Arbitrator: Macjon Maarman
Case number: ELRC864-24/ 25EC
Date of Award: 10 March 2025

Department of Education, Eastern Cape Employer
and
Mr. Heinrich Baartman Employee

DETAILS OF HEARING AND REPRESENTATION

1. The matter was referred for an Inquiry by Arbitrator to the Education Labour Relations Council (ELRC) for a dispute relating to alleged misconduct (sexual assault of a learner) in terms of section 188A of the Labour Relations Act No 66 of 1995 as amended (the LRA) and ELRC Collective Agreement 3 of 2018 Inquiries by Arbitrators Cases of Disciplinary Action against Educators charged with Sexual Misconduct in respect of learners, dated 25 September 2018 (the Collective Agreement), read with clause 32 of the ELRC Dispute resolution procedures, for a disciplinary hearing in the form of an arbitration.
2. The matter concluded on 26 February 2025 at the offices of the employer in Gqeberha.
3. The Employer, the Department of Education, Eastern Cape, was present and represented by Mr. Sandiso Xhalasile, its Labour Relations Officer. Mr. Heinrich Baartman (herein after “the employee”), was present and was represented by Mr. Lloydd Cunningham, an official from the South-African Democratic Teachers Union (SADTU). The intermediary in this case was Ms. Nolulamo Nxala who was appointed by the ELRC. The learner is a minor and the words “LB” will be used when referring to her and when her testimony is outlined.
4. The proceedings were manually and digitally recorded. Neither party submitted any bundles of documents. I adopted an inquisitorial approach. Parties submitted closing arguments on the agreed date.
   The charges against the Employee
5. The Charges against the Employee was “On or about 11 September 2024 at Ethembeni Enrichment High School you are alleged to have sexually harassed LB, a grade 10 learner. You allegedly pinned her against the wall and inserted your finger in her private part”.
   The Plea
6. The employee pleaded Not guilty to the charges.

