14 February 2023 – ELRC157-22/23 KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL

In the matter between

Department of Education KZN Employer
And
Dumisane Jabulani Thanjekwayo Employee

ARBITRATOR: R. Shanker

DELIVERED: 08 December 2022

AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995 (LRA), as amended, and was set down for an Enquiry by Arbitrator process. The matter was heard on 26 July 2022, 19 October 2022 and was finalised on 18 November 2022.
2. The employee, Dumisane Jabulani Thanjekwayo (“Thanjekwayo”) was represented by M. Makhathini, an official of SADTU. The employer, Department of Education KZN, was represented by N. Magoso.
3. The matter relates to allegations of sexual harassment of learners who are minors. In accordance with the protection of the rights of minors, the identity of the learners will not be disclosed. In this award, I will refer to the minors as Learners A, B, C, etc. Their evidence was led via an intermediary and an interpreter.
4. The parties submitted written arguments which I considered in making this award.

ISSUES TO BE DETERMINED
5. The issue to be determined is whether the employee committed the misconduct as per the charges set out below and, if so, to determine an appropriate disciplinary sanction.
Charge 1: It is alleged that on February 2022, you failed to comply with regulations or legal obligation in that during your teaching period of natural science, you made sexual sounds to the learners thereby contravening section 18(1)(c) of the Employment of Educators Act 76 or 1988 (“Act”), as amended.
Charge 2: It is alleged that on 02 March 2022, you conducted yourself in an improper, disgraceful or unacceptable matter in that you asked Learner A if he has a big penis and on 02 February 2022 you asked Learner B if she has hair in her vagina thereby contravening section 18(1)(q) or the Act.
Charge 3: It is alleged that between February and March 2022, you misused your position in that you told Learner C “if the Government can allow you to have sexual intercourse with learners” and you asked Learner D if she is still a virgin. You thereby contravened section 18(1)(g) of the Act.
BACKGROUND TO DISPUTE
6. Thanjekwayo is an educator at the school and was responsible for teaching the learners Natural Science. He is currently on suspension (with full pay) as a result of the serious nature of the allegations. He denied having committed any of the misconduct referred to in the charges.
7. The parties relied on documents marked Bundle A and B and led evidence in support of their versions.
8. The wording of Charge 3 was corrected at the beginning of the arbitration. It was not disputed that Thanjekwayo received the charges timeously and that he understood the charges.
SURVEY OF EVIDENCE AND ARGUMENT
9. The evidence and arguments hereunder are not verbatim accounts of the proceedings but a summary of the evidence presented at this hearing. All evidence and arguments were considered prior to drafting this award.
10. Learner A, a male learner aged 15, testified that in February 2022, Thanjekwayo asked a female learner if she was a virgin. Thanjekwayo then asked him “my friend, how big is your penis”. He answered by saying it was small. Thanjekwayo also said he must give his penis to a girl if she wanted it. He did not like it when Thanjekwayo asked him that because he was seated next to girls and it was after the class was finished when Thanjekwayo was about to leave.
11. Whilst teaching, Thanjekwayo told them how sex was done, where the vagina and eggs were and how a baby was formed. Whilst teaching, Thanjekwayo would demonstrate by action how it is done by moving his body. Thanjekwayo made sounds of sex “ah, ah, ah” and said this was the noise made by girls when they enjoying sex.
12. He reported the incident to the principal. He denied that he was being used by anyone at the school to give evidence against Thanjekwayo. Thanjekwayo also touched other girls on the breast, eg Learner E. He agreed that there was a study guide and they were studying sex education at the time. The study guide had a drawing of the private parts of girls and boys. Thanjekwayo made the sex sounds many times. He denied that it sounded like a noise of “pain”.
