfriend, noting that at the time the learner was very anxious and emotional. She reported this to the principal and discussed handling the complaint. Thereafter on Friday 5 May 2023 two other learners, learner A and learner G also wanted to report something, but at that time she had a meeting with parents, and they agreed to come back to her on the Monday. On Monday 8 May 2023, not only learner A and G but also leaner C and , learner D and learner E came to her. Learner A reported that she was touched on her breasts by the employee, and learner C reported that she was touched on the buttocks. She did not ask further questions from the learners but went to report it immediately to the principal.
10. She noted it was not acceptable conduct for an educator, referring to the allegations that were reported to her, further noting they are all guided by the ethical principles and a code of conduct. She explained that they were trained to report any form of abuse. During cross-examination she noted that for their school, and in any school of skill, the main referral for the learners to their school will be as a result of limited academic progress in normal schooling. Most of learners that they get has reading ability below grade 3 and they do not take learners that have behavioral problems, and denied that these learners had behavioral problems, refuting allegations namely that they come to school wherever they want, stayed away from school wherever they wanted, and do not even listen to the assistance teachers. She denied this emphatically, stating that she was never ever required to address behavioral issues with these. She indicated that learner A in particular was the quiet one amongst other learners and was very uncomfortable to say what had happened. Learner E was very emotional but talked and explained what happened.
11. Learner A testified she is 16 years old and in Year 3. She testified about an incident where the employee came to her and requested that she must go to his classroom after break to assist him with his class register. She responded to say that she could not as she would be writing a test. The next class period was with the employee and at the end of the period she was left alone in the classroom and the employee was standing by the doorway and was smoking. She was the last learner who exited and as she went out of the he blocked the door with his right leg and held her by the arm, asking invasive questions, whether she had a boyfriend, if she was scared to have a boyfriend, if he could visit her and who does she lives with. She further testified that when she eventually managed to get out of the door, he touched her across her breasts.
12. On her way home in the bus she immediately told her friend and classmate learner G who said they report the matter to Ms Dees, the school counselor. On the Friday, they went to Ms Dees’ office to report, however on their arrival, Ms Dees was busy and they said they would report the following week on Monday, which they then did. Having discussed the incident with her friend on the bus, other learners also said they had experience uncomfortable situations and they all went together on the Monday to reported these incidents.
13. She then testified about another incident that happened prior to this incident, stating while queuing for Mr Abraham’s period, the employee was passing by her and her classmates and intentionally touched her breasts again. This incident was witnessed by learner G who was standing in front of her in the queue and learners D and C, who were standing in the opposite direction by the windows.
14. During fairly intensive cross-examination, she reiterated her testimony was truthful. When confronted with the employees’ denials, she clarified that assistant teachers were present when the employee was absent, and when he was present, they were not there. She reaffirmed that the first incident occurred when she was alone with him. It was put to her that assistant teachers will be called to testify that they were present on the day that she testified about the incident where she said the employee blocked the classroom door and had a conversation with her, asking if she had a boyfriend and touched her on her breast. She replied it was fine they, can come and testify because she was telling the truth that they were not there when the incident happened.
15. Learner E testified she was now 19 years old and working (in 2024) and is a former student at Bet-El School. She testified about her encounters with the employee, her former Year 2 class teacher. In 2023, during second school term of 2023, she had three encounters with him. She was at the feeding scheme at the kitchen time with her friend, learner F, and the employee asked if she was dating and she just laughed and another time he also asked her if she was dating and she didn’t respond, and he also ask her when will she come to his class. The employee then again asked from her if she was dating when they were at the feeding scheme, walking from the kitchen with her friend learner F (whom she called Kim) who was also with her, and the employee asked if she was dating him, and she said no, explaining that her friend was gay. They were speaking isiXhosa and her friend who could not understand isiXhosa, as he was Afrikaans speaking, asked her what he was saying. She told him and he said that she should report the incident to the school counsellor, which she did. When she first reported it to the counselor, she was asked if she knew of similar complaints from other learners. At the time, she first was unaware of any and replied no. However, while travelling home on the bus with her friends, she shared her experience and her friend learner B shared that she was touched by the employee on her buttocks, and learner D shared that the employee asked who does she live with and asked for her number. She advised her friends to report these incidents to the councilor, which they did.
