17 March 2025 -ELRC795-24/25GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT DOE ORMONDE
CASE NO.: ELRC795-24/25 GP
In the matter between:-

DEPARTMENT OF EDUCATION- GP EMPLOYER

AND

V. MABHUMBULU EMPLOYEE

ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
Heard: 24 February 2025
Closing Arguments: 04 March 2025
Mitigating / Aggravating Factors: 04 March 2025
Date of Award: 12 March 2025
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A : Enquiry by Arbitrator.

AWARD

DETAILS OF HEARING AND REPRESENTATION

The inquiry was held physically at the Department of Education offices in Ormonde on 24 February 2025. Mr M.Mmola its labour relations official represented the employer. Mr J.Mohale, a SADTU official initially represented the employee, Mr V. Mabhumbulu.
The proceedings were recorded digitally. The Employer’s bundle of documents is marked “A”. The employer submitted closing arguments and aggravating factors on 03 March 2025.
The inquiry by the arbitrator was scheduled for 31 January 2025. The proceedings were postponed on the allegation that Mabhumbulu collapsed outside the building whilst waiting for the case to begin. Furthermore, his union representative Ms Japhta was double booked with another conciliation. Mr Mohale submitted that he came to request a postponement on behalf of his colleague. He was not conversant with the case.
It became clear that Mabhumbulu and his union were not prepared to proceed. It was appalling for Ms Japhta to prioritize conciliation over arbitration. The learner witnesses (4) were present. They have sacrificed their lessons for this case for the sake of justice.
Despite no evidence of Mabhumbulu collapsing, I postponed the case as his representative informed us that he was taken to hospital. The postponement had adversely impacted the learner’s education for the day. However, I struck a balance between the rights of learners to education and Mabhumbulu’s right to be heard and granted the postponement to 24 February 2025. The parties agreed to the date. Mr Mohale indicated that he would take over from Ms Japhta.
On 24 February 2025, Mr Mohale submitted Mabhumbulu’s sick note for 31 January 2025. He submitted that Mabhumbulu informed him that morning that he would not attend the inquiry because his Psychologist advised him against attending. He submitted that his attempts to persuade Mabhumbulu otherwise were unsuccessful.
I gave Mohale another opportunity to consult Mabhumbulu telephonically. He indicated that Mabhumbulu had been reporting for work in the days nearing the hearing. Eventually, following back and forth between Mohale, Mabhumbulu, and the union which took about 1 hour was unsuccessful in securing his attendance.
Shortly after 10:30 I gave Mabhumbulu an ultimatum through Mohale to avail himself by 11:45. I forewarned him of the seriousness of the charges with a potential dismissal sanction if he fails to defend successfully, I will proceed in his absence and base my determination on only the employers’ evidence and that an adverse inference could be drawn and that his absence without a valid reason would constitute his waiver of the right to be heard.
At about noon, Mr Mohale submitted that Mabhumbulu refused to attend. No evidence was presented proving that he was disposed of. I weighed the learners’ right to education and his hostile attitude. He was given sufficient time as early as the case was initially set down for hearing up until the second sitting.
I again gave him another opportunity on the day, but he blatantly refused as if he was doing anybody a favour by attending. I was convinced that he deliberately elected to waive his right to be heard and proceeded with the inquiry in his absence. Mohale expressed his frustrations, apologized, and withdrew from the matter as he lacked instructions.
In Foschini Group v Maidi and Others (2010) 31 ILJ 1787 (LAC) the held that ‘it is trite law that a party who chooses not to attend a hearing, does so at his or her own peril, and is precluded from later complaining about the outcome of the hearing’.
The Court in George v Nyoka and others (J214/23) [2023] ZALC JHB 70;[2023] 7BLLR 654 (LC) (10 March 2023) condemned and lashed out in the strongest possible terms the employees like Mabhumbulu who use every tactic available to stall and delay the proceedings. The Court listed all sorts of shenanigans the employees employ to avoid the conclusion of disciplinary inquiries. Mabhumbulu’s conduct falls within the list. The court had this to say ‘ These antics are the antithesis of the primary purpose and objectives of the Labour Relations Act (LRA), the primary of which is to have labour disputes resolved expeditiously. They do not have a place either in the workplace or in this Court. if the primary objectives of the LRA are to be achieved.

