Case : ELRC378 – 20/21KZN
Date of Award: 09 November 2021
Panelist : Vuyiso Ngcengeni
Province : KwaZulu Natal
Employee : NM Mbatha
Employer : Department of Education – KwaZulu Natal
Issue : Enquiry by Arbitrator
Venue : Depart’s premises in Kokstad

Employer representative : Mrs Nontobeko Magoso
Telephone : 079 519 8473
Email : nontobeko.mazibuko@kzndoe.gov.za

Employee Representative : absent
Cell :
Email : Lungile.legal@natu.org.za

SECTION 188 DEFAULT ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was scheduled before me on 5th of November 2021 at the Employer’s premises in Kokstad, under auspices of the Education Labour Relations Council (the Council). The matter was held in terms of s188A of the Labour Relations Act of 1996 as amended (the Act) in conjunction with Collective Agreement 3 of 2018 which allows for such cases to be held accordingly.

2. The Employer was represented by Mrs Nontobeko Magoso and the Employee was not present. After perusing the file, I noticed that the Employee’s representative was informed of the set down on 5th October 2021 to her email address as written above. I was therefore satisfied that the Employee was duly notified of the hearing and I thus proceeded with the hearing in terms of section 138 (5)(b)(i) of the Act.

3. This matter is about an alleged sexual misconduct with a learner, as such, services of an intermediary were utilised.
4. The hearing was conducted in English, there was an isiZulu interpreter.

5. The names of the children who testified are not disclosed in terms of clause 5.3 of Collective Agreement 3 of 2018, and I will therefore refer to them as Learner A and Learner B.

ISSUE TO BE DETERMINED
6. I am called upon to determine whether the Employee is guilty of the charge that that he is accused of. The charge is written as follows: –
6.1 You committed an act of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, 76 of 1998 in that you sexually assaulted learner by the name of “Learner A”, on 14 February 2019 when you touched her buttocks.
6.2 You committed an act of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, 76 of 1998 in that you sexually assaulted learner by the name of “Learner B”; in 2019 you touched her buttocks and fondled her breast.

7. Given the fact that the Employee was absent, there was no pleading on the matter and I therefore ordered the Employer to lead its evidence.

BACKGROUND TO THE DISPUTE
8. The Employee is employed as a level 1 Educator, based at Nonkqubela Primary School, and that is where the alleged incidents took place.

9. The Employer referred this matter to the Council for an Enquiry by Arbitrator on 21st September 2020. The matter was first set down for 28th April 2021 wherein I postponed it after the Employee was not present and upon calling him, he indicated that he was not informed.

10. Again, the matter was set down for 15th July 2021 and it did not continue, after the Employee representative requested postponement. It was again set down for 27th September 2021, but could not proceed, after the Council decided to postpone it due to unavailability of an intermediate. It was then set down for 5th November 2021 and the notice of set down was sent to the parties on 5th October 2021.

SURVEY OF EVIDENCE AND SUBMISSIONS
Employer’s case

Learner A testified under oath as follows:-
11. She is 15 years old and was 13 years at the time of the incident involving the Employee. In 2019, she was a learner at Nonkqubela Primary School and the Employee was a class teacher for grade 6b whilst she was on grade 6c.

12. On 14th February 2019, it was a Valentine’s day and whilst she was sitting and watching a competition (game) at the school, she felt a hand entering her buttocks. She was wearing a jean and a red top at the time. Upon feeling the hand on her buttocks, she turned around and looked behind and she saw the Employee. The Employee laughed.

13. It was wrong for the Employee to have touched her buttocks as he was not allowed to touch her private body parts. They are at the school to learn, and not to be touched on their private parts. As he touched her buttocks, she felt scared and shocked, wondering why did he do that. She did not ask him why he put his hand on her buttocks.

14. She told her friend, C about the incident as they were sitting together. At the time he touched her buttocks, C had gone away to buy some ices around. She did not report the incident to any other person. She also did not report it to her mom as she was scared that her mom is always angry and would react badly.

15. Then after about two months, Ms Ndumndum, Mr Vusane and one other, visited classes one by one and asked them whether was there anyone who was touched on her private parts either by a fellow learner or a teacher. She did not talk as she was scared and embarrassed since there were other learners in the class.C told her to speak about the incident or she (C) would do so. She then spoke out. After that, she was taken to Ms Nogcansti’s office and told to write a statement, which she did.

16. The principal, Mrs Boyce, gave a form to take home, and after that, officials from the Department of Education arrived and she explained to them what happened.

17. It was wrong for the Employee to touch her private parts as he had no right to do that. Such a conduct might lead to him raping her.

18. Answering to my questions, she said when she looked backwards, at the time when the Employee touched her, there was no other person, other than the Employee and herself who could have witnessed that. All other people were at the front and the Employee came from behind. She was seated down and the Employee looked like he was passing on her back, he came from behind, on her right hand side towards left, and he used his right hand to touch her.

Learner B testified under oath as follows:-

19. In 2019, she was a learner at the school and was 14 years old at the time, she is now 16 years old. She knows the Employee and he was her English Teacher.

20. One day in 2019, when she was not at school, she discovered that they wrote an English test. Then in the following day in the morning, she went to the Employee and requested an exercise book in which she wrote tests and assignments, since she did not write the recent test.

21. The Employee touched her buttocks, she moved backwards and he moved towards her and touched her buttocks again. Then he went to fetch the book. He said he was going to the toilet, when he was coming back to the class, he peered through the window and looked at her. He then came inside and asked a question. She was amongst the learners who raised their hands and he asked her, she answered. He then came to her and said ‘very good’ and touched her shoulders and brushed her breasts. That was in front of the learners.