ISSUE TO BE DECIDED

7. I am required to determine whether the employee is guilty of the charges that was levelled against him.

SURVEY OF EVIDENCE AND ARGUMENT

8. This award does not contain everything that was said that the arbitration or in the arguments of the parties. It only records the evidence and arguments material to the subject matter and the finalization of the dispute. This is in line with section 18.6.1 of the ELRC constitution as well as section 138 (7) of the LRA. The Employer’s case
9. LB was the first witness for the employer. She testified that she is currently in grade 11 and that on the morning of 11 September 2024 she was sitting alone on the stairs at the school preparing for that days’ geography control test/ exam. She said that the employee who is her geography teacher arrived and he asked her to assist him to hoist names of the learners that are due to write the tests. She said that when they arrived at Room 17 to hoist the names they found other learners in the class whom the employee then instructed to leave and prepare elsewhere for the test.
10. She said that the employee then pinned her against the wall and told her to pull up her skirt. She then told him she cannot do that as it’s a public place and there is a window. The employee then told her that no one will see and he then lifted her skirt, pulled down her tights massaged her vagina and inserted his finger into her vagina.
11. LB said that she was not comfortable with that, tried to push his hand away but he was more powerful than her and when he said no one will see his voice was harsh.
12. LB said that when she was in grade 8 (two years earlier) at the same school, the employee was her Natural Science teacher and when she went to his office to tell him that he is needed in class, he then told her to pull up her skirt as he wanted to see her vagina. She said that she was shocked at that but he repeated his request and she did as he asked. She said that it was very traumatic for her and she tried by all means to “forget it”.
13. LB said that she now has emotional and physical issues after her ordeals which is as a result of what the applicant did to her. She said she now suffers from anxiety. LB broke down in tears and the proceedings paused.
14. LB continued to testify and said that the employee stopped after some time after he inserted his finger into her vagina and after he stopped he told her that they must proceed to his office. On their way to his office other learners approached him querying what might be in the upcoming test which gave her a chance to take her backpack and go another direction.
15. Under cross examination LB said that she has never made false allegations against anyone before not does she have any personal or financial motivations to make these allegations against the employee.
16. LB said that when she was in grade 9 the employee gave her and her siblings lifts sometimes to school when he found them along the road. The employee would drop off her younger siblings and take a detour to their school. He would then stop along the way (detour route), instruct her to pull up her skirt, pull down her tights and panties and put his hand on her vagina. He would then tell her that he “misses her”.
17. LB said that she did tell her cousin about this who advised her to write a letter. She said that the lift taking happened on three occasions in 2023 and the reason why she did not decline the lifts was because the employee would call out her name and surname in front of her siblings and she did not want to answer the possible many questions that her younger siblings would ask her in the event that she declined the lifts.
18. LB said that when the employee placed his hand on her vagina in his car she became scared, froze and could not do anything. She said that the reason she did not tell anyone at school about this was because she felt that what happened to her was a disgrace [touched inappropriately] and that she thought that since the employee was a deputy principal the teachers would believe him.
19. LB continued to testify and said that Ms. Jakavula is like a parent to her at the school hence she informed Ms. Jakavula about the incident and the principal later on asked her to explain what happened.
20. LB lastly said that she has been seeing a psychologist before the incident of 2024 as recommended by her doctor and her emotions were “here and there” hence she decided to ignore them on the day of the incident and still went to write her exam/ control test of which she later on discovered that she did very well in even though she received flashbacks of the incident in that exam.
21. Ms. Nobathembu Mandima (herein after “Ms. Mandima”) was the next witness for the employer. She said that she is the principal of the school and that the LB’s mother came to her in October 2024 saying that she discovered that her daughter was molested by the employee.
22. Ms. Mandima said that she then said to the employee that “there is another child” [who accused the employee of inappropriate things] to which the employee replied “argh fok man…she must never come to my office again” after she told him who the learner was.
23. Ms. Mandima set out that there was not much help that the school could give the learner as she was already seeing a psychologist. She said that in 2023 there were 3 incidents where the employee was implicated [accused] by learners. Those cases were all referred to the Department of Basic Education who have till date not given her clarity where the investigations were. In one of those cases a learners’ cell-phone was supposed to have been taken in with all other cell-phones. The learner who had a cell-phone for a longer period of time reported that the employee said that in return he wants to “see her breasts”.
24. Ms. Mandima continued to testify and said that when she moved the angle of the camera in his office for a better view of what happens in his office their relationship began to deteriorate. She said that she cautions the teachers all the time to try to never be alone with any learner and that a door must always be open when they are alone with a learner.
25. Under cross examination Ms. Mandina said that the shift in the camera position would have protected the employee but he rather got angry about it. She said that the reason given to her as to why LB was already at a psychologist was due to previous panic attacks. She said that the informed the Circuit manager who was supposed to refer the matter to the Education Social Support Services Unit.
26. Ms. Noluthando Jakavula (herein after “Ms. Jakavula”) was the next witness for the employer. She said that LB came to her and told her that she wanted to see her privately after one of their tests. LB then told her that she “thought it had ended”; that the employee has been sexually violating her since Grade 8 and did it recently again.
27. Ms. Jakavula said that she asked LB to expand about the recent incident and LB said that on 11 September 2024 the employee pinned her against the wall, asked her to pull up her skirt and down her tights and panties and inserted his finger into her vagina. She said that LB said that she could not scream nor do anything at first because she was scared of the employee. She eventually pushed him away.