16. Learner D testified that she is 17 years old and in Year 3 at Bet-El School and her class teacher for 2024 is Ms Simons. In 2023, she could not recall the exact date, she was in the netball court and there were no bibs, she was instructed by her teacher (netball coach) to go and get the bibs in her office and she went. She further explained that she had the keys to office where the bibs had to be fetched. On her way back from the office to the netball court, she walked past the employee who was standing by the doorway of his classroom, and he pulled her by her arm. She asked why he was pulling her and he responded to say she is old enough she must have been aware of what’s being done by old people. She asked what he meant that she was old enough, and he replied that when she has a free period she must come to his classroom.
17. She had told her friend, learner E of what happened, who told her that they must go report the employee to the school’s counselor, Ms. Dees. When they wanted to report it Ms Dees was busy and said that they should come the next day. The next morning, Ms Dees came to Mr Abraham’s class with a paper and read their names and said they should go to her office. When she was asked how come they all went to her office altogether, she said she thinks it was because other learners also informed learner E that they were also done wrong by the employee and they were instructed by Ms Dees to write their complaints on paper, which they did. They all wrote down the incidents that had occurred.
18. During cross-examination it was put to her that there are no free periods and she stated that there are free periods when an educator is absent and they would often sit outside, re-iterating that she was telling the truth. She stated there are assistant teachers and that there were assistant teachers in the employees’ class, particularly when he was absent. She was also questioned about the allegation from learner C that he touched her buttocks, and she stated that she had also witnessed it. They were standing in the lines outside and learner C was wearing a skirt and they were told to stand at the back because they were wearing skirts.
19. Learner F stated he was 19 years old and is a former student at Bet-El School. He knew the employee as he was his Year 3 English teacher. Learner E was his best friend and after she shared the employees remarks to him, he advised her to report the incident to the principal due to concern for her well-being. During cross examination, he described the employee as not having given him any personal problems. However, when informed of the allegations, including sexual misconduct, he acknowledged that it was possible. He believed that the employee would ask a learner about her relationship status or invite her to his class.
20. Learner G testified she is 17 years old and is in Year 3 at Bet El School, her class teacher is Mr Arendse. The employee was her class teacher the previous year in 2023. She corroborated the accounts of learner A regarding the incidents and advised her to report the employee to Ms Dees. She confirmed that they initially attempted to report the incident, but Ms Dees indicated to them that she was busy, and they agreed to return the following week on a Monday. She also he testified that she did witness the employee touching learner A on her breasts while they were queuing outside Mr Abraham’s classroom. When they finally reported to the counsellor, learner C reported that there were other learners with who had similar complaints against the employee.
21. During cross examination she stated they do have assistant teachers and she further explained that assistant teacher assists mostly when the teachers are absent. She testified that she was not present when learner A was touched on her breasts, but she was told about it by her. Regarding the incident outside Mr Abraham’s classroom, she reiterated that they were queuing to get into Mr Abraham’s classroom. She stated at that time Mr Abrahams was not there because he was directing the learners outside to their classrooms. They were standing on the left-hand side and other learners were standing on the right side.
22. In closing it was submitted that the learner’s evidence and testimony and Ms Dees, the counsellor’s testimony and report, provide credible evidence of employees’ inappropriate behavior, including touching learners and asking personal questions and that his actions violated the SACE code of conduct in school policies. His actions was in breach of his duty of care to learners. The employees’ main rebuttal statements were that the learners were lying, as they would do when they are in difficult situations. It was further submitted Mr Abraham’s bias and inconsistency raises concerns and his familiarity with the employee influenced his credibility, and his implications that learners lied about the employee without evidence, undermines his objectivity. It was also submitted that Ms Van Wyk’s testimony did not provide any substantial support to the employees’ versions of events. Her inability to recall key details, specifically sending the learners to fetch bibs alone, without supervision and oversight does not assist. It does not address or refute the learners’ allegations against the employee, and the learners’ testimony remains credible and unchallenged, detailing specific incidents of inappropriate behavior.
23. The employer submits that learner E reported immediately after the first incident took place, and the other learners also testified that they also tried reporting the employees’ behavior immediately after the incidents came to light. The learners were told by Ms. Dees she was busy, but these learners reported the incident/s the next Monday. The learners have consistently told the same story since 2023. They repeated their account during the investigation and again during the proceedings. This consistency shows their credibility. the learners confirmed in their testimonies that they have no reason to lie about the employee. The fact raised by the employee and his representative that these learners have behavioral issues and that it was a conspiracy against him was not supported by any evidence.