13. Learner E testified that that Thanjekwayo touched her on her breast and asked her if she had a lump on her breast. Thanjekwayo was teaching cell structures at the time. She further testified that Thanjekwayo raised his leg, touched his private parts and made sounds of sex whilst telling them how sex was done. Thanjekwayo asked them if they knew what sounds their parents made during sex and asked them if they want to hear. Before they could reply he started to make sounds of sex “ah, ah, ah”. Under cross-examination, she maintained that the incident occurred in January 2022 and human reproductive was taught later in February 2022. She stated that Thanjekwayo demonstrated how a mother cried during sex – “ah, ah, ah”. She maintained that she didn’t say “mother” in her evidence-in-chief because she was still trying to explain. She stated that Thanjekwayo had a book in his hand when he raised his leg and touched his private parts. She didn’t previously mention that Thanjekwayo had a book in his hand because Thanjekwayo always had a book in his hand. She reported the incident of Thanjekwayo touching her breast to the principal after that class was over.
14. Learner B testified that, whilst teaching, Thanjekwayo came close to her and asked if she has pubic hair. She was not expecting that question from a male teacher. She also testified that Thanjekwayo made sounds of sex “ah, ah, ah” in class whilst teaching them. She denied that she plotted with anyone to give this evidence.
15. Learner C testified that Thanjekwayo was writing notes on the board and when he was finished he asked if there were any questions. She asked where babies came from – through a tube in the stomach or through certain parts. Thanjekwayo replied by saying if only the government would allow him to have sexual intercourse with them, he would but government does not allow him to. She immediately stood up and went to the back of the class because she could not bear to hear what Thanjekwayo was saying. Thanjekwayo was teaching human reproduction at the time but sexual intercourse was not part of the topic. She also testified that Thanjekwayo told them in class that when adult people are having sex, they make sex sounds “ah, ah, ah”. He made these noises on more than one occasion.
16. Learner D testified that Thanjekwayo called her after her maths period and asked her what subject was being taught in her class. She told him it was life orientation. He then said we should not allow boys to play with us and that we should only have sex after marriage. She agreed. Thanjekwayo then asked where she stays and she answered. A boy from class then came and stood between her and Thanjekwayo. He chased the boy away and then asked her if she was still a virgin. She told him she was still a virgin and he then asked if he can test if she was a virgin, would he be able to see that. She said no. Thanjekwayo then said he can even pay for that, ie, to check whether she was still a virgin. She also testified that during class, Thanjekwayo made “ah, ah, ah” sounds and explained that these are the sounds made by females when they are feeling pain during sex.
17. Under cross-examination, she confirmed that she knew Learner C. She maintained that Learner C asked a question and Thanjekwayo said if government allowed him to have sexual intercourse with them, he would. He would call one learner, example if Learner C was his wife and had been doing sex for a while, he would go on top of her and enter his penis properly so Learner C can feel the pain he was talking about. She could not answer why Learner C did not present the second part of the incident as she mentioned.
18. B.A. Johnson, a female teacher, testified that when Thanjekwayo first met her, he told her how beautiful she was and that he likes her body. The next day, he complimented her again and told her that he loves her so much and wish that she could be his wife. He phoned her in the evening and asked her if she thought about his proposal and that he wanted her to be the mother of her children. A few days later, Thanjekwayo had approached another teacher and the principal called all the female teachers to a meeting.
19. H.N. Nxele, also a female teacher, testified that Thanjekwayo continuously told her she had a beautiful body and her husband must be lucky to have her.
20. R. Wahle, the departmental head, testified that she was in the principal’s office when a learner came to complain that Thanjekwayo had asked her if she was still a virgin. The learner was scared and uncomfortable and didn’t want to be in that class. According to the Annual Teaching Plan (ATP), the reproduction system was supposed to be taught in weeks 3 and 4. Thanjekwayo was still teaching it in week 7. She maintained that it was improper for Thanjekwayo to make sex sounds whilst teaching. It was also improper for Thanjekwayo to demonstrate or tell learners that if government allowed it, he would have shown them the act of sexual intercourse. She had a good relationship with Thanjekwayo. Under cross-examination, she maintained it was wrong for Thanjekwayo to use his body as a teaching aid.
