In the ARBITRATION between

DAVID SELLO SACHA

Applicant

and

DEPARTMENT OF EDUCATION-NORTH WEST

Respondent

APPLICANT’S REPRESENTATIVE MR. V. SHIKWAMBANA

APPLICANT’S ADDRESS FAX [053] 948 1092

RESPONDENT’S REPRESENTATIVE MR. D.PHANGO

RESPONDENT’S ADDRESS FAX [018] 388 1703

DETAILS OF HEARING & REPRESENTATION

1. The matter was heard on the 20th of April and the 23rd of June 2011 at the North West Department of Education at Mafikeng for arbitration.

2. The applicant was represented by an attorney Mr. V. Shikwambana while the respondent was represented by Mr. D. Phango.

3. The applicant submitted one page into evidence and the respondent a bundle of documents.

4. The complainant in this matter is a minor learner and would therefore be referred to during this award as ‘’the complainant’’.

5. As agreed the parties submitted written closing arguments on the 1st of July 2011.

ISSUES TO BE DECIDED

6 I have to determine if the applicant’s dismissal was substantively and procedurally fair and in the event that it was not, I have to determine appropriate relief.

SURVEY OF EVIDENCE AND ARGUMENT

THE RESPONDENT’S EVIDENCE

7. On behalf of the respondent, SEBEDI JOHN MENDE under oath testified that:

a] He is the Principal at Thusano Junior Secondary School and as such knows the applicant who was an educator at the school;

b] He became aware of the complaints levelled against the applicant by the minor complainant when the class teacher, Ms Mashile brought him the class attendance register and informed him that the complainant had been absent for more than 10 days. In such a case a learner is removed from the register, however, he instructed Ms. Mashile to 1st determine why she is absent before removing her;

c] Ms Mashile informed him that the complainant had no parents but her guardian is her brother, Boytjie Nche with whom she lived at Delareyville;

d] Enquiries were also made with the other learners regarding the whereabouts of the complainant and they were informed that she ‘’does not want to come to school’’ as she was told by the educator [applicant] that she ‘’is a pig and a thing’’. They were further informed that the applicant had accused the complainant of stealing his cell phone and that he had intimidated her in the class room. Further information given to them was that the complainant said she ‘did not know how she would come to school and look at the applicant as they had slept together’’;

e] Due to this information he instructed Ms. Mashile to call the complainant and her guardian to report at the school to ‘testify to these allegations’’ and to explain why she is not at school and why the incident had not been reported. A meeting was then arranged for the 7th of May 2009;

f] On this day only Boytjie Nche reported for the meeting and he informed them that the complainant would not come as she was seen with other workers on their way to harvest. He then instructed the Deputy Principal, Ms. Moseke to take 2 educators with her and to collect the complainant in order to attend the meeting;

g] The meeting then eventually took place and the complainant informed them [a version that was collaborated by other learners] that on the Thursday before Good Friday during the evening the applicant [who came from Delareyville to Frisgewacht met a learner from another school, Tanni, at the tavern. The applicant then used Tanni’s cell phone to call the complainant and told her to meet them at the tavern;

h] The complainant and other girls then met the applicant at the tavern and the 4 of them then travelled with the applicant in his car to Delareyville. On the way to Delareyville during the drive all 4 girls touched the applicant’s private parts;

i] At the tavern in Delareyville the applicant bought them liquor and cigarettes. They then told the applicant that they were hungry and as a result went to the applicant’s house for food where he gave them food;

j] At the applicant’s house he then started kissing the complainant, pulled her on the bed and pulled down her pants and had sexual intercourse with her;

k] They then left for Frisgewacht but on the way encountered car problems and the girls then had to push the car. As a result of this the complainant fell and got injured. The applicant put her in his car and they continued to Frisgewacht;

m] During the meeting the complainant told them this version and she ‘’was normal’’ during the meeting at no stage indicated she ‘’was under duress’’;

n] It is the 1st time he sees the ‘statement’ by the complainant dated 7 December 2010. From the time of the hearing during 2009 until the date of the statement the complainant or any one else never told him or anyone else that she ‘’’was pressurised to testify’’.