24. Educators are entrusted with the care of children and they must act with utmost good faith in the conduct towards learners because society must be able to trust educators unconditionally with their children. Most of these learners are under 18 and are in a school that caters for children with special needs. They need to be protected and have a general right to be protected from sexual abuse, harassment and sexual assault. The employees’ conduct towards these learners were inappropriate, unacceptable and far removed from acting in the best interest of a child. He has unfortunately failed in his obligations as an adult; as an educator; and as a protector of children. He has breached the trust and he has displayed no remorse for his conduct during the Inquiry. The seriousness of the offence is such that an employment relationship between the employee and the WCED cannot possibly continue, especially in light of the duty in terms of the Constitution to consider the interest of children as paramount. The employer requests that the employee be found guilty on the charges against him and an appropriate sanction be imposed.
EMPLOYEE EVIDENCE
25. The employee Mr Luwalala pleaded not guilty to all the charges against him and in evidence in chief denied touching any learners breast or buttocks, or blocking a learner from leaving his classroom or asking questions about dating. He stated and claimed assistant teachers were always present with him. He also disputed the incident near Mr. Abraham’s classroom, stating teachers stay in class while learners rotate making the allegations against him impossible as someone could not have seen if he did touch anyone. He stated he was never alone with a learner in his class. He also disputed asking learners about their boyfriends and specifically about asking learners to come to his classroom. He could not recall inviting learner D to his class during her free period and when questioned about free periods he indicated that at their school they do not get free periods. He also stated that learners are not allowed just to go outside of the classroom and it would only when they have an instruction from the teacher with authorization to go somewhere or to fetch something or to report something. He stated that he was very uncomfortable with these allegations and that it was a conspiracy against him and he has 18 years of experience in three different schools and has never had any problems of this nature before.
26. When cross questioned about the allegations, he repeatedly stated he didn’t know why learners would lie about him, it was their perceptions and was not true and they had their own agendas. His explanation that when learners are in “sticky situations” they may lie and he was asked to specify the alleged victims “sticky situations”, he indicated he was generalizing. He specifically denied the incident at kitchen involving learner E, which was corroborated by her friend learner F, also accusing him of lying.
27. Mr Abrahams testified he is an educator at the school for 36 years and he teaches Mathematics. He was briefed on the allegations against the employee. He described their morning routine, where teachers escort learners from the assembly to classrooms, he oversees the corridor and rotation, ensuring learners procced to their classrooms. He would be aware of any incidents in front of his class and stated that learners would immediately report inappropriate touch to a teacher, principal or counsellor. He claimed that in 36 years of experience, no sexual assault allegations have been made against teachers. He stated that if anything like that happened the learners would shout and would want to inform of what had happened. He however acknowledged he has no experience of dealing with sexual harassment or sexual assault allegations, in spite of his long service and his role as coordinator of the disciplinary committee. He then acknowledged learners typically report incidents of physical alterations or verbal disputes amongst themselves.
28. During cross examination, he expressed doubt about sexual assault allegations against the employee, and could not believe anything like that. When asked about potential motives for learners to lie, he suggested it was “bad mouthing” without providing relevant evidence. Furthermore, he acknowledged lapses in supervision, admitting learners sometimes roam without yellow tags and further said they were also given letters. He also explained the role of class assistants, stating they will be remaining in class during free periods and stated the employee had more than one assistant.
29. Ms Zolinah Ganey testified that she is an educator at the school for 15 years. She testified about the role of the assistant teachers, she explained that they assist language teachers with scribing, support learners struggling to read and write, and handle administrative tasks. At least one class assistant is required per class, and they also help with marking, admin, and tidying during free periods. She stated that if an incident occurred in her classroom, both she and the class assistant would be aware of it. Responding to the allegations made by some of the learners she doubted the allegations and stated they would not for instance be alone in the class with a teacher, but she would not know why some of the learners would be lying.
30. Following the site visit the employee representative also requested that Miss van Wyk, the school nurse, called to testify regarding access to her office as she was also the netball coach. There was an allegation from one of the learners that the learner was requested to fetch bibs from her office when they had netball practice. She stated its very rare that she would take insufficient bibs when going to the field, but cannot remember if the learner walked alone to her office on a specific day that she alleges that she was sent to go and fetch bibs to the office, as she usually sends more than 1 learner to her office. She explained that when she sends someone to her office, she sends 3 of 4 learners most of the time and would have been given a key to access her office.
31. In closing the employee representative submitted the testimony of learner A relating to charge 1 is not a true version on the allegations that was made against the employee. Mr Araharms testified that he would see if such conduct had happened in front of his class. The employee also denied that allegations. The allegations in charge 2 is also not possible because there was testimony of Mr Nefdt that than the employee had more than on assistant in his class, so there was only a limited chance that he was alone. On the balance of probability, she is not talking the truth.
