Case number: ELRC323 – 20/21KZN
Date of Award: 16 September 2021
Panelist : Vuyiso Ngcengeni
Province : KwaZulu Natal
Employee : Themba Lembede
Employer : Department of Education – KwaZulu Natal
Issue : Enquiry by Arbitrator
Venue : Durban Teachers Training Centre

Employer representative : Mr Itumeleng Makhooe
Telephone : 031 323 3262
Email : Itumeleng,Makhooe@kzndoe.gov.za

Employee Representative : Nr Sandile Mkhize
Cell : 073 130 4942
Email : amandlasembo@icloud.com

SECTION 188 ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was scheduled before me on the 8th of April and on the 16th of August 2021 at the Teachers Training Centre in Durban, under auspices of the Education Labour Relations Council (the Council).
2. The matter was held in terms of s188A of the Labour Relations Act of 1996 as amended (LRA) in conjunction with Collective Agreement 3 of 2018 which allows for such cases to be held accordingly.
3. The Employee was present and he was represented by Mr Sandile Mkhize from SADTU, whilst the Employer was represented by Mr Itumeleng Makhooe.
4. This matter is about an alleged sexual misconduct with a learner, as such, services of an intermediary were utilised.
5. The hearing was conducted in English, there was an isiZulu interpreter.
6. The name of the child is not disclosed in terms of clause 5.3 of Collective Agreement 3 of 2018, and I will therefore refer to her as “the Learner”.
7. I received all the closing arguments by the 30th of August 2021.

ISSUE TO BE DETERMINED
8. I am called upon to determine whether the Employee is guilty of the charge that that he is accused of. The charge is written as follows: –
8.1 On or about 21 August 2019, at or near Thornwood Secondary School you allegedly sexually assaulted the Learner, a female learner enrolled in the said school in that you wrongfully and unlawfully touched her vagina. In so doing you contravened Section 17 (1)(b) of the Employment of Educators Act 76 of 1998 as amended.

9. The Employee pleaded not guilty to the charge.

BACKGROUND TO THE DISPUTE
10. The Employee is employed as a level 1 Educator, based at Wastmead High School. He was previously based at Thorwood Secondary School (the school), and that is the school in which the alleged incident took place. The learner is also based at Thorwood Secondary School.

11. The alleged incident took place on the 21st of August 2019 and the Employee was suspended on the 1st of October 2019. At the time of the last sitting of this matter, he was still on suspension, pending the out of this Inquiry.

12. The Employer referred this matter to the Council for an Enquiry by Arbitrator on October 2020 and it was set down accordingly on the 20th of September 2019.

SURVEY OF EVIDENCE AND SUBMISSIONS
Employer’s case

Titus Bongumusa Ndaba (Ndaba) testified under oath as follows:-
13. He represents the interest of the Employer at the school and will not violate that which is in the interest of the Employer.

14. Within the interests of the various stakeholders at the school, those of the children come first.

15. On the 21st of August 2019, the allegations were reported to Mr Shabalala, who is the Deputy Principal and were later related to him by Shabalala.

16. He requested that written submissions be made, and indeed, they were submitted in writing.

17. After receiving the submissions, a couple of days after the 21st of August, he called a meeting to confirm if what was written was correct.

18. About five of the Learner’s family members were present in the meeting and they included her mother. The Learner, and the Employee were also present.

19. Also present were Shabalala, SADTU SITE Committee executive: Site steward and the Secretary, and the members of the Learner Representative Council (LRC).

20. The allegations as contained in the charge sheet were confirmed by the Learner.

21. On the 18th of October 2019, the Learner’s parents came to the school carrying two letters with them: one directed to him and the other to the District Chief Education Specialist (CES). One copy, addressed to the school, is attached on pg 5 of the referral documents and it states that the mother and the Learner are distancing themselves from the allegations against the Employee. The letter continues to say there should not be any further questions asked to the Learner regarding this matter and that they are withdrawing it.

22. He had no right to deal with the matter as the Principal, since the Learner said the school should not deal with the matter. As such, any communication between him and the Learner would be an interference. The matter was being handles at the District level.

23. He could not be friends with the Employee, they only had a professional relationship.

24. Given the work he had already done, including calling the meetings, he felt let down by the Learner’s parents.

25. He confirmed the incident through the collation of reports and it was then taken to the District.

26. After the suspension of the Employee, they got a substitute educator, which means the Employer had to pay two teachers.

27. He has not seen anything that gives him the power on this matter, as the parents of the Learner had withdrawn it.

28. He did not know that the Department could continue with the matter, even after the Learner’s parents have withdrawn it.

