IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the INQUIRY BY ARBITRATOR between

DEPARTMENT OF EDUCATION – FREE STATE PROVINCE “the Employer”

AND

M TSHABALALA “the Employee”

SECTION 188A IBA RULING

LAST DATE OF INQUIRY: 12 July 2024
LAST CLOSING ARGUMENTS RECEIVED ON: 22 July 2024
DATE AWARD SUBMITTED: 12 August 2024 (Extension granted)
NAME OF COMMISSIONER: Coen Havenga

Details of hearing and representation

1. This process was set down in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (hereafter “the LRA”), and ELRC Collective Agreement 3 of 2018. The matter was heard on several days and the last day of the inquiry took place on 12 July 2024 at the offices of the Employer in Bloemfontein. The last of the closing arguments were received from the parties on 22 July 2024.

2. The Employer is the Free State Department of Education, represented by Ms Cweba, L. The accused Employee is Mr Tshabalala, M, (“Tshabalala”), represented by Mr Frans, M, and official of SADTU.

3. Mr Mpitse, LL, acted as interpreter, and the intermediary was Ms Twala, ME.

4. The Employer submitted the documents contained in Bundle A, whilst the Employee submitted the documents contained in Bundles B, C, D and E.

Issue to be decided

5. I am required to determine whether Tshabalala is guilty of the charges levelled against him. Should I find him guilty of the charges, then I need to determine the appropriate sanction, as well as make a determination in terms of section 120(1)(c) of the Children’s Act 38 of 2005 whether Tshabalala is unsuitable to work with children.

Background and charges

6. Tshabalala, an educator employed at LE Notsi Secondary School (“the School”), is charged with two allegations of misconduct.

7. Charge 1 – charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998. It is alleged that during the first term of 2023 he sexually assaulted a grade 12 learner by touching her breast and forcing her to touch his penis.
8. Charge 2 – charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998. It is alleged that during the 1st term of 2023 he conducted himself in an improper, disgraceful, and unacceptable manner by showing his penis to a grade 10 learner.

Plea

9. Tshabalala pleaded not guilty to charge 1 and 2 and denied all the allegations against him.

Summary of evidence

10. The proceedings have been recorded digitally, and a summary of the Employer’s and Employee’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the inquiry and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses.

11. The matter relates to, inter alia, allegations of assault and sexual harassment of learners who were minors at the time of the alleged incident. In accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, the identity of that learners and other minor witnesses will not be disclosed. I will refer to the minor witnesses for the Employer as Complainants in this award. The minor witnesses testified virtually from a separate room from where the Employee was seated by making use of the assistance of an interpreter and an intermediary.

Employer’s case

12. Complainant no.1, a 19-year-old female learner, testified under oath with the assistance of an intermediary that the incident took place during March 2023. During the 2nd last period in the Geography class a grade 8 boy came and told the teacher, Mr Mashaka (“Mashaka”) that the Employee wanted to see Complainant no. 1. Mashaka told the boy that she was still busy with class. Later another girl learner came, and Mashaka told the Complainant to go and hear why the Employee wanted to see her.

13. Complainant no. 1 found the Employee alone in his office. She entered and he closed the door. The chair was behind the door. She sat down next to his chair. He asked her how her exam was going. He stood up and went to the other side of the office, and then returned. She was still seated in the same chair, but she changed her position to face the wall. The employee was standing behind her. He then touched her breast. He asked whether she was wearing a bra or not. She did not answer him but removed his hand.

14. She immediately stood up to leave, but he asked her to fetch a pen in the adjoining room. She went and found it on top of the table. She approached him to give him the pen that was in her hand. She then realised that his pants zipper was pulled down. His penis was outside of his pants. As she was trying to open the door to leave, he took her hand and pulled it towards his penis and said that she must touch his penis. He pulled her hand and made her touch his penis. He said he was just giving her a glimpse of good he could be to her. She was frightened but managed to get out of the office.

15. She ran and met Mr Ngokela. She was crying and he asked what was wrong. She tried to explain but he could see that she was traumatised and there were other learners passing by. He said she could not discuss the matter in the presence of other learners. They went to his office on the lower floor where there were no learners. She then related to him everything that happened while she was crying.

16. He was shocked and apologised that it happened to her. He advised her that in future if the Employee called her, she should not go to him. He advised her to report the incident to her parents when she got home. She said that she would do so and went back to her class. When she got back to class, the bell rang for school coming out. She grabbed her bag and went home. She cried all the way home.