32. There was no testimony led on charge 3 and 4 because the leaner C did not testify. The matter was part heard on many occasions, but she never availed herself to testified. The question needs to be asked why she was involved when this matter was reported. Her allegations are also very serious he is pushing her on her buttock and asked her to pay him a visit in his classroom. This story could also be make-up and that she was scared to testified.
33. The allegations by learners D and on charge 5 were also not true. Why will the employee ask a learner to visit him in his class alone while he has assistants in his class for more most of the time. It does not make sense, as the version of a single witness. There was testimony led that these learners would lie to get themselves out of a situation. The allegations by learner E on charges 6 and 7 is also not true. Why would there be similar allegations of learners D and E stating that the employee had asked them to visit him in the class. Learner F, had testified that he was present when the employee had talked to learner E but he could not understand because they had talking isXhoza. The version of never been alone in the class by the employee was explained by Nefdt, Mr Abrahams and Ms Garney as all of them testified that there was more 1 assistant in his class. The version of learner F about what happened at the feeding scheme was hearsay evidence and the version of the collecting bibs was also explained by all the witnesses of the employee that learners do not walk alone on the school grounds.
34. It is the employee’s submission that there were too many ambiguities in the testimonies of the learners as was outlined, and is the employees’ plea to that on the balance of probabilities he must be found not guilty on all the charges.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
35. The disciplinary charges levelled at the employee as noted are of alleged misconduct, related to the sexual assault and sexual harassment and conduct of an improper, disgraceful and unacceptable manner towards learners. It should also be noted that these learners were all minors at the time of these alleged incidents, as well as learners being placed in this specials skills school due to learning challenges, hearing impairments, or special needs learners, who could not be accommodated in ordinary schools because of lesser intellectual capacities, and not because of behavioral issues.
36. It is for the Employer to prove the guilt of the employee on the charges on a balance of probabilities. If he is found to be guilty, an appropriate sanction must be imposed. Considering that these offences relate to the sexual assault of a learner in terms of Section 17(b) of the Employment of Educators Act 76 of 1998, there are very specific considerations for an arbitrator. Where an educator is guilty of misconduct in terms of section 17 the sanction of dismissal is mandatory and an arbitrator has no discretion to impose any other sanction, irrespective of mitigating circumstances. The employee was also charged with the offences relating to Section 18 (1) (q) of the Act, where it has to be determined whether the particular misconduct warrants dismissal.
37. A further consideration, which is also acknowledged in Collective Agreement 3 of 2018 in the ELRC is that in dealing with matters of this kind according to Section 2 28(2) of the Constitution of South Africa, the best interests of the child should be paramount. In the practice note 1 of 2018 issued by the ELRC, it is noted that the Constitutional Court has held that Section 28(2) of the Constitution imposes an obligation on all of those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Statutes must be interpreted and the common law developed in a manner that favours protecting and advancing the interests of children. Courts and arbitrators are bound to give consideration to the effect their decisions will have on the lives of children; not only the life of the child who is a victim of sexual misconduct, but also the lives of learners in general who have right to be protected against sexual abuse from educators.
38. The employee argued that he was not guilty of the charges, and submitted that such a finding should be made based on certain key premises, one being the probability of the different versions and alleged contradictions in the learners evidence relating to instances such as to where the incidents occurred, how the incidents were witnessed and the employees’ witnesses’ evidence, and the credibility of witnesses. It was strongly argued that there is no basis to find that there was any intent from the employee to commit an act of sexual assault or sexual harassment and improper or disgraceful and unacceptable conduct. The employee simply attempted to rebut the evidence of the employer and the learners by stating that the evidence is not truthful, that the learners were lying and there was a conspiracy against him.
39. As noted in the ELRC practice note the elements of sexual assault are: a) conduct of a sexual nature, b) which results in the victim’s sexual integrity being impaired, or inspiring a belief that it will be impaired, c) unlawfulness, meaning that there must not be a justification ground for the action, such as for example the consent of the victim and d) intention to commit the misconduct, in other words accidental unintentional bodily contact is excluded from the definition.
40. The test to be applied in determining whether conduct has a requisite sexual nature is an objective one viewed in light of all the circumstances, the part of the body touched, the nature of the contact the situation in which it occurred, words and gestures accompanying the act and all other circumstances surrounding the conduct will be relevant, given the wide meaning of sexual assault.
