Panelist : A C E Reynolds

Date of Award : 9 August 2023

In the INQUIRY BY ARBITRATOR between:

MARVIN-LEIGH CHRISTO SEPTEMBER
(Employee)

and

WESTERN CAPE EDUCATION DEPARTMENT
(Employer)

DETAILS OF HEARING AND REPRESENTATION

1. The matter was referred for an Inquiry by Arbitrator to the Education Labour Relations Council (ELRC) for a dispute relating to alleged misconduct (sexual assault of a learner) in terms of section 188A of the Labour Relations Act No 66 of 1995 as amended (the LRA) and ELRC Collective Agreement No 3 of 2018 Inquiries by Arbitrators in Cases of Disciplinary Action against Educators charged with Sexual Misconduct in respect of Learners, dated 25 September 2018 (the Collective Agreement), read with clause 32 of the ELRC Dispute Resolution Procedures, for a disciplinary hearing in the form of an arbitration, which was heard in person and virtually at the premises of the Employer in Outdtshoorn over five sittings on 20 February 2023, 25 April 2023, 26 April 2023,18 July 2023 and 19 July 2023, with this last sitting constituting an in loco inspection at De Rust Primary School in Blomnek, De Rust.

2. The Western Cape Education Department (the WCED as the Employer) was represented by Mr Frederick Scholtz, a Senior Employee Relations Officer. Mr Marvin-Leigh Christo September, the Accused Employee, was represented by Mr Faez Tassiem, a NAPTOSA Executive Officer. Present at the sittings, where this was required, were also Ms Wynona Titus, an Intermediary to assist the Learner witnesses, and Ms Jennifer Biko, an Interpreter to assist with Afrikaans and English interpretation.

3. The proceedings were conducted primarily in Afrikaans, with English interpretation where needed. Digital and electronic recordings were made, with the Panelist’s electronic record serving as the full English translation.

4. The Inquiry was conducted in the form of an arbitration with reference to the provisions of Collective Agreement No 3 of 2018 (the Collective Agreement), the ELRC Dispute Resolution Procedures and the relevant sections of the LRA, with the necessary changes required by the context.

5. The Inquiry proceedings were explained to the Employee, which he confirmed he understood. He also confirmed that he had received the charge sheet, has been made aware of his rights and was ready to proceed with the Inquiry after preliminary issues were dealt with.

ISSUE TO BE DECIDED

6. The purpose of this Inquiry convened in terms of section 188A Inquiry by Arbitrator of the LRA, which provides for an inquiry by an arbitrator in the form of an internal disciplinary hearing, Collective Agreement No 3 of 2018 (the Collective Agreement) and clause 32 of the ELRC Dispute Resolution Procedures, is to determine whether the Employee, Mr Marvin-Leigh Christo September, is quilty, on the balance or probabilities, of the following charges relating to a learner associated with De Rust Primary School as levelled against him by the Employer, the Western Cape Education Department, as well as the sanction if guilt is established on either of the following charges (translated from the original Afrikaans):

CHARGE 1

It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, no 76 of 1998 (hereinafter referred to as the Act) in that you on or about June and/or July 2018 committed a deed of sexual assault against a former Grade 6 Learner associated with De Rust Primary School, by pushing your hand under her skirt and/or touching her vagina.

ALTERNATIVE TO CHARGE 1

It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act, in that you on or about June and/or July 2018, while on duty, acted in an inappropriate, scandalous or unacceptable manner towards a former Grade 6 Learner associated with De Rust Primary School, by pushing your hand under her skirt and/or touching her vagina.

7. The Employee pleaded not guilty to these charges.

BACKGROUND

8. A Pre-Inquiry Minute had not been finalised, with the following facts common cause and in dispute established and confirmed at the Inquiry. The following facts were established as common cause:

9. The Employee was appointed on 1 July 2011 as a Post Level 1 Educator with the Employer at De Rust Primary School in De Rust, Western Cape. He applied for the Post Level 2 position of Head of Department at Pacaltsdorp Primary School in George, in which he was appointed on 1 January 2019 and where he is still presently employed. He taught Mathematics for Grade 6 and Technology and Natural Science for Grade 7 at De Rust Primary School. He teaches Mathematics for Grade 6 and Natural Science for Grade 7 at Pacaltsdorp Primary School, where he is also the Head of Department for Mathematics. His Persal number is 55381260 and he presently earns a gross salary of R34330.12 per month and net salary of R19648.28 per month. He has no prior disciplinary record and this is the first incident of alleged misconduct brought against him. The Employee was not suspended and has been in full employment up to date.

10. The following facts were established as being in dispute:

• Whether the employee was guilty of the charges brought against him.

• What the appropriate sanction should be if the Employee is found guilty on either of the charges.

11. Documents were handed in by both parties during the proceedings and admitted as evidence.

12. Two former female Learners of De Rust Primary School were called to testify at the Inquiry, with their identities protected. The names and surnames of the Learner witnesses are not disclosed in the award, and are identified as Learner A and Learner B. Learner A, the complainant, testified virtually for the Employer in a separate room on the same premises and affirmed that she would tell the truth. Learner B testified for the Employee and elected to testify in person in the presence of the parties under oath. Both Learners were supported by Ms Wynona Titus, the Intermediary. Consent was obtained from both parents for their children to testify at the Inquiry. The adult witnesses presented their evidence under oath.

13. The incident was alleged to have occurred in the Employee’s classroom during 2018 at De Rust Primary School. An in loco inspection was held on the final sitting of the Inquiry on 19 July 2023 at Classroom 32 in Block 2 of the school, which was the Employee’s designated classroom at the time. The inspection was held separately for Learner A and the Employee. Ms Jennifer Biko, the Interpreter, assisted in making a sketch, with notes, of Learner A’s version of the classroom layout and how the alleged incident occurred, as well as the Employee’s version of the classroom layout during 2018, of which copies were e-mailed to the parties on 25 July 2023 after the conclusion of the Inquiry.

THE EMPLOYER’S EVIDENCE

14. The Employer’s opening statement was as follows: The WCED received an e-mail during June 2022 from Ms Lindeque the School Social Worker about serious allegations against the Employee. The Employer conducted an investigation and consulted with the learner who had made the allegations on 27 July 2022, 2 August and 15 August 2022. Based on these consultations there was enough proof on the balance of probabilities to refer a dispute to the ELRC and charge the Employee as per the charges on the charge sheet. The witnesses to be called will paint the picture that something happened that led to the investigation, with the Panelist requested to come to a finding to protect the interests of the learner. If the Employee is found guilty in terms of section 17 of the EEA dismissal is compulsory. If he is found guilty in terms of section 18 mitigating and aggravating circumstances will need to be called for to establish the appropriate sanction.

15. The Employer handed in a bundle of documents, which had been exchanged and admitted as evidence, and called the following witnesses to testify in support of its case:

16. Learner A, the female learner who had brought the allegations against the accused Employee, Ms Melissa Rentia Langhtrey, Post Level 1 Educator at De Rust Secondary School, Ms Ilse Afrika, Care and Support Assistant (CSA) at De Rust Secondary School and Ms Marisa Lindeque, School Social Worker, testified for the Employer.

17. The Employer’s witnesses’ evidence is summarised below in the sequence that they testified.

18. Learner A testified as follows in her evidence in chief: Her birthday is on 24 April and she is now 17 years old. She is currently in Grade 11 at De Rust Secondary School. She and her family moved to De Rust in 2017 and she completed Primary School in Grade 7 in 2019 at De Rust Primary School. She could not remember who her register class Educator was in 2018 at De Rust Primary School. The Employee taught her Mathematics in 2018 in Grade 6. When she started at De Rust Primary School in 2017 she met the Employee as one of the Educators, as well as Ms Coetzee, another Educator. Her twin sister was also in the same school and grade as herself at the time. These two Educators had a very good understanding with her and her twin sister. She remembered the Employee as being very overprotective since she was bullied a lot at Primary School and he always stood up for her and she trusted him a lot. She described where the Employee’s classroom was when he gave Mathematics, which was on the top floor of block 2 and was about 15 meters from the Administration block. During breaks the Employee was inclined to give her little hugs (“drukkies”), which she did not have a problem with since she trusted him and Ms Coetzee and shared a lot of information about herself with the Employee. During summer the uniform for the girls at De Rust Primary School was a maroon skirt (rompie), white shirt and red pullover. The boys wore shorts, a shirt and red pullover. During the winter the girls wore long pants if it was very cold or a skirt if it was not too cold in the mornings.

19. She was asked to explain what happened regarding the alleged incident in 2018. It was during mid-June 2018 that the Employee during the break asked her to come to his classroom that afternoon after school. She told her twin sister and asked her to go with her to the classroom. The Employee gave no explanation why he asked her to come to his classroom and she decided to go as she thought he wanted to discuss something with her. It was only herself, the Employee and her sister who were present in the classroom. The Employee was sitting behind his desk when she and her sister arrived at the classroom. She and her sister stood at the door and the Employee asked them to come inside. When they entered her sister closed the door behind her. Once they were inside the classroom the Employee asked her sister to go to the shop to buy a cooldrink and chips, which her sister complied with and left, closing the door behind her as she left the classroom. When her sister had left the Employee asked her to come closer to his desk, which she complied with. After she stood closer to the desk the Employee pushed his hand under her skirt (“rompie”) and touched on top of her private parts. When that happened she was too shocked to utter a word and said nothing. Her sister returned a few minutes later and she told her sister they must go home immediately. They stayed about 30 to 35 meters away from the school, which was a reasonable distance to walk to get to their home. She said nothing about what happened to her sister while they were walking home. She did not tell anybody else about that when she got home but went directly to her room and burst into tears. When her mother returned from work later that evening she did not tell her what happened either because she did not want her mother to feel guilty for not always being at home to look fully after them. When she returned to school after that incident she did not tell anybody else at the school what happened, which was in 2018 when she was in Grade 6.

