AWARD
Case Number: ELRC105 – 24/25 EC
Commissioner: MBULELO SAFA
Date of Award 09 October 2024

In the ARBITRATION between: –

EASTERN CAPE DEPARTMENT OF EDUCATION
EMPLOYER

And

MZUVUKILE EDDIE SISHUTA
EMPLOYEE

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter set down for arbitration on the 13 June 2024, 05 August 2024 and concluded on the 16 September 2024. The venue on the 13 June 2024 was the offices of the employer in Komani, on the 05 August 2024 the venue was Cradock Magistrates Court and on the 16 September 2024 the venue was the offices of the employer in Cradock.

2. The employer was represented by Mr Thobelani Mlahleki who is their Labour Relations Officer and the employee was represented by Mr Elia Beja from SADTU on the 13 June 2024 and on other days he was represented by Mr Khaya Dlanga also from SADTU.

3. Ms Sindiswa Myataza was the interpreter and Ms Maquza Nxala was the intermediary and both of them were appointed by the ELRC.

4. The proceedings were digitally recorded and long hand notes were also kept of the proceedings.

ISSUES TO BE DECIDED

5. Whether or not the employee is guilty of the charges laid against him, and if he is guilty to impose an appropriate sanction in terms of the Employment of Educators Act no 76 of 1998 (as amended) (EEA).

BACKGROUND TO THE ISSUE

6. The employee is employed by the employer in terms of the EEA as an educator at J.A. Calata High School in Cradock.

7. He was charged in terms of section 17(1)(c) of the EEA in that he is alleged to have had a love relationship with the complainant who was the learner at the school. He was also charged in terms of section 18(1)(f) of the EEA in that his conduct of being in a love relationship with the learner prejudiced the administration, discipline or efficiency of the employer.

8. The proceedings were in terms of ELRC Collective Agreement 3 of 2018 which provides that it is mandatory that in misconduct cases where the allegations against the educator relate to alleged sexual misconduct against a learner must be dealt with by the process known as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act, no 66 of 1995 (as amended) (LRA).

SURVEY OF EVIDENCE AND ARGUMENT

9. The employer led oral evidence through two witnesses and submitted one bundle of documents.

10. The employee led oral evidence through one witness.

EMPLOYER ’S EVIDENCE

11. The first witness of the employer was Mrs. Nonziwa Joyce Takuse, who is the grandmother and guardian of the complainant.

12. She said she did not know the employee but heard about him as one of the educators of the school.

13. She testified that on a certain day the complainant did not sleep at home, and she(witness) started to enquire about her whereabouts. She said someone pointed her to where she could find the complainant. When she went to that house she found the employee who said he has not seen the complainant. The witness said she went to the local police station and came back with police officers who also enquired from the employee about the complainant, again the employee denied knowing the whereabouts of the complainant.

14. After being assisted by another educator of the school who asked the employee about the whereabouts of the complainant the witness was able to find the complainant in the place identified by the employee.

15. The witness said the following week she went to report to the school and was later invited to the meeting of the School Governing Body where she reported that the employee was involved in a love relationship with the complainant. The school referred the complaint to the district office of the employer. The official of the district asked the witness to write a letter which she did.

16. At the time the report was made the complainant was in grade 12 and seventeen (17) years old. During that time the complainant was visiting taverns and that is where she would normally meet with the employee. She said the employee was doing everything to be with the complainant including beating her up and leaving her in the house when he was going to school.

17. She said the relationship disturbed the complainant a great deal to the extent that she could not go to school and was not reachable on her cellphone.

18. She said she was disappointed to hear that an educator was having a relationship with the learner as she believed that the educators are parents at the school.

19. She said she believed that there was a relationship between the employee and the complainant as the complainant spoke to her friends about the relationship and she also admitted and confirmed the relationship when she was interviewed by the official of the employer. On some days when the complainant was coming from school she would drop her school bag and say she was going to the place of the employee. She disputed the version of the employee that the complainant would visit another educator who she was related to.

20. The second witness of the employer was the complainant who testified in camera and whose identity is being hidden in this award because at the time of the incident she was a minor. At the time she testified at the enquiry she was nineteen (19) years old.

21. She testified that in 2019 she was doing grade 9 at the school and then she was fourteen (14) years old and by 2022 she was doing grade 12 at the school. She said she knew the employee as he was her Creative Arts teacher at the school

22. She said besides being her teacher she together with the employee had a love relationship and they would sleep together. She said they started the relationship when she was fourteen years old in 2019 and ended it in 2022. She said they used to sleep at his place in 36 Luhabe Street in Cradock. She said she slept many times with the employee. She also admitted that she had another relationship with someone else.

23. She said she did not report the relationship to the employer but her grandmother did. After the report the employer then called her to the office and she agreed that there was a relationship.

24. When asked how her mother got to know about the relationship she said other people saw her when going to the place of the employee.

25. She admitted that at the time of the relationship she was already consuming alcohol but even when under the influence of alcohol, she would recall everything that had happened and she was not always under the influence of alcohol when visiting the employee.

EMPLOYEE’S EVIDENCE

26. The only witness of the employee was himself, Mzuvukile Eddie Sishuta, who testified that he knew the complainant as he was her teacher and also used to be at places she was going to.

27. He denied he ever slept with her but said the complainant used to ask him to have sex with her. He said she even wrote several messages to his Facebook account. He said he blocked her several times.