17. At home she found her mother with her mother’s friends. She told her mother that she loved her, gave her mother a hug and went to sleep. She woke up and asked her mother’s permission to visit her grandmother. Her mother allowed her to go and stay with her grandmother for the whole week. When she got to her grandmother’s place her uncle was there, but her grandmother was still at work. She told her uncle that she was going to spend the week there. She went to her room and cried herself to sleep.

18. Complainant no. 1 did not go to school the next day. She remained alone at home while her uncle and grandmother went to work. The entire day she prepared herself to tell what happened at school. She could not tell her grandmother when she came home. She went to school the next day. She told Ngokela that she did not have the guts to tell her grandmother what happened at school. He said that he would assist her. After three days he told her that he had reported the incident to one of the female teachers.

19. Ms Modise (“Modise”) came, and the Complainant no. 1 related everything to her. Modise said it should not affect her that much, and that she would call the Complainant no. 1 as soon as she had reported the matter to the principal. Days went by and then she received a call from Modise that the principal wanted to see her. The next day she went to the principal’s office and related the whole incident to her. The principal called the deputy principal in, and she told the whole story again. The principal said that she should write a statement and that it will be taken to the Department. The principal also said that she would convene a meeting of teachers to inform them of the incident without disclosing the name of the Employee.

20. The principal sent her home for the rest of the day. The following day the principal told her that she had written a letter to the Department informing them and that they should wait for feedback. She then attended classes as well as the school camp. At the camp, her sister messaged her that there was something she wanted to discuss with the Complainant no. 1. She texted her that Lepoho called her and wanted to know what was going on between her and the Employee. There were rumours that Lepoho and the Employee was in a relationship. She asked Lepoho whether they had been intimate. She said they had a deep intimate connection.

21. Complainant no. 1 told Lepoho that something happened to her which she reported to the principal. Lepoho said she should not have reported the matter to the principal. Lepoho said that things were happening between the Employee and schoolgirls which were not addressed by the principal. Complainant no. 1 took a screenshot of the conversation and sent it to the principal. The principal said she should report to her the next morning. The principal wanted to know how she was related to the other learner, and she said that they were close like sisters. She wanted to know who it was, and she said it was a learner in grade 10.

22. Time went by and she was then visited by Ms Cweba (“Cweba”) from the Department. She was investigating the matter and had a screenshot of that conversation with Boitumelo, as well as the Complainant no. 1’s statement. She told Cweba what happened and Cweba wrote it down. She asked her to explain the screenshot. She said Boitumelo confided in her. Boitumelo was called by the principal, and Complainant no. 1 excused herself. Boitumelo said the incident where the Employee exposed his penis to her also happened in exactly the same way to her.

23. The Employee did teach her since grade 10. He used to send her for errands and communicated homework with her so that she could send it to other learners. They became close. The incident in March 2023 was during the second last period. It was normal for the Employee to send someone to call her during class. He was in his office most of the time. It was not her first time in his office.

24. When he asked her about the bra, she did not answer him but simply removed his hand. It was the first time that he asked such a question. They usually discussed school matters. When she came back from the adjoining room, he was sitting with his pants up, but his zipper was undone. His penis was exposed. He took her hand and forced her to hold his penis. She could see that he was calm. He saw she was shocked. She swiftly removed her hand and pulled it away. She met Ngokela at the stairs.

25. She did eventually report it to her mother by telephone while her mother was at work. She sent a whatsapp message. It was on the day that the matter was reported to the principal. On the day of the incident, she could have committed suicide if she did not meet her mother at home. She went to her grandmother to avoid people.

26. When the Employee held his penis, it was erect. Boitumelo said that they had an intimate connection, and the same happened to her. When he touched her breast, he just grabbed her.

27. During cross-examination Complainant no.1 testified that Boitumelo made copies of the text conversations between them. It was in the possession of her mother. The Employee was always in the office belonging to Mr Morua (“Marua”).

28. The Employee did not only teach her on Saturdays and Tuesdays after school for extra classes, he also taught her during normal school hours. Ms Mncolwane and the Employee taught them interchangeably, although her name was in the timetable. Grade 12 classes rotated by sometimes teachers came to them.