8. BOTLHAHLE RAIKANE testified under oath as follows;

a] She is the Assistant Manager Labour Relations and as such investigated the incident when it was referred to her office by the school during May 2009;

b] She met with the complainant who informed her that the incident occurred before Good Friday when she and a friend Danni, were called by the applicant who invited them to Delareyville. Danni then called Maserame and the 3 of them then waited for the applicant at Frisgewacht where he picked them up at a tavern and bought them liquor;

c] They then drove to Delareyville and before arriving at the applicant’s house stopped at another tavern. At the applicant’s house they told him they were hungry and he then offered them food. After eating they told the applicant they were still hungry and told him to buy them chips. The applicant then left to do so and upon returning with the chips they all ate.

d] The complainant informed her that the applicant’s house consisted of 1 room that contains a bed and a section that is used as a kitchen. At this stage the complainant ‘’was very drunk’ and sat on the applicant’s bed. The applicant then pushed her back on the bed, removed her pants and penetrated her. The 2 friends of the complainant were watching and asked the applicant ‘to stop’’ what he was doing. The complainant informed her that when the applicant penetrated her she screamed and tried to push him off but she was to drunk and ‘’had no power’’;

e] The complainant also told her that her friends asked the applicant to stop and then left to go outside in order to call someone;

f] After the incident the applicant took them back to Frisgewacht but on the way his car broke and they had to push it. The applicant then dropped them at a tavern’

g] She believed this evidence of the complainant during the interview and her version was confirmed by her 2 friends;

h] This is the 1st time she sees the statement made by the complainant dated 7 December 2010. From the time of the incident during April 2009 until the date of the statement the complainant never informed her or anyone else that she had lied during the disciplinary hearing. She is therefore ‘’very surprised’’ by this statement.

I] Before she commenced the interview with the complainant she told her ‘’to be free’ and asked her if she ‘’was forced’’. The complainant gave no indication that she had been forced.

9. THAMSANI GUMA testified under oath as follows:

a] He acted as the chairperson at the applicant’s disciplinary hearing;

b] The complainant testified during the hearing that the applicant collected her and 2 friends at Frisgewacht and took them to a shebeen where he bought them liquor;

c] They then went to Delareyville where he again bought them liquor at a tavern;

d] The applicant then took them to his house where the door could not be opened from the inside. The complainant and her friends were drunk and whilst in the house the applicant had ‘’forced sex’’ with the complainant. As a result of being drunk they were helpless and thus unable to remove the applicant;

e] At the hearing the applicant’s witness, Mosenko, testified that it was ‘’not easy’’ to open the door from the inside, a fact that was not disputed by the applicant;

f] The evidence of the complainant who ‘was clearly hurt’ by the incident was corroborated by her 2 friends, Danni and Maserame;

g] During the hearing, the complainant indicated that she was intimated by the applicant’s presence and an agreement was then reached between himself, the applicant and his union representative that the applicant would not be present during the hearing when the witnesses testify;

h] After the complainant testified the applicant’s union representative informed him what her evidence entailed and he then cross-examined her;

i] During the hearing the complainant did not ‘’appear pressurised’’ and he found her evidence truthful and her evidence ‘’did not sound coached or rehearsed’’.

10. MAUREEN MALIFATSE MOSEKE testified under oath as follows:

a] She is the Deputy Principal at Thusano Junio Secondary School and as such had worked with the applicant;

b] Her relationship with the applicant during his employment had been like that of a ‘’brother and sister’’ and is currently ‘’’good’’ and had ‘no fights’ with him;

c] She ‘did not plot against him’’ in order to secure his dismissal;

d] On the 26th of April 2009 she did not attend the meeting with the complainant, Danni and Maserame and did not meet any of the learners or individuals in order to tell them to give false evidence against the applicant and is ‘very surprised by the allegation that she formulated a false charge against him’’;

11. BOYTJIE NCHE testified under oath as follows:

a] He is the complainant’s younger brother;

b] He knows the applicant who had been his teacher at middle school;

c] The applicant approached him regarding his cell phone when the schools re-opened and said that his sister, the complainant, was not at school and said that she [complainant] ‘’possibly took his cell phone by mistake or stole it’’ and must return it;

d] He told the applicant that he had been at Polokwane over the week end and only returned on Monday. He told the applicant if there is a phone he will inform him;

e] He thus approached the complainant and asked her if she took the applicant’s cell phone. She then informed him that she did not take it but that the applicant gave it to her in order to be able to contact her;

f] This was the ‘’last time’’ he heard ‘’of the phone issue’’;

g] The school then called him regarding the incident between the applicant and complainant. The complainant had to be collected from the truck in order to attend whilst he was under the impression she is at school;

h] He had a private conversation with the complainant about the incident during which she informed him that she was with friends at Delareyville when the applicant called from Frisgewacht. She also told him that the applicant at the Greyhound tavern in Delareyville bought them liquor which they consumed there;