28. He said the other time she followed him crying asking him to have sex with him. Every time he refused her advances.

29. He further testified that after she passed grade 12 he agreed to be in a relationship with her and they started the relationship at the beginning of 2023 after she had left the school at the end of 2022. He said the relationship was still continuing at the time of the enquiry and they were still communicating.

30. He disputed that he had slept with her when she was fourteen (14) years and said he only started the relationship with her after she left the school. He showed papers which he said reflected printed chats he together with the complainant had. He said the chats showed when the complainant was making advances to him and also when they were having a relationship. He admitted that it was unfair that when the complainant testified she was not asked about the Facebook messages and was thus not accorded an opportunity to respond to them.

31. He testified that when she wrote the messages to him requesting to be in love with him other people thought they were in a relationship.

32. He said he did not report the complainant when she was making advances on him, but only blocked her. He said even if he reported her there was nothing to be done. He disputed that they stopped the relationship in 2022, but said they never slept together when she was fourteen (14) years old.

ANALYSIS OF EVIDENCE AND ARGUMENT

33. Since this is an inquiry by arbitrator the onus is on the employer to prove the allegations against the employee on a balance of probabilities.

34. The evidence of the witness of the employer, Nonziwa Takuse(Nonziwa), was mainly hearsay evidence but her main evidence was corroborated by the evidence of the second witness, the complainant. The evidence of Nonziwa was that the complainant stated to the officials of the employer during investigation that she and the employee were in a relationship. This was corroborated by the complainant when she testified, and this was not challenged by the employee.

35. The further evidence of Nonziwa was that the complainant and the employee frequently went out on drinking sprees. This evidence was also corroborated by the complainant. In a nutshell the evidence of both witnesses of the employer was to the effect that there was a love relationship between the complainant and the employee.

36. When Nonziwa Takuse was testifying the employee did not dispute that he had a love relationship with the complainant. The only version he put to Nonziwa was that he never assaulted the complainant. When the complainant testified the employee again failed to put his version disputing her evidence that they had a love relationship. In fact, in his own evidence the employee admitted that he had a relationship with the complainant and only disputed that he slept with her when she was fourteen (14) years. At some stage during his evidence the employee testified that he only had the love affair with the complainant as soon as she finished matric, which was the beginning of 2023. That particular version was also not put to the complainant when she testified and as such it was not tested.

37. When the complainant testified that the employee failed to put his version to her about the messages that he said were the chats between them. This is despite the fact that the employee was at all times represented by the union representative who is familiar with the proceedings including how to put a version to witnesses. Thus, the evidence of the Facebook and WhatsApp messages could not be tested when the complainant was testifying. There is thus little or no weight that can be attached to the evidence of the messages.

38. Even if the messages were tested with the complainant and proved to be authentic what is written in them does not assist the case of the employee. He testified that the messages are showed that he was in the relationship with the complainant at some stage and that at some stages he resisted the advances of the complainant. It seemed like the messages were not a continuous conversation between the two but were disjointed and/or selected messages. That on its own created a situation where the contents of the messages were incoherent and not connected to the allegations against the employee. At the bottom of the page where each messages are written there is a commentary which the employee admitted that he wrote in order to explain the messages. Again, this creates questions with regards to the authenticity of the messages and whether they were tampered with or not.

39. The employee failed to challenge the evidence of the two witnesses of the employer and thus failed to rebut the evidence of the employer that he had a love and sexual relationship with the complainant.

40. By being involved in a love and sexual relationship with the complainant the employee contravened section 17(1)(b) of the EEA. The conduct of the employee in being involved in a love relationship with a learner and going on drinking sprees with her was prejudicial to the administration, discipline and efficiency of the employer and was also in contravention of section 18(1)(f) of the EEA. On a balance of probabilities, the employee is found guilty of the charges levelled against him.

41. In terms of section 17(1) of the EEA an educator must be dismissed if found guilty of committing an act of a sexual assault on a learner. As I have found the Respondent guilty of having sexual relations with the employee whist still a minor and at school it is mandatory that I impose a sanction of dismissal.

42. Section 120(1) of the Children’s Act provides that a children’s court, any court in civil or criminal proceedings or any platform recognized by law in disciplinary proceedings may make a finding that the person is not suitable to work with children. The finding may be made by the court or platform of its own volition or by the relevant official of the state involved in the protection of children .

43. In this arbitration no evidence was led by parties on the suitability or not of the employee to work with children. However, the Children’s Act allows an arbitrator to make a finding on his or her own accord. I accordingly find the employee unsuitable to work with children in terms of the relevant provisions of the Children’s Act.

In the circumstances I make the following award;

AWARD

44. The employer has proved on a balance of probabilities that the employee, Mzuvukile Eddie Sithuta, is guilty of the charges proffered against him.

45. The appropriate sanction being imposed is DISMISSAL which must be effected within seven (07) days from the date of receipt of this award.

46. The employee, Mr Mzuvukile Eddie Sishuta, is hereby found unsuitable to work with children in terms of section 120(4) of the Children’s Act . The General Secretary of the ELRC is, in terms of section 122(1) of the Children’s Act hereby directed to notify the Director-General: Department of Social Development of the findings of this forum so that the Director-General can, in terms of section 122(2) of the Children’s Act enter his (Mzuvukile Eddie Sishuta’s) name as contemplated in section 120 in part B of the register.

Mbulelo Safa: ELRC Panelist