IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN MAHIKENG (NORTHWEST PROVINCE)

Case No ELRC768-24/25NW

In the matter between

NORTHWEST DEPT OF EDUCATION EMPLOYER

and

SADTU obo M TIRO EMPLOYEE

ARBITRATOR: Monde Boyce

HEARD: 29 January 2025, 28 March 2025 & 22 May 2025

CLOSING ARGUMENTS: 30 May 2025

DATE OF AWARD: 11 June 2025

AWARD

[1] This is an inquiry scheduled by the ELRC in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and the inquiry proceeded at the Ngaka Modiri Molema District offices at Nelson Mandela Drive in Mahikeng in the Northwest province on 29 January 2025, 28 March 2025 and was concluded on 22 May 2025. Miss Mafoko, a trade union official from the trade union SADTU, represented the employee on all the three sittings while the employer was represented by Mr Tumelo Bahurutshe.

PARTICULARS OF PROCEEDINGS AND REPRESENTATION: 

[2] I must mention that while the employee attended the process on 29 January 2025, the inquiry had to be adjourned because the employee submitted a medical certificate indicating that he was not fit to sit through the hearing. Adjournment on that date was further necessitated by protest action that took place at the district offices where the inquiry was to be held. The matter was postponed to 28 March 2025. On 28 March 2025, the employee submitted a medical certificate that caused the inquiry to be postponed again to 22 May 2025. On 22 May 2025, the employee did not attend the inquiry with her representative, Miss Mafoko, stating that she received a letter of resignation from the applicant a day before the inquiry and whereafter the employee told her that he was not going to attend the inquiry. The employer representative stated that he was unaware of the letter of resignation and that the circuit manager did not receive the said letter.

[3] It then soon after transpired that the employee was outside the venue and was sitting in his car. I became aware of this when the intermediary entered the hearing room and informed me that the learner she was engaging and trying to build a rapport with was terrified because she saw the employee. I then asked Miss Mafoko if it was indeed the case that the employee was outside the venue, and Miss Mafoko’s response was that she was unaware that the employee was in the vicinity. I then briefly adjourned the process to allow her to check if the employee was indeed outside of the venue. She later came back confirming that the employee was indeed sitting in his car outside the venue. I then asked her to ask the employee to come inside, but Miss Mafoko stated that the employee did not wish to participate in the inquiry because he did not want to face the learner and further that he intended pleading guilty to the charge. I then told Miss Mafoko that if the employee did not attend the inquiry, he risked having the inquiry proceed in his absence and that he would be forfeiting the opportunity to test the employer’s version as well as presenting his version. To this, Miss Mafoko responded that the employee was not going to attend the inquiry and that the inquiry could proceed in his absence and that a guilty plea should be registered. I then proceeded with the inquiry in the absence of the employee and after having established that the resignation letter was not submitted to and accepted by the relevant authority which would have been the principal and the circuit manager.

THE ISSUE TO BE DECIDED:

[4] I am required to decide whether the employee is guilty of the charges preferred against him by the department, and to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[5] The employee, Mr Magabe Tiro is employed as an educator Post Level 1 at Motswedi Secondary School under the Ngaka Modiri Molema District. He had charges preferred against him by the employer after an incident involving a learner at the school he is teaching at. Three charges in particular were preferred against him, and the charges were the following:

Charge 1 – Committing an act of sexual assault on a leaner, student or other employee.

It is alleged that on or around the month of May 2024, you allegedly contravened section 17(1)(b) of the Employment of Educators Act No 76 of 1998 which reads, “committing an act of sexual assault on a learner, student or other employee”. In that, after the soccer practice you told a learner (name withheld) that you are horny and you wanted to have sex with her.

    Charge 2 -Commits common law statutory offences 

“It is alleged that on or around May 2024, after the soccer training at your house you continuously talked about sex with the learner and told her that you are horny and you undressed yourself in front of a learner showing her your private parts. That is a contravention of section 18(1)(dd) of the Employment of Educators Act of 1998 which reads, “commits a common law statutory offence”.

Charge 3 – While on duty conducted himself or herself in an improper, disgraceful or unacceptable manner

“It is alleged that on or around May 2024 you made yourself guilty of misconduct in that you put snacks on the learner’s private part and told her that her vagina belonged to you. That is a contravention in form of section 18(1)(q) of Employment of Educators Act of 1998 which reads, “while on duty conducted himself or herself in an improper, disgraceful or unacceptable manner”.