i] They then told the applicant that they were hungry and the applicant took them to his hoe where they ate;

j] The applicant asked the complainant to ‘’touch and kiss his private parts’’ and then pulled down her jeans and said ‘’let’s keep together’’ upon which she said ‘’I don’t want to’’;

k] The applicant however, continued pulling down her jeans and had sex with her. During the incident the complainant’s friends Danni and Maserame were in the room with them but could not leave as the door handle did not work properly;

l] They asked the applicant to open the door as they wanted to leave but he refused. Later one they ‘’somehow managed’’ to open the door and got out;

m] Danni asked the applicant to take them to Frisgewacht which he then did ‘’’after the sexual intercourse’’;

THE APPLICANT’S EVIDENCE

12. On behalf of the applicant, PHEFO PATRICI DIMAKATSO, testified under oath as follows:

a] Her affidavit is reflected as Annexure ‘’D’’;

b] She is a close friend of the complainant with whom she is currently still friends and they had been friends for 4 years;

c] She was told by the complainant she ‘’thinks this was January 2009’’ that the applicant did not sexually assault her. The complainant told her this when they were at the house were they live;

d] They were ‘sitting around talking’’ when she asked her about the incident and the complainant then said she was not sexually assaulted by the applicant.

13. EUGENE MANTSHO testified under oath as follows:

a] He knows the complainant from Frisgewacht were they grew up together;

b] He was with the applicant when he was approached by the complainant who told him ‘’I am looking for your regarding that issue, where were you?’’;

c] The complainant then pulled the applicant aside and said ‘’I would like to apologize for the incident, the teachers put me under pressure to say it, but that was not the way it happened’’;

d] The applicant then said ‘’Eugene do you hear this, and he said ‘’yes’’. The applicant then said to the complainant ‘’say this at the hearing’’ and he also told the complainant ‘’ what you are saying now I will witness if there is a need’’;

e] The complainant then said ‘’no problem’’

f] This incident occurred ‘’last year or this year’’ he ‘’is not sure when’’.

14. MAFULAKO LILY MASERAME testified under oath as follows:

a] She knows the applicant had been ‘’charged for the rape of a learner when it did not happen’’;

b] She was at Delareyville with the complainant who lied about the incident. The applicant ‘did not have sexual intercourse with the complainant’’, she is ‘’sure of it’’;

c] She knows the complainant who had been her friend, but they are no longer friends as she had made false allegations against the applicant.

CLOSING ARGUMENT

15. Both parties submitted written closing arguments on the 1st of July 2011 as agreed.

16. I have studied the arguments submitted and have taken it into account during the rendering of this award. If necessary relevant arguments would be reflected during the analysis of evidence.

ANALYSIS OF EVIDENCE AND ARGUMENT

17. Section 192[1] of the Labour Relations Act 66 of 1995 states that the onus is on an applicant to establish the existence of the dismissal.

18. Thereafter, in terms of section 192[2], the respondent has to show that the dismissal was substantively and procedurally fair.

19. At the outset of the arbitration the issues in dispute were determined as there existed no pre-arbitration minutes.

20. The applicant contended that his dismissal was substantively unfair as he ‘’was not guilty and did not commit the act’.

21. Regarding procedure the applicant stated that the witnesses testified at the disciplinary hearing in his absence thus rendering his dismissal procedurally unfair.

22. The applicant was charged in terms of the Employment Act for Educators, Act 76 of 1998 [the Act] with the following charge of misconduct:

‘’On/or about 9 April 2009 and at or around Delareyville you knowingly, wilfully and deliberately committed an act of misconduct as contemplated in the Act when you sexually assaulted a learner at Thusano Junior Secondary School, thereby contravening Section 17[1][b] of the Act

23. The learner in casu is a minor and thus in accordance with law she is not identified for purposes of this award but will merely be referred to as the complainant.

24. The identity of the complainant was common cause during the arbitration.

25. The existence of the rule/s as contained in the Act was not disputed by the applicant and the only substantive issue that needs to be determined is if he was guilty of contravening said rule.

26. It needs to be stated at the outset that the most important person in this matter, the complainant, did not testify.

27. The case presented on behalf of the respondent was done by way of evidence from 5 witnesses. Four of these were present when the complainant explained the incident and the 5th was the chairperson of the disciplinary hearing.