20. She was in Grade 7 in 2019 and completed her Primary School career then. She started at De Rust Secondary School in 2020 and her class teacher was Ms Langhtrey. She had a good relationship with Ms Langhtrey up till the present time and could easily trust Ms Langhtrey with her problems and home situation. It was during the second term in 2022 that she spoke to Ms Langhtrey about what happened in 2018. Ms Langhtrey was very observant and could see something was wrong since she never spoke to her classmates and did not go out during breaks. She also did not want boys to touch her. Ms Langhtrey asked her what was wrong as she could see something was troubling her and invited her to come to her classroom one afternoon to talk to her, which offer she took up. She told Ms Langhtrey about the whole incident that happened during her Primary School years and who the person was who allegedly did that to her. Ms Langhtrey was very emotional and asked whether she could refer her to Ms Afrika to have a session with her. Ms Afrika was the person at the school who helped children with incidents such as hers. She met with Ms Afrika and again told the full story to her. Ms Afrika referred her immediately to Ms Lindeque, who is the School’s Social Worker. She met Ms Lindeque a week after she had seen Ms Afrika. As to why it took four years later from June 2018 to July 2022 before she spoke about these events was because it was the first time that such an incident had happened to her and she did not know who to approach for help and comfort. She tried to forget about it as if everything was normal in her life.

21. Learner A testified as follows under cross-examination: She confirmed the summer uniform for girls and that in the winter it could be either track suit pants or gray pants. She preferred the gray school pants since they were more comfortable. She had however worn a skirt on that day. She could not remember if the Employee had asked her to come after school during the first or second break that day. The Employee did not say why she must come to his classroom and it was the first and also the last time he had asked her to come to his classroom after school. She could not remember what time the Primary School children left school in the afternoons. The teachers normally stayed until 14h30 to 15h00 at the school. The teachers in Block 1 could not see into the Employee’s classroom since there was a cupboard in front of the window at his desk. She confirmed there were no curtains on the windows in the Employee’s classroom.

22. She and her twin sister were very close. They only shared certain things with one another and did not wear the same clothes, and they were together most of the time, such as when cooking, bathing and sleeping together in the same room. That afternoon in June 2018 the Employee only asked her to come to his classroom after school and not her sister too, but she felt she wanted to take her sister with her because her sister also liked the Employee a lot. As to why she did not say to the Employee that she wanted to go to the shop with her sister when he asked her sister to go to the shop, as the learners would normally do, the Employee had spoken directly to her sister and asked her to go quickly to the shop. She had expected the Employee to discuss with her what he wanted to speak to her about and did not want to do so in front of her sister, which is why he sent her sister to the shop to buy coke and chips. Not a minute after her sister had closed the door behind her the Employee asked her to move closer to his desk. She was standing at the right hand side of the desk when the Employee took his hand and pushed it under her skirt and touched her private parts. His last words to her after he had touched her was that she must not say anything otherwise he can lose his work. She confirmed that she was speechless and did not say anything to him after that happened and went home when her sister returned. She did not know the exact distance from the school to the shop across the road from the school, but it was very close to the school.

23. When she arrived in Grade 5 both the Employee and Ms Coetzee were very protective towards her and her sister. She did not know what her Mathematics marks were at the time. The Employee never did any special favours to her like helping with homework and answers and did not give her any money. As to why the Employee would turn from a caring person to a paedophile she responded that children shared many things with their teachers about what is happening at home and she told him certain things that were happening in her private life such as that her father and mother are not always there and if something happens she will not share with her family members as their ties are not strong, with her putting her trust in the Employee and him thanking her by pushing his hand up her skirt. Although she was shocked and it could have shown on her face, her sister did not ask her what was the matter. As to why nobody at home asked what was the matter when she went home and cried, she explained that in their house everybody is busy with their own things with no interest in others’ lives and will not easily notice if there are poblems unless somebody else tells them there is something wrong with a child. As to why her sister, with whom she said she was close to, did not ask what was wrong when she saw her crying, she responded that her sister is a very rebellious person and would go out directly after they came out from school and would not be present to experience that as she is never at home. As to why her sister’s name was not amongst the list of the Employer’s witnesses, her sister had since birth not been normal and struggled with long term memory and could not remember from five to six years ago. Learner B who is a witness for the Employee party and would say she knew her, Learner A, reasonably well, is her niece but they do not have a good understanding with one another and she would be lying if she would say that they get on well. She agreed that they however knew each other well and that Learner B regularly came to their home and slept over, such as with several netball school outings last year. She responded to Learner B coming to testify that she hugged the boys at Secondary School regularly after she, Learner A, had testified that she did not want boys to touch her, that Learner B would be talking about now in 2022 and she was very withdrawn about the incident that happened in 2018 and was not comfortable for a man to touch her. Ms Lindeque had counselled her in this regard. She denied that she in Grade 8 or 9 sent photos of herself in a bra and panty to boys as Learner B would testify and could open a case of slander against Learner B if she makes such allegations without proof.

24. As to Learner B coming to testify that she, Learner A, had made similar allegations during 2022 against Mr Jurims an Educator at the Secondary School and Mr Arries the then Acting Principal at the Secondary School that they touched her, she responded that she had never made such allegations and that she hardly had a teacher and child relationship with Mr Jurims whilst Mr Arries and his wife, who is also an Educator at the Secondary School, both offered her support with this current case. She responded to Learner B coming to testify that Ms Arries had warned her to stay away from her husband, that at the beginning of 2022 the children spread stories that she and Mr Arries had a clandestine (“skelm”) relationship and that Ms Arries had told her to stay away from her husband. The day when Ms Arries asked her why she had so many discussions with Mr Arries she opened up about the case with the Employee, whereafter Ms Arries also supported her. She went to Mr Arries, who was now the current Principal of the Secondary School, for counselling to get her spiritual life right again since he was also a Pastor (“Dominee”) and did not mention earlier about Mr Arries’ involvement since she did not want more evidence and Mr Arries cannot take leave at present since there are problems at the school. She responded to the Employee’s version that the Employee was not long at the Primary School and agreed that he had a soft spot for her, that he regularly hugged other girls too and gave fist punches to the young boys, that there was no detention after school with no reason to keep learners after school except for sport and athletics and that he never asked her to see him after school, that a child will not suck such kind of things out of its thumb if it did not happen. She agreed that there was no detention and that there was no reason that an Educator cannot speak with a learner after school, also that the Employee did not give a reason either then or later for calling her to his classroom. She did not respond to the question as to whether the only reason was to touch her private parts that day. She did not know what was going on in his thoughts that day and she would not have gone to his classroom if she knew what his intentions were. There was no way any other Educator would have been able to see inside the classroom from Block 1 because the cupboard that stood in front of the window covered half of the window and there were also placards in front of the windows.

25. Learner A testified as follows under re-examination: She and her twin sister did not wear the same clothes but the same colour of clothes, with no reason for that, but just because they were twins. She confirmed her testimony of what happened in the classroom, adding that the Employee did not say anything to her before he touched her other than asking her to come closer to his desk. She went to the Employee’s classroom with the expectation he wanted to discuss something serious with her but when they were alone he did not discuss anything and just touched her. The incident happened after school hours and she did not notice if there were any other Educators on the school premises. During 2017 she and Learner B and other family members were very close at school and just became acquaintances in 2018 and did not talk as they normally would have spoken and were not very close to one another.

26. Ms Melissa Rentia Langhtrey, Post Level 1 Educator at De Rust Secondary School, testified as follows under oath in her evidence in chief: She was appointed into the position of Post Level 1 Educator at De Rust Secondary School on 14 January 2021. Learner A was in her register class in 2022 and also had a twin sister at the same school. During June 2022 Learner A told her what happened to her at the Primary School and that a teacher had touched her. Learner A sat in the front of her class, was very quiet and never spoke to the other learners in the class, which was not normal behaviour for a learner. She had asked Learner A why she is so withdrawn and does not talk to anybody and she replied that she does not feel comfortable to talk to others and to mix with the other learners since they always picked on her and commented on her appearance. She told the other learners to leave Learner A alone and that it is her choice if she does not feel like talking to others as long as she does her work in the class. Academically she was one of the few learners who achieved good results in class. She had told the learners in her register class if something is troubling them or happening at home to talk to her since she was their “mother” at school. Based on this Learner A approached her to talk to her and they spoke after all the other learners were out of the classroom, when Learner A explained to her what happened to her at Primary School and replied, when questioned, that the Educator who touched her was the Employee.

27. The Employee’s name was known to her but she did not know him personally and identified him in the Inquiry. Since it was a serious allegation she immediately reported it to Ms Ilse Afrika the support teacher who works with all the social cases at the school and has more experience with such matters. She did not write a report but conveyed this verbally to Ms Afrika, who in turn said she would report it to the Principal and the School Social Worker. As to whether she believed what Learner A told her, all she knew is that it was her duty to report it. Learner A was not the type of person who ever said anything bad about anybody, even those who picked on her or told stories about her. Since June 2022 she had not spoken to anybody else about the case. Learner A did not improve immediately and still remained withdrawn. Academically she was not stable, with her work sometimes good and then worsening again. Learner A complained a lot that she is tired and sleeps badly.

