IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT TSHILWAVHUSIKU HA-RAVELE
Case No. ELRC48-24/25LPIn the matter between
LIMPOPO DEPARTMENT OF EDUCATION Employer
And
RAMOVHA MATODZI THEOPHELUS Employee
ARBITRATION AWARD (ENQUIRY BY ARBITRATOR)
Details of hearing and representationThe General Secretary of the ELRC must, in terms of section 122 (1) of the Children’s Act, 38 of 2005, notify the Director General: Department of Social Development in writing of the findings this forum made in terms of Section 120(4) of the Children’s Act, 38 of 2005 that Mr. Ramovha Matodzi Theophilus 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. __________________ VICTOR MADULA ELRC PANELIST
07 February 2025
This enquiry is conducted in terms of Section 188A of the Labour Relations Act, 66 of 1995 as amended. The hearings took place on 15 May 2024 (virtually), 26 August 2024, 02 September 2024 and 20 January 2025 at the Department of Education, Zoutpansberg West District, Tshilwavhusiku Ha-Ravele, Limpopo Province at 9:00AM. The employee, Ramovha Matodzi Theophilus was represented by Ramango N.P from South African Democratic Teachers Union (SADTU), while the employer, the Department of Education – Limpopo Province, was represented by Netshiomvani P.P, its official. The proceedings were digitally voice recorded and Christinah Hlongwane and Baloyi R.R were the interpreters. The intermediary was R.M Kupa. The employer handed in bundles of documents marked Bundle R and R1 respectively. There was no bundle of documents handed in by the employee. Issues to be decided.
This was an Inquiry by Arbitrator. I must decide whether the employee is guilty of the misconduct levelled against him or not. If found guilty, I must determine an appropriate sanction. Background and common cause issues
The employee, Ramovha Matodzi Theophilus is currently employed at Kutama Secondary School as CS1 Educator since 14 January 2014. He is earning a salary of R30 000.00 per month. He was charged with four charges of misconduct in terms of section 17 and 18 of the Employment of Educators Act, 76 of 1998 as amended (the Act). Charges 1, 2, and 3 have six (6) counts each, whilst charge 4 has one count.
Charge 1: You contravened the provisions of section 17 (1) (b) of the Act in that, during the year 2022 or at any period incidental thereto, at or near Kutama Secondary School, you committed an act of sexual assault on the learners in that:
Count 1: You tried to fondle breasts of a 14-year-old Grade 9 learner, ML,
Count 2: You tried to touch the private parts of a 14-year-old Grade 9 learner, ML,
Count 3: You touched the thighs of a 13-year-old Grade 9 learner, MN while in your car,
Count 4: You attempted to kiss a 13-year-old Grade 9 learner, MN while in your car,
Count 5: You asked MM, a 15-year-old Grade 9 learner if she was a virgin,
Count 6: You told MM, a 15-year-old Grade 9 learner that you wanted to put your hands in her private parts to check if she was indeed a virgin.
Charge 2: You contravened the provisions of section 18 (1) (a) of the Act in that, in the year 2022 or at any period incidental thereto, at or near Kutama Secondary School, you failed to comply with or contravened the South African Council of Educators Act, 31 of 2000 “Code of Professional Ethics” Item 3.5 by failing to avoid any form of humiliation, and refrain from any form of abuse, physical or psychological in that:
Count 1: You tried to fondle breasts of a 14-year-old Grade 9 learner, ML,
Count 2: You tried to touch the private parts of a 14-year-old Grade 9 learner, ML,
Count 3: You touched the thighs of a 13-year Grade 9 learner, MN while in your car,
Count 4: You attempted to kiss a 13-year Grade 9 learner, MN while in your car,
Count 5: You asked MM, a 15-year-old Grade 9 learner if she was a virgin,
Count 6: You told MM, a 15-year-old Grade 9 learner that you wanted to put your hands in her private parts to check if she was indeed a virgin.