29. She found the Employee alone in Marua’s office. The door was closed but not locked. The windows were high and closed. She agreed that anyone can anytime enter that office. She saw no movement of learners or teachers outside when she entered the office. He sent her to the adjoining office to fetch a pen. She saw his penis, it was circumcised. He made her grab his penis. He was sitting and held his penis in his right hand. He took her left hand by the wrist and pulled it towards his penis while folding his hand over her fingers.

30. She could not tell her mother because she was with friends. She hugged her mother and told her that she loved her. She was not crying at that time. She did not tell her grandmother because she had a similar incident in grade 8 and it upset her. She did not want to upset her again.

31. She has no reason to lie about the incident. It is not true that she and Boitumelo is fabricating the incidents because she had a crush on the Employee and was jealous of his relationship. She does not date boys, she dates girls. She is not sexually attracted to Boitumelo and see her as her sister. She was not aware that Boitumelo had a crush on the Employee, or what her sexual orientation is.

32. B1 reflects a facebook post where Boitumelo admitted she had a crush on the Employee. She cannot say whether Boitumelo fabricated her story because she had a crush on the Employee.

33. Gloria Mofokeng (“Mofokeng”) testified under oath that she is the mother of Complainant no. 1. The child came from school one day not looking well. Mofokeng was in the company of friends. She looked as if she had been crying. She asked her what was wrong. Complainant no. 1 said it was nothing and that they would talk later. Later she asked to visit her grandmother. She did not give a reason for the request.

34. After some days she received a call from the principal telling her that the child reported that she had been abused by a teacher at school. She went to the school where it was explained to her what happened. The Complainant no. 1 did not report it to her at home. She said that the Employee opened his zipper and displayed his penis. The Complainant no. 1 said she tried to push him away.

35. During cross-examination Mofokeng testified that she was not present, but her daughter has no reason to lie. She was not aware that Boitumelo had a crush on the Employee. Her daughter did not have a crush on him.

36. Mofokeng testified that she was emotionally attached to her daughter, and she might not remember all the things. The Complainant no. 1 was partially raised by her grandmother, and that is why she would retreat to her when she was upset. They did not open a criminal case. The principal said that she already reported it to the Department.

37. Lula Ngokela (“Ngokela”) testified under oath that he was a teacher at the school for a period of two years. The school was just about to end when the learner came to him. He met her as he was going down the stairs. She asked him to talk to him, but not on the stairs. They proceeded to the office. He gave her opportunity to calm down. She was crying and unable to talk.

38. Complainant no. 1 told him what the Employee did. He did not know what to do with the information she gave him. He said to her that he needed to get advice. They went their separate ways.

39. She appeared very upset. She cried for some time before she could actually relate the story to him. He did not teach her, and she was not someone he talked with normally. He first met her when she sought advice from him on how to write a motivation.

40. She said the Employee called her to the office that was known as the office of Tshabalala. He did not ask for details of what happened to her. He did not report the incident to the principal. There are protocols at the School. He had to report it to his immediate supervisor. He did not know what to do and eventually approached Ms Poho, his immediate supervisor, for advice after a few days. He felt uncomfortable that a female learner reported to a male teacher. It would have been better if she reported it to a female. He wanted the learner to be free to communicate, and also wanted to cover himself that she will not come to him whenever she had a problem.

41. During cross-examination Ngokela testified that the Complainant no. 1 said she was coming to him. He is not sure to whom she was going. He cannot remember the date of the incident, only that it was during the 1st term. He remembers a meeting where teachers were instructed to remain in their classes, and not rotate, but he cannot remember when it took place.

42. There is a departmental office where teachers sit. There can be 3 or 4 in the office at once, depending on the time. It is true that a teacher may enter at any time. Ngokela would not casually take out his penis if anyone may enter at any time. Taking such a risk would be improbable but not impossible. Considering that there would be a lot of movement because school was about to come out, it was a slim possibility.

43. Ngokela did not know why Complainant no. 1 chose to go to him. He has no personal stake in this matter. After the incident she did continue to come to him, and he was scared people would think strange of it. He was just protecting himself from any suspicion that might have emanated from her frequent visits. He did not want to be seen by his colleagues as a teacher with a girl learner coming to him all the time.

44. It was put to Ngokela that he was scared because he had a romantic relationship with Complainant no. 1 at that time, and that the Employee would prove it. Ngokela denied the allegation.