29. They have problems at the school as teachers and there are teachers who may have been fighting their own battles, and in the process, used the Employee. He did not want to mention names. He agrees that that may be speculation.

30. Cross examination – the Learner was about 16 or 17 years old at the time. He knows what could be the consequences of a minor making a statement.The Learner was supposed to make the statement accompanied by an Adult.

31. The Learner’s statement said that the whilst she was at the male staff room, carrying documents with her to be stapled, the Employee touched her on her private parts. He does not think it was correct for the statement to be taken from the Learner, but it was important for the school to be seen to be doing something.

32. The school has the Learner’s parents cell phone numbers, so it was a mistake on the part of the school not to call the Learner’s parents before taking the statement from the Learner.

33. The school has a history of being instable and it has been like that for some time, due to unruliness of the learners. The school is affected by political issues brought by multiple organs, including learners, parents, etc.

34. The letter that was written by the Learner’s parents to him, is addressed to the school and he understood it to mean that the matter is withdrawn. The same letter was addressed to the Department of Education and to the staff at the school.

35. He was aware that the Learner was a leader of COSAS at the school, so it is possible that there may have been more to the incident. He knows that SASCO gives them challenges.

36. He recalls the meeting in which he invited the union representative to, regarding this incident, when the chairperson of COSAS uttered the words “what is painful comrades is that this comes through Themba Lembede, whereas it was not directed at him”.

37. He cannot deny that there are many issues at the school that disrupt management of the school.

38. He can say that he was used as a scapegoat in the whole thing. He agrees that the Learner’s parents read the whole politics at the school, and then decided to withdraw the complaint, as the Learner was being used in the greater scheme. He understands the school environment better.

39. The Employee met the Learner after school by co-incident.
Arguments
40. Ndaba confirmed the complaint but emphasized the fact that the case was withdrawn. He made all sorts of excuses that the learner made a statement without the guardian. He appeared more of a hostile witness than a willing witness, but would be neutral when he could so as to not incriminate the Employee. He would say damning evidence against the Employee when he would be put between the hard place and a rock.

41. Notwithstanding his demeanour, Ndaba confirmed that a complaint of abuse was lodged with him and he did preliminary investigations. He still could be believed because he undertook the preliminary investigation that saw him satisfied that a serious misconduct had been committed.

42. The balance of probabilities show that the act of abuse had happened. Ndaba’s report about the version of the Respondent on page 9 was at the time of the investigation all telling and objective. This was before the Employee spoke to the learner and apologised.

43. The Employee’s testimony was a bare denial. He did not co-operate with management of the school because he denied having abused any learner. He refused to write a statement, which shows that he had something to hide. This conduct entailed that he was too anxious that he could self-incriminate himself.

44. The most astonishing piece of the Employee’s evidence was that he apologised to the learner. He said he so apologised to the learner for having been dragged into the school politics, but that reason is illogical. The learner was involved in student politics anyway.

45. The Employee’s evidence in chief revolved around politics and instability within the school. To explain why he was in trouble, he stated that he was disliked by other educators who wanted him out of the school, so they put up learners to the plan. The contradiction in his testimony was that COSAS learners consoled him to say all that happened to him was just a co-incidence, it was not meant for him. In essence claiming that he was a wrong person at a wrong time. This is not a case based on lie, but a defence based on lie.

46. The Employer has to prove its case on the balance of probabilities as opposed to beyond reasonable doubt. The version of events are favoured by probabilities from the stage of visit to the staffroom until the following day when the Employee apologised to the Learner and pledged his preparation to even go to the parents to apologise. Then the lie started to formulate. But lies have short legs, they do not go far.

47. The evidence of the Learner cannot be accepted. It is so improbable that no reasonable decision maker can consider it on its own. She was a wreck and could not comment on most of the statements put to her. At times she would not remember details that form the basis of the versions she put forward.

48. She hid behind a lapse of time but the abuse story remain with victims for lifetime. She could not remember her withdrawal statement. She only remembered when I introduced a document to her. She is not reliable at all.

49. The statement itself does not positively claim that she falsely laid allegations against the Respondent. It states they separate themselves from the allegations. Mr Commissioner it is improbable that the Learner would create a false charge, have the Employee suspended and only at the tail end of the matter, state that it was all a lie. In converse it is probable that the Employee touched the private part and subsequently apologised and visited a parent to so apologise as he undertook and unduly influenced the parent in one way or another.