28. Ms Langhtrey testified as follows under cross-examination: She had 41 learners in her class in 2022. Her class was very noisy and talked a lot, with Learner A the only one who was quiet and withdrawn. There were three other introverts in the class who were friends and sat in a corner and spoke to one another but Learner A did not talk at all. She taught English and Learner A fared well in her subject of English. She confirmed what she had testified in chief. Learner A did not say how the Employee had touched her, but only said he touched her private parts, after which she did not question her further. As to whether she had asked Learner A if anybody was with her or she had told anybody, Learner A had only said she was alone and did not say where it happened. All that Learner A said was that it was after school, so she assumed it happened at the school. She was not qualified to say whether a child is withdrawn or an introvert, but had been teaching for nine years and worked long enough with children to notice that certain behaviour is unnatural. She was not aware of the Abuse No More Protocol. She also taught Learner A’s twin sister. The twin sister was the opposite to Learner A and was very jovial, joking and talkative, with her work weaker than Learner A’s. It was difficult for her to comment on what the twin sister’s memory was like. She was not aware that the twin sister’s long term memory was not good as testified by Learner A. She did not pick this up as a memory problem with the twin sister. She was not aware of any discipline problems relating to Learner A. She knew Learner B and taught her in 2022 but was not educating Learner B and the twin sister this year. She was aware of the rumour and heard from the children that Learner A continually pestered Mr Arries, which she assumed was regarding this matter. The talk that she heard was that Learner A asked the class Educators to speak to Mr Arries and that Mr Arries recommended that Learner A speak to the female Educators. Learner A was one of the drum majorettes (drummies), who complained all the time about one another. The drummie Group Leader complained that Learner A was lazy and does not come for practices, stays away and keeps on running to Mr Arries. She did not know what Learner A and Mr Arries spoke about, but the Educators complained that Learner A is out of the class all the time and goes to Mr Arries, who felt that she must rather stay in the class. She was not aware that Ms Arries spoke to Learner A about this. As to whether these actions sounded like a child who comes and opens up to an Educator, Ms Arries’ actions made sense based on the allegations that the children made and which she did not want to be associated with. For a child who is introverted and withdrawn and does not want to talk to companions and is prepared to talk to Mr Arries, Learner A perhaps wanted to talk to Mr Arries since he is also a Pastoral Counseller. She regularly asked Learner A after she had reported the incident when she was in her class how she is but they did not have much contact this year since she is not teaching Learner A in 2023. As to why Learner A had make this big sharing to her about what had happened four years ago and then went to Mr Arries when Learner A had trusted her, she said they did still talk as Learner A had spoken about the medication they put her on which made her tired but that they did not have much contact this year. She did not know on what medication Learner A was on, but only knew that it was after June 2022.

29. Ms Langhtrey testified as follows under re-examination: The contact that Learner A had with the current Principal Mr Arries, who was also a Pastoral Counsellor, was after June 2022.

30. Ms Ilse Afrika, Care and Support Assistant, testified as follows under oath in her evidence in chief: She had been working since the second term of 2022 at De Rust Secondary School as a full-time Care and Support Assistant (CSA). Her duties entail working with children who experience emotional problems and need support. She also participates in after school programmes on Tuesdays and Thursdays after school for Grades 9 and 10 with the Circuit Psychologist and Social Worker. CSAs are regarded as the first line of defence and although they do not possess formal qualifications they are qualified in basic counselling skills through FAMSA and the WCED Abuse No More Protocol on how to refer and support children. She also possesses a Management Assistant Diploma. She knew Ms Melissa Langhtrey as an Educator when she started at the Secondary School in 2022. Ms Langhtrey told her in the second term when she started in that position that she had a learner in her class who told her a certain male Educator had touched her when in Primary School and identified him as the Employee. She told Ms Langhtrey to send the learner, identified as Learner A, to her class and she informed Learner A that Ms Langhtrey had referred her. She asked Learner A what the problem was. Learner A talked to her and she did not pay attention to all the detail but asked her to explain in her own words what she meant by being touched. Learner A told her that the Employee touched her on her private parts. She herself was beside herself and literally in tears as she was disappointed and asked Learner A if she was certain as the Educator could lose his job and his name will be dragged through the mud, and Learner A responded that she was dead certain. She told Learner A this was dangerous as the Educator could lose his job and that she, Ms Afrika, could not handle it in full and asked whether she could refer the matter to the Social Worker, which Learner A agreed to. She informed the previous year’s Principal Ms Coericius and they agreed to inform Ms Lindeque the Social Worker, which she did. Ms Lindeque came to the school the next day after she had telephoned her. She informed Learner A that she must be at school the next day when Ms Lindeque would come to see her, which Ms Lindeque did do. It was her first case of dealing with this kind of thing. She knew Learner A from her Primary School days hence it was not the first time that she met her. Learner A spoke to her for the first time in 2022 about the allegation. As to how Learner A presented emotionally to her when she spoke to her, she herself was caught up in her own emotion and was in tears and could not take cognisance of Learner A’s emotional state since she was in tears, with the learner being calmer than herself. She believed Learner A because she had asked her if she is dead certain about what happened since the Employee could lose his job, which Learner A confirmed.

31. Ms Afrika testified as follows under cross-examination: She explained the range of duties that a SCA performed as first line of defence in co-operation with the WCED. She also explained her understanding of the Abuse No More Protocol and that a Form 22 must be completed in terms of the Childrens Act if any abuse or neglect of a child is reported. She does not complete the Form 22 herself and she will be asked to keep an eye over a child afterwards. The person to whom the child reported the incident first is responsible for the Form 22. With respect to sexual abuse the Abuse No More Protocol stated that if a child tells you about this you must report it and keep it to yourself. She confirmed her testimony in chief. She knew the Employee since they were colleagues at the Primary School. She also knew Learner A and her twin sister from the Primary School. She started with the CSA programme internship in 2015, which she completed in 2016 and was appointed in 2017 at the Primary School. She left the Primary School as CSA in March 2022 and started as CSA with the Secondary School in April 2022. As to why she was beside herself and emotional when Learner A told her that the Employee had touched her while at the Primary School, she explained that she and the Employee were both friends and colleagues while at the Primary School and she was very disappointed about what happened. She had only asked Learner A if she was telling the truth since she was trained by the WCED that you as CSA do not investigate the case and do not ask more, but only ask if it is the truth. There was no opportunity for her to ask Learner A if she had told anybody else. She was almost the learner and was more emotional than the learner. She asked Learner A if she had told her mother and she said she had not since she was scared to do so. She gave no reason for not telling her mother and she did not ask Learner A why she was scared.

32. As to whether she was aware of the rumour that it was alleged that Learner A was too close to Mr Jurims and Mr Arries, she only knew that Learner A spoke to Mr Arries, which she did not know about what, and did not know about Mr Jurims. She was not told about these things and that Ms Arries told Learner A to stay away from her husband, but one could see from body language that something was going on. When she heard about the story with Mr Arries she went to another Educator Ms du Toit and they both went to Ms Arries, who told them that she did not like the manner in which Learner A went to Mr Arries and asked her, Ms Afrika, to talk to Learner A about it, which she did and asked Learner A not to talk to Mr Arries since Ms Arries did not like it and that there were enough female Educators to talk to. She did not know that Learner A had made allegations that Mr Jurims and Mr Arries had touched her. She had suggested to Ms Arries that she could be present in the discussions with Learner A, which she accepted, but was not present in the end when she spoke to Learner A. From what Ms Arries had said she did not deduce or have thoughts that it was not a learner/educator relationship and it did not reach her ears about any inappropriate touching. Since it was at the time of the issue with the Employee surrounding Learner A, Ms Arries perhaps wanted to prevent something.

33. Between Learner A and her twin sister she saw Learner A as the more mature one, with the twin sister being more outspoken than Learner A. Learner A did not tell her that her twin sister was with her the day that the Employee allegedly touched her. She could not remember what time the school day finished for the children at the Primary School and whether it was at 14h00, but only knew it was the children first and then the Educators and could not specify if the time difference was 30 minutes since she came and left with the children except for the life skills classes on Tuesdays and Thursdays. She was not aware of detention at the Primary School. Some children did stay after school, even if not for sport. She could not comment if the Employee did not keep children in the class, even during breaks. She knew the Employee was a smoker and used to smoke with another Educator during breaks. In the few years that she was at De Rust Primary School there were no rumours that the Employee was over friendly with the girl learners.

34. Ms Afrika testified as follows under re-examination: She knew that the discussion with Learner A that she must not talk to Mr Arries and that there were enough female Educators to talk to, took place in 2022, but could not say if it was in September or October.

35. Ms Marisa Lindeque, School Social Worker, testified as follows under oath in her evidence in chief: She had been appointed as School Social Worker since 2011, first on contract and then permanently in 2014. She explained her duties as being responsible for emotional support to learners who experience barriers to learning, with the further role to provide training and empowerment to Educators with respect to to the WCED protocol on how to handle barriers to learning in the education context. If a learner is as an example assaulted at school the complaint comes via the Principal to her. With respect to serious allegations where it is alleged an Educator touches a learner at school, they work according to the Abuse No More Protocol whereby the Educator to whom the incident is reported must report it to the Principal, who then reports it to her with the Form 22. It is then her responsibility to report it to the relevant roleplayers, which for a WCED employee will be to the Labour Relations Department. If the incident is of a sexual nature it must also be reported to the SAPS and the Department of Social Development for investigation. She was aware of the matter that Ms Afrika contacted her telephonically about on 9 June 2022 to report the case. Ms Afrika was very emotional when she reported that case, did not give a lot of information and was not prepared to complete the Form 22 referral. She went to De Rust Secondary School the morning of 10 June 2022 to speak to Ms Afrika and the learner, whom she identified as Learner A. She initially spoke to both Ms Afrika and Learner A and then spoke alone to Learner A to get the information to complete the Form 22, since Ms Afrika did not have all the information, but only the critical incident.

36. Learner A told her about the incident and she was in the Employee’s class in Grade 6 and that he was like a confidante to her and would pick up if things were not going well with her emotionally and would sometimes give her hugs and at one stage also touched her on the hip. She said the hugs and touching on the hip made her feel uncomfortable. She then spoke about the day she stayed after school. She did not give a reason for staying after school and said that the children had left and that she stayed behind with the Employee in his class and alleged that the pushed his hand under her school skirt and touched her in the vaginal area. When she heard this she immediately told Learner A that she was obliged to report it to the roleplayers for investigation, which she named to her, such as the SAPS and Directorate of Labour Relations. When she explained about the roleplayers she could see that Learner A was immediately scared and Learner A told her that her mother did not know anything about these events. She told Learner A that to report the case she had to inform her mother, which she would help do and Learner A agreed that she could contact her mother to inform her. After that she helped Learner A to vent her emotions and asked Ms Afrika to monitor her for them. She contacted the mother and met with her at the WCED office in Oudtshoorn on 13 June 2023. The mother was very shocked when she spoke to her, with her first words that she understood why Learner A did not want to talk to her because she was very strict and had to raise the children on her own for most part of her life as a single mother. Since they and the mother were worried about Learner A’s emotional functioning, she gave a letter to the mother to make an appointment for Learner A with the Psychiatric Sister/Nurse at the De Rust Clinic. In terms of support to Learner A, the one part was the referral to the WCED and the other was that the CSA must regularly check on Learner A. When she visited the school she regularly monitored Learner A. She had to wait to see the mother before she could complete the Form 22, which was sent on 14 June 2022 to all the roleplayers. As to whether she believed what Learner A had said, out of the nature of her work she believed any learner who reported something like that, although she could not judge the situation. Learner A’s verbal and non-verbal responses were however in line with one another. This was not the first incident involving Learner A, with a previous incident when the alleged transgressor was not an Educator, and this being the first incident in the school context. She could not exactly remember when the other incident happened, but it was at the same time that this case was revealed. She did not investigate that incident since she did not do investigations and that incident according to protocol was also reported on Form 22 to the roleplayers.