Charge 3: You contravened the provisions of section 18 (1) (a) of the Act in that, in the year 2022 or at any period incidental thereto, at or near Kutama Secondary School, you failed to comply with or contravened the South African Council of Educators Act, 31 of 2000 “Code of Professional Ethics” Item 3.8 by failing to refrain from any form of sexual harassment (physical or otherwise) of the learner in that:
Count 1: You tried to fondle breasts of a 14-year-old Grade 9 learner, ML,
Count 2: You tried to touch the private parts of a 14-year-old Grade 9 learner, ML,
Count 3: You touched the thighs of a 13-year Grade 9 learner, MN while in your car,
Count 4: You attempted to kiss a 13-year Grade 9 learner, MN while in your car,
Count 5: You asked MM, a 15-year-old Grade 9 learner if she was a virgin,
Count 6: You told MM, a 15-year-old Grade 9 learner that you wanted to put your hands in her private parts to check if she was indeed a virgin.
Charge 4: By acting as in charges 1, 2, and 3 above, you failed to comply with or contravened the South African Council of Educators Act, 31 of 2000 “Code of Professional Ethics” Item 3.8 by behaving in a way that does not enhance the dignity and status of the teaching profession and that brings the profession into disrepute. Summary of the employer’s evidence. Three witnesses/complainants testified for the employer. The first complainant / witness of the employer was MN. MN testified under oath that:
She was in Grade 9 at Kutama Secondary School when the employee started to talk to her via social media. The employee told her via social media to come and meet him, but did not indicate the purpose. From there they met at Madombidzha Village (Madombidzha) after school. The day they met, she was going home to Midoroni Village (Midoroni) after visiting her siblings at Madombidzha. She knew where the employee stayed at Madombidzha as he showed her. While they were at Madombidzha the employee started to touch her thighs. The employee asked her the age and at that time she was 13/14 years old. Then the employee said she was very young, if she was old, he was going to kiss her. They were inside the employee’s car on the street when all this happened. She was dropped off by the employee at Tshiozwi Village (Tshiozwi).
During the cross-examination, she testified that she could not remember the day the employee called her to meet with him, it was not during the weekend. The employee did not kiss her on that day but told her that he was going to kiss her if she was old enough. They used to communicate via face book and sometimes the employee would call. The employee did not teach her during the year 2022. The employee touched her thighs by rubbing them (thighs) with his hand before asking her age. ML was her friend, but she was not influenced by ML to report the employee. She did not connive with ML to report him. ML was the first to report the matter and she followed. By the time she met with the employee, there were no allegations against him by ML. She does not have the face book account (account) anymore. The account was LOML RENDREH. She did not know how the employee got her account. She got into the employee’s car thinking that they would have normal conversations. The second witness/complainant of the employer was MM. MM testified under oath that:
She knew the employee, since he was teaching them Mathematics in 2022. On 01 February 2022 in the morning, she was late for school with her friends. It was her birthday, and she was talking about it with her friends. The employee heard it because he was coming from staffroom when they entered the classroom. The employee commented to say it is her (MM) birthday, but she was not a virgin. The employee continued to say she must come to him to check if she was a virgin. After a week she was called by the employee to the staffroom. She found the employee alone. The employee took her earrings and said her skirt was very short. The employee started to touch her on her thighs. She was scared and left to the classroom. She did not know how to report it to the principal. She shared this with her friend MM2. She referred to her statement on page 1 of bundle R1.
During cross examination, she testified that the employee was two steps closer to her and MM2 and he just interfered in her birthday talking with MM2. She does not think she could lie because she does not hate the employee. The learner who started to report her incident to the security officer was LM and thereafter she went and report her incident to the principal. Her incident was reported a week after LM because the day LM reported her incident to the security guard, the principal was not at the school, and it was Covid-19 time The third witness/complainant of the employer was ML. ML testified under oath that:
Page 11 of bundle R1 was her statement. The employee touched her on her thighs. She did not understand the employee when he said she must come to him and make things official. She also did not understand the employee when he said he miss her. The employee did not propose love to her. She does not hate the employee. When she said in her statement that the employee touched her where he was not supposed to, she was referring to the thighs. She became emotional when she saw the employee the next day because she thought he was taking advantage of her. She confronted Ms. Machaba but she said she did not notice the incident.