[6] Because the employee was not in attendance, and while his representative, Miss Mafoko, stated that the employee had told her he would plead guilty to the charges, I registered a NOT GUILTY plea to the extent the employee was not in attendance to confirm same, and evidence was led on the basis that the employee had not pleaded guilty to the charges.

SURVEY OF EVIDENCE AND ARGUMENT:

Employer’s Evidence

[7] The employer called Leaner A as its first witness and who testified that she is 13 years old and currently a leaner at Motswedi High School. In March 2024 and on a date she could not recall, the employee, Mr Tiro, went to fetch her from her home taking her for a soccer practice at his house. On arrival at the employee’s house, the employee told her to get inside the house and asked her to get closer to him. She refused and went outside and sat on a stoep. The employee asked her to go back into the house and told her he wanted her to perform a traditional dance. The employee then took her hand and told her that he lusted after her and that one day they would be in bed together. He thereafter told her that he lusted for her and that he was horny and wanted to have sex with her. He then asked her to accompany him to the bathroom because he wanted to urinate, but she refused and instead went outside.

[8] After going out, she put on her soccer boots, went on to the garage and started practicing soccer. They thereafter left with the employee’s vehicle to Borakalalo after the employee had received a call to proceed to the venue. On their way, the employee asked her not to tell anyone about what he said. On arrival at Borakalalo, she found other learners with which she performed a traditional dance before going back home. The employee took her home in his vehicle and while they were on their way, the employee took biscuits out, opened them and placed a biscuit on her private part and took it back again and told her that her vagina was his and that he would enjoy it one day when they were in bed.

[9] She started having Facebook Messenger conversations with the employee after the employee had asked for her Facebook handle and thereafter sent her a friend request which she accepted. The employee gave her the impression that he wanted to communicate soccer practice and traditional dance updates with her but thereafter went on to send her messages that were inappropriate where the employee sought to get intimate with her. In one of the messages, she had made a post for content and tagged her cousin. Other people commented on her post, and the employee then sent her a message asking her why she did not tell him if she wanted a kiss since he was available, to which she responded that she was creating the posts for content.

[10] Miss Boipelo Lesenyero was called as the employer’s second witness. She testified that she is currently employed as a Non-Profit Organisation (NPO) social worker based at the Motswedi centre where they offer victim support. Learner A was referred to her by a schoolteacher who told her that the learner needed counselling. Learner A was brought to her for counselling, and learner A told her that she was grieving the death of her uncle and proceeded to tell that the grief is affecting her performance. Learner A also told her about the educator, Mr Tiro who was assisting her with extra mural activities and that she trusted him as the person she was closest to. The leaner further told that Mr Tiro mentioned that he wanted to adopt her as his child and sometimes made jokes about her uncle whose death she was still grieving. The learner told her about an incident that happened at Mr Tiro’s house and where Mr Tiro asked her to undress and asked her to accompany him to the toilet and where he commented that he was horny and wanted to have sex with her. Leaner A told her that she was upset about what Mr Tiro did. She compiled a report which she sent to the school and the incident was reported to the South African Police Service whereafter a case was opened.

Employee’s Evidence

[11] The employee did not present a version as he did not attend the inquiry.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[12] As already alluded to, the employee did not attend the inquiry for the reasons set out in paragraph [3] above. The charges preferred against the employee emanated from an incident that, according to learner A, happened at the employee’s house and where the employer alleged the employee contravened provisions of the Employment of Educators Act 78 of 1998 (EEA) and in particular sections 17 and 18 dealing with forms of misconduct that an educator may be sanctioned for where he or she is found guilty.
[13] Having heard evidence, I am persuaded by the version presented by the learner, and which version stands unchallenged. Evidence led was to the effect that the employee told the learner that he lusted after her, that he was horny and wanted to have sex with her. The employer further placed a biscuit on the learner’s private part, telling her that her vagina was his and that he would enjoy it one day when they were in bed together. I had no reason not to believe the learner’s version. Despite her age, which is 13 years to be precise, the learner impressed with her recollection of events and did not at all contradict herself during her testimony. Her version was corroborated by the social worker whose version was to the effect that he came to know the learner and about the allegations when the learner was referred to her by a teacher at the learner’s school who informed her that the learner needed counselling. I again had no reason to doubt the version presented by the social worker and I found both the learner and the social worker to be credible witnesses.