37. Ms Lindeque testified as follows under cross-examination: In terms of the Abuse No More Protocol her task is just to listen and not ask questions. It was also correct that in terms of the Protocol if a learner alleges sexual misconduct that it must be reported what the child says whether one believes it or not. As to Learner A not having testified that the Employee had also touched her on the hip and that this was hearsay evidence, she responded that everything is then hearsay evidence but that is what the child reported to them. Learner A had only told her that the Employee had hugged her and did not mention that he also hugged other girls. Due to the nature of the position that she occupied she did not hear both sides and must report what she is told. She agreed that it was only one version and her duty as Social Worker was to listen and not to investigate or make a judgement if only one version is listened to. Learner A did not tell her that the Employee allegedly told her during a break that he wanted to see her after school and she only got the part that Learner A stayed behind school and not that the Employee asked her to come to him after school. Learner A had mentioned that her twin sister was with her at school that afternoon and that the Employee sent her sister to buy something at the shop and that the incident happened while her sister was away. She did not speak to the sister. It was reported to the mother that the twin sister was also there. As to whether she was aware that the twin sister’s long term memory was not so good, the mother had said to her that the sister was the smaller of the twins at birth and that she was the one who struggles to remember. The case of Mr Jurims and Mr Arries and Learner A as alleged by Learner B was not reported to her. Her duty was to protect the learner and she was not aware of it since it was not reported to her. She agreed that Educators may not get involved with the learners.

38. No re-examination was required of this witness.

THE EMPLOYEE’S EVIDENCE

39. The Employee party’s opening statement was as follows: The Employee has 12 years of service with the Employer, of which five years are as Post Level 2 Head of Department at Pacaltsdorp Primary School in George and seven years as Post Level 1 Educator at De Rust Primary School. Since it is a small community the Employee is very stressed about the allegations, which he denied ever occurred. He had a problem in the community in De Rust and had to get a restraining order to stop unfounded rumours being spread about him. He moved to George for a promotional post but the years in De Rust were very difficult for him. The Employee was dumbfounded about the allegations and it was strange that in 12 years of service one learner would make such allegations against him. He was not suspended and has been in full time employment since the allegations were made.

40. The accused Employee and Learner B testified on behalf of the Employee party.

41. Marvin-Leigh Christo September, the accused Employee, testified as follows under oath in his evidence in chief: He is currently a Head of Department at Pacaltsdorp Primary School in George. Prior to that he was working for eight years as a Post Level 1 Educator at De Rust Primary School, where he taught Mathematics for Grade 7 and 6 months for Grade 6, and Natural Science and Technology for Grade 7. He taught Learner A Mathematics in Grade 6. His relationship with her when he taught Learner A was the same as with the other learners and Educators and he treated her the same as the other learners. He did not specifically hug Learner A. Most learners would run to him in the morning when he came to school to greet him, as they did for the other Educators since the learners were always excited to see the Educators when they arrived at school. He would give hugs to the smaller boys and girls and fist bumps to the bigger boys. Some would also come to him during breaks and he would not push them away but gave them hugs. It was not as if he especially went to them to give them hugs and he did not specifically hug Learner A only. They would come to him and he would put his right arm around them and greet them when they ran to him. He was involved in a motor vehicle accident in 2012 and lost his left elbow, hence he greeted them with his right arm as the left arm is still in a lot of pain. As to Learner A’s evidence that he and Ms Coetzee gave her special treatment, he did not see this as special treatment since it is his work as an Educator to ensure no learner is bullied at school. Learner A may not have been aware that he also stepped in for other learners when they are bullied and did the same for them. Learner A had not taken him into her confidence and never told him about her domestic circumstances. He did not know what happened in Learner A’s home and to date did not know where her house is. As an example she never mentioned drug or alcohol abuse to him.

42. He was referred to Learner A’s version as well as the charge sheet and the charges levelled against him that he had pleaded not guilty to. He became aware of the allegations one afternoon after school while he was on his way to his car when the Principal called him back and handed the charge sheet to him. He was taken aback and dumbfounded and did not know where it came from. Such a charge against his name makes it very difficult as people talk and schools he applies to talk about these allegations. His first child was born on 5 July 2023 and he wanted a transfer to Oudtshoorn, where the child’s mother and his normal place of residence is, and which he could not do because of this very unpleasant process. The allegations did not make sense to him for a normal rational child to come to his classroom when he did not prepare or groom her for such an ugly deed, did not buy her things or do special favours for her and give her homework concessions.

43. He wanted to apply to return to Oudtshoorn from George but when he entered the Education Department’s online e-recruitment system to apply for posts in Oudtshoorn a drop-down message came through that there is a complaint against his name and he must give an explanation about the charge. He then left this since no other school would consider him when there was such a charge against his name, which has prejudiced him for applying for other posts. With respect to the layout of De Rust Primary School and whether it is possible for others to look inside his classroom when he is with a learner, he explained that other Educators had curtains on their windows but he had nothing to hide in his classroom and the light coming in made it better to explain on the green board. His classroom was on the top storey of Block 2 which was lower down than Block 1 and anybody from the top storey of Block 1 could look into his classroom. He responded to Learner A’s evidence that there was a cupboard in front of the window close to his desk which prevented people from the outside looking in, that there only was a narrow cupboard in the corner in which books were put in, but the rest of the windows were open. She school day finished for learners at 14h00 and for Educators at 14h30. There was no detention for naughty learners at De Rust Primary School. He would not keep learners behind after school as his way to keep discipline is to prepare well and keep the learners busy. If learners are bullied he will inform the parents of the incident. In most cases both learners are wrong and if they fight he will refer them to the Principal. He and the other Educators who lived in Oudtshoorn drove in and out from De Rust together in a lift club. They would come together at the Administration block if there was no meeting after school and wait for the bell to ring to drive together back to Oudtshoorn.

44. He was referred again to the allegations brought against him. It did not make sense that a person would do that to a new child who he did not know, which could perhaps have happened if the child had been known for many years. Learner A was in Grade 6 in 2018 and joined the school in Grade 5. He did not teach her in Grade 5 and taught her for the first time in Grade 6. He did not know which of the two shops close to the school Learner A had testified her twin sister was sent to, since he did not know about such an incident. The shop she had referred to was about two to three minutes from the school there and back. He was 100 percent sure that he never called Learner A to the classroom after school and that he never put his hand under her skirt as she alleged. He felt the process was a waste of everybody’s time for something that did not happen. From recall Learner A was an average learner with respect to her Mathematics points. With respect to discipline she behaved well and most of his learners behaved well. He did not do special favours for any child and he did not take sandwiches to school every day, or money to school on any day as it created the opportunity for learners to take money if he left the classroom. He described the serious injury sustained to his left arm as a result of the motor vehicle accident and that he lost 70 percent of the function of his left arm, cannot bend his left hand and that his right leg is also very painful, which causes problems with his colleagues at school since he cannot physically coach sport and can only supervise when learners play matches and help with chess. He under no circumstances did what the charge sheet said. He had worked at De Rust Primary School for eight years and left because he got a promotion post since he aspired to climb in his career. This was the first time he was charged for misconduct in his 12 years of teaching, which was a shock to him and he still remained in shock. He was still on duty and was not suspended. Learner A and her twin sister were always together and played together and did not give problems. The twin sister behaved well but was more outspoken. The sister’s Mathematics was average and he could not comment on her short and long term memory. As to Learner A’s evidence that her twin sister was more rebellious, he replied that everyone has their own opinion of a person, but he experienced the twin sister as a learner with more confidence to talk in the class, but she did not give him problems. He did not have contact with learners after he left De Rust Primary School, although some parents would send a message that they missed him.

45. Mr September testified as follows under cross-examination: He was aware of his duty as Educator with respect to the interactions with learners at a school, and that he must be professional in his conduct, must ensure that his work is well prepared and planned, that there must be mutual respect between Educator and learner and communication between the Educator and parent when possible. He was referred to the allegations brought against him and why a learner would come to his class after school, to which he responded that it was a question that he asked himself all the time from the day he received the charge sheet and could not understand why she made those allegations since he did not give her things or do favours for her. He did have a classroom at the school and taught there. As to Learner A’s version that she trusted him as an Educator and was not a stranger to her since he taught her Mathematics, he replied that there is an Educator/learner relationship between all learners and Educators. He could not understand why she made such allegations and he had no control over what Learner A and Learner B said. Learner A’s evidence is a blatant lie, her sister who according to her was in the classroom did not come to testify to her version, and he did not stay behind after school since they directly after school waited at the Administration block until the bell rang to go home. He was asked to comment on Learner A’s version of the alleged incident and responded that she stood by her allegation and he stood by the truth, which was that he did not call her to the classroom since it did not make sense that an Educator after five years suddenly decides to call a learner to the classroom to touch her. With respect to Learner A’s version that she trusted him, he reiterated that he did not know anything about her home circumstances, that she never told him she was mistreated or got hidings at home and he did not know where her home is, which he could not answer since he did not know what is going on in her head. He was going through this process, which makes it very difficult for his future plans. Learner A did not in her evidence provide an example of what she mentioned to him in confidence, which he did not have any knowledge of. As to why Learner A after four years would come forward and implicate him as the one who did this to her, he asked that himself, and could not understand why she would make that up and wished he had an answer, but did not know her thinking processes.

