IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CENTURION

In the matter between: –

DEPARTMENT OF EDUCATION- GP EMPLOYER

AND

SHEKWA MKHULULEKO ABEL EMPLOYEE

ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
Heard: 07th of June and 23rd of July 2024
Closing Arguments: 30th of July 2024
Mitigating / Aggravating Factors: 30th of July 2024
Date of Award: 09th of August 2024
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A : Enquiry by Arbitrator.

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The enquiry was held virtually at the employer’s Tshwane South District Pretoria Offices on 07th of June 2024 and at the Council’s Centurion offices on 23rd of July 2024.

2. The employer was represented by Mr Mogoba Tsebe. The employee, Mr Mkhululeko Abel Shekwa elected to present his own case. This was despite my advice for him to seek representation from his union. The proceedings were recorded digitally. The employer submitted their closing arguments on 30 July 2024. The employee failed to submit same.

ISSUE TO BE DECIDED
3. I am required to determine if the Employee had committed sexual assault offence against a learner as proffered by the Employer. If I find the Employee guilty of the offences, I will determine the appropriate sanction.

ALLEGATIONS PROFFERED AGAINST THE EMPLOYEE
4. Mr Shekwa pleaded not guilty to a count of misconduct levelled against him in
terms of Section17(1)(c) of the Employment of Educators Act, Act 76 of 1998
(“Act”): –

Allegation 1:

Having sexual relationship on or around the November 2022
with KK, a female learner who was in Grade 10 at Edward Phatudi
Maths, Science and ICT School of Specialization, at the school he
is employed as an educator,

EVALUATION AND SUMMARY OF EVIDENCE

The following issues are common cause between the parties:

4.1 Mr Shekwa was employed as educator at the school;

4.2 At the time of the alleged incident in 2022, KK was 15 years and was doing grade 10.

4.3 Mr Shekwa has been in WhatsApp communication with KK

5. Eric Hlungwane testified for the employer that he is an educator at the school and
forms part of the school management team `SMT’. He did not know about the
sexual relationship. He was on leave from 20th of September 2022 and returned
in August 2023.

6. When he returned KK approached him and informed him that she has a baby, and
the father is Mr Shekwa. She told him that the principal was not aware because
when her parents came to report the issue to the principal, Sithole another
educator, obstructed them from doing so. He encouraged her to report to the
principal.

7. Sifiso Sithole testified for the respondent that he is an educator at the school. He
had a normal working relationship with Mr Shekwa. He stopped greeting Mr
Shekwa when he did not greet him back. He realized Mr Shekwa wanted to keep
to himself and decided to give him space.

8. During February 2023, KK`s friend approached him that KK was crying and refusing
to talk. He went to check on her at the school. She eventually told him that she
was upset because she was pregnant, and the father was denying paternity. She
pointed at Mr Shekwa who was passing by, that he was the father of the baby she
was carrying. He went to report to the social workers but was told that their
contracts ended the previous year.

9. About two days later, KK told him that her parents wanted to meet him at the school
parking area. They told him that they wanted to see Mr Shekwa. He referred them
to the principal because Mr Shekwa had just left the school. They refused to see
the principal and requested him to inform Mr Shekwa that they want to meet him
outside school.

10. The following day when he told Mr Shekwa about KK`s parents, he agreed to meet
them at McDonalds, Nkomo village mall in Atteridgeville. He confirmed the meeting with KK`s father on the cell phone number which they shared the previous day.

11. The following day KK`s father called him, asking for Mr Shekwa’s whereabout as
he was not showing up for the meeting. He checked Mr Shekwa`s car at the
school, it was not there and told them he was not at school. This was his last
involvement in the matter. He denied that he told Mr Shekwa to agree that he
fathered the baby. He only met KK`s parents at school.

12. During cross examination he said he spoke to Mr Shekwa once about KK`s
parents and the meeting. He denied that he told Mr Shekwa that if he disputed
paternity of the baby he would be arrested. He never discussed DNA test with Mr
Shekwa. He is not privy to what Mr Shekwa discussed with KK`s parents.

13. Willie Mkhwanazi testified that he is the principal of the school. He stored Mr Shekwa `s number on his phone. He dialed the number, and it reflected Shekwa. He presented SMS messages coming from Shekwa on the same number on 22nd of June 2023 and 07th of December 2023. He used to communicate with Mr Shekwa using the same number also on voice calls and WhatsApp.