28. The applicant’s case was based on the evidence of 3 witnesses.

29. The applicant elected not to testify.

30. The crux of the respondent’s case was that the applicant sexually assaulted the complainant in this matter on the 9th of April 2009.

31. This incident allegedly occurred at the applicant’s house where he took the complainant and 3 of her friends after a spree involving the buying and consumption of alcohol at taverns.

32. Evidence was led that the applicant pushed the complainant down on the bed, pulled down her pants and proceeded having sexual intercourse with her despite her protests and attempts by her friends to stop him.

33. On behalf of the applicant the witnesses testified that the incident never occurred as the complainant admitted that she had fabricated her version due to pressure placed on her by teachers.

34. According to these witnesses, the applicant admitted to them that she had lied at the disciplinary hearing due to pressure placed on her by educators. Two of the witnesses and the complainant also made statements to this effect.

35. Due to the fact that the complainant did not testify the cases of both the applicant and the respondent amount to hearsay.

36. It is trite law that an arbitration is a hearing de novo and as such a respondent must proof its case afresh. In order to do so the respondent is thus required to call witnesses to submit first hand evidence of the incident for which the applicant was dismissed.

37. In common law hearsay evidence is evidence, not of what the witness himself heard, saw or otherwise came to know of but of what he heard others tell him about the matter. Such a witness tenders evidence that was not observed or perceived through his own senses but was heard from someone else [the originator] which in casu is the complainant.

38. The general rule is that hearsay evidence is not allowed because it is not the best evidence. The reason being that the actual observer [or the source of the story] is not present and cannot be subjected to cross-examination. The main reason for the cautionary rule against hearsay evidence is its unreliability. Courts have been loath to admit the evidence of a person who is not before them [this would also apply to arbitrators] and who cannot be subjected to cross-examination.

39. Credibility is a factor which plays a major role in evaluating evidence and the credibility of a witness does not depend upon the witness’s honesty, his powers of perception, memory and accuracy of narration. These facts can only be tested if the originator [complainant] of the report [incident] is present and can therefore be subjected to cross-examination.

40. Therefore hearsay evidence is second hand evidence. The evidence of a chairperson as to what he was told by witnesses fall thus squarely within this. Furthermore, the evidence of witness to whom the complainant relayed her story also falls within this definition.

41. Hearsay evidence may be misleading if the recollection of the narrator [the witnesses who testified at the arbitration] is faulty or if they deliberately told lies or if the evidence is fabricated.

42. Even in the event that there are no lies or fabrications a witness or witnesses may be mistaken owing to certain deficiencies in their powers of observation or memory or the witness might testify in a confusing and misleading manner.

43. The purpose of cross-examination is to expose these possible weaknesses in the evidence and if the originator of the statement [the complainant] is not present, the safeguard is lost.

44. Another reason for the cautionary rule against hearsay evidence is that such evidence is not given under oath. At the time the originator [complainant] made the statement to the witness, the originator was not under oath. The sworn evidence is thus the recollection of the witness of the statement made by the originator.

45. Although the applicant submitted a statement allegedly made by the complainant this statement was vehemently disputed by the respondent.

46. Once again the complainant did not testify and her statement could not be verified as truthful and as such her written statement also amounts to hearsay.

47. The evidence of the witnesses who testified on behalf of the applicant also falls within the ambit of hearsay as their evidence boils down to a statement made to them by the complainant that she had fabricated the event and had lied during the disciplinary hearing as she was pressurised by educators to do so.

48. Even if the witnesses recalled 100% accurately what was said and gave an accurate account, the actual source of the statement [in this matter the complainant may have been inaccurate in her recollection of events and as she is not present, her version cannot be tested by cross-examination.

49. The Law of Evidence Amendment Act 45 of 1998 in section 3 defines hearsay evidence as follows:

‘’ [1] Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence unless:

[a] each party against who the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;

[b] the person upon whose credibility the probative valued of such evidence depends, himself testifies at such proceedings’’

50. Hearsay might however, be allowed if it falls within the ambit of section 3[c][i] –[vii] if the court if is of the view that it should be admitted in the interest of justice.

51. The factors to be taken into consideration in exercising this discretion are the following:

● the nature of the proceedings;

●the nature of the evidence;

●the purpose for which the evidence is tendered;

●the probative value of the evidence;

●the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;

●any prejudice to a party which the admission of such evidence might entail;

●any other factor which should in the view of the court be taken into account.

52. It is trite that arbitrations are less formalistic and less technical than judicial proceedings and as such an arbitrator might more readily exercise a discretion in favour of admitting hearsay evidence.