46. He was referred to the evidence of Ms Langhtrey, Ms Afrika and Ms Lindeque and that they were compelled to report the incident when it was brought to their attendion, and asked to comment on their evidence, to which he responded that it was correct that they were compelled to follow the procedure when the alleged incident was reported to them, repeating that he did not know why Learner A made these allegations and that Learner A’s statement that he after the alleged incident said to her she must not tell anybody otherwise he will lost his job, was devoid of all truth. Apart from teaching Learner A Mathematics, he did not know her so well, which is why he did not know about her personal and domestic circumstances and they had no relationship outside the school. As to a reasonable inference from Learner A’s evidence under oath that she trusted him and knew him well, he responded that this inference was wrong since most of the learners trusted him as he saw himself as a good Mathematics teacher, prepared himself well and any learner who sees an Educator working with him or her will trust him. As to why Learner A would still stand by her version after five years, he had also testified under oath that Learner As’ allegations are a blatant lie and stood by what he had testified. With respect to Ms Langhtrey’s version about the alleged incident that was brought to her attention, he was not at the Secondary School and Ms Langhtrey had mentioned that Learner A was the only introvert in a class of 80 and he understood why Ms Langhtrey had to follow the process. The allegations were not made as a result of a process and it was after the allegation was made that the process took place. He also questioned why Learner A would make such an allegation out of the blue and why an Educator would suddenly one day decide to do something like that. Reference was made to the two attorney’s letters handed in by the Employee party dated 23 November 2018 directed to two staff members at De Rust Primary School, and he explained that somebody had alleged he used drugs and spread rumours about him, which was reported to the Principal, with these two persons identified as being responsible, and who are still working at De Rust Primary School. He could not say whether it had anything to do with the present case and whether there was collusion at the time.

47. Mr September testified as follows under re-examination: He was aware of the Abuse No More Protocol which was handed in and admitted as evidence, but had never studied it himself. He was referred to the paragraph 3.1 relating to compulsory reporting and asked to read it into the record. He was aware that if a learner came to him or another Educator alleging sexual abuse that it was that person’s duty to report it. Ms Lindeque’s and Ms Afrika’s testimony was that the alleged incident was reported to the SAPS, but the SAPS did not come to arrest him because allegations were made by the victim that he had sexually molested her. The attorney’s letters from Johan Wagener Inc to Mr Mark Freek Ludick and Ms Nicolene Galant related to when he was working at De Rust Primary School and the children told him that there were rumours spread by these two individuals that he was using drugs, which rumours went out in the community. This was unpleasant for him and was brought numerous times under the attention of the then Deputy Principal Mr Vincent Damons, with no action taken against them. Mr Ludick (Oom Mark) is the Gate Guard at the school and Ms Galant is the Secretary. It later got so bad that Oom Mark closed the gate on his car when he was driving onto the premises and damaged it, which the Deputy Principal did nothing about after he reported this to him. It was a new car and his parents recommended that he see an attorney. The rumours stopped after the letters of 23 November 2018 were served on them, which was during his last year as Post Level 1 Educator at De Rust Primary School before he was promoted.

48. Learner B testified as follows under oath in her evidence in chief: She is 16 years old and is presently in Grade 11 at De Rust Secondary School. She knew the Employee at De Rust Primary School where he taught Mathematics for Grades 5 and 6. She confirmed that he taught her for two years. She knew Learner A as a cousin. They met in grade 5 in 2017 when Learner A’s family moved from Grabouw to De Rust and when they became friends. They were together in the same class at the time and they had a very close relationship then as cousins and did sport together. She heard about the case against the Employee and felt she must come and support the Employee and talk the truth. Ms Langhtrey was her register class teacher in Grade 9 at De Rust Secondary School. She was referred to Ms Langhtrey’s testimony that she noticed in class that in 2022 Learner A was very quiet, withdrawn, hardly talks to boys and was asked how she experienced Learner A in Secondary School, to which she responded that she and Learner A were never together in the same class in Secondary School, but as she knew Learner A she was never withdrawn and was always open and liked to talk, spoke to boys around her and never pushed boys away from her. They were a group of boys and girls and Learner A also liked to give hugs to the boys for the last few years from Primary School days. A friend sent photos to her on WhatsApp between Grade 8 and Grade 9 taken with a blue filter of Learner A in their doorway wearing a pink bra and gray panties. When she asked Learner A about the photos she told her, Learner B, that no such photos were ever taken, but she was speaking the truth as she had seen the photos.

49. With respect to the rumours about Learner A and Mr Jurims and Mr Arries, Mr Jurims was a young teacher who recently came to the school and taught her, Learner B, Accounting in 2022. Learner A and Mr Jurims’ discussions looked very intense and after a while the children said that there was a relationship going on between Mr Jurims and Learner A. When they heard the rumours they also started to look and noticed that the discussions became very intense and that when somebody came close, Mr Jurims or Learner A walked away. Mr Arries was the Deputy Principal at the Secondary School last year in 2022 and became the School Principal this year in 2023. During 2022 Learner A was a lot in Mr Arries’ classroom and always wore Mr Arries’ jacket. His wife, Ms Arries, taught her Mathematics and said it makes her uncomfortable that Learner A always spent time with Mr Arries and goes to him during every break. The children also said the same as for Mr Jurims that there was a relationship between Learner A and Mr Arries. Ms Arries heard this and went to Learner A and wanted to know what is going on and why she was always wearing Mr Arries’ jacket and did not wear her own jacket. She overheard this conversation and could not hear further when Ms Arries turned around and returned to the classroom and Learner A walked away. According to Learner A, Mr Arries was a Pastor and she went to him for counselling, but it looked like an inappropriate relationship between an Educator and a learner. She noticed that their visits became less after Ms Arries spoke to Learner A.

50. With regard to Learner A testifying that the Employee and Ms Coetzee were very attentive (“erg”) towards her, the Employee never favoured children and treated them all the same. In the mornings they always greeted the Employee good morning and then the Employee hugged them. The Employee did not only give hugs to Learner A, but to everybody, including herself. As an Educator the Employee was very strict and he spoke sternly to them if they did wrong. They did not have detention at school. She responded to Learner A’s testimony that she was so withdrawn after the incident that she did not mix with anybody and did not even speak to boys, that Learner A was not such a good student in Grades 6 and 7 but has been a good student at Secondary School and is under the top 10 of the school in Grade 11, of which there are many learners, and is lying 9th at present. Learner A mixes with boys and girls, talks to them all and does not turn conversations away. Her twin sister is an average learner, with Learner A being more clever. The Employee treated them all the same and she made sure to do his work as he was a man of discipline. The allegations in the charge sheet were read out to her. She did not believe the allegations since the Employee kept his distance from the girls and did not stand or talk too close to the girls. To her knowledge when she was in Grades 5 and 6 the Employee did not ask any of the learners to go to his classroom after school. There was an incident that happened during Grade 6 in Mr Fortuin’s class who was an Educator who taught Mathematics at the school, during which she passed out and the other learners asked the Principal for the Employee to take her home since they knew that he was always prepared to help.

51. Learner B testified as follows under cross-examination: She did not have the photos of Learner A in which she appeared with a bra and panty at the Inquiry and had no proof to show that Learner A appeared in those photos. As to Learner A’s testimony that she did not get on well with her, Learner B, they got on very well especially at Primary School when she slept over a lot with her for sports events and spent a lot of time together. As to Learner A not having testifed about the allegations concerning Mr Jurims and Mr Arries, and that she, Learner B, had referred to it in her testimony, she never complained to an Educator at the school about Learner A’s inappropriate relationship with them. She did not base this on what she heard from the children and the rumours but saw and heard it herself. As to why she felt she needed to support the Employee in his case, she only later found out at the beginning of this year when her mother told her about the case after her mother heard about it from the Employee, that she felt he wanted to testify about how well she knew the Employee.

52. She knew about Ms Arries talking to Learner A since Ms Arries taught them Pure Mathematics last year in Grade 10, when Ms Arries overheard the children talking in the class and were wondering why Learner A spent so much time with Mr Arries. She did not know if Ms Arries confronted Mr Arries, but she saw Ms Arries stand on the verandah by the hall and heard her talking to Learner A asking about the jacket when Ms Arries looked at her, Learner B, and then walked away. This happened in 2023. She agreed that she was not present when the alleged incident took place and could not shed light on what happened between the Educator and the learner. She confirmed that she had no knowledge of the Employee asking a learner to go to his class after school. She could not comment on Learner A’s testimony on what happened between her and the Employee in the classroom in 2018. She was referred to Ms Langhtrey’s and Ms Afrika’s evidence relating to the alleged incident and that Ms Langthrey had noticed that Learner A was withdrawn, who opened up to her about what was bothering her. She responded that she knew Learner A because they used to have such a close bond and shared a lot. When they were younger they did not go out but Learner A mixes a lot, goes out and has relationships with boys and all of them. As to why if they were so close Learner A did not decide to tell her what happened, but another Educator, it was probably because they were not so close in the last few years at Secondary School that she did not tell her about it. She was not in the same class as Learner A in June 2022 when the matter was reported. They were both in Grade 11 now and in Grade 10 during 2022, but in different classes.

53. Learner B testified as follows under re-examination: The photos that she did not have with her in the Inquiry are on another boy’s phone, by name of Samico, and she saw the photos on his phone. She did not go and complain about Learner A’s relationship with Mr Arries and Mr Jurims, but the children in the class talked about Mr Arries and Ms Arries heard this.

CLOSING SUBMISSIONS

54. Written closing submissions were requested by the parties and were agreed to, for submission to the ELRC and copied to one another and the Panelist by 27 July 2023. It was agreed that the parties would also include mitigating and aggravating factors in their closing submissions in the event of a finding of guilt. The Employer’s submissions were received on due date. The Employee party requested an extension until 28 July 2023 for their submissions, which was granted and received on 28 July 2023.

55. The Employer’s closing submissions are summarised as follows:

56. In terms of section 17 of the Employment of Educators Act No 76 of 1998 (the EEA) an Educator must be dismissed if he or she is found guilty of a section 17 offence. The Disciplinary Code provides that the Employer should act against the Employee since he was charged for sexually assaulting Learner A by inserting his hand under her skirt and touching her vagina, with a definition of sexual assault provided.