14. KK`s parents reported to him on 24 November 2023, that Mr Shekwa had fathered
KK`s baby boy. He was not aware of the relationship at the time. He reported the
matter to the department and alerted Shekwa to respond to the allegations. The
baby looks physically like Mr Shekwa. However, he is not an expert to conclude
that he is indeed the father.

15. The parents informed him that Mr Shekwa had undertaken to do a DNA paternity
test when the baby was born to prove that he was not the father. However, he
reneged on the issue of doing the DNA tests. Mr Shekwa also informed him that
intended doing the test. However, he denied having a sexual relationship with KK.

16. During cross examination he denied that he had discussed the issue with Mr
Shekwa before the parents reported it on 24th of November 2023. What Mr Shekwa told him before the parents reported, was that there were rumors circulating that he was having sexual relationships with learners.

17.KK`s mother told him that Mr Shekwa undertook to do a DNA test when the baby
was born. A7 is a statement written by KK`s mother. He submitted all the
documents to the department without tampering with anything. The meeting he
had with Mr Shekwa had no bearing in proving the existence of the relationship.
The baby was born already at the time.

18. Nancy Beauty Ndlovu testified that she is KK`s mother. During February 2023,
she suspected that KK was pregnant. Initially KK denied it. Later she admitted
that she was pregnant. She told her the man responsible for pregnancy was
Khululeko Shekwa her educator. At the time she did not know Mr Shekwa.

19. She met Mr Shekwa for the first time at Nkomo village Mall close to McDonalds.
It was KK, her father, herself and Mr Shekwa in that meeting. Mr Shekwa was
the one speaking to KK`s father, she was listening. Mr Shekwa admitted that he
had a sexual relationship with KK but denied that he was the father. He undertook
to do DNA test when the baby was born. However, he failed to honor his promise.

20. During cross examination she said KK told her that Mr Shekwa was the father of
the baby. They contacted Mr Sithole to arrange the meeting because Shekwa
had blocked them on phone. Mr Sithole facilitated the arrangement of the meeting
with Mr Shekwa at McDonalds Nkomo Village.

21. At some point around February 2023, KK would use her (mother) `s phone to call
Mr Shekwa, he would drop the phone. Mr Shekwa when realizing it was KK, later
blocked the number. After the baby was born, Mr Shekwa asked KK by SMS if she was sure he was the father. He did not do the tests as promised.

22. She decided to report him at the school him when she realized that he was not
prepared to take responsibility of being the father of the baby. Before reporting
KK`s father had sent a note to Mr Shekwa through KK`s sisters asking him to call
him. He refused to take the note.

23. The only they called Sithole was on the day of the Village Mall meeting and when
he arranged the meeting. They met Mr Sithole at school. Sithole only assisted
them to have access with Mr Shekwa.

24. The clinic referred KK to social workers during pre-natal treatment. Social workers
encouraged her to report the case to the SAPS. She refused as she preferred to
resolve it with Mr Shekwa. She only wanted him to support his child. The social
workers issued her a letter to take to SAPS if she changed her mind. She did not
have intention to open a case with SAPS.SAPS would not resolve the issue of
maintenance of the baby.

25. When Ms Matobatoba asked her the age of the father of KK`s baby, she lied he
was 19 years as on B1. She lied because at the time KK had asked her not to
divulge that Shekwa was the baby’s father. She reported to the principal because
she wanted Shekwa to support his child. Had Shekwa co-operated in taking the
DNA tests and supporting the baby she would not have reported him.

26. KK testified that she is doing Grade 12. She knew Mr Shekwa from 2022. He
was teaching her mathematics in 2022 when she was in grade 10. Mr Shekwa
asked for her cell numbers during October 2022. At the time they were
approaching final examinations and other learners were not attending school. She
shared her numbers with him.

27. The same evening, he called her at night, and they chatted for 3hours. He
proposed love to her. He told her that her parents should not know that he was
speaking to her. Her parents had a meeting with Mr Shekwa at Nkomo village
near McDonalds. She was present in that meeting.

28. During cross examination she said that when she agreed to share her numbers
with Mr Shekwa she was not aware that it could lead to a sexual relationship. She
denied that it was Mr Shekwa who gave her his numbers. It was Mr Shekwa who
requested her numbers.

29. They had about 3 hours chat at night from around 11pm. Mr Shekwa is the one
who initiated the call, she did not have his numbers. Their sexual relationship
started around 14 November 2022. He would fetch her and take her to his rented
room. Most people saw her ride in his car. The relationship ended in February
2023, when she informed him about the pregnancy.