45. He did not report the serious allegation by a learner against a colleague immediately because he did not know how to deal with it. He knew it was his responsibility to report it immediately and he waited more than 5 days. It is not true that he waited so long because he helped her fabricate her story. They were not lovers that met every day. He did not agree that he was the one that should have been charged with sexual misconduct. He did not have a relationship with Complainant no. 1.

46. He used to meet the Complainant no. 1 at breaktime, not in the presence of other teachers or leaners. He has no reason to falsely accuse the Employee, he only related what was told to him by the Complainant no. 1.

47. Complainant no. 2, a 16-year-old female learner, testified remotely under oath with the assistance of an intermediary that she was 15 years old in 2023 during the 1st term. She knew the Employee as a teacher at the School, but he did not teach her.

48. On a date that she could not remember during the 1st term in 2023 her maths teacher sent her during the 2nd last period to fetch a stapler from another teacher. She got one from a teacher who said she must go and ask the Employee for staples. She entered his office, greeted him, and asked for staples. He was alone in the office. He was seated in a chair. He ordered her to look in a drawer where she found the staples.

49. She bent down to take out the staples, and when she looked up, he had his pants unzipped and he had his penis in his hand. He did not say anything. She left and went back to class. It was the first time he did it. They usually discussed school matters.

50. She did not report the incident. Complainant no. 1 said he did the same to her. She was not a friend, but just someone she related to.

51. During cross-examination Complainant no. 2 testified that she could not remember the date. Her teacher sent her to Ms Ngake to fetch a stapler. Ngake went with her to another teacher, and she then went to the Employee for staples alone.

52. The drawer where the Employee told her to look for the staples was not the same one where he was sitting. It is counter tops, not tables. After she took out the staples, she turned back, and his penis was out of his pants. She saw it. She cannot say whether it was erect or not and whether he was circumcised. She did not know about such things.

53. She was not lying, it happened as she testified. She did once post on social media that she had a crush on the Employee. She just responded to posts and did not post it to him directly. She was not attracted to him. He has a girlfriend at school. They are forever together.

54. She did not report it because she did not have proof. She is also not very talkative.

55. Dumisani William Tshabalala (hereinafter referred to as “Dumisani” in order to avoid confusion with the Employee with the same surname) testified under oath that he works at the School as maintenance officer. The principal informed him of the complaint of his daughter. He approached her and she was not comfortable to talk to him about it, so she sent him a text message relating the whole incident.

56. During cross-examination Dumisani testified that the teachers shared an office. There are drawers in that office. He did not find it strange that she did not report the horrifying incident considering her young age. The fact that she commented on posts on social media did not give him the right to do that to a child.

57. He was not aware of a meeting wherein Complainant no. 2 was disciplined for accusing another teacher falsely of sexual misconduct. He did know that she was disciplined for saying that Mr Matla has good sexual pleasure because Ms Malta had a very big vagina. It was a different incident and does not mean her evidence of what the Employee did to her is not credible.

58. Lisbeth Motsiri (“Motsiri”) testified under oath that she is the principal of the School. The Employee and Mncolwane shared the English classes. Complainant no. 1 did report the incident to her. She requested her to write it down so that she could refer it. She did give her a statement. Motsiri requested to see the mother, who did come in some days later.

59. Complainant no.1 reported it about six months after the incident. She asked her why she took so long, and she said that she was afraid of victimisation. She did not call the Complainant no. 1’s mother but told her that she wanted to see her mother. The teachers share offices. It has surfaces like counter tops with shelves and drawers. It can happen that teachers are alone in the office. They use the office to do work in their free periods. In 2023 they had maybe one free period per week. The teachers are now classroom based because learners were breaking furniture if not supervised.

60. Complainant no. 1 was crying on and off even after six months. Motsiri came to hear about Complainant no.2’s incident through her engagement with Complainant no. 1.

61. There was a disciplinary hearing at the School for Complainant no. 2 regarding discussions amongst learners about the Matla couple. She was disciplined for other incidents as well, including being overprotective in respect of a teacher.

62. During cross-examination Motsiri testified that Complainant no. 1 reported the incident in September 2023. She did query the long delay in reporting it. Teachers only became classroom based in June 2023. She cannot say how often a teacher would frequent the office. She is not aware of a sexual relationship between Ngokela and Complainant no. 1.