ISSUE TO BE DECIDED

I am required to determine if the Employee had sexually harassed a learner as proffered by the Employer. If I find the Employee guilty of the offences, I will determine the appropriate sanction.

ALLEGATIONS PROFFERED AGAINST THE EMPLOYEE

Mr Mabhumbulu was charged with three counts of misconduct in
terms of Section18 (1) (q) of the Employment of Educators Act, Act 76 of 1998
(“Act”) as follows:- Allegation 1: It is alleged that on or around August 2024, at or near W H Coetzer Primary School,
you conducted yourself in an improper, disgraceful, and unacceptable manner in
that, you sent a message to KK, a Grade 7 girl learner inviting her to a restaurant so
that you can enjoy lunch with her. In view of your actions, you are thus charged with misconduct in terms of Section 18(1) (q) of the Employment of Educators Act 76 of 1998 as amended. Allegation 2It is alleged that on or around August 2024, at or near W H Coetzer Primary School you conducted yourself in an improper, disgraceful and unacceptable manner in
that, you sent a message to KK a Grade 7 girl learner saying please date me, it will be known by you and me. In view of your actions, you are thus charged with misconduct in terms of Section 18
(1) (q) of the Employment of Educators Act 78 of 1998 as amended. Allegation 3 It is alleged that on or around August 2024, at or near W H Coetzer Primary School,
you conducted yourself in an improper, disgraceful, and unacceptable manner in
that, you sent a message to KK a Grade 7 girl learner saying just date me because no one will I know head girl. In view of your actions, you are thus charged with misconduct in terms of Section 18
(1) (q) of the Employment of Educators, Act 75 of 1998 as amended. EVALUATION AND SUMMARY OF EVIDENCE
KK testified that she is 13 years old. In 2024 she was in grade 7 at WH Coetzee. She was a head girl. Mr. Mabhumbulu was on the RCL committee and was one of the teachers to whom she was reporting learners’ misconduct and behavior.
On Saturday,31 August 2024, she received a text message from Mabhumbulu on Instagram asking for her WhatsApp number. She gave him her number. Mabhumbulu then texted her on WhatsApp asking her if she was sleeping and what her plans for the day were. She told him to go and groove. His response was unless she goes with him.
He invited her to go to the restaurant with him. She became uncomfortable. On A22 he indicated that at the end of the day, her mother must understand that she must have a date. It meant that her mother must understand that she must be in a relationship with him.
He sent her another WhatsApp message that the date would be known between himself and her, and no one would know. The messages made her feel uncomfortable, scared, and confused. She informed her friends, K, ANN, K, and LBJ. She sent them short screens of her communication with Mabhumbulu.
LBJ advised her to report the matter to Ms. Ngobeni, and to inform her mother. Her friends comforted her and advised her to report on the matter and not to be alone all the time. She feared going to school after the incident. Mabhumbulu wanted to have a relationship with him.
ANN testified that on 31 August 2024, KK sent her screenshots of the conversation she had with Mr. Mabhumbulu. The screenshots were about Mr. Mabhumbulu asking KK out on a date and indicated. It is inappropriate for a male teacher to ask a 13-year-old to go to a restaurant with him. It is not good and is disgusting to date a 13-year-old girl.
LBJ testified that KK shared the screenshots of the conversation she had with KK and Mr. Mabhumbulu. The messages were about Mr. Mabhumbulu asking to date KK and telling her that no one would know. The messages made her feel uncomfortable. It does not make sense for a teacher to want to date a learner.
Ms. Ngobeni testified that she teaches grades 6 and 7 social science at WH Coetzee Primary School. She also teaches grade 5 life skills. She started at school in January 2022.
On Saturday 30 August 2024, LBJ sent her WhatsApp with the screenshot messages of the conversation between Mr. Mabhumbulu and KK. The messages were about Mr Mabhumbulu asking Karen to date him. She asked KK to send her the telephone number that Mr Mabhumbulu used to converse with her. She dialed the number and indeed confirmed that it belonged to Mr. Mabhumbulu. The profile picture on the number was that of Mr Mabhumbulu. She informed the principal the following Monday and sent her the screenshots.
Mr Mabhumbulu ‘s statement that ‘let us date and that no one would know’ indicated that he wanted to have a relationship with KK. She was shocked he wanted KK a young to be his child. Especially following SACE workshopping the school around June 2024, on sexual harassment and unbecoming contact among other issues.