50. The story of a planned lie was hatched to exonerate the Employee. Mr Commissioner, to exonerate the Employee you have to find the evidence of the Learner credible, which will be impossible in the circumstances.

51. It is in the light of the afore-going that the Respondent has to be found guilty as charged.

The Employee’s case
The Employee testified under oath as follows-
52. On the 21st of August 2019, whilst he was sitting at the staff room, the Learner came to borrow a stapler. She did not get it and she then left.

53. After about an hour, he returned to the class room. He found out that he had a case of touching the Learner inappropriately. He was informed of this by Mr Shabalala who asked him to write a statement, he refused and said he had not touched any learner inappropriately.

54. He has never noticed the Learner’s statement as it is written (the bottom part). He does not agree with some of the issues written as they are incorrect.

55. What is correct is that he went to Mpola clinic and he saw the Learner, called her and apologised to her, not the part of him having touched her inappropriately.

56. He was not apologising for touching her because he never did that. He was apologising for the fact that she was being put in a situation that she did not know, she was drawn into the school’s politics which she had no business in.

57. There were teachers at the school, who did not want him, so they ended up removing him, as he was transferred to Westmead High School under mysterious conditions. He came back in January 2020, only to find that he was transferred to Westmead High School, without any explanation.

58. There is no stability at the school, as already mentioned by Ndaba. At some stage, the learners grabbed a teacher and killed him at the school.

59. When he arrived at the school on the 2nd of February 2011, Mr Makhaye, who was the Principal at the time and was chased away from the school by the learners. Since his stay at the school, there are a lot of teachers who have been chased away by the learners and ended up leaving the school. One of them is Mrs Nyeleni, who was hit by a learner in 2019 and she ended up leaving the school.

60. He does not know why the learners keep on chasing teachers away, but some teachers would know and take advantage of that.

61. On the 22nd of August 2019, when he arrived at the school at about 07h00, he found its gates closed, and it turned out that some teachers knew about that in advance and he was called by one of his colleagues around 04h00 and told that the school’s gates would be closed.

62. He has no idea why the Learner accused him of this incident, but as COSAS Chairperson said that the incident was not directed at him.

63. He understands that he is not supposed to have a sexual relationship with a learner and he would never do that.

64. Cross examination – The allegations are completely untrue, and if there was any truth on them, the Learner’s parents would not have withdrawn the matter.

65. He does not know anything about bribing the Learner’s parents, for them to withdraw the allegations.

66. He is not friends with Ndaba, Ndaba was telling the truth in his testimony.

67. He does not know why Ndaba implicated him in touching the Learner inappropriately. He has never touched the learner in her private parts. He does not know where was that coming from in his statement. What is incorrect in the statement is to say he touched the Learner’s private parts, and also that he explained that he unintentionally touched her. He never said that.

68. He never spoke to Malinga, he spoke to Shabalala.

69. Ndaba did not go through all the statements, he only spoke about the clinic. Had Ndaba talked about the other content, he would have told him in the meeting that that was not true.

70. His apology to the Learner was only on the basis that she has found herself entangled in the politics of the school. He saw the Learner next to the Clinic and understanding the politics of the school, he felt he needed to apologise and he promised to go and apologise to her parents, in case he had done anything untoward. He never went to apologise to the Learner’s parents.

71. He does not know why it is him who was caught in this, he believes that he was caught at the wrong place, at the wrong time.

72. The Learner is allowed to report inappropriate incidents, but not to lie. The learner came into the staff room, and there were about five teachers present, came to him as he was sitting next to the door, asked for the stapler and she did not get it. She then went away.

73. He thinks they started by going away to have a caucus, because they took about an hour and a half and then came back with the allegations. Those are Shabalala and Malinga and he does not know how many others whom may have been involved. All he heard from Ndaba is that he said the Learner must report to Shabalala, not Malinga. He does not know how Malinga got into the matter.

The Learner testified under oath on behalf of the Employee as follows: –
74. She is 19 years old and is a grade 11 learner at the school. She stays in Empola, which is within a walking distance from the school

75. She remembers the day in which she went to the staff room for a staple. They had a plan as the COSAS which was to go on a strike. So, she went to the staff room to ask the Employee to staple the documents she had. Their plan was to close the school, so that there should be elections as they wanted to be elected.

76. When she arrived at the staff room, there were other teachers, but the Employee is the one that attended to her.

77. She then went to Shabalala, and lied to him and said the Employee had touched her. She did that because they wanted the school to be closed. Shabalala after listening to her, directed them to Ndaba. She used the Employee’s name because he was the one who assisted her.