28. Ms. Jakavula said that the principal always cautioned the teachers to guard themselves as the teachers around and with the learners. They must try to never be alone with the learners and keep their distance from the learners. She said that the learner normally sat in front of her class so she realized that the learner was not herself on the day she asked to speak with her privately.
29. Ms.Bianca Frieslaar (herein after “Ms. Frieslaar”) was the next witness for the employer. She said that she a Psychologist and the bulk of her 14-year career as a psychologist has been with young people. She said that a medical doctor referred LB to her for generalized anxiety disorder [before the incident]. LB had school and some home related/ personal stress.
30. Ms. Frieslaar said that in her October 2024 session LB’s appearance was different. She was uneasy and disclosed that she was sexually violated by her geography teacher who is the employee. She said that L was sad, afraid and did not make eye contact. It was difficult for LB to speak and there was fear and sadness in her eyes due to the violation to her by an adult, which happened at school and was further done by an educator.
31. Ms. Frieslaar said that she feels that LB’s mental state is declining and symptons of depression is arising. She might need to be referred to a psychiatrist for medication. The upcoming arbitration also stressed her as she knew she needed to come and testify and generally it is not easy for victims to disclose their uses.
32. Under cross examination Ms. Frieslaar said that LB confirmed that there was no penis penetration and that she and LB’s session had intervals of 2 to 3 weeks hence the only saw LB in October 2024. Ms. Frieslaar lastly said that LB is an intelligent young person hence she was able to compose her [for the arbitration] and she was encouraged to speak eloquent and confidently.
33. The last witness for the employer was UB (also a minor) who set out that the employee indeed stopped and gave them lifts in 2023. He would then first drop them off at their school and drive with LB to their school. UB further said that her school starts at 7:45am and she does not remember what time they were picked up but there was normally enough time for her to still play with her friends at school.
34. The employer in their closing arguments said that where there is smoke there is fire. LB’s trust was betrayed by Mr. Baartman. She looked up to him…to help her navigate school life so that she can be a successful adult. He not only betrayed her trust but the trust of her parents who sent their child to school to get an education to ensure that they become good citizens.. The Employee’s case
35. Mr. Heinrich Baartman (herein after “the employee”) testified in his own defense. He said that he is the deputy principal at Ethembeni Enrichment High School and that he received his precautionary suspension on 13 November 2024. He was simply given a suspension letter and he does not have any previous warnings from the employer. He was furthermore never asked to participate in any investigation and received the charge sheet a month later.
36. The employee said that the principal once called him informally saying that LB is accusing him of sexual assault which he told her was untrue and that if the employer had properly investigated the matter then “we would not be here” [need for a hearing].
37. The employee said that he became a teacher in 2015, is a family orientated person, is a youth leader in church and he enforces discipline at school. He said that he became a deputy principal in 2021 which was a huge achievement for a young person. He forms part of various community upliftment projects and the whole community where he stays looks up to him.
38. The employee continued to testify and said that LB came to the High School in 2022 and he taught her Natural Science in Grade 8 and taught her Geography in 2024. He said that after she joined grade 10 she came to him and told him that she was not performing as well academically as she did in the previous grades. She also used to come to his office asking for a pen or pencil as she was a Representative of Council of Learners (RCL) member.
39. Mr. Baartman said that he only had a professional relationship with LB and he never asked for her assistance with anything.
40. The employee said that he disputes LB’s testimony [sexual assault], that he never pinned her against any wall; nor inserted his finger into her vagina and that her previous anxiety was caused by the fact that she did not do well in the first two terms of Grade 10.
41. The employee continued to testify and said that he gave LB and her sibling lifts with his car on two occasions due to the weather on those days. On the one day it drizzled and on the other day it was extremely hot. He said that it was further untrue that he took a detour with his car.
42. The employee further said that people ask him why he is not at school; that he is heart sore and can’t comprehend on what to do next.
43. The employee set out that he taught another learner in 2022 who was not happy with her marks and went to consult another teacher who also taught Geography. The other teacher apparently told her that she is deserving of the marks but he insisted that she was not. Rumours later ensued that he and that learner had slept together through a piece of paper that that learner showed another learner.
44. Mr. Baartman continued to testify and said that the issue of another learner who made false allegation against him later on fell pregnant by someone else and could have wanted to pin it on him. He said that all the allegations were inconclusive. He said that he has never done what he is accused of doing, that he feels angry for being treated like a peadophile and that he grew up with sisters and he teaches his sons to respect women.
45. Under cross examination Mr. Baarmtan said that LB might have affection towards him or her academic challenges might be the reason she is accusing him and that his thinking is that LB said that she will not do well in her September 2024 control test and the results was only given in October 2024. He said that three classrooms would have been used to write the test on 11 September 2024 but LB only made reference to one classroom.
46. Mr. Baartman lastly said that he did not know that he could have brought a colleague from his previous school or community member as his trade union never told him that. He said that he never did anything to LB either in grade 8, grade 9 or grade 10.
47. The trade union in their closing arguments said that it is highly likely that LB as an intelligent teenager could not deal with the everyday stresses of being a well motivated student who strives to perform at the highest level and needed an outlet to vent some of her frustration in dealing with everyday anxieties. As an intelligent, eloquent and calm young lady she came across very confident and could articulate her dispositions very well. It is unlikely that such a fine young lady would allow herself to be trapped into another uncomfortable situation with her alleged perpetrator.