53. In the event that a party succeeds in having hearsay allowed during the arbitration only half the battle is won.

54. The representative of the party that wants to have hearsay admitted should still submit arguments as to probative value – in other words the weights that should be attached to the hearsay evidence.

55. No arguments were raised by the representatives regarding this issue.

56. It seems as if none of the parties appreciated the fact that the evidence they had presented during the arbitration amounted to hearsay.

57. Furthermore, no evidence was tendered as to why the complainant, as the person upon whose credibility the probative value of the evidence depended, was not present.

58. The respondent had the onus to proof that the applicant was guilty of the offence. Based on the nature of the evidence submitted, they had failed to do so, and I accordingly have to find that the applicant’s dismissal was substantively unfair.

WAS THE DISMISSAL PROCEDURALLY FAIR?

59. Schedule 8 of the LRA sets down the following guidelines for a procedurally fair hearing.

· Notice of the charge;

· Reasonable time to prepare a response;

· Employee entitled to state a case in response;

· Employee entitled to assistance;

Informed of the decision and the reasons therefore.

60. The applicant claimed that his dismissal was procedurally unfair as the complainant submitted evidence during the disciplinary hearing in his absence.

61. The chairperson of the disciplinary hearing, Mr. Thamsani Guma, testified that the complainant indicated during the hearing that the applicant’s presence intimidated her.

62. As a result of this, an agreement was reached between himself, the applicant and his representative that the applicant would leave the hearing while the complainant testified.

63. At the end of the complainant’s evidence the representative went outside and discussed the evidence with the applicant and upon his return continued to cross-examine her.

64. The applicant proceeds to cross-examine Mr. Guma at length. The cross-examination however, revolved around the substantive issues of the case.

65. The evidence of Mr. Guma as to why the applicant waited outside during the evidence of the complainant was not disputed.

66. I thus accept that the applicant by his failure to address this issue, abandoned his attack on the procedural fairness and accept that the dismissal was effected in a procedurally fair manner.

67.Grogan ‘Dismissal, Discrimination & Unfair Labour Practises’ has this to say on page 268 regarding procedural fairness: ‘’ The requirements of procedural fairness require employers to act in a semi-judicial manner before imposing a disciplinary penalty on an employee. They are designed essentially to discourage rash and arbitrary action against employees. However, the principles of procedural fairness should not be interpreted or applied in a technical manner; employers are not expected to handle disciplinary proceedings according to the rigorous standards applied in courts of law. The rules of natural justice require no more than that employers’ should act according to the common-sense precepts of fairness’’.

68. In Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others [2006] 9 BALR 833 [LC] the court stated the following with regard to procedural fairness:

‘’ This conception of the right to a fair hearing prior to dismissal is reflected in the Code. When the code refers to an opportunity that must be given by the employer to the employee to state a case in response to any allegations made against that employee, which need not be a formal enquiry, it means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss. In the absence of exceptional circumstances, the substantive content of this process as defined by Item 4 of the Code requires the conducting of an investigation, notification to the employee of any allegations that may flow from that investigation, and an opportunity, within reasonable time, to prepare a response to the employer’s allegations with the assistance of a trade union representative or fellow employee. The employer should then communicate the decision taken, and preferably communicate this in writing. If the decision is to dismiss the employee the employee should be given the reason for dismissal and reminded of his or her rights to refer any dispute dismissal to the CCMA, a bargaining council with jurisdiction or any procedure established in terms of a collective agreement’’.

69. In accordance with the guidelines set out above, the applicant’s dismissal is deemed to be procedurally fair.

FINDING

70. The dismissal of the applicant was substantively unfair but procedurally fair.

71. The applicant had expressed his wish to be reinstated which by virtue of section 193[a][1] of the LRA I am empowered to order.

AWARD

72. I therefore make the following award:

“The respondent, THE DEPARTMENT OF EDUCATION NORTH WEST, is ordered to:

1] Reinstate the applicant, DAVID SELLO SACHA, retrospectively from the date of his dismissal during March 2010 on the same terms and conditions that prevailed on the date of dismissal without any loss of benefits;

2] Pay the applicant back pay for the period of his unemployment [14 Month’s] calculated at his rate of remuneration on the date of his dismissal;

3] The reinstatement and the payment of the back pay to be effected within 14 days from the date on which this award is served on the respondent’’.

DATED AT PRETORIA ON THIS 17TH DAY OF JULY 2011

PANELIST

E MAREE