Closing Arguments

The employer’s representative argued that KK shared the messages with learners due to fear and seeking help. Her evidence was more credible, reliable, and consistent that Mr. Mabhumbulu wanted to have a relationship with him.
Her evidence was corroborated by ANN and LBJ about Mr. Mabhumbulu asking her out on a date the content and impact of the messages. They indicated that it was inappropriate. Their testimony demonstrates that KK shared the messages shortly after receiving them, reducing the likelihood of fabrication or collusion. Their consistency regarding the content and the impact of the messages further supports their credibility and reliability.
Ms. Ngobeni corroborated KK and her friends’ evidence. His messages were explicit and inappropriate. Ms. Ngobeni demonstrated the harmful impact of Mr. Mabhumbulu’s action on KK. They proved that Mr. Mabhumbulu indeed sent love messages to KK, which is a serious breach of SACE’s professional ethics. Mr. Mabhumbulu’s action caused harm to KK who was subjected to unwanted and inappropriate attention. She was 12 years old in 2024 when the incident happened.
Mr. Mabhumbulu was aware of the 24 February 2025 arbitration. However, Mr. Mabhumbulu’s failure to attend the arbitration, despite an attempt to summon him, demonstrated a lack of respect for arbitration, and a disregard for the seriousness of the allegations.