30. A15-20 is her communication with Mr Shekwa. She realized that Mr Shekwa,
wanted to see a picture of the baby. She sent him a pic on A19 that would
automatically disappear after he had seen it. He wanted to see the baby to verify
if he was indeed the father. She had sex several times with Mr Shekwa before
pregnancy. When he became aware of her pregnancy, he started playing hide and
seek. He eventually blocked her number.

31. As on A12-13 Mr Shekwa saw him a 10 February 2023. He gave her R200 in
November 2022 to buy pregnancy prevention pills. She discussed the issue of
abortion with him in February 2023. He refused to assist her with an abortion as
he told her that it was not his baby.

32. Mkhululeko Abel Shekwa testified that he heard from the learners that he was
going to be father of KK“s baby. He informed the principal about the rumours
which persisted. KK spread news that she would not fail math’s because her
baby`s father was her math’s educator. Ms Matobatoba said her mother told her
that the father of KK`s baby was 19 years old.

33. Sithole told him to agree that he was the father. Sithole told him that he
approached him out of goodwill as KK was in a sticky situation. Later he informed

him that KK`s parents have involved social workers and the police and if he did
not co-operate he would be arrested. He arranged a meeting between him and
KK`s parents at Nkomo Village. He agreed to do the DNA tests when the baby
was born.

34. He agreed to do the DNA tests in the meeting between him the principal and Mr
Ngobeni. In December 2023 KK`s sister approached him with a piece of paper
from her father. He refused to take the paper. He gave his number to KK to
contact him when she needed assistance with her schoolwork. She sent him a
`please call`. He called her back. She asked to be assisted in her schoolwork.

35. She was comfortable to share her pregnancy challenges with him. When he
refused to assist her with an abortion, she became angry and swore at him.
Hence, he blocked her on his phone. B4 is the message from KK on 21st of April 2024. He never used any other numbers besides the one he used on Whatsapp (Number withheld).

36. During cross examination he denied knowing that he had to put versions of new
issues that he raised during examination in chief on the employer`s witnesses for
test. Furthermore, because the witnesses were denying what he was saying he
deemed it unnecessary to continue putting his version.

37. When asked that he did not deny paternity at the meeting at Nkomo Village Mall,
he said they were not telling the truth. He denied attending the meeting. When he
reported the pregnancy rumor to the principal, the principal advised him to carry
on with life as there was no official complaint.

38. He admitted that he agreed to do the DNA test. However, he did not do the tests
because nobody approached him. He did not want to please anyone by
approaching them to do a DNA test. The test was going to be at his cost. It was
not his responsibility to prove his innocence by doing the test. He finds it difficult
why everyone is asking him to do the DNA tests. Principal, Messers Sithole and
Ngobeni (from the District offices) asked him many times to do the tests.

CLOSING ARGUMENTS

39. The Employer argued that it has successfully proven that Mr Shekwa is guilty of
misconduct i.e. that he had a sexual relationship with KK. KK testified that she
had a sexual relationship with Mr Shekwa. KK’s mother testified that Mr Shekwa
agreed that he had a sexual relationship with KK, when they met with him at
Nkomo Village Mall, next to the McDonalds Restaurant. He did not rebut KK and
her mother’s testimony that they met with him at Nkomo Village Mall, next to Mc
Donalds to discuss the pregnancy.

40. Mr. Sithole indicated that Mr Shekwa was requested to meet with KK’s parents at
Nkomo Village which corroborate KK and her mother that the meeting took place.
There is a boy child born out of a sexual relationship of Mr. Shekwa and KK. KK
gave evidence that Mr. Shekwa is the father of her child. In the spirit of the pater
est quem nuptiae demonstrant principle of law, Karabo was right to point this
out to Mr Shekwa because they were in a sexual relationship at the time of her
giving birth to the child.

41. Mr Shekwa was supposed to have demanded paternity test to prove that he is not
a father. He does agree that he and the family agreed to the DNA tests after the
baby is born. However. Mr Shekwa (even though he tried to rebut that there was
an agreement to do DNA tests) indicates that the family did not indicate who was
going to pay for the DNA tests. If Mr Shekwa claims that he never met with KK’s
parents, why would he indicate that he is not certain what KK’s parent were
thinking when they wanted DNA to be done – about who was to carry the expenses
of the tests.

42. Mr Shekwa only expressed his willingness to take DNA tests during the enquiry
yet he failed to take such tests. He is under pressure to prove that the child is not
his because if he does so he would have eliminated an element that seems to
suggest that he is the father because he was having sex with KK. He could have
taken the tests even though paid from his pocket.