63. The reputation of Complainant no. 2 leaves a lot to be desired. The teachers are scared of her. Motsiri does not believe her. Complainant no. 1 once made false allegations against learners about them putting something in her vagina, which makes her story doubtful, considering how long she took to report it.

Employee’s case

64. Mojalefa Tshabalala, the Employee, testified under oath that he is a PL 1 educator. He has three years’ experience. He started his career at the School.

65. He knows Complainant no. 1. He did not teach her in 2023 in her individual class, only in combined classes. He did use the common office during breaks. He had only one free period in 2023, it was the 1st period on a Tuesday. He was in his classroom during the last two periods of every day.

66. Regarding charge 1, he was not alone in the office with Complainant no. 1. He did not send for her. He did not touch her breast and did not force her to touch his penis.

67. Regarding charge 2, he did not teach Complainant no. 2 in 2023. He was not alone with her in that office. He did not show her his penis. She was never sent to fetch staples in that office while he was there. He did not know why they accuse him falsely. Other teachers have been accused falsely as well.

68. Complainant no. 2 declared on social media that she had a crush on him. He found that out through his girlfriend. He did report it to the deputy principal and principal.

69. He was just a colleague of Dumisani. They talked about choirs. He did attend a housewarming party where he was also present. He did not talk to him. He was once at his house for a funeral. He would not have been comfortable to go to his house if he did what was alleged.

70. Ngokela was just a colleague. He has not noticed anything between Complainant no. 1 and Ngokela.

71. The allegations never happened. He never forced Complainant no. 1 to touch his penis in the office. It is not possible to just take out one’s penis in the office. He knows the Code of Conduct.

72. Mokhuane is his girlfriend since December 2021. They see each other 90% of the day at the School. He would not risk his relationship by harassing female learners at the school where she is teaching. He would not know where to find a learner as they were rotating.

73. During cross-examination, the Employee testified that they became classroom based in June 2023. Other educators were also accused falsely. He does not know why they would accuse him falsely. Complainant no. 2 did declare on social media she had a crush on him.

Summary of arguments

74. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. The parties were directed to address the issues of guilt, appropriate sanction, should the Employee be found guilty, and his fitness to work with children, should he be found guilty. I have considered the arguments, together with the other evidence, oral and documentary, presented by the parties during the inquiry, as reflected in the record of the hearing.

Analysis of evidence and argument

75. This inquiry was conducted in terms of the principles contained in section 188A, as well as Schedule 8 of the LRA, and ELRC Collective Agreement 3 of 2018, in respect of the fairness of disciplinary action against educators charged with sexual misconduct in respect of learners. In applying those principles, the following factors were considered:
a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) If the rule or standard was contravened, whether or not –
i. The rule was a valid or reasonable rule or standard;
ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
iii. The employer has consistently applied the rule or standard.
iv. Dismissal would be an appropriate sanction for the contravention of the rule or standard.

76. The LRA does not prescribe the standard of proof to be used in labour matters. It is however universally accepted that the standard of proof that is applicable in disciplinary hearings, and therefore inquiries by arbitrators of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.

77. All the allegations in the charge against the Employee, as well as the evidence, documentary and otherwise, deduced in support thereof by the Employer, and the evidence deduced by the Employee in defence, were considered and weighed against the abovementioned standard of proof.

78. It is not disputed by the Employee that the actions he had been charged with constitute misconduct. He merely denied committing the alleged misconduct as set out in the two charges below.

79. Charge 1 – charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998. It is alleged that during the first term of 2023 he sexually assaulted a grade 12 learner by touching her breast and forcing her to touch his penis.

80. Charge 2 – charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998. It is alleged that during the 1st term of 2023 he conducted himself in an improper, disgraceful, and unacceptable manner by showing his penis to a grade 10 learner.

81. I am mindful of the fact that the Employee is charged with, inter alia, sexual misconduct. It is a natural response in matters relating to the sexual assault or sexual harassment that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.

82. In respect of the all the allegations the Employee disputes the version of the Employer’s witnesses, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept.

83. The Employee’s defence in respect of the alleged sexual assault and improper, disgraceful, and unacceptable conduct is a blanket denial of any wrongdoing. He submits that it is all a fabrication of lies, instigated by the learners and Mr Ngokela, whom he accused of having had a sexual relationship with Complainant no. 2.