57. Reference was made to the evidence of the witnesses, of which the detail is not repeated, save to highlight the following:

58. Learner A was adamant during her testimony that the Employee had touched her vagina and did not waver from her original testimony, whilst the Employee refuted that he did anything to the learner and was never alone with her in his class. Ms Langhtrey, Learner A’s register class Educator whom she had opened up to about the alleged incident duing June 2022, believed Learner A since she did not talk badly about people in general and did not cause any disciplinary problems at school. Ms Lindeque, the School Social Worker also believed Learner A’s version since her verbal and non-verbal sensors corroborated with each other and she noticed that the learner’s emotional state was severe.

59. The Employee in his testimony had a bare denial of the charge of misconduct and the allegations that he was with the learner in the classroom during June and/or July 2018 and that he put his hand under her skirt and touched her vagina, which according to him was not true. He could also not provide any plausible explanation of what exactly happened over that period. They pointed out that in instances of bare denial a finding can only be made based on the reliability of the witnesses and the probabilities, with the task of the Panelist to favour the probability of one version over the other, failing which the benefit should be given to the accused employee, and with extra caution to be exercised in weighing up the evidence where more serious charges are levelled against an employee, despite the evidentiary burden being lessened in disciplinary matters.

60. With respect to the evidence of Learner B, she stated that Learner A always interacted with learners at De Rust Secondary School, which is contradictory as she conceded that they were not in the same Grade 10 class in 2022. Learner B could not provide proof of the WhatsApp photos where Learner A was posting pictures of herself wearing a bra and panty, hence this version should be disregarded. She could further not comment on the current charge of misconduct against the Employee, since she was not aware as to what happened between the Employee and Learner A.

61. In weighing up the versions of Learner A and the Employee, it is ultimately Learner A’s word against that of the Employee, with their view that the following issues should tip the burden of proof in the Employer’s favour, being that Learner A had testified that she had spoken to the Employee on a regular basis about her domestic circumstances, which the Employee had denied he had asked her about and that Learner A was able to describe in detail under oath as to what happened to her in the Employee’s classroom on or about June and/or July 2018, despite the incident having happened five years ago.

62. During the in loco inspection conducted at the end of the Inquiry Learner A had stated that the Employee’s table where the alleged incident took place, was situated more central towards the writing board with the chair turned towards her. She also indicated that there was a larger cupboard situated in front of the window closer to the board. The Employee had in turn stated that his desk was always closer towards the window so that he could not obscure the writing board from the learners and that the same cupboard as seen in the classroom during the inspection was the same size of the cupboard which was in his classroom during mid 2018. There were therefore two different versions of the classroom’s layout at the time and there was no other person who could corroborate either of the versions.

63. Reference was made to section 28(2) of the Constitution, the Child Justice Act and the Childrens Act that put the best interest of all minor children as of paramount importance and that their dignity and safety be put first under all circumstances. Since it ultimately came down to a ”he-said-I-said” situation, it should be asked why Learner A went to such lengths if she had no issue with the Employee. Reference was also made to how the evidence of child witnesses should be treated, of which the detail and the factors that may impact on the trustworthiness and reliability of the evidence of a young witness is not repeated here, with the Courts having held that the evidence of children should be scrutinised with care. Case law was also referred to supporting that there is no rigid rule that corroboration must always be present before a child’s evidence is accepted and that what is required of a tribunal or presiding officer is a detailed evaluation, not confined to demeanour, of the extent to which the evidence of a child could be regarded as reliable and acceptable. Further, that the extent to which a tribunal could rely on the evidence of children would always depend on age, intelligence, education, the home and school environment and to what extent the child has been taught in the home environment the need for moral values, in particular the meaning of truth and the need to tell the truth.

64. The Employee had been an Educator for 13 years (actual 12 years) with the rule well known that touching learners in an appropriate manner in any capacity is in contravention of Learner A’s constitutional rights and the code of ethics as prescribed by SACE, which offence makes an Educator automatically unfit to work with learners as the Employer would not be able to guarantee a safe education environment for any learner in the Employee’s care. They in conclusion implored that the Panelist find the Employee guilty as stated in Charge 1 and impose the mandatory sanction of dismissal.

65. The Employee party’s closing submissions are summarised as follows:

66. Reference was made to the evidence of the parties’ witnesses, with the detail again not repeated, save to highlight the following aspects of their evidence:

67. With respect to Learner A’s evidence, they argued the following: That her version of how the Employee touched her was different under cross-examination and when she testified during the in loco inspection, namely that under cross-examination she had testified that she stood at the right hand side of the Employee’s desk and during the inspection she indicated that she stood at the left hand side of the Employee’s desk; that her twin sister and mother never came to testify; that she had a long pause before answering under cross-examination; the time frame from the school to the Pakistani shop; and that a single witness testimony applied.

68. They added further that Learner A never testified what personal details she had told the Employee in confidence, that no grooming had taken place and that her version of what transpired that day after school did not make sense. She was an intelligent learner who came in the top 10 of all the Grade 11 learners and did not appear to be emotionally scarred as was testified by the Employer’s witnesses. The matter was also never reported to the SAPS. Learner A had tried in her testimony to suggest that the Employee was a sexual predator that took her into his confidence and tried to take advantage of her. The Employer could have called Mr Jurims and Mr Arries to refute the allegations made by Learner B, who came across as a credible witness and opted to testify in person in front of all the parties. Learner A had testified that she went for counselling to Mr Arries, whereas Ms Lindeque had testified that she was given a letter for psychiatric support, which was not testified to by Learner A, with the inference that such intervention was not needed because the alleged incident never took place.

69. They pointed out further that Learner A appeared very nervous and unsure about herself during the in loco inspection, with her testimony of her sister going from the Employee’s classroom on the top floor of the block furthest from the school entrance to the shop to buy chips and coke and being back in such a short time not being plausible. They argued that Learner A’s entire version was not plausible and it was questioned who in his right mind would tell a learner to come to his class after school and send the learner’s sister to the shop so that he could touch the learner’s private parts, as well as why Learner A brought her sister along if she thought the Employee wanted to talk to her alone about something.

70. With respect to the Employee’s and Learner B’s evidence, the following was noted: The Employee had testified that he did not keep learners after school nor does the school have detention, which was confirmed by Learner B, and that he and other Educators who stay in Oudtshoorn were part of a lift club, which is why he did not stay after school. Learner A had also agreed that learners are not kept after school. Since it was not the norm to keep learners after school, Learner A’s twin sister would have remembered if the alleged incident happened as described by Learner A. Since the twin sister was not called to testify the inference was that the alleged incident did not happen. The Employee had testified that he was dumbfounded by the allegations since according to him he had a good relationship with Learner A and he was not aware of any type of abuse that happened at her home, nor did Learner A herself testify to any abuse that occurred at their house.

71. It was verified during the in loco inspection that the Employee’s classroom could be seen into from Block 1. It was questioned that if Learner A’s version was true, that the Employee would have chosen a “safer” spot to perform this sexual act since he would have had enough time to plan his action and he would have asked Learner A to come alone since girls often moved in groups at school. The position of the desk in the classroom also became an issue in dispute during the in loco inspection, with Learner A indicating it was in the middle of the classroom and the Employee stating that it was more towards the corner (close to the window). When the parties entered the classroom the desk was in the corner, which would imply that even the current Educator would put the desk away from the board as learners must have a clear view of the board.

72. The Employee was also consistent in his testimony during cross-examination when the same question was repeated several times as to why Learner A had pointed him out as the perpetrator, to which he replied that these allegations also came as a massive shock to him. It was for the Employer to prove as to why Learner A would lie about the alleged incident, and not for the Employee to prove it. The Employee also testified that he had a newborn son that he must take care of financially and could not apply for promotion posts as he is flagged on the e-recruitment site. No other witnesses from De Rust Primary School were called to verify that the Employee was a sexual predator or over friendly with female learners. In the absence of such evidence the inverse would apply that the Employee did not behave inappropriately towards female learners and that the hugs referred to were a form of greeting. The Employer did not refute that the Employee had been an Educator for 12 years with a clean disciplinary record, neither was he arrested by the SAPS or contacted by the SAPS, which implied that the matter was not reported to the SAPS according to the Abuse No More Protocol, of which section 3 states that the the report must be immediate and it must be to a police official.

73. They submitted in conclusion that it would appear that Learner A’s testimony was rehearsed. It was also questioned who would wear a skirt in winter bearing in mind that Oudtshoorn gets very cold in winter. She was also a single witness with nobody who could corroborate her version. Learner A also never described how the Employee exactly allegedly touched her. They therefore requested that the Panelist find the Employee not guilty of misconduct as contained in Charge 1.

ANALYSIS OF EVIDENCE AND ARGUMENT

74. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the accused Employee, Mr Marvin-Leigh Christo September, is quilty of either the main or alternative charges of alleged misconduct leveled against him by the Employer, the Western Cape Education Department, as well as the sanction if guilt is established on either of the charges.

75. I am mindful that the onus is on the Employer to prove that misconduct of an improper, unacceptable, unprofessional or a sexual nature has been committed by the Employee and that I am required to consider the prescripts and provisions as contained in section 188A Inquiry by Arbitrator of the LRA, Collective Agreement No 3 of 2018 (the Collective Agreement), clause 32 of the ELRC Dispute Resolution Procedures and sections 17(1)(b) and 18(1)(q) of the EEA in terms of which the charges against the Employee were formulated. Of particular relevance in arriving at my findings and sanction in this matter is clause 5 The Outcome/Judgement/Arbitration Award of the Collective Agreement, which states as follows at 5.1:
5.1 An arbitrator arbitrating a dispute in terms of this collective agreement must, in the light of the evidence presented, and with reference to the following, direct what action, if any shall be taken against the educator:
5.1.1 the concept of fairness as provided for in the Labour Relations Act, as interpreted by the Courts;
5.1.2 the SACE Code of Professional Ethics for educators;
5.1.3 the United Nations Convention on the Rights of the Child (CRC) in 995;
5.1.4 the African Charter on the Rights and Welfare of the Child;
5.1.5 the best interests of the child as enshrined in section 28 of the Constitution of the Republic of South Africa;
5.1.6 the sanctions provided for in the Employment of Educators Act, including the mandatory sanctions of dismissal prescribed for certain forms of misconduct by the Employment of Educators Act;
5.1.7 any other relevant factor.