43. Mr Shekwa did not the rebut evidence that he and KK had sex several times and that their last time was in March 2023. He did not challenge KK’s testimony that he was communicating with her by cellphones. He only denies having such calls around 23H00. He agreed to have received some messages from Karabo and he suggested Karabo send him a voice message. However, he did not rebut receiving other messages as well including the one where he was requesting a picture of his son on WhatsApp.

ANALYSIS OF EVIDENCE AND ARGUMENTS

44. In determining whether Mr Shekwa is guilty of the offence proffered against him I must consider the following elements :-
• if his conduct was of a sexual nature;
• if his actions resulted in the victims’ sexual integrity being impaired or inspiring the belief that it will be impaired.
• If his actions were intentional
• If there are no justifiable grounds for the actions.

45. The trigger that brought the revelation of the offence is the employee’s refusal to conduct the DNA test that would prove or disprove that he was the father of KK’s baby. If the tests became positive he would have a responsibility to support the baby. Had Mr Shekwa co-operated he could not have been charged. This could have been concealed to the school and the department. This aligns to the testimony of KK’s mother when she agreed with KK to conceal the identity of the baby’s father. This is the reason behind misleading Ms Matobatoba that the baby’s father was 19 years old.

46. The employee is not charged for impregnating KK. However, he was charged for having a sexual relationship with KK. The paternity if scientifically proven could prove the existence of sexual relationship between Mr Shekwa and KK.

47. Mr Shekwa denies requesting KK ‘s numbers. According to his version which is refused by KK, he offered her his numbers to contact him when she needed assistance with the school work (Mathematics). Mr Shekwa did not challenge KK’s version that they chatted for three hours late at night. He only disputed that it was not after 11 pm. KK’s unchallenged testimony is that he told her to conceal their chat to her parents.

48. It is immaterial as who initiated the call, Mr Shekwa as a locus parentis had a duty to guard against calls which were not educational related. What is more concerning is that it took place at night. I find it probable that this concealed call gave birth to the sexual relationship with KK.

49. Mr Shekwa did not challenge KK’s version that she had sexual intercourse several times between November 2022 and January 2023. Further that he would pick her up in his car and take her to his rented room where they engaged in sexual intercourse. He did not dispute that she was seen in his car.

50. He did not dispute that he told KK to ensure that she does not fall pregnant and that he gave her R200 to buy pills to prevent pregnancy. It is common cause that KK fell pregnant in February 2023 and gave birth to the baby boy in September 2023.

51. KK corroborated her mother that they held a meeting at Nkomo Village mall with Mr Shekwa near McDonalds. In that meeting KK’s mother testified that he admitted having a sexual relationship with KK but denied being the father of the unborn baby. He undertook to do the DNA tests when the baby was born to prove that he was not the father. He did not challenge the existence of the meeting and the discussions.

52. Mr Sithole corroborated KK and her mother that he arranged the meeting. However, he could not confirm if the meeting took place. He said on the day of the meeting KK’s mother called him notifying him that Mr Shekwa had not arrived. He checked for his vehicle at the school’s parking area, when the car was not there, he assumed he was on his way to the meeting. I find on the balance of probability that the meeting took place, and the discussion was as presented by KK’s mother since it was not challenged.

53. I find the employer’s witnesses to be credible and reliable witnesses. Their testimony is consistent, with no contradictions. Mr Shekwa was not a credible and consistent witness. I explained to him that he was required to challenge the employer’s witnesses which according to him was not truthful and that the unchallenged evidence would be accepted as being truthful. He elected to not challenge these witnesses. To this point even in the absence of DNA paternity tests results, the overwhelming unchallenged evidence proves on the balance of probabilities that Mr Shekwa had a sexual relationship with KK.

54. The WhatsApp communication between KK and Mr Shekwa on A 15 to 19 is not in dispute, what is in dispute is the time the conversation took place. It is common cause that the conversation took place after the birth of the baby. I do not find that the exact time is material to rebut what the conversation depicts since it took place after the baby was born.

55. In the WhatsApp, he asked KK to send him a picture of “someone special’’ as he wanted to see “the serious’’ .He asked KK why she was hiding the face and pleaded with her to send him the picture .

56. KK’s unchallenged testimony is that she sent him a disappearing picture (which disappears after he had seen it). Upon seeing the picture, he asked why he (the baby) was crying. Why would he want to see the picture of the baby if he had no vested interest in it.