41. Without repeating all the considerable evidence submitted by the learners, I do find that there is sufficient evidence to determine that the employee touched the breasts of learner A and sexually harassed her. The employee argued that the evidence of learner could not be truthful as no witness of the employee could see anything like that and also that there was no opportunity for the learner to be alone with the employee in his class, further also arguing that Mr Nefdt, the principal and employee witness stated the employee always had teacher assistants in his class.
42. Regarding the evidence of Mr Nefdt the employees’ arguments are not correct, as he stated he could not testify what happened in the class and the corridor as he was not there, but acknowledged that there could be instances where there were no teacher assistants in class, explaining that they sometimes had other functions to perform. The further erroneous argument from the employee was that these learners had behavioral problems, and that they would lie and therefore conspired against the employee. Mr Nefdt and Ms Dees very emphatically stated that of these learners were not in the school because of behavioral problems, but because of less cognitive and intellectual abilities, and there were never any such behavioral problems in respect of any of the learners.
43. Regarding further allegations of improper, disgraceful and unacceptable behavior and conduct by the employee in respect of asking about learners about boyfriends and dating status and inviting them to his class, I also find this to be of a sexual nature and constituting sexual harassment. In this instance. have particularly considered the evidence of Ms Dees, the school counsellor, in testifying of the learners reporting these incidents to her, having been consistent in their versions and not doubting the sincerity and concern about what they had experienced and when specifically questions as to whether she thought that reports and complaints were truthful, she stated it was a difficult question, but there was not any reason not to believe them. I find the evidence of Mr Abrahams in refuting the evidence from the learners in relation to reporting instances of sexual harassment to be particularly biased and uninformed, he presented himself as an expert regarding discipline in the school but had to concede that he has no knowledge and experience of dealing with sexual harassment issues. He also testified that the employee was a very dedicated and hardworking teacher, but failed to mention, as Mr Nedft testified, that the employee was in fact a frequently absent, and for that reason two assistant teachers had to be deployed the class due to his frequent absenteeism, and was certainly not the exemplary and dedicated teacher that Mr Abrahams made him out to be.
44. The employee also argued that it could hardly be excepted and believed the allegations if they are very similar, as coming from two learners, specifically referring to learner D and learner E, and further stating that the corroborating evidence from learning F was hearsay. I do in fact to find that these testimonies as corroborating evidence, and on balance of probability confirmation of the incidents as they experienced it. The evidence from the learner F, when testifying was no longer a minor, was corroborating evidence he was present, and not hearsay evidence, as it supports and verifies the evidence from learner E. I in fact find the evidence of learner E as quite instructive as it was she who first reported the matter to Ms Dees, and which then also led to the other learners reporting having similar experiences. During her cross-examination the evidence that she presented in terms of the location where these incidents occurred, was disputed by the employee, but following the site visit it confirms that such incidents could have occurred there.
45. The employee also very specifically denied the allegations from learner D regarding the incident that occurred when she was required to fetch bibs from an office during a netball practice or game. Following the site visit to determine the layout of the school and facilities and how learners moved around, the employee requested that Ms Van Wyk, who was the netball coach, be called to testify as during the site visit it was determined that the office where the bibs are kept is locked and employee argued that therefore the learner could not have collected the bibs from the office. Whilst Ms van Wyk could not recollect the specific incident she did acknowledge that she would sometimes ask learners to fetch equipment from her office and that she would provide the key. It is significant that during learners’ testimony as to when there was a discussion about where she was when the employee grabbed her arm, she testified it was on her way back and that she was also returning the key. Clearly from this evidence again I determine on a balance of probability that the learner D was truthful in her testimony and not just made up story, as a argued by the employee.
46. It should be noted that the employee strongly argued in closing that the learners were lying and not credible and trustworthy witness. He also questioned that the learners’ evidence was in fact corroborated, stating it could not be believed and that it was made up, with the employee also testifying and then arguing that it was all a conspiracy. In the matter of Old Mutual Life Insurance SA v Makanda and Others (JR 1246/18 (2019) ZALCJHB 285, it was also stated that Commissioners should not require corroborating evidence as evidence of sexual offences, as that would elevate the test to that of beyond reasonable doubt.
47. The employee also referred to contradictions and ambiguities arguing that the evidence from the learners could not be believed. Amongst those raised is the issue of the movement of learners outside of the classroom, with both Mr Abrahams and Ms Garney testifying that learners would do not walk around alone outside of the classroom without any authorization, referring to either having a note or carrying a card and indicating they had authority to be moving around outside of the classroom. Mr Nefdt however clarified that there were rules regarding how learners are able to move around, and that they needed authorization, but he also indicated that the rules are not always followed. This was also witnessed during the site visit when learners were seen moving around during class periods, without showing or having any cards providing such authorization.