76. From the onset I am aware that this matter poses the particular challenge of the testimony of child witnesses as defined in the Childrens Act No 38 of 2005 (the CA) and the application of the principle of the best interests of the child as contained in section 28(2) of the Constitution of the Republic of South Africa, as well as the precautions relating to the assessment of the evidence presented by children in these type of proceedings.

77. In making this determination I therefore have to consider the reliability, credibility and probability of the evidence of the parties’ witnesses, in particular that of the two child witnesses who testified in this Inquiry. In order to reach a just verdict I should also consider all the relevant admissible evidence. For this reason the basic principle in evaluating evidence is that evidence must be weighed in its totality. In this regard Navsa JA in S v Trainor 2003(1) SACR 35(SCA) at 41b-c said the following:

“A conspectus of all evidence is required. Evidence that is reliable should be weighed alongside such as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable, the quality of the evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of course; must be evaluated against the onus on any particular issue or in respect of the case in its entirety….”

78. When evaluating or assessing evidence, it is therefore imperative to evaluate all the evidence, and not to be selective in determining what evidence to consider. As Nugent J (as he then was) in S v Van der Meyden 1999 (1) SACR 447 (W) stated at 450:

“What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored.”

79. From the aforementioned it is therefore clear that the evidence must be assessed in its totality in order to arrive at a meaningful conclusion, bearing in mind also that single witness testimony surrounding the alleged incident applied in this Inquiry and that the Employer’s other witnesses of Ms Langhtrey, Ms Afrika and Ms Lindeque, were compelled to report to the relevant bodies what was relayed to them by Learner A and were not direct witnesses to the alleged incident at the time that it allegedly occurred in or around June or July 2018, neither was Learner B a direct witness to the alleged incident, since Learner B only testified surrounding other issues and the general conduct of the Employee and Learner A.

80. Without repeating their evidence, of which sufficient detail is provided in the body of the award, I will focus on the reliability, credibility and probability of certain aspects of the evidence presented by Learner A and the Employee, who are the main parties to the alleged incident, as well as the related evidence of the other witnesses. To firstly turn to the evidence of Learner A:

81. She was adamant that the alleged incident took place in June or July 2018 and described it in considerable detail at the Inquiry after a period of almost five years had lapsed. A reasonable question to ask in the circumstances is why she never immediately reported the alleged incident, which is certainly of a very serious nature if found to be true, to either her twin sister, a friend, family member, confidante or another Educator at De Rust Primary School when it occurred, even if she was scared at the time to approach her own mother about it. The general experience in these matters is that a learner will tend to report a traumatic or serious incident to someone either shortly after the incident or as soon as they are ready to talk about it and not wait for four years before raising it. The Courts have however held that a child witness should not be penalised for a delay in reporting an incident of sexual assault immediately when the incident occurs due to feelings of fear and shame, with them often being unable to report an incident for even several decades. This delay in reporting the incident can therefore not be held against Learner A.

82. Learner A had testified that the incident since it happened caused her to become withdrawn and to not want to interact with boys. Ms Langhtrey, Learner A’s register class Educator in 2022, had testified that she observed in class that Learner A was very quiet and withdrawn and never spoke to other learners in the class, which was not normal behaviour for a learner, and had prompted her to encourage Learner A to talk to her if she had a problem and led to Learner A’s revelation to her during June 2022, which set this process in motion and which she and the others staff members were compelled to do. This was in contrast to Learner B’s testimony that she had experienced Learner A quite differently as her cousin and family member since 2017 when Learner A moved to De Rust, with whom she previously had a close relationship. Although she and Learner B were no longer in the same class during Grades 10 and Grade 11 at De Rust Secondary School, she painted a somewhat different picture of Learner A outside the classroom, which Ms Langhtrey as her register class Educator may not have experienced, and that Learner A was more socially outgoing in her interactions with other learners, including boys.

83. Learner A could not give a plausible reason why her twin sister, who allegedly accompanied her to the Employee’s classroom that afternoon in 2018, was not called to testify in the Inquiry, other than that her twin sister had a long term memory problem and that she could not remember what happened five or six years ago. Ms Langhtrey, who also taught Learner A’s twin sister at the Secondary School, testified that the twin was the opposite to Learner A and very jovial and talkative, with her work weaker, but did not pick up in class that there was a memory problem with the sister. Ms Afrika also testified that she knew both Learner A and her twin sister from the time that she was a CSA at De Rust Primary School and that between Learner A and her twin sister she saw Learner A as the more mature one, with the twin sister being more outspoken than Learner A, but was not questioned if she was aware that the twin sister had a memory problem, therefore did not present any evidence in this regard. Ms Lindeque, the School Social Worker, was the only other witness who mentioned that the twin sister had a memory issue based on what Learner A’s mother told her when she discussed the incident with the mother and the mother told her that the twin sister was the smaller of the twins at birth and is the one who struggles to remember. The mother was unfortunately not called to testify and the evidence of the twin sister would certainly have been able to corroborate Learner A’s version of the alleged incident, especially when faced with the evidence of single witnesses and in the absence of which, can tend to cast doubt on the credibility of Learner A’s version of the alleged events. Although there may be no rigid rule that corroboration must always be present for a child witness’s evidence to be accepted, other factors also need to be considered in assessing the reliability and truthfulness of a child witness’s evidence.

84. Learner A had testified that she had taken the Employee into her confidence and that he had treated her differently to the other learners in that he specifically hugged and paid special attention to her, that he with Ms Coetzee protected her at Primary School from being bullied and that he had taken advantage of this relationship. Ms Lindeque had testified that in addition to the hugs, Learner A told her that the Employee had also touched her on the hip, but Learner A did not mention this in her evidence. This evidence was contrary to that presented by Learner B, who had attended De Rust Primary School the same time when Learner A joined in the school 2017, as well as by the Employee when he was an Educator at the Primary School. Learner B testified that the Employee was strict and exercised discipline in class, treated all the learners the same and would hug the girls and boys who came to greet him, which supported the Employee’s own evidence in this regard. Learner B also testified that the Employee otherwise kept his distance from the girls and she did not see him act inappropriately towards the female learners. Ms Afrika who was appointed as CSA at De Rust Primary School during 2017 after she had completed her internship as CSA and left the Primary School in March 2022 to join the Secondary School as CSA, testified that she had been a friend and colleague of the Employee at the Primary School until he left end 2018 to take up the appointment at Pacaltsdorp Primary School on 1 January 2019, and was extremely shocked and emotional when the alleged incident was brought to her attention in 2022. Ms Afrika also testified that during the few years that she was at De Rust Primary School there were no rumours that the Employee was over friendly with the female learners.

85. Learner A had in the in loco inspection on the last day of the Inquiry indicated and alleged that the Employee had asked her to come to his desk, which was in a different location to what the Employee had testified, and that she stood on the left hand side of the desk, which was also on the left hand side of the Employee where he was seated in his chair, and that he leaned over with his right arm, put his right hand under her skirt and touched her on her private parts. By referring to him leaning over with his right arm she must have acknowledged the Employee’s injured left arm and hand which she stood closer to. This was contrary to what she had previously testified under cross-examination that she stood at the right hand side of the desk when the Employee had allegedly touched her. Learner A was visibly uncomfortable during the in loco inspection and it would appear she changed or improvised her original testimony of where she stood at the Employee’s desk when faced with the actual layout of the classroom and the location of the desk where the Employee had sat during the alleged incident, as well as how the Employee could have touched her with the injured left arm and hand. It is also observed that the Employee in her version would have had to lean over quite far because of the distance of the chair to the corner of the desk to touch her as she alleged.

86. She had also testified that she wore a skirt on that day in June or July 2018 and that the normal winter uniform for the girls at the Primary School included track suit pants or long grey pants, but that they could wear a skirt if it was not too cold in the mornings. It is noted that she wore long grey pants at the in loco inspection on 19 July 2023, which was presumably also part of the winter uniform at the Secondary School. During the inspection, which was around the same time of the year when the alleged incident occurred in 2018, it was noted that the other learners on the premises at the Primary School, both girls and boys, were dressed warmly and wore long pants. Being familiar with the very cold winters in De Rust myself and also as experienced by the parties during the inspection, I find it highly unlikely that she would have opted to wear a skirt on a cold winter’s day in 2018, which makes her version less probable.

87. Taking the foregoing into account, in summation as a witness Learner A did not make a positive impression, with contradictions in and evasive responses to certain questions put to her, and the probabilities of her version of events also being questionable.

88. To turn next to the relevant evidence of the Employee: He had emphatically and consistently denied that the alleged incident had ever taken place, had repeatedly expressed his shock and being dumbfounded about the allegations made by Learner A, and could not understand where they would have come from. He had also testified that there was no need to ask learners to stay behind after school or to come to his classroom after school since there was no detention, as also confirmed by Learner B and Ms Afrika, who had been at the same school at the time of the alleged incident. He was a member of the lift club for the Educators who resided in Oudtshoorn (a distance of about 35 kms one way from De Rust) and they would meet directly after school at the Administration block if there was no staff meeting to all drive together back to Oudtshoorn, hence it was unlikely that he would have stayed behind school for no reason. No witnesses or members of the lift club were called to confirm this arrangement, but on the other hand neither was this disputed by the Employer.

89. He testified further that he had not groomed Learner A nor made special concessions or favours towards Learner A but treated all learners the same, which was supported by the evidence of Learner B who attended the school at the same time as himself and Learner A. Learner A herself had testified that the Employee never did any special favours for her like helping with homework and answers and did not give her any money. From personal observation when at schools it appears to be common that learners will come towards Educators and hug them, especially in greeting. Hence the hugging referred to, which the Employee testified was not an embrace, but the holding out of his right arm (due to the injured left arm) to put around the learner, which is normally in the full view of other learners and Educators, is not deemed to be inappropriate physical contact or of a sexual nature and could be viewed as a rebuff to that learner if he or she was pushed away when excitedly approaching the Educator.