21. D.C.B. Naiken, the principal, testified that she welcomed Thanjekwayo when he arrived and made him feel comfortable. She introduced him to teachers and found a place for him to stay. He saw her as a mother figure. Within one week, female teachers were complaining that Thanjekwayo was making sexual advances towards them. She reported it to the circuit manager. Thanjekwayo admitted and apologised for his conduct. The teachers did not want to pursue charges against Thanjekwayo so the circuit manager guided and counselled Thanjekwayo on his conduct. Learners came to her office to complain about what Thanjekwayo was doing. She investigated and reported it to the circuit manager.
22. Thanjekwayo testified that he was not given an assumption of duty document to sign when he commenced duties. He was told that the principal signed it on his behalf.
23. He had not been previously charged with misconduct. He had 10 years teaching experience and taught at six previous schools. Staff accepted him when he arrived. SMT welcomed him verbally but did not do so by actions. They did not accept him because of his experience and him being an educator moving from school to school.
24. He gave compliments to female teachers to show that he was an easy going person. He went to the office and thought they were going to give him an assumption of duty form but he was shocked at what he heard. The deputy principal was furious and told him that she didn’t want to see him at the school and that he must find another school. When he asked for reasons, the deputy principal said that it was because he touched the bums and breasts of female teachers. He requested her to call the teachers to a meeting but she refused. The deputy principal told him to go to the district office and tell them he didn’t like teaching at the school. He believed that she wanted him out so that she could fill his post with someone of her choice. The principal was present in the meeting.
25. Even though he didn’t touch the female teachers, he apologised because he wanted peace but they didn’t accept his apology. He told the principal that he didn’t have money to go to the district office. The principal gave him money and he went to the district office. He disclosed everything to the district manager and was advised that the circuit manager would be sent to school. When the circuit manager arrived, he only said that he must greet the teachers and do what he was there for.
26. The deputy principal was disappointed because her plan to get rid of him had failed. The principal, deputy principal and others were in a meeting near the reception area. He was at the reception area and overheard the deputy principal say that their plan didn’t work and they would have to use another plan involving learners.
27. He did not have any issues with the principal as she was a good person. The deputy principal wanted him out and that is why all the complaints were brought against him. She was present when the circuit manager arrived with the suspension letter. When he received the suspension letter and wanted to say bye to the teachers, she told him not to speak with the teachers because he is not coming back to school, ever. The SMT chased him out because there wasn’t anything he could do to bribe them. He thereafter told himself wait and see the drama unfold. Learners were in and out of the principal’s office because they were grooming the learners. He was therefore not surprised when the allegations were made by the learners. He never went back to school because the deputy principal knew how to play her cards. He denied that he touched the breast and bums of teachers.
28. He denied that he made sex sounds and maintained that the sounds he made was of pain. He was explaining the reproductive system and a learner asked him to explain the function of the penis. He explained that the function of the penis was to pass the seed to the female. A learner then asked why the female cries during penetration. He explained that pain is experienced when the penis penetrates and the vagina lips are tight. The sounds he made is like when someone falls. He could not remember the name of the learner that asked the question but it was not one that testified at this arbitration. The learners were surprised when he explained except for those that were exposed to sexual activities, eg, via their cell phones.
29. He didn’t ask a learner about the size of his penis. The learners were joking with each other. He denied that he demonstrated how sex was done. He merely explained according to the lesson. He maintained it was fine for him to ask a learner if she was a virgin. He did this so that he could inform them of the importance of staying a virgin and not sleeping with boys. He maintained that it was fine to talk about pubic hair because it was about the changes the body goes through when it enters another stage. He maintained that he did not ask the learner if she had pubic hair on her vagina. Learners joked with each other and they would say “teacher said you have pubic hair”. He denied that he touched a learner’s breast and squeezed it. He always encouraged learners to keep themselves safe until marriage and to abstain from sex.