During cross examination, she testified that the day she wrote her statement, she was mixed-up and fed-up. She did not write everything that happened on that day in her statement. Ms. Phephenyane is the educator she used to. From 2022 till to date, they take lunch together. She was not aware that Ms. Phephenyane and the employee were not talking to each other. Ms. Phephenyane was not aware that she reported the incident. The employee was in love with MN and her incident happened during that time. MN told her that the employee touched her (MN) breasts and thighs and she (MN) had some feelings. She was seen by MM coming from staffroom crying. She reported the incident to Ms. Madzhasi because the principal and the teachers were not there. She was referred to Madzhasi by the security guard. Ms. Machaba was in the staffroom at her desk when she was touched on her thighs by the employee. She did not make Ms. Machaba aware because she ran away from the employee after been touched. Summary of the employee’s evidence. Two witnesses testified for the employee. The first witness was the employee himself. Ramovha Matodzi Theophilus testified under oath that:
He understands the charges leveled against him. He did nothing. He does not know about all the allegations. He did not do it. He was the site steward of the South African Democratic Teachers’ Union (SADTU). He knew MN during the time he taught her Math’s and Physical Science in grade ten (10) in 2023. He never had a friend by the name of MN in social media. He remembered giving MN a lift in 2022 when he was coming from Louis Trichardt to Madombidzha. The learner, MN stopped him, and he stopped without knowing who the learner was. On their way MN told him that she was from Kutama Secondary School and attending school at Kutama Secondary School. There was no contact between him and MN from the time he met with her until he dropped her off at Tshiozwi village. He did not ask MN her age but just estimated it. He has been with the learner, MN in his car once in 2022, the day he gave her a lift.
12 MM came to him running showing that she was happy. That was her (MM) birthday and she was still a virgin. The learner asked him to buy her birthday present, but he did not. The learner, MM was the one who told him that she was a virgin. He was not involved in the issue of skirts and trousers, but the other lady teacher was. He does not remember touching MM’s thighs.
He never touched ML’s thighs. He was not aware that he was regarded by learners as someone who liked dating learners. His relationship with ML was that of a learner and teacher. He did not lift ML’s skirt. He never said he was missing a learner. The three learners (MN, MM and ML) were friends, and they were adamant that they would destroy him because of their earrings he confiscated from them. The three learners connived to bring him down by reporting this matter to management. The three learners gave the same evidence when it comes to the touching of thighs. Mr. Majasi called him and told him that he (Majasi) heard learners talking amongst themselves about the sexual matter against him (employee).
During cross examination, he testified that he never spoke to MN in social media. He passed his home and decided to take MN to Tshiozwi village because he could not have left her along the road.
He does not have an answer as to why MM choose him amongst all the male teacher and asked birthday present. He did not write in his statement about the virginity of the learner, MM because he was given short time. He told MM that she was not a virgin because it came from him.
He does not remember touching ML’s thigh. The learners were forcing themselves out of class and he was pushing them into the class. He colluded with the learners in that process. The second witness of the employer was Machaba Madala Onicca. Machaba Madala Onicca testified under oath that:
She worked at Kutama Secondary School from 2014 to 2024. She used to sit in the same staffroom with the employee while she was at Kutama Secondary School. She used to sit in the middle of the staffroom. She knew ML as a learner at Kutama Secondary School. ML would come to the staffroom to get clarity on certain studies related issues or submit books. She never saw ML been touched by the employee. She does not know about the incident. He would not have seen the incident happened because on top of her table there are boxes which blocked her from seeing what was happening. The only time she heard about the incident was when ML came to him to ask if he saw her been touched by the employee and she responded in the negative. She told ML that she did not observe her (ML) been touched. Analysis of the evidence and arguments
The employer was required to prove on the balance of probabilities that the employee is guilty of all the allegations. I have considered the closing arguments of the parties together with the oral evidence led, in determining the outcome of this matter. The employee was charged with committing an act of misconduct in terms of Sections 17(1)(b) and 18(1)(a) of the Employment of Educators Act, 76 of 1998 in that he committed an act of sexual assault on learners MN, ML, and MM who were then in Grade 9 at Kutama Secondary School.