48. A further issue that was raised was the attendance of assistant teachers in the classroom with both the employee and against Mr Abrahams strongly emphasizing that teachers would never be alone with learners in the class, as there would always be teacher assistants in the class. In this instance the employee also stated that he would be calling the assistant teachers to testify to rebut the evidence of learner A. Mr Nedft for the employer testified that there would be occasions when there are not class assistants in the classroom, and he also indicated there might be free periods at times, which the employee also denied. Mr Nefdt did however indicate that the employee was a smoker, but he would find it very strange to find a teacher smoking in the corridor and he has never experienced or seen anything like that. Ms Zolinah Ganey testified for the employee also testified and referred to the fact that there are sometimes free periods.
49. Regarding the failure of learner C to testify the employee argued her allegations were also very serious and the fact that she did not testify, although there was opportunity for her, means it could also be made-up and that she was scared to testify and be cross-questioned. However, it rather illustrates the difficulty and emotional state of learners who are required to testify, as was noted when it was explained that the learner was not willing to testify to go through everything again. Her reluctance to testify does not in any way diminish the complaints that were levelled against the employee and it was noted that the other learners, when reporting to Ms Dees, testified what learner C explained to Ms Dees what she witnessed. (it is noted earlier that charges 3 and 4 relating to learning C fell away as she did not testify about her own experiences).
50. The employee also argued that these learner witnesses, as a result the ambiguities raised, were not credible witnesses. It is noted in the ELRC Practice note that the Courts have recognized that the evidence of minors cannot be assessed in the same way as the evidence of adults and that it may be wrong to apply adult tests for credibility to the evidence of minors, and a fair hearing must not only take into account the rights of the accused, but also the rights and capabilities of children and contradictions in a child testimony would not necessarily be given the same effect as in the testimony of an adult. It should also be noted that these minor learners are all learners in a special school because of their limited intellectual capabilities and may even have less cognitive skill than other learners. There was also no evidence of any nature lead to verify the employees’ allegation of a conspiracy.
51. Having considered all the evidence in find that as referred to in Marapula & others v Consteen (Pty) Ltd (1999) 8 BLLR 829 LAC it was held that the employer’s onus is discharged if “the employer can show by credible evidence that its version is the more probable and acceptable version and it’s witnesses were credible”. I find that the employer’s evidence is credible and I find on a balance of probability that the employer has proven the allegations that the employee is guilty of the misconduct charges as noted. He is thus found guilty of charges In respect of article 17(1)(b) of the Employment of Educators Act, Act 76 of 1998, to sexual harassment and sexual assault and article 18 (1)(q) offences, in that he also conducted himself in an improper, disgraceful or unacceptable manner.
52. In the case of Compass Group Southern Africa (Pty) Ltd v CCMA & others (JR 633/16) the court pointed out that once the employer provides prima facie proof of the misconduct as alleged, the evidentiary burden shifts to the employee to prove his own defense. If the employee then fails to put up a defense or fails to prove his defense the employer’s prima facie proof of the misconduct, becomes conclusive proof and the employer has then discharged the overall onus that always rested with it. In this instance I do not find that the employee has proven his own defense.
RULING
53. The employee Mr G M Luwalala is guilty of sexual assault and sexual harassment, and that he also conducted himself in an improper, disgraceful or unacceptable manner.
54. Considering that I have found the employee Mr Luwalala guilty of Section 17(b) offences of the Employment of Educators Act 76 of 1998, dismissal is the mandatory sanction. Mr Luwalala is dismissed with immediate effect. However, I find that even if he was not found guilty of a Section 17 offence, I find that his misconduct in a relation to the article 18 (1)(q) offences, in that he also conducted himself in an improper, disgraceful or unacceptable manner relating to offences of a sexual nature, also warrants dismissal.
55. In terms of section 120 of the Children’s Act, Act 38 of 2005, I find that the employee Mr G M Luwalala is unsuitable to work with children. The ELRC as the administrators of this Sec 188A enquiry is therefor entitled to provide for a further hearing or process for the parties to make submissions as to whether the Director General: Department of Social Development should be informed of these findings in terms of section 120 and 122 of the Children’s Act, Act 38 of 2005.
ELRC SENIOR COMMISSIONER: Retief Olivier