AGGRAVATING FACTORS

It is worth noting that Mr. Mabhumbulu did not attend arbitration despite the attempts by the Commissioner to remind the accused employee of the seriousness of the allegation. This is an indication that the employee was fully aware of his wrongdoing when he sent messages to KK inviting her to the restaurant, asking her to date him and it would be a secret between them.
SASA stipulates that an educator is expected to act in “loco parentis” and treat each child as his or her own. His conduct is inexcusable. He wanted to have a sexual relationship with KK contrary to what was expected from him to treat all learners as his own children and refrain from any form of harassment, either psychological, emotional or sexual.
He is in breach of SACE Professional Ethics, and Section 18(1)(q) Employment of Educators Act 76 of 1998 as amended. There should be no educator who conducts himself or herself in a manner that violates the above provisions, and such actions are detrimental not only to the life of KK as a learner, but to every other learner who might have witnessed the ordeal.
Section 10 of the Constitution stipulates that everyone has inherent dignity and the right to have their dignity respected and protected, and that was taken away by the very person whom the country and GDE specifically have entrusted him to promote and uphold.
Mr. Mabhumbulu ‘s misconduct has not only caused emotional and psychological pain to the concerned learner, but has also caused discomfort, loss of dignity, degradation, and loss of confidence; all of which cannot be easily restored. They pray that the sanction must not only serve as a corrective measure but must also serve as a deterrence to prospective colleagues from committing the same wrongful act. ANALYSIS OF EVIDENCE AND ARGUMENTS
Mr Mabhumbulu waived his right to state his case, challenge the
employer’s witnesses, and mitigate the sanction if found guilty, by refusing and failing to attend this inquiry. Therefore, my determination will be based on the unchallenged evidence presented before me.
In determining whether Mr. Mabhumbulu is guilty of the offences proffered against him I will consider if the following elements are present:-
• if his conduct was sexual;
• if his actions resulted in the victim’s sexual integrity being impaired or inspiring the belief that it will be impaired;
• If his actions were intentional;
• If there are no justifiable grounds for the actions.
KK’s testimony is that Mabhumbulu initiated contact with her on Instagram and asked for her numbers. Her testimony which is supported by WhatsApp text is that he proposed to go and groove with her. He invited her to go to the restaurant with him. The request made her uncomfortable. When she refused, citing her mother as a hindrance, he convinced her that her mother must understand that she must have a date and that the date would remain a secret between him and KK. These unchallenged shameful utterances are from an educator to a 13-year-old learner.
KK shared the conversation with her friends who advised her to report to Mabhumbulu. They reported the incident reported to Ms Ngobeni the same weekend. KK‘s friends and Ngobeni corroborated her testimony to the extent that she shared the conversation extracts with them.
Their evidence is consistent with no contradictions. Importantly, it is the unchallenged testimony of Ngobeni that the number used in the conversation is that of Mabhumbulu. She verified this by getting the numbers from KK and when she dialed the number it matched Mabhumbulu’s because she had saved his numbers on her phone as a colleague. The profile picture on WhatsApp was his.
In the absence of any contrary testimony, I am persuaded on the balance of probabilities that the WhatsApp messages were from Mabhumbulu’s phone. Therefore, he was the author of the messages. I attribute the responsibility of the messages to him as the author.
The messages are glaring that he was proposing to KK to have a date with her which translates to an intimate relationship. This constitutes sexual conduct against a young girl. The impact of an intimate relationship proposal by a father figure to a young is that of a sexual impairment. He offended and degraded KK’s integrity in a big way. The sexual conduct was even visible to KK’s friends young as they were.
Mabhumbulu had all the intentions to have an intimate relationship with KK hence he wanted to keep it a secret. He even attempted to convince her to disobey and be disloyal to her mother by dating him regardless of her mother’s principles. There are no justifiable grounds for Mabhumbulu ‘s actions to propose an intimate relationship with a young girl. Perhaps embarrassment and shame are behind him snubbing this inquiry.
I am satisfied that all four elements required to prove the existence of sexual conduct I have outlined above are present. Therefore, the employer has successfully proved on the balance of probabilities that Mabhumbulu has committed the three offences. I find Mabhumbulu guilty as charged.
SANCTION
The employer omitted Mabhumbulu’s disciplinary record in their aggravating factors. However, regardless of the record, consideration of all other available factors outlined below will guide me in achieving an appropriate sanction.
Mr Mabhumbulu ‘s attitude of refusing to attend this inquiry demonstrates that he is not remorseful of this appalling conduct. He displays his brazenness and that does not care about his actions and the outcome of these proceedings.
Misconduct in terms of Section 18(1)(q) of the Act is not mandatory dismissal. However, sexual misconduct against school children and adolescents is a serious offence warranting a harsh sanction to serve as a deterrence. Educators who commit this horrible offence must be shamed.
In Le Roux v S (A & R 25/2018) [2021] ZAECGHC 57 (13 May 2021) the court
held that “The interests of the community cannot be ignored in determining an
appropriate sentence. Some of the components of the offences occurred on the
premises of a primary school. It is also necessary to continue to impress upon
people in positions of responsibility that they cannot leverage their power, and
the esteem with which they may be regarded, to satisfy their sexual lust.
The Community had entrusted him as the educator to care for and protect learners. KK expected care and protection from her educator instead he became a predator. He destroyed the trust relationship with KK and other learners, his employer and the community at large. He abused his position as educator and loco parentis. I find that dismissal is an appropriate sanction. Vuyisile Mabhumbulu is dismissed for three counts of sexual harassment offences.
I find Vuyisile Mabhumbulu unsuitable to work with children. I invoke Section
120(4) of the Children’s Act No 38 of 2005 to declare him on my own
accord, unsuitable to work with children.
The General Secretary of the ELRC must, in terms of Section 122(1) of
the Children’s Act No 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 No 38 of 2005, that Mr Vuyisile
Mabhumbulu is unsuitable for working with children, for the director
General to enter his name in Part B of the National Child Protection Register.
The attention of SACE is drawn to the fact that Mr Vuyisile Mabhumbulu
had sexually abused an adolescent learner.
The ELRC is directed to forward a copy of this award to SACE.