22. She was scared, disappointed and sat quietly in the class room, not talking to anyone. It was wrong for the Employee to touch her buttocks and her breasts as he was not supposed to do that. She respected him and took him like her father.

23. She did not report the incident to anyone because she was scared. Bayanda, who was also in the class at the time and is also her relative, reported the matter to her parents. Her parents came to the school and had a meeting with the principal.

24. She is always thinking about the incident and she has flashbacks of the incident such that even when she is sitting with her father, she is not free and she is scared of men.

Closing arguments
25. Learner A testified that she was 13-year-old during the alleged sexual assault happened to her, now the learner is 15 years. She narrated the day of the incident in detailed with all the things that happened on the day. She was also emotional when narrating the incident which proof that she was traumatised by the incident.

26. The fact that the educator laughed after he put his hand on the learners’ buttocks, he was aware what he was doing was not supposed to be done.

27. Learner A was also aware that it is improper and unacceptable for a man to touch her private party which can also lead for the educator to rape her. If a 15-year-old is aware of that rule that it is improper to touch a woman on her private part without her consent is wrong therefore an older person like the educator ought to know of the rule.

28. Learner B was also consistent on her evidence even though she could not recall the day or the month when the incident happened, but she said that the incident happened before June 2019, where the educator touches her buttocks in a classroom the educator after that went to the toilet, he continues with the sexual assault of learner B.

29. The sexual assault of learner B traumatised her in such away that he is afraid even to be alone with his father, these show how learner B was traumatised by the educator. Learner B is traumatised in such away that she does not trust man anymore, the trust that she has for the educator Mbatha is broken.

30. Both the learners were reliable witnesses and they were firm in their evidence. Their evidence must be admitted as the true evidence since the respondent decided not to appear for the hearing.

31. The respondent indicated that he was not aware of the date of the hearing but indicated that he was going to call the ELRC office’s today; that is questionable why did he decided to query the ELRC for the date today on the day of the hearing.

AGGRAVATING FACTORS
32. Mr Mbatha contravened the Code of Conducts and Ethics of SACE

• Failed to treat learners with dignity.
• Section 3.6 which state that the educator must refrain from physical contact with the learner.
• 3.9 refrain from any form of sexual harassment
• 3.12 take reasonable steps to ensure the safety of the learners.

33. The educator contravened the Employment of Educators Act Section 17(b) which is a serious offence and a dismissible offence.

34. He contravened the Section 28(2) of the Constitution of the Republic of South Africa which provides that the best interest of the child is of paramount importance in every matter concerning the child. He also contravened Children’s Act 38 of 2005 which gives legal effect to the rights of children

35. His conduct also put the Department of Education into disrepute. He is no longer fit and proper to be an educator, nor he can be trusted with children and the relationship between the applicant and the respondent is broken and can never be retrieved since his duties he only deals with the learners, if he is found guilty of the offence he must be dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENTS

36. It is a fact that the testimony submitted by the Employer in this regard is uncontradicted and it is the only evidence that I have.

37. Learner A submitted a very good recollection of the events of 14th February 2019 with clear details. It became apparent that such events have left indelible mark in her memory, and one can also say, indelible scars.

38. The Employee, by inserting his hand on Learner A’s buttocks violated her rights, embarrassed her and put a 13 year old in a shameful position. She was left wondering what is it that the Employee was trying to do, and she was so embarrassed such that she could not even freely report the matter, even when such opportunity was presented during the class visits conducted by the team of three teachers, until her friend threatened that she was going to speak out on her behalf.

39. Certainly, such an action in my view constitutes a serious violation of the child’s rights and dignity, and more so as it was committed on a child as young as only 13 years. This is one of those most embarrassing actions which have the potential to destroy the child’s confidence as it puts her in a situation where she always has to deal with the question of why did the Employee did this to her. As a matter of fact, as clear in her recollection of the details as she was, she was still emotional in her recollection, such that she cried during her testimony.

40. Learner B stated that the Employee touched her buttocks twice, despite her attempts to move away from him, he moved closer and touched her again. She further testified that he later went on and also brushed her breast.

41. Again, the Employee’s actions towards Learner B’s clearly depict a picture of someone who feels he could do whatever he wants with young children. To brazenly touch the learner’s buttocks twice and brush her breast in full view of other learners is quit telling of the Employee’s dangerous and repugnant conduct when amongst children.

42. It has to be borne in mind that the teachers are proxies for parents at the school, and their actions to the learners are viewed in such context. This was even more palpable when Learner B said that subsequent to the Employee’s actions to her, she was scared, disappointed and sat quietly in the class room, not talking to anyone. She further said she looked at him as her own father.

43. On both learners, the Employee’s conduct is very embarrassing and distasteful.

AWARD

44. The employee, Mr NM Mbatha, is found guilty of Charges 1 and 2.

45. The employee, Mr NM Mbatha, is dismissed with immediate effect.

46. The employer, the Kwazulu Natala Department of Education must inform the employee, Mr NM Mbatha of his dismissal immediately upon receipt of this award.

47. The Council as the Administrator and custodian of this s188A inquiry is therefore entitled:

47.1 In terms of section 122 of the Children’s Act, Act 38 of 2005 , to notify the Director General – Department of Social Development, in writing of the findings of this Tribunal.

47.2 To send a copy of this arbitration award to the South African Council for Educators (SACE) for the revoking of Mr NM Mbatha’s SACE Certificate.

Vuyiso Ngcengeni
Panelist / Commissioner