84. I take cognisance of the fact that Complainants no. 1 and 2 are single witnesses in respect of what allegedly transpired in the presences of the Employee. It also important to remember that this is an arbitration hearing, and the matter needs to be dealt with the minimum of legal formalities, as it is not a criminal trial. Even if the rule is not applicable in civil proceedings or arbitration proceedings, I must nevertheless be satisfied that the evidence of a single witness is reliable and trustworthy before relying on it.

85. It must be remembered that the Complainants were only fifteen and eighteen years old at the time of the incidents, and that the incidents took place during the 1st term in 2023, while the arbitration hearing only commenced in July 2024. Naturally, the lapse of time would affect the memories of witnesses, and I assessed the evidence against this backdrop.

86. It has been shown that children who are sexually abused, concentrate on the core details of the incident and not so much on peripheral details. The omission of peripheral details like dates, or contradiction relating thereto, is not usually a basis for rejecting the testimony of a child witness. What is most important is consistency regarding the core details of the experience. Refer to the ELRC Guidelines: Inquiries by ELRC arbitrators in terms of section 188A of the LRA relating to misconduct of a sexual nature in respect of learners.

87. The Constitutional Court has held that that the sexual assault of children has the inherent effect of rendering child victims unable to report the incident, sometimes for several decades, and that they should not be penalised for the consequences of their abuse by blaming them for the delay. The Courts have accepted that feelings of fear and shame often prevent children from reporting such incidents immediately and that the victims often distance themselves from reality and transfer responsibility onto themselves. In 2007 the law was amended to provide that no inference may be drawn from the length of any delay between the alleged commission of such offence and the reporting thereof. The fact that a child does not tell another teacher at school about an incident that occurred at school, but only tells a parent or grandparent later at home, or visa versa, is therefore no indication that the child has fabricated the evidence. Sometimes children would due to feelings of shame not tell a parent or teacher, but rather tell a close friend.

88. The above is aptly relevant in this case where the victims reported the incidents later or to another learner. I reject the arguments of the Employee that the late report by the Complainants tarnish the credibility of their evidence in any material way.

89. I also reject the arguments of the Employee that the previous incidents involving Complainant no. 2 should automatically discredit her evidence in this matter. I do not have to pronounce on those alleged incidents as the facts are not before me, and I will adjudicate the allegations by Complainant no. 2 in this matter on its own merits.

90. I find no material discrepancies or inconsistencies in the evidence of the Complainants that would negatively affect their credibility. Both their versions reflect a similar modus operandi by the Employee, i.e. exposing his penis to a female learner in the office used by teachers. The Employee’s version that he was classroom bound was refuted by the principal when she testified that teachers were only classroom bound since June 2023, which was after the 1st term when the incidents were alleged to have taken place. Despite their young age, the Complainants stood steadfast by their versions. Complainant no. 1 was adamant that the Employee not only touched her breast, but also forced her to touch his exposed penis.

91. The Employee averred that the fact that the charges did not include specific dates prejudiced him and is indicative that the versions are fabricated. It is highly improbable that the Employee could not have known that his conduct would be regarded as serious misconduct, irrespective of whether the charges referred to specific dates. The charges set out in clear detail the misconduct he was alleged to have committed, as well as the approximate date or period. In Sol Plaatje Municipality v South African Local Government Bargaining Council and Others (PA12/19) [2021] ZALAC 24 the Court stated that it has repeatedly held that there is a major difference between the wording of charges in a criminal case and in a disciplinary case. An unduly technical approach to the description and consideration of disciplinary charges should be avoided.

92. The Employee’s argument that he would not have risked his relationship with his girlfriend holds no water. Although she was not called as a witness, Complainant no. 2 testified that she was aware of the relationship. I find it therefore improbable that she would fabricate evidence against the Employee if she knew the relationship of the Employee would have a negative impact on the probabilities of her version.

93. The Employee’s representative put it to Complainant no. 1 that she and Complainant no. 2 were fabricating evidence against the Employee because Complainant no. 1 wanted Complainant no. 2, and she was aware that Complainant no. 2 had a crush on the Employee, and she therefore was jealous. This version changed later when it was put to Ngokela that he had a romantic relationship with Complainant no. 1 and that the Employee would prove it. This version was however never put to Complainant no. 1 in cross-examination, and it was also never proven by the Employee. This is a material aspect of this case. In NUM and another v CCMA and others [2018] 3 BLLR 267 (LAC) the Court found that since keys aspects of the employee’s case were not put to the employer’s witnesses in cross-examination and had not been canvassed in the evidence of those witnesses in chief, their version on such aspects was not placed before the commissioner. The same principle will therefore apply in this matter. The allegation of a relationship between Complainant no. 1 and Ngokela is furthermore made highly improbable by the fact that Complainant no. 1 testified that she was gay, and only dated girls.