57.It is common cause that he undertook to do a DNA test not only to KK’s parents but to the Principal and Mr Ngobeni of the employer’s District office. The issue that he had fathered KK’s baby was raised in his transfer letter dated 22nd of February 2024.

58. Mr Shekwa having been aware of the seriousness of the allegation which was formally reported to the principal on November 2023 had ample time to have requested the DNA tests. This could have quashed the serious allegation if he had nothing to hide. It is disingenuous of Mr Shekwa to have mentioned that up to the end of the enquiry he did understand the need to do the tests.

59. Section 37 of the Children’s Act 38 of 2005 states that if a person in proceedings in which paternity of a child is challenged refuses to submit himself/herself or a child to take blood samples to carry out scientific test to prove paternity of the child, such refusal impact negatively of that person’s credibility. Therefore, I find it probable that his refusal to honor his undertaking to do the DNA tests despite the dark cloud hanging over him was intended to conceal the scientific evidence that would be sufficient to prove not only the sexual relationship misconduct but statutory rape.

60. KK’s mother has convincingly explained the inconsistency in her statement to Matobatoba, where he mentioned that KK’s father was 19 years old. This was to conceal that the father was Mr Shekwa. I believe at the time they were still hoping that he would co-operate to do the DNA test and ultimately support the baby which did not happen. According to KK’s mother, justice for them was to see Shekwa maintaining the child. She was not interested in pursuing a criminal case.

61. The attitude in how they wanted to have resolved the issue is one social ill which should be discouraged at all costs. This is the reason, cases of sexual abuse of girl children are prevalent as the perpetrators get away with this heinous act by paying the parents. Some evil educators take advantage of the economically challenged community.

62. I am satisfied that the employer has proved on the balance of probabilities that Mr Shekwa had a sexual relationship with KK. Therefore, the employer has discharged its onus in proving on the balance of probabilities that Mr Shekwa had committed the charged offence. I find him guilty for contravening Section 17. (1) (c) of the Act.

Aggravating Factors

63.If found guilty, it would imply that Mr Shekwa committed a Section 17 allegation. Section 17 (1) (c) concludes that an employee MUST be dismissed if he is found guilty of having a sexual relationship with a learner of the school where he is employed.

64. Mr Shekwa did not only have a sexual relationship with a learner but also left a learner with a baby child. He did not plead guilty to show remorse. Mr Shekwa committed a criminal offence by having sex with a minor who was only 15 years old when they started their sexual relationship. Therefore, the employer prayed that dismissal is the appropriate sanction.

SANCTION
65. Section 17 (1) (c) of the Act carries a mandatory sanction of dismissal for
a sexual assault of a learner. I have found Mr Shekwa guilty of having sexual relations with a 15-year-old learner, whom he was teaching.

66. In Le Roux v S (A & R 25/2018) [2021] ZAECGHC 57 (13 May 2021) the court
held that “The interests of the community cannot be ignored in determining an
appropriate sentence. Some of the components of the offences occurred on the
premises of a primary school. It is also necessary to continue to impress upon
people in positions of responsibility that they cannot leverage their power, and
the esteem with which they may be regarded, to satisfy their sexual
lust.
67.In the light of the seriousness of the offences and the mandatory sanction it
carries, I have no discretion to impose any other sanction, regardless of Mr Shekwa’s mitigating factors if there were any. He committed the offence against a young adolescent girl.

68. He did not only engage in a sexual relationship, but it is also probable that he fathered her child. KKs parents and the Community at large had entrusted him as the educator to care and protect learners. However, he destroyed that trust relationship. KK expected care and protection from her educator instead she became a victim of a predator. He abused his position as an educator and in loco parentis. The employee is dismissed with immediate effect.

69. I find, Mr Shekwa unsuitable to work with children. I invoke Section
120(4) of the Children’s Act No 38 of 2005 to declare him, of my own
accord, unsuitable to work with children.

70. The General Secretary of the ELRC must, in terms of Section 122(1) of
the Children’s Act No 38 of 2005, 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 Children’s Act No 38 of 2005, that Mr
Shekwa is unsuitable to work with children, for the director General to
enter his name in Part B of the National Child Protection Register.

71. The attention of SACE is drawn to the fact that Mr Shekwa had engaged in a
sexually relationship with a 15-year-old learner.

Signed and dated at Pretoria on this 09th of August 2024.

MG Rabyanyana
ELRC Panelist