78. She recalls saying in her statement that the Employee met her somewhere and apologised, and that was part of their plan which was for them to get the positions (elected).

79. She reported the matter at home, but she could not recall the details. Her mother wrote the letter to the school afterwards, because they had attained what they wanted, that was to get elected.

80. Cross examination – She was 17 when she started with the lies, and she told them to Ndaba, Shabalala and the Head of Department, Mr Maphumulo. It was the Cosas team that knew the truth, and later, her mother.

81. She could not recall who else was in the staff room with the Employee, except Mr Xaba, but there were 2 others.

82. The plan was to have a female student going to the staff room. At the school, Cosas was not allowed to sit in the meetings, the school only allowed the Learner Representative Council members. She told every person that the Employee had touched her private parts.

83. The Employee never apologised, that was also a lie. If the Employee said he apologised, he would be lying because she does not recall him apologising to her. Her mother wrote a letter to the school, withdrawing the complaint.
Arguments
84. Ndaba on cross examination stated that he acted substantially on the report he received from Shabalala, hence it is startling that the Employer rep deemed it unnecessary to summon Mr Shabalala to testify although he is a primary witness of this case.

85. Ndaba contradicted himself by confirming that he sat at the tribunal at school level, which exposed critical elements beneficial to this case that he chose to omit, for reasons unknown, amongst which COSAS leaders declared the allegations against the accused as politically motivated.

86. The letter from the parent of the Learner was disregarded, other educators who were physically present during this alleged touching were excluded in the investigation and the learners’ withdrawal letter was overlooked. This clearly proves that there was a great deal of biasness and mis presentation, moreover Ndaba admitted to have seen and read the contents of both letters from parent and child, and never took the time to cross question its’ writers’.

87. Noting that even the Departmental Head who was verbally informed by the learner concerned about this issue was also not called to testify, it is clear that the Employer wanted to settle unknown scores with the Employee who happened to be an escape goat for political games which unfortunately involved learners and the community.

88. The Employee’s Evidence was consistent and coherent, simply because it is a fact that he never inappropriately touched the Learner.

89. Regarding the issue of an apology, the Employee disclosed that his apology was to show the learner that he is mature enough to know when a learner is being used by adults whose end goal was not only to see him out of Thornwood but with a ruined reputation and possibly termination of employment at whatever

90. The reason the Employee managed to get the Learner to testify arose and as mentioned above, the learner was prepared to retract all allegations she had levelled against the Employee even before the enquiry set. The letter is evidence. The learner knew that, all she said / wrote was not true and the Employee’s apology to her must have triggered her to realize that she was acting out of pressure, and she chose to listen to her conscious.

91. The Learner admitted to have been pressured by the mandate agreed upon by their angry mob, she further alluded that because she wanted to be recognized and be elected as leader of COSAS, she joined other mob members who would do anything to be recognized as having caused severe destruction in order to disturb the functionality of the school. She further stated that even if it wasn’t the Employee, the claim was going to be created somehow because the target was not person specific, but the mandate had to be carried out to prove a point, which was proven because Thornwood Secondary School was closed next day and elections were held.

92. To put it bluntly, the learner who started this admitted to being deceptive in her initial letter. She also admitted to have been regretful and writing a retraction letter before it was handed over to the department. There is therefore no tangible evidence against the Employee. He was a victim of circumstance propagated by the politically motivated agendas. He paid the price because unfortunately he became the collateral damage. The Employee is innocent

ANALYSIS OF EVIDENCE AND ARGUMENTS

93. In Mudau v MEIBC and others [2013] 34 ILJ 663 LCM the Court held that the Panellist’s mandate in terms of section 188A is to determined on a balance of probabilities whether an Employee has committed an offence for which he / she has been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties.

94. It is common cause that the school is characterised by violence and instability, and that such include chasing away of teachers and also instability at the school management level. Ndaba characterised the school as being politicised.

95. It is not in dispute that on the 21st of August 2019 at the time of the alleged incident, the Learner indeed came into contact with the Employee at the said staff room. It is also uncontradicted that at the time of their contact, the Employee was sitting with about three or four of his male colleagues.

96. Furthermore, it is common cause that the allegations as contained in the charge laid against the Employee were withdrawn, shortly after the 21st of August 2019, by the Learner in a process in which her parents wrote a letter. The basis of the withdrawal of the allegations are that the Learner made them as part of a bigger plan, which was to cause instability, something that would have led the students to go on a strike so that they could get COSAS representatives elected at the school. This version was not disputed by the Employer, through its only witness, that is Ndaba. In actual fact, Ndaba said it was possible that there may have been more to the incident, and further that he knew that COSAS gave them challenges.

