Case Number: ELRC 1371-24 25 NW
Commissioner: M.A. HAWYES
Date of Award: 11th of June 2025
In the ARBITRATION between
Department of Education: Northwest
(Employer)
and
Mr. H. Potgieter
(Employee)
Union/Applicant’s representative:
Union/Applicant’s address:
Telephone:
Telefax:
E-mail:
Respondent’s representative:
Respondent’s address:
Telephone:
Telefax:
E-mail:
- DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was scheduled for an inquiry by arbitrator on the 16th of April 2025 and finalized on the 27th of May 2025.
1.2 The hearing was held in person on the 16th of April 2025 with all parties present at the Lichtenburg site office. On the 27th of May 2025, the interpreter, intermediary and myself were physically present at the Lichtenburg offices and the employee, representative and employer representative joined online.
1.3 Mr. P. Havenga, a union official from SAOU, represented the employee.
1.4 Ms. M. Lerata, a labour relations officer, represented the employer.
1.5 After the completion of evidence, the parties requested an opportunity to submit written closing arguments by the 3rd of June 2025. The said arguments were timeously received and my award now follows.
1.6 The parties each made use of small bundles of documents. The employer’s bundle was marked Bundle ‘B’ and the employee’s bundle (which mainly consisted of the parties pre-arbitration minutes) was marked Bundle ‘A’.
1.7 Detailed notes and a digital recording was kept of the entire arbitration process.
- ISSUE IN DISPUTE
Whether the employee is guilty of sexual misconduct as contemplated in section 17 (1) (b) of the Employment of Educators Act no 76 of 1998 (as amended) (EEA). The employee was charged with sexual misconduct in that on the 22nd of May 2024 he allegedly had sexual relations with a learner by touching her on the buttocks. - BACKGROUND TO THE ISSUE
3.1 The Respondent employs the Applicant as a PL1 educator at Coligny High School where he teaches geography and technology.
3.2 It is common cause that the complainant is a pupil in the employee’s geography class.
3.3 The employee pleaded not guilty to the charge preferred against him.
- SURVEY OF PARTIES EVIDENCE AND ARGUMENT
EMPLOYERS EVIDENCE AND ARGUMENT
4.1 The employer lead the evidence of three learner witnesses namely complainant Ms. MM (the complainant) (18 years old), Ms. OM (17 years old) and Mr .MB (18 years old).
4.2 All three witnesses testified remotely via Microsoft Teams and had the assistance of an intermediary and a Zulu interpreter.
4.3 MM testified that on or around the 22nd of May 2024, while in class (geography period) the employee had given them a task to do (mapwork) as classwork.
4.4 MM testified further that she had a challenge in understanding the said task and she raised her hand. The employee invited her to come to his table for clarity.
4.5 MM testified that following the employee providing her with an explanation he touched her buttocks with his right hand. She immediately reported the incident to her friend OM.
4.6 MM testified that she did not have a good relationship with the employee because he shouts at learners in class and that he spends most of his time out of class.
4.7 During cross-examination MM could not remember the exact date of the incident but remembered that it was before the exams.
4.8 MM described the touch as a tap on her buttocks and she removed his hand and he then continued to slap her about three to four times before the bell for the end of the period rang.
4.9 Following her conversation with OM they went to the principal to report the incident however the principal was busy with other commitments.
4.10 MM testified further that she also spoke to an educator, Ms Viljoen (not called as a witness). She did not say much to the employee after the incident as she wanted to avoid using vulgar language.
4.11 The second witness, OM, testified that she and MM were friends.
4.12 OM could not remember the date of the incident but remembered that it was a geography period during the second term.
4.13 She saw MM approaching the employee’s desk for clarity. As the employee was explaining the task to MM she saw the employee touching MM from her waist to her buttocks with his right hand.
4.14 When MM returned to her desk she asked OM if she had witnessed what the employee did to her. OM confirmed that she had indeed seen what had transpired.
4.15 While they were chatting another pupil in the class, MO (Fenfe) came across to them and confirmed that he had seen what the employee had done to MM.
4.16 OM testified that she had a good relationship with the employee and that he was a good educator.
4.17 During cross-examination OM confirmed that MM was a feisty person and that MM and the employee had not got on. She stated further that she stayed at the hostel that the employee was the head of and she had not encountered any problems with him there.
4.18 OM testified that the employee’s desk faced the door and that his left side is besides the wall. OM testified that she was sitting at the first desk of the second row.
4.19 The third witness Mr. MB, also a pupil in the employee’s geography class testified that he saw what transpired between MM and the employee.
4.20 He confirmed that MM had sought clarity about the map work they were being taught and had been invited to the employee’s desk. He noticed the employee touch MM’s buttocks and he heard the employee saying “hee bathing Meneer” in shock.
4.21 During cross-examination OM testified that he had a good relationship with the employee but he knew that the employee and MM did not get on and they always fought in class.
4.22 MB testified that his desk was in the front line besides the employee’s desk and his desk in fact faced the employee’s desk.