It is common cause that the employee was an educator at Kutama Secondary School and MN, ML, and MM were learners of that school in 2022. The testimony of the employer’s witnesses, MN showed that the employee touched MN’s thighs and attempted to kiss her. The learner, MN testified that the employee arranged to meet with her at Madombidzha on a weekday in 2022. She testified that indeed they met. While she was inside the employee’s car, he started to touch her thighs and asked her about her age. She told the employee that she was around 13/14 years old. Then the employee told her that he was going to kiss her, but because of her age, he will not. The employee in his testimony conceded that he met with the learner, MN. According to the employee, he was coming from Louis Trichardt to his home in Madombidzha village in 2022. He testified that MN stopped him, and he gave her a lift without knowing her. He became aware that MN was a learner at Kutama Secondary School while they were already in his car. He dropped MN at Tshiozwi. It is, therefore, my belief that the employee might have arranged with MN to meet at Madombidzha village. There are common denominators in the evidence of the employee and MN. They met at Madombidzha, even if the way they met is different. They also found themselves in the car of the employee travelling from Madombidzha to Tshiozwi. The year they met was 2022, even though there was no specific date. The inference that one can draw out of this is that the employee may have touched the thighs of the learner, MN and attempted to kiss her. MN testified that the employee asked her the age and the employee testified that he estimated the age of MN. This also showed that the two discussed about the age of MN. It must be remembered that the employee testified that he stopped and gave MN a lift without knowing her. This evidence is improbable. Why would the employee stop and give somebody he did not know a lift near his home, Madombidzha. The employee even drove pass his home to Tshiozwi. In view thereof, I find the employee guilty of counts 3 and 4 of charges 1, 2, and 3.
The learner, MM’s testimony was that the employee told her that she was not a virgin. The employee also told her that her skirt was short and touched her thighs. The employee testified that it was the learner, MM who told him that she was a virgin. There was no evidence from MM about the putting of hands in her private parts to check her virginity. I have deduced from the evidence of both the employee and MM that the issue of virginity was discussed. The facts that MM testified that the employee told her that she was not a virgin, and the employee testified that it was MM who told him that she was a virgin, proved to me that the virginity of MM has been spoken about by the two. It is, therefore, my belief that the employee might have asked MM if she was a virgin. In view of this, I find the employee guilty of only count 5 of charges 1, 2, and 3.
The testimony of ML was about the employee touching her thighs. The employee has disputed that. There was no evidence before me by ML to the effect that the employee fondled her breasts and touched her private parts. In view of the above, I find that the employee is not guilty of counts 1 and 2 of charges 1, 2, and 3.
Based on the testimony of the employer and the bare denial of the employee, I find on a balance of probabilities that the employee sexually assaulted the learners, MN and MM. Therefore, I find the employee guilty of Counts 3, 4, and 5 of charges 1, 2, and 3. However, due to the fact that the employee has been found guilty of charges 1, 2, and 3, he is also found guilty of charge 4. He is found not guilty of the other counts, 1, 2, and 6 of charges 1, 2, and 3.
In view of the above analysis, it is therefore my finding that the employer has on the balance of probabilities proved that the employee has committed the misconduct as charged in terms of sections 17 (1)(b) and 18(1)(a) of the Employment of Educators Act, 76 of 1998.
Having found the employee guilty as charged in terms of, inter alia, section 17(1)(b) of the Employment of Educators Act, 76 of 1998, it follows that the sanction of dismissal is mandatory, irrespective of the mitigating factors. The interest of the learner should prevail. Sexual assault of learners by an educator is not acceptable in a school environment. Educators play a role of a parent at school. They must ensure that learners are educated.
The employer has in its closing arguments submitted that the employee is not suitable to work with children. Section 120(1)(c) of the Children’s Act, 38 of 2005 makes provisions that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. The employee was found guilty as charged. Considering the above, I make the finding on the unsuitability of the employee to work with the children in terms of section 120(2) of the Children’s Act, 38 of 2005. Award
I find that the employee, Ramovha Matodzi Theophilus is guilty of charge 4 as well as Counts 3, 4, and 5 of charges 1, 2, and 3.
I impose the sanction of mandatory dismissal with immediate effect.
Mr. Ramovha Matodzi Theophilus is found to be unsuitable to work with children in terms section 120(4) of the Children’s Act, 38 of 2005.