97. Of utmost importance in this matter as guided by Mudau case above, is whether the Employee, on the balance of probabilities, is guilty of having inappropriately touched the Learner, that means touching her on her vagina.

98. The vexing question therefore that needs to be answered is whether the said incident of the Employee having inappropriately touched the Learner ever took place, or it is a figment of imagination and the Employee is drawn into this simply because he was at the wrong place at the wrong time.

99. Ndaba submitted that in a meeting held after a couple of days after the 21st of August, which was also attended by the Learner’s mother, the Learner and the Employee amongst others, the Learner confirmed the allegations as contained in the charge sheet.

100. During Cross examination, Ndaba could not deny that there are many issues at the school that disrupt its management and he said that he was used as a scapegoat in the whole thing.

101. He agreed that the Learner’s parents read the whole politics at the school, and then decided to withdraw the complaint, as the Learner was being used in the greater scheme. Certainly, in my view, the foregoing gives credence to the narrative that says the whole issue was a plan, as enunciated by the Learner.

102. The Employee averred that he was informed of the allegations by Mr Shabalala who asked him to write a statement, and that he refused and said he had not touched any learner inappropriately. He labelled the allegations as completely untrue.

103. The Learner submitted that the whole story was a lie and that when she reported it to Shabalala, she was actually lying to him, and the reason for that was because they wanted the school to be closed.

104. That this incident was a plan by COSAS to get elected is agreeable to by both parties. Ndaba agreed that the Learner’s parents read the whole politics at the school, and then decided to withdraw the complaint, as the Learner was being used in the greater scheme. Ndaba further referred to himself as being used as a scape goat in this COSAS issue, the Employee also shares the same incident.

105. Only the Employee and the Learner gave direct evidence in this matter, and Ndaba’s evidence is based on the investigation he conducted. It is apparent that Ndaba, after the meeting he held shortly after the 21st of August, also came to the conclusion that this whole thing was made up, and he said the Learner’s parents appear to also have read the situation, hence the withdrawal of the matter. I hasten to also say, hence his own conclusion therefore, not to proceed with the matter any further.

106. There is not much weight that I can give to the statement given by the learner during the investigations, simply because Ndaba admitted that such a statement was inappropriately taken from the Learner in the absence of her parent/s, and further, the Learner herself submitted that what she wrote in the statement was a lie. In my view, this statement therefore fades into insignificance as it could not be corroborated by any testimony.

107. When one has bearing on the above therefore, it is evident that Ndaba, the Learner, and the Parents of the Learner, all sing from the same hymn sheet and they agree that the allegations are based on falsehoods that were meant to achieve another goal, and therefore it was a concocted story that never in fact existed.

108. Although the learner appeared emotional and also not remembering whether the Employee apologised to her or not, in contrast to the Employee’s testimony, such is not unexpected from one who as a learner, now is being faced with the strong versions put to her which were as a result of her said lies. That reasonably put her on the spot and added to her uneasiness and fears.

109. However, the above does not take away the fact that her story, which is that of intentional wanting to cause chaos at the school is consistent with the description and characterisation of school by Ndaba, and also by the Employee. So given such a context, it is probable in my view that she would have concocted such a plan, of course, together with her colleagues from COSAS.

110. In view of the foregoing, with the Employer bearing the overall burden to prove that the Employee is guilty on the balance of probabilities, the allegations therefore are unsustainable and cannot stick

111. Even though Ndaba appeared to be a hostile witness, his reluctance to participate in this matter may have been informed by his own experience of the challenges that are brought by COSAS at the school, hence he could not dispute that COSAS had planned the whole thing.

112. Further than Ndaba’s testimony, the Employer could not bring anyone else, even though it is undisputed that about four other teachers were at the staff room at the time of the alleged incident. I should also mention that Ndaba heard the story after it was told to him by Shabalala, who heard it first-hand from the Learner. No reason was given by the Employer for its failure to call any other witness or witnesses.

113. In the premises, it is my finding that the Employee is not guilty of the charge proffered against him.

AWARD

114. The Employee, Mr Themba Lembede is not guilty of the charge stated on para 7.1 above.
115. With the above having been determined, the Employer is thus ordered to uplift the suspension of the Employee with immediate effect.

Vuyiso Ngcengeni
Panelist / Commissioner