4.23 MB testified that he and MM were not friends they were merely classmates.
EMPLOYEE’S EVIDENCE AND ARGUMENT
4.24 The employee testified under oath and called no witnesses.
4.25 The employee testified that the date that the incident was alleged to have taken place on was impossible. Exams had already commenced by that time and normal classes no longer took place.
4.26 The employee testified further that not only did classes no longer proceed, but he was invigilating in another part of the school on the 22nd of May 2024.
4.27 The employee testified that due to the above logistics the incident could not have happened as described by MM.
4.28 The employee confirmed that MM was a difficult learner and that the two of them had had problems in the past.
4.29 The employee testified that he was only made aware of the incident in November 2024 when it had allegedly occurred in July 2024.
4.30 The employee mentioned that he formed part of a meeting with MM, her parents and the principal wherein the father asked the employee to buy MM something expensive then they can forget about everything. The employee refused to agree to this. The employer did not dispute this.
4.31 The employee confirmed the layout of the classroom and argued that it was improbable that he would commit this misconduct in full view of the rest of the learners.
4.32 The employee described MM as a difficult person and was able to intimidate other learners to support her.
4.33 It was argued that the employee’s evidence was straight and to the point and no contradictions were raised by the employer during cross-examination. It was submitted that the employee provided a credible and reasonable explanation for the incident.
- ANALYSIS OF EVIDENCE AND ARGUMENT
5.1 The employer bears the onus of proving the allegations against the employee on a balance of probabilities.
5.2 In assessing evidence it is important to note that when considering contradictions or inconsistencies of children when compared to adults one must accept that the memory of younger children may be less focused on detail as adults. In this matter two of the learners (including the complainant) have reached the age of 18 years and are considered by law to be adults. OM is 17 years old and not far from adulthood.
5.3 I have decided to treat and evaluate the evidence of the employer learner witnesses as adult witnesses.
5.3 The first observation I made was the lack of consistency in the testimony between the three employer learner witnesses. According to their respective testimonies all three witnesses sat close to the desk of the employee and should have been in a position to see the actions of the employee with an unrestricted view.
5.4 OM gave different version to MM of how the alleged sexual misconduct occurred. MM only referred to three or four touches on the buttocks whereas OM testified about the employee touching MM from the waist downwards.
5.5 Neither MM nor OM mentioned MM saying anything to the employee when he allegedly touched her whereas MB recalled MM saying “hee bathing Meneer” when the touching took place. It is probable that if the employee had touched MM that she would probably have reacted verbally and aggressively in some way. When questioned during cross=examination why she did not tell the employee to “stop” or ask him “why are you touching my buttocks” OM replied that she would have sworn at him but did not do so. Effectively, OM did not answer the question posed to her but clearly also did not mention saying anything to the employee when she was touched contrary to the version of MB.
5.6 It is common cause that OM is a vocal aggressive person and would probably have commented (perhaps even sworn) at the employee if he had touched her in the way she has described. It is also reasonable to expect her to have remembered this detail.
I recall that OM had to frequently be reprimanded and admonished during the course of the inquiry to avoid interrupting, being argumentative or answering questions before they were answered. The conduct of OM during the inquiry did not inspire trust.
5.7 It is common cause and was specifically agreed upon by the parties in their pre-arbitration minute that MM has a history of confrontational conduct and ill-discipline not only to the employee but to other educators which included the use of vulgar language.
5.8 MM admitted that she did not like the employee and they did not get on.
5.9 It is probable that MM would have a motive to fabricate false evidence against the employee for no other reason than because of her dislike for him. I find that MM is old enough and had sufficient motivation and guile to fabricate a false version out of thin air.
5.10 MM obviously realized that she needed witnesses to support her version of the alleged sexual assault. Both OM and MB unfortunately gave different versions of how the incident allegedly occurred and their versions also did not come across as trustworthy.
5.11 I find that MM was probably sufficiently persuasive and intimidatory to persuade OM and MB to testify as witnesses for her. Unfortunately, they unintentionally gave different versions which suggests that they did not actually see what happened in the first place.
5.12 It is highly improbable, given MM’s dislike for the employee, that the employee would engage in any form of conduct that could be construed to be of a sexual nature, in front of a full class of learners who could serve as potential witnesses.
5.13 The employer has not established whether the incident took place on the 24th of May 2024 and the employer has not rebutted the employee’s version that he was not in the class on the day of the alleged incident.
5.14 I find that the investigation and charging of the employee was unnecessarily delayed and further evidence, like video evidence, could have been utilized to bolster the weak case of the employer had the correct date of the incident been established.
5.14 I find that the employer has failed to prove the allegations of sexual misconduct against the employee on a balance of probabilities.
- AWARD
6.1 The dispute referral of the employer is hereby dismissed and the employer is directed to return the employee to the classroom within 14 calendar days.
Signature:
Date: 11th of June 2025
Commissioner: M.A. Hawyes
Sector: Education