90. With reference to the in loco inspection, the Employee’s version of where the desk was located at the time would appear to be the more probable since the current Educator who now occupies Classroom 32 on the top floor of the lower Block 2 at De Rust Primary School also had the desk in the same position as what the Employee stated he had at the time in the corner close to the window, mainly so that the long green writing board against the back wall between the desk and the door is not obscured. As to whether persons on the top floor of Block 1 at the higher level could see into his classroom, the inspection confirmed that persons looking out of those classroom windows could have seen into the classroom since there were no curtains as the Employee had testified was the case at the time. In dispute was the location and height of the cupboard between the window and the desk as the Employee and Learner A provided different versions of this and it is accepted that the cupboard could have obscured the immediate vicinity surrounding the desk, but not the general interior of the classroom. The Employee’s version of where the desk was situated and the general layout of the classroom is in the circumstances viewed as the more probable.

91. It is also questioned why an Educator with the Employee’s background in education since 1 July 2011 and clean disciplinary record and personal circumstances would engage in such conduct, bearing in mind that his child was not born yet at the time in 2018. He had testified that he wanted to progress in his career, which is why he successfully applied for a promotion post of Head of Department in Mathematics at Pacaltsdorp Primary School, in which he was appointed on 1 January 2019, which post he still occupied and that he was not suspended from during the investigation and this disciplinary process. His testimony was further that he wanted to move back to Oudtshoorn where his partner and newborn baby were residing, but that he could not apply for any posts in the Department of Education because of him being flagged on the online e-recruitment system, which as an aspiring young man in the profession severely prejudiced him.

92. He testified too about the rumours spread about him in the De Rust community by two staff members at De Rust Primary School which led to him having to issue attorney’s letters to the two individuals to stop the rumours, which resulted in an unpleasant situation for him at the school and contributed to him applying for a post elsewhere due to him feeling victimised. The attorney’s letters from Johan Wagener Inc dated 23 November 2018 addressed care of De Rust Primary School to Ms Nicolene Galant (the School Secretary) and Mr Mark Freek Ludick (the School’s Gate Guard) were handed in as evidence and were not disputed by the Employer. It is noted that the Secretary was still employed and present at the school at the time of the in loco inspection and assisted the parties in accessing the Employee’s previous classroom and seemed to know Learner A well.

93. The Employee had blankly but consistently denied the charges brought against him, which is understandable given the devastating impact of a finding of guilt on these charges on his livelihood and career as an Educator, and repeatedly expressed his shock and of being dumbfounded about these allegations made by Learner A. He presented as honest, earnest and credible and did not deviate from his version, which was supported by the evidence of Learner B and Ms Afrika as to his conduct whilst at De Rust Primary School and that there were no rumours that the Employee was over friendly with the female learners whilst he taught at that school. .

94. With reference to the evidence of the other witnesses, they made a positive impression and all presented as honest and credible in their evidence, including Learner B, who had no reason to come and give false testimony or had a grudge to satisfy in these proceedings, and furthermore presented as a more credible witness than Learner A. Learner B had testified that she volunteered out of her own volition to testify in support of the Employee when she heard from her mother what had happened, and in her own words felt that she must come and support the Employee and talk the truth. The other witnesses of the Employer, being Ms Langhtrey, Ms Afrika and Ms Lindeque had fulfilled their respective roles as required and compelled to do so in terms of their duties and responsibilities with respect to the Employer’s Abuse No More Protocol when Learner A brought the alleged incident to the Employer’s attention, and did not present as if they had any other agendas or issues surrounding the Employee, except for Ms Afrika who had previously befriended the Employee, and testified that she was disappointed and emotionally so, when the alleged incident was brought to her attention.

95. The Abuse No More Protocol of the Western Cape Education Department at section 3.1 (a) provides for compulsory reporting in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007) in that every person has a duty to report knowledge that a sexual offence had been committed against a child, which report must be immediate and to a police official, with failure to report under this section regarded as a criminal offence. Ms Lindeque testified that they had complied with this requirement and had also reported the matter to the SAPS. However, it is noted that the SAPS did not intervene or contact the Employee, with no evidence also presented that Learner A’s mother opened a case of alleged sexual misconduct on behalf of her daughter against the Employee with the SAPS.

96. Learner B, Ms Langhtrey and Ms Afrika also testified to the rumours that commenced during 2022 at De Rust Secondary School surrounding Learner A and her relationship with two other Educators at the Secondary School, being Mr Jurims and Mr Arries, which rumours were based on what other learners and Educators had observed and spoke about, and would not normally be associated with a quiet and withdrawn child. Learner B in particular testified that one of her Educators in Grade 10, Ms Arries who is also married to Mr Arries, heard about the rumours and was concerned about Learner A’s frequent visits to her husband, who is also a Pastoral Counsellor, and that she was witness to Ms Arries confronting Learner A about this and also why she wore her husband’s jacket at school and not her own. Mr Arries was the Deputy Principal at the Secondary School in 2022 and is presently the Principal in 2023. Learner A had testified when questioned about this relationship that she went to Mr Arries for counselling after she had exposed the alleged incident with the Employee during June 2022 and was subsequently also been supported by Ms Arries after she had explained to her what had allegedly happened to her in 2018.

97. It is questioned why Learner A sought to get counselling from the then Deputy Principal instead of undergoing psychiatric treatment and counselling as recommended by Ms Lindeque the School Social Worker, or had approached Ms Lindeque instead for further counselling. Both Ms Langhtrey and Ms Afrika testified that they were aware of these rumours, with Ms Afrika also testifying that Ms Arries had requested her to intervene and ask Learner A not to talk to Mr Arries since Ms Arries did not like it and that there were enough female Educators to talk to at the school. It is probable that what Ms Langhtrey had observed in her class during the first six months of 2022 relating to Learner A’s demeanour could have been related to these rumours and not to the alleged incident involving the Employee. It is noted that Mr Jurims, Ms Arries and Mr Arries, who featured in the evidence of these witnesses, were not called to testify in the Inquiry to shed more light on the rumours and allegations surrounding Learner A and her conduct. Ms Lindeque had also testified that this was not the first incident involving Learner A, with a previous incident when the alleged transgressor was not an Educator, and this being the first incident in the school context, which happened around the same time that the incident with the Employee was reported. Ms Lindeque however did not investigate that incident but knew that it according to protocol was also reported on the Form 22 to the roleplayers.

98. It is accepted that such incidents or allegations may not be relevant to, and should not be, associated with the incident at hand. They could nevertheless reflect adversely on the evidence of Learner A due to an inference of a possible propensity towards inappropriate interactions with older Educators, or to implicate them in certain conduct.

99. The burning question remains as to why Learner A would fabricate such a version of the alleged incident, which she knew would have a devastating impact on the Employee and his career as an Educator. I have to bear in mind that the absence of a motive to lie is a relevant factor in assessing probabilities and making credibility findings in relation to the evidence of child witnesses, with the absence on the part of the child of a plausible motive to fabricate false evidence against an accused Educator being a factor that will normally weigh in favour of the version of the child against the version of the accused Educator.

100. In this regard reference is also made to the guidance provided in Woji v Santam Insurance Co Limited 1981 (1) SA 1020 (A) in which Diemont JA sets out the approach to be followed in dealing with the evidence of a child witness, as stated at 1028A-E:

The question which the trial Court must ask itself is whether the young witness’ evidence is trustworthy. Trustworthiness, as is pointed out by Wigmore in his Code of Evidence para 568 at 128, depends on factors such as the child’s power of observation, his power of recollection, and his power of narration on the specific matter to be testified. In each instance the capacity of the particular child is to be investigated. His capacity of observation will depend on whether he appears “intelligent enough to observe”. Whether he has the capacity of recollection will depend again on whether he has sufficient years of discretion “to remember what occurs” while the capacity of narration or communication raises the question whether the child has “the capacity to understand the questions put, and to frame and express intelligent answers” (Wigmore on Evidence vol II para 506 at 596). There are other factors as well which the Court will take into account in assessing the child’s trustworthiness in the witness-box. Does he appear to be honest – is there a consciousness of the duty to speak the truth? Then also ‘the nature of the evidence given by the child may be of a simple kind and may relate to a subject-matter clearly within the field of its understanding and interest and the circumstances may be such as practically to exclude the risks arising from suggestibility’ (per Schreiner JA in R v Manda (supra)). At the same time the danger of believing a child where evidence stands alone must not be underrated.”

101. The considerations of suggestibility and dangers surrounding believing the evidence of the stand-alone evidence of a child witness is of grave concern in this matter, since the career and future of a young male Educator is also at stake, as much as that the best interests of the child are of paramount importance in these proceedings.

102. As to Learner A’s motive to fabricate false evidence against the Employee, it is possible that she could have been motivated or suggested to do so by persons with other agendas or grudges to bear against the Employee, such as the two staff members at De Rust Primary School whom the Employee had taken issue with. Alternatively, Learner A could be dealing with other deeper underlying psychological or emotional issues that are being manifested in this manner, as well as in her subsequent conduct at the Secondary School, which I as the Presiding Officer of this Inquiry am not in a position to determine.

103. Given the totality of the evidence presented in this Inquiry and bearing in mind that the onus is on the Employer to prove guilt on the balance of probabilities in his matter, I find the version of the Employee as being the more probable than that of Learner A and find him not guilty of both the main charge and the alternative charge levelled against him. As a consequence it also necessary that the Employer removes the flag against the Employee’s name on the e-recruitment online application system for Educators so that the Employee may apply for other positions should he wish to do so. Because the Employee was not suspended and is still in full employment at Pacaltsdorp Primary School in George, no further findings relating to sanction or otherwise are required since the ultimate finding is that of him being found not guilty.

AWARD

104. The Employee, Mr Marvin-Leigh Christo September, is found not guilty on both the main and alternative charges of misconduct levelled against him in terms of section 17(1(b) and section (18)(1)(q) of the Employment of Educators Act No 76 of 1998 (the EEA).

105. Since the Employee was not suspended from service pending the outcome of this Inquiry, he is to continue with duties as normal in his appointed post of Head of Department at Pacaltsdorp Primary School in George.

106. The Employer, the Western Cape Education Department, is also to instruct that the flag or block on the e-recruitment online application system against the Employee’s name be removed with immediate effect.

Panelist: Alta Reynolds