18 September 2024 – ELRC26-23/24NC

THE INQUIRY-BY-ARBITRATOR BETWEEN

THE SUPERINTENDENT-GENERAL
NORTHERN CAPE DEPARTMENT OF EDUCATION EMPLOYER

and

MR CYPRIAN TSOENELO MAKOLOANE EMPLOYEE

Case No: ELRC26-23/24NC
Dates: 06 June & 02 August 2023, 22-23 July 2024
Venue: Magistrates Court, Upington

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award in the disciplinary matter (Inquiry-By-Arbitrator) between the Superintendent-General: Northern Cape Department of Education (hereinafter ‘the employer’), and Mr Cyprian Tsoenelo Makolane, ‘the employee’.

2. The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) was scheduled for 06 June 2023, then 02 August and 14 September 2023, and concluded on 22 and 23 July 2024. Both parties attended the Inquiry. The employer was represented by Mrs LL Tulani-Jaro, its Labour Relations Officer. Mr JS Niemann, an Attorney from Lange Carr & Wessels Inc, represented the employee.

3. The Inquiry was held under the auspices of the Education Labour Relations Council (hereinafter the Council), following section 188A of the Labour Relations Act (the LRA), read together with Clause 32 of the Council’s Dispute Resolution Procedure and the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued per section 138(7) of the LRA.

4. The proceedings were digitally recorded, and Mr MP Mbobi was the Interpreter. Mrs PA Du Plessis was the Intermediary. At the end of the inquiry, the parties’ representatives requested that they submit closing arguments in writing by 30 July 2024.

ISSUE TO BE DECIDED

5. I am called upon to decide whether the employee misconducted himself, as per the allegations against him. If I find that he did commit the misconduct, I must decide on an appropriate sanction.

PRELIMINARY ISSUES

6. The parties lodged various preliminary issues and interlocutory applications, including postponement applications, upliftment of suspension applications, amendments of the charge sheets, etc. These applications were considered, some of which were granted, and others refused. Ex Tempore rulings were issued to fast-track the arbitration process. The postponement rulings were issued in writing. The employer’s new representative also withdrew charges 2 and 3 in the middle of the arbitration, the charges of which mainly dealt with the forced kisses and which were based on section 18.

BACKGROUND TO THE DISPUTE

7. It is common cause that the employer has employed the employee as an Educator and he has been teaching Natural Sciences, Technology, and Languages at Westerkim Primary School in Rosedale, Upington, since 01 January 2012. Following alleged acts of sexual misconduct on 23 September 2021, the employee was then served with a charge sheet and suspended on 17 November 2021.

8. The allegations levelled against the employee are as follows:

Count 1
It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act 76 of 1998, at or near Westerkim Primary School that on the 23rd September 2021 you sexually assaulted a learner (the learner) in Grade 7 E while you knew or ought to have known that you were not allowed to do so.

Count 2
On or about 23rd of September 2021 at or near Weserkim Primary School in the ZFM District you allegedly committed an act of misconduct in terms of section 18 (1) (f) of the Employment of Educators Act 76 of 1998, that you inter alia, unjustifiably prejudices the administration, discipline or efficiency of the Department of Basic Education, an office of the state or a school in that you forced a learner to kiss you. [withdrawn]

Count 3
On or about 23rd of September 2021 at or near Westerkim Primary School in the ZFM District you allegedly committed an act of misconduct in terms of section 18 (1) (q) of the Employment of Educators Act 76 of 1998, that you inter alia, while on duty, you conducted yourself in an improper, graceful or unacceptable manner in that you forced a learner to kiss you. [withdrawn]

9. The employee pleaded not guilty to all the charges. He was adequately served with a notice to appear at the Inquiry and provided sufficient time to prepare for the case. His rights and obligations were also correctly explained to him at the commencement of the Inquiry.

10. For this award, the learner’s name shall be kept confidential. The learner was 13 and in Grade 7 at the time the alleged incidents took place. It appears that the alleged incidents took place in the employee’s classroom.

SURVEY OF EVIDENCE AND ARGUMENT

11. This section summarises the parties’ evidence and arguments. It is not intended to be exhaustive, but I have considered all the submissions in arriving at my conclusions.

Documentary Evidence

12. The employer handed in, as evidence, a bundle of documents.

Employer’s Case

13. The learner testified as the first witness for the employer. She testified about how the employee, Mr Makoloane, used to pick on her and ask her for favours. The learner testified that it was on career day (where she was dressed as a doctor) when Mr Makoloane asked her for an R 10.00, and she went to class to fetch it from her school bag. She stated that Mr Makoloane also asked her for lunch, whereafter she responded that she does not take lunch to school, but money.

14. The learner stated that it was at a staircase when Mr Makoloane touched and pressed her breasts and immediately apologised after that. She noted that the following day, again in the classroom of Mr Makoloane, and whilst cleaning the classroom with Gizelle who was outside for a moment, Mr Makoloane grabbed her and forced her to kiss him. The learner stated that Mr Makoloane had chlorets (bubblegum) in his mouth when doing that.

15. The learner further testified that with the kissing incident, Mr Makoloane’s grip was too strong, as he had his one arm on a wall and covered her with his other arm. She stated that she tried to escape but was unsuccessful in doing so. The learner stated that she disclosed the incidents to her Afrikaans Teacher, Mrs van Kraudenburg, after Mrs van Kraudenburg noticed her constant absence from school. She explained to Mrs van Kraudenburg that Mr Makoloane caused her absence. The learner stated that she later opened up to Mrs Jansen and Mr Willemse, whilst emotional and in tears, and told them how uncomfortable she was to be in the presence of Mr Makoloane.