[14] Evidence in the form of Facebook messenger messages was presented where the employee interacted with the learner. While the learner naively accepted the employee’s friend request, it appears that the employee sought to befriend the learner on Facebook for malicious reasons. The tone of the messages from the employee are not, in my considered view, innocent at all. The messages are very suggestive with the employee communicating with the learner as if they were engaged in a relationship. He appears to have taken advantage of the learner’s vulnerability when he, in one of the messages, the employee writes: “Ok..even if when I brought u food u forgot to say thanks…where is that love of appreciation from the person whom u love”. He, in another message, writes: “Ok o batla kiss mo bathong nna o ntima yone…jerrr”, loosely translated to mean that the learner wanted a kiss from other people while she refused him a kiss.

[15] The employee given his position as an educator and playing the role of a parent to children who are under his care had no business engaging in this kind of conversation with a learner. It is conduct that is totally inappropriate and conduct that should invite scorn. The conduct that the employee, Mr Tiro, engaged in is conduct that was totally unacceptable and in contravention of not only the EEA but the South African Council of Educators (SACE) Code of Professional Ethics for educators. The EEA sets out conduct that is unacceptable and conduct that would amount to serious misconduct while SACE Code provides for conduct expected of educators and conduct that is unacceptable. The SACE Code provides that educators must “respect the dignity, beliefs and constitutional rights of learners and in particular children” and that they (educators) must: “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school.

[16] In engaging in the conduct that the educator engaged in, he went against the code of professional ethics. The employee is an educator with a number of years’ experience as a teacher. Given his years’ experience and his age, he ought to know that learners placed under his care should be treated with dignity and respect, and he had a duty to protect them, nature them and create for them an environment that is conducive to their learning and development. The employee abused his position as an educator and sought to take advantage of a learner who is so very young, 13 years to be precise, and not that it would be any less serious if learner A was older. Educators are charged with an important and sacred responsibility of naturing the country’s future leaders, and the conduct that the employee engaged in is quite shameful to say the least.

[17] In terms of section 17(1)(b) of the EEA an educator who commits an act of sexual assault on a learner, student or other employee contravenes the provisions of this section which identifies such conduct as serious. Also, section 18(1)(dd) provides that committing a common law statutory offence is misconduct. Section 18(1)(q) of the EEA also provides that an educator who conducts himself or herself in an improper, disgraceful or unacceptable manner whilst on duty commits misconduct. It is my finding that the employee, by engaging in conduct as set out above, contravened provisions of the above sections of the EEA and is thus guilty of the charges preferred against him.

[18] It is now generally accepted that any untoward conduct against children and their maltreatment is conduct that is frowned upon by society. This is even more so in South Africa, a country that is beset with crimes against children with acts of sexual assault against them reported on a daily basis. I should believe that the employee, being an educator is, among other responsibilities as a teacher, charged with a responsibility of teaching children about conduct that is unbecoming and conduct that they (children) should immediately report when committed against them. His conduct should, in this regard, be treated very seriously because he should know. I do not believe that Mr Tiro, with his number of years as an educator and holding a SACE certificate which clearly sets out the code of professional conduct for educators, would not have known that the conduct he engaged in was prohibited. But even in the absence of such a code, I would not accept that he, given his age, would not have known that learner A was a child and engaging with her in the manner that he did in the Facebook Messenger messaging platform and the utterances he made towards her in his house and inside his vehicle when taking learner A home was improper and amounted to sexual assault and improper conduct. I thus find the employee, Mr Tiro to have committed misconduct as alleged and consequently, I find him to be unfit to work with children, and which finding is consistent with the provisions of Childrens Act 38 of 2005 .

[19] In the premises, I make the following award:

AWARD

[20] The employee, Mr Magabe Tiro, is found guilty of serious misconduct in terms of section 17(1)(b) of the Employment of Educators Act for having sexually assaulting a learner by placing a biscuit on the learner’s vagina telling her that her vagina was his and is further found guilty of misconduct in terms of section 18(1)(dd)(q) of the Employment of Educators Act by conducting himself in an improper, disgraceful or unacceptable manner by asking the learner telling the learner that he lusted after her, that he was horny and asked to have sex with her.

[21] The sanction of dismissal is imposed effective from 13 June 2025.

[22] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE for its consideration of appropriate action to be taken.

[23] The employee, Mr Magabe Tiro, is found unsuitable to work with children in terms of Section 120(40 of the Children’s Act 38 of 2005.

[24] The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children’s Act 38 of 2005, that Mr Magabe Tiro, is unsuitable to work with children, for the Director general to enter his name as contemplated in Section 120 in Part B of the register.

[25] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and must do so within the prescribed timeframe.

Monde Boyce
Panelist: ELRC