30. Under cross-examination, he agreed that he did not put his version to the employer’s witnesses on various aspects of his evidence. He maintained that he offered to give a learner money so that she could continue being a virgin. He agreed that his version regarding the deputy principal was mentioned for the first time in his evidence-in-chief and that his version in this regard was not put to the principal who was present in a meeting.
ANALYSIS OF EVIDENCE AND ARGUMENTS
31. Thanjekwayo was not charged with sexual harassing female teachers so I make no findings in that regard.
32. I did not consider Thanjekwayo to be a credible and reliable witness and his version is hugely improbable. His version mostly amounted to a bare denial and it was quite apparent that he made up his version as he went along. I am not convinced that there was any plot to get rid of him by the school and his evidence in this regard with untested and unsubstantiated. His version, that the deputy principal wanted to get rid of him and she enlisted the learners to fabricate stories against him, was presented for the first time when he testified. The employer had no knowledge of this version and therefore did not call the deputy principal to testify. He alleged that the principal was present in a meeting where the deputy principal announced her plan to use learners to get rid of him yet this version was not put to the principal when she testified. Key aspects of his version in relation to the allegations of learners were not put to the learners either. He failed to convince me that the learners had a reason to fabricate a version against him.
33. I am not convinced by Thanjekwayo’s argument that he was unable to prepare for this process as a result of a slight grammatical error in the wording of the charges. The principal’s evidence on the experiences of the learners was not relevant as she merely tried to recall what the learners had told her. On her own version, she could not recall each incident clearly. Her evidence in this regard cannot be seen as being in contradiction with the evidence of the learners. It is not unusual for learners to remember incidents but not dates.
34. I considered the learners to be credible and reliable witnesses. I believe that they gave their evidence honestly and truthfully and maintained a consistent version. They corroborated each other’s versions about what they experience in class. I am not convinced that there was any reason for them to fabricate their version or to lie about what they experienced. I also considered their version to be probable. Aspects of their versions were supported by Thanjekwayo’s version when, for example, he agreed that he made sounds, albeit not sex sounds.
35. The only probable version before me is that of the learners. I find that Thanjekwayo’s conduct was in appropriate and of a sexual nature. He committed acts of sexual misconduct when he made sex sounds, he moved his body and touched his private parts to demonstrate how sex was done, he asked a learner if she had pubic hair on her vagina, he asked a learner if she was a virgin, he asked a learner about the size of his penis, he told learners if government allowed him to have sexual intercourse with them, he would and when he touched the breast of a learner and squeezed it.
36. Any misconduct of a sexual nature by an educator on a learner is regarded by the Act as serious misconduct for which dismissal is a mandatory sanction. Having regard to the egregious nature of the sexual misconduct in this instance, I find that dismissal would be an appropriate sanction. I am satisfied that the employment relationship has irretrievably broken down and that there are no factors that would warrant a lesser sanction.
37. Educators are employed in a position of trust and work closely with learners. Section 28(2) of the Constitution imposes a duty on all of those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Courts and arbitrators are bound to consider the effect their decisions will have on the lives of children, not only in the life of the child who is a victim of sexual misconduct but also the lives of children in general who have the right to be treated with dignity, respect and without emotional and/or physical abuse.
38. I therefore find that a sanction of dismissal is appropriate in the circumstances and that Thanjekwayo should never be allowed to work with learners and/or children in the future.
AWARD
39. In the circumstances I make the following award:
39.1. The employee, Dumisane Jabulani Thanjekwayo, contravened section 17(1)(b) of the Employment of Educators Act, 76 of 1998.
39.2. The employer, Department of Education KZN, must immediately impose the sanction of dismissal on Dumisane Jabulani Thanjekwayo in terms of section 17(1) of the said Act.
39.3. The ELRC General Secretary must forward this award to the Department of Social Development for Dumisane Jabulani Thanjekwayo’s name to be included in the National Child Protection Register as unsuitable to work with children and to the SA Council for Educators (SACE) for appropriate action.