94. I find it highly improbable that the Complainants fabricated such a version and agree to be used as pawns by Ngokela to accuse the Employee of sexual misconduct. It would have been an elaborate fabrication involving educators, young learners, and parents with the intent to get rid of the Employee, which I find highly improbable.

95. I find it improbable that the Complainants would disadvantage themselves with a false version to satisfy another educator, and more improbable that parents would allow their young child to go through the trauma merely to satisfy the whims of another educator.

96. I find the Employee’s version that the Complainants decided to falsely accuse him because of social media posts claiming a crush on him, also highly improbable. It is common knowledge that learners develop infatuations with young educators, but it is the duty and responsibility of such educators to not take advantage of such vulnerable learners. The Employee failed to present any substantial evidence that would prove a fabrication. He merely made unsupported allegations in that respect. The Employee could not provide any substantial evidence that the alleged conspirators had anything to gain by falsely implicating him.

97. The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows: “Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The Complainants’ version has been materially the same throughout the inquiry. I find it improbable that they would make up such a detailed version of events without any reason. The Employee’s version that it is a fabrication is not plausible.

98. There is a common misconception that sexual assault must necessarily involve contact with the genitalia of the victim, which is not the case. Assault is defined in our law as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires in another person a belief that such impairment of his bodily integrity is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. I find that the exposure of his penis by a male educator, forcing the minor Complainant to look at and/or touch it and grabbing her breast would probably violate or threaten the sexual integrity of the learner.

99. Therefore, with consideration of all the relevant cautionary rules I find that the Employer provided evidence that proves on a balance of probabilities that the employee committed the misconduct as contained in charges 1 and 2. There is therefore evidence before me that proves that the Employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

Finding
100. The accused employee, Mr Tshabalala, M is found guilty of the following misconduct:

101. Charge 1 – contravening section 17(1)(b) of the Employment of Educators Act 76 of 1998, in that during the first term of 2023 he sexually assaulted Complainant no. 1, a grade 12 learner by touching her breast and forcing her to touch his penis.

102. Charge 2 – contravening section 18(1)(q) of the Employment of Educators Act 76 of 1998, in that during the 1st term of 2023 he conducted himself in an improper, disgraceful, and unacceptable manner by showing his penis to Complainant no. 2, a grade 10 learner.

Sanction

103. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.

104. The conduct of Tshabalala was of sexual nature, which resulted in the victims, i.e. the Complainants’ sexual integrity being impaired, or at least it inspired the belief that it will be impaired, it was done intentional and without consent of the Complainants, which rendered it unlawful.

105. Tshabalala’s conduct is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behaviour does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of sexual relationship with or assault on learners at a school, and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the Complainants being minor female learners to be sexually harassed and/or assaulted by an educator.

106. Section 17(1) of the EEA states that dismissal is the mandatory sanction for the misconduct of sexual assault, which I keep in mind considering the nature of Tshabalala’s misconduct.

107. Having considered all the facts before me, including but not limited to, the gravity of the offences, the position of trust the Employee was employed in, and the years of service of the Employee, I find that the sanction of summary dismissal is fair and appropriate in the circumstances.
Sanction

108. In terms of section 188A(9) of the LRA I direct that the employee, Mr Tshabalala, M, be dismissed summarily.

Finding in respect of section 120 of the Children’s Act 38 of 2005
109. Section 120(1)(c) of the Children’s Act 38 of 2005 (“the Act”) provides 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”. Section 120(2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.

110. The parties were given the opportunity to submit arguments in this respect. I have considered both parties’ submissions. In view of my finding of the serious nature of the Employee, Mr Tshabalala’s conduct and the priority to protect the rights of children, I find that he is unsuitable to work with children. The fact that there are no previous incidents on record, does not necessarily mean that his conduct will not be repeated. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children and in particular in this case, vulnerable young girls.

111. Mr Tshabalala, M, is found unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the 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 Children’s Act 38 of 2005, that Mr Tshabalala, M, 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.

COEN HAVENGA
Senior ELRC Arbitrator
12 August 2024