ANALYIS OF ARGUMENT:

48. It is for the employer to prove the guilt of the employee on the charges on a balance of probabilities. If he is found guilty, an appropriate sanction, must be imposed. Considering that these offences relate to sexual assault of a learner in terms of Section 17 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 the mitigating circumstances. The employee was also charged with offences relating to section 18 (1) (q) of the Act, where it has to be determined whether the particular misconduct warrants dismissal.
49. A further consideration which is also acknowledged in the Collective Agreement is that in dealing with this matters of this kind according to Section 228 (2) of the Constitution of South-Africa, the best interest of the child is of paramount importance. 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 a right to be protected against sexual abuse from educators.
50. 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. In 2024 and at the time of the charges against the employee the learner was 16 years old.
51. The charge that was levelled against the applicant was related to “event” of 11 September 2024. LB was in grade 10 and Mr. Baartman was her geography teacher and also the deputy principal of the school. LB gave a clear and graphic description of how event unfolded when Mr. Baartman found her on the stairs until other learners stopped him asking questions about the upcoming test/ exam.
52. Ms. Jakavula said that LB was “different” when she asked to speak to her and told her about the alleged sexual misconduct. Ms. Frieslaar, LB’s psychologist said that LB had fear and sadness in her when she told her about the alleged sexual misconduct.
53. LB remained consistent about the events of 11 September 2024. She corrected the interpreter when she thought the message might be lost in translation. The trade union representative described LB as brave in these proceedings. I thus find her testimony to be credible.
54. The employee had a duty “to defend himself” in these proceedings. He had to put his version of events to LB. He did not do that. He rather attempted to poke holes in the version of LB by for example asking what happened to the other rooms where learner names had to be hoisted. If he did give a version or “his side of the story” then it was that LB was a teenager with an infatuation with him.
55. Based on the consistent narration by LB; the immediate observations of Ms. Jakavula and Ms. Frieslaar; the absence of any other version of events of the morning of 11 September 2024 I find the version of LB more credible and probable.
56. To my mind there is no reason as to why LB would specifically choose Mr. Baartman to make false allegations against amongst all other male educators at the school or who taught her. Nothing from this arbitration draw me to conclusion that there may have some other underhanded reason to such or whether LB had something personal to gain from making the allegations against Mr. Baartman. There is thus no justifiable reason for her to fabricate such a story.
57. Having considered all the evidence, I 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 credible evidence that its version is more probable and an acceptable version and its witnesses were credible”.
58. 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 the charges in respect of article 17 (1) (b) of the Employment of Educators Act 76 of 1998 to sexual assault and article 18 (1) (q) offences in that he also conducted himself in an improper, disgraceful and unacceptable manner.

Ruling

In terms of section 120 of the Children’s Act 38 of 2005, I find that the employee, Mr. Heinrich Baartman is unsuitable to work with children. The General Secretary of the ELRC must in terms of section 122 (1) of the Childrens’ Act, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120 (4) of the Childrens’ Act that Mr. Heinrich Baartman is unsuitable to work with children for the Director General to enter his name as contemplated in section 120 Part B of the register. Panelist: Macjon Maarman ELRC864-24/ 25 EC

The employee, Mr. Heinrich Baartman, is guilty of the charge of sexual misconduct.

60. The employee, Mr. Heinrich Baartman is dismissed from the service of the employer, the Department of Education, Eastern Cape, with immediate effect.
61. In terms of section 120 of the Children’s Act 38 of 2005, I find that the employee, Mr. Heinrich Baartman is unsuitable to work with children. The General Secretary of the ELRC must in terms of section 122 (1) of the Childrens’ Act, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120 (4) of the Childrens’ Act that Mr. Heinrich Baartman is unsuitable to work with children for the Director General to enter his name as contemplated in section 120 Part B of the register.

The employee, Mr. Heinrich Baartman is dismissed from the service of the employer, the Department of Education, Eastern Cape, with immediate effect.

Panelist: Macjon Maarman

ELRC864-24/25EC