16. In cross-examination, the learner stood by her testimony and insisted that Mr Makoloane was lying about the kissing incidents. She admitted to having omitted some of the information from her written statement, including the aftermath matters.

17. Mrs Carmen Glynnis Ellenoir Jansen, ‘Mrs Jansen’, the learner’s Class Teacher, testified as the second witness for the employer. She testified that the learner informed her about the incidents around 16 November 2021 after a colleague, Mrs van Kraudenburg, noticed that the learner’s work was not up to standard. She also noted continuous absenteeism by the learner. Mrs Jansen testified that the learner was quite tense when she reported the incidents to her and Mrs van Kraudenburg. She stated that Mr Willemse took the learner to the staff room to address the complaints.

18. In cross-examination, Mrs Jansen stood by her testimony and added that she did not notice anything strange about the learner herself before 16 November 2021.

19. Mrs Juanita van Kraudenburg ‘Mrs van Kraudenburg, a Teacher, testified as the third witness for the employer. She described the learner as someone whose work used to be up to date and called the learner to her table after class on 16 November 2021 to discuss the learner’s absenteeism. Mrs van Kraudenburg stated that during her conversation with the learner, the learner indicated that she (the learner) wanted to speak to her class teacher, Mrs Jansen, because Mr Makoloane made her feel uncomfortable since career day in September 2021.

20. Mrs van Kraudenburg stated that she immediately called Mrs Jansen, and the learner told them about the incidents. She said that they also called the Head of Grades, Mr Willemse, who then dealt with the matter. She described the learner as having been very stressed and anxious when the learner narrated the incidents to them.

21. In cross-examination, Mrs van Kraudenburg stood by her testimony and explained that the learner did not provide them with the details surrounding the incidents and discomfort.

22. Mr Arrie Steenkamp Willemse, ‘Mr Willemse’, a Teacher, testified as the employer’s fourth witness. He testified that he remembers 16 November 2021, when Mrs van Kraudenburg called him to them (van Kraudenburg, Jansen, and the learner). He stated that Mrs Kraudenburg briefly told him what happened. He also asked the emotional learner what happened. The learner told him that Mr Makoloane did not want to leave her alone.

23. Mr Willemse testified that the learner told him that Mr Makoloane sexually touched her. He stated that he requested Mrs van Kraudenburg and Mrs Jansen to write a report about what happened and that he further took the learner to the school’s sick bay, where he asked her to write everything down for him. Mr Willemse stated that he also reported the matter to his superior, the Deputy Principal, Mr Boer, who advised him to obtain the statements of the other learners mentioned in the statement of the learner. He stated that Mr Boer escalated the matter further.

24. In cross-examination, Mr Willemse stood by his testimony and added that he left the learner in the sick bay whilst reporting the matter to Mr Boer.

25. In closing arguments, the employer’s representative submitted that Mr Makoloane is charged in accordance with section 17, and that no learner is supposed to be sexually assaulted at school. She submitted that a probability exists that the act took place, and that I must apply my mind to the facts.

Employee’s Case

26. Mr Cyprian Tsoenelo Makoloane, the employee, testified as the only witness in his case. He gave an overview of his career and how the day of 23 September 2021 unfolded. Mr Makoloane denied having made contact with the learner on that day and added that there was a COVID-19 incident, which necessitated cutting periods. He said that the learner was lying about borrowing money from her because he received his salary on 20 September 2021.

27. Mr Makoloane denied that his classroom needed to be cleaned the following day because he had no learners and that his classroom was swept once a week. He stated that he wished he could take me to the school to look at the school’s setup and to draw an inference on whether he is capable of doing such things. Mr Makoloane denied making the learner uncomfortable and stated that these allegations only came up after he was promoted to the school four years ago. He stated that something like this had never happened to him in his 21 years as a teacher.

28. Mr Makoloane stated that he felt terrible about the allegations because they reminded him of the same thing that happened to his late colleague, Mr De Koker, who passed on immediately after the finalisation of his case. He elaborated on his suspension, which was uplifted twice. Mr Makoloane stated that the learner once made similar allegations against another learner, Francois Rooi, who was also in Grade 7(e). He said that Mr Willemse once complained racially to a subject advisor, Mr Derrick Coetzee, and asked Mr Coetzee why the employer sent a black teacher to their school who does not know anything.

29. Mr Makoloane stated that since the upliftment of his suspension, Mr Willemse and Mr Gouws had a petition in the community about his return. He stated that Ms Ronel Martin even opened a special WhatsApp group wherein he was discussed, and that Mr Willemse even refused to attend classes, in the same way Mr Willemse drove Mr Sibusiso out of the school. Mr Makoloane stated that this case took its toll on him and his late father, in that his father died as a result of the stress of this case. He stated that he could not even attend the ceremony of his daughter when his daughter became the Head Girl of the same school.

30. In cross-examination, Mr Makoloane talked well about the learner and stated that he did not know why the learner would make such allegations against him. He stated that he knew one thing for sure, which was that black people were not welcome at that school. Mr Makoloane stated that the school has no English teachers and that even black children are not welcome at the school.

31. In closing arguments, Mr Makoloane’s representative submitted that the learner’s evidence, as a single witness, was false, and must be treated with caution. He submitted that the employer failed to discharge its onus of proof on a balance of probabilities, and that I must find Mr Makoloane not guilty on the charges.

ANALYSIS OF EVIDENCE AND ARGUMENT

32. As stated, Mr Makoloane pleaded not guilty to the charges against him. The employer called four witnesses, and Mr Makoloane was the only witness in his defence. The employer’s witnesses were consistent in their versions, and the learner’s version of the incident’s aftermath was well corroborated. I, therefore, find them credible and reliable. Mr Makoloane only denied the allegations against him and elaborated mostly about racial tensions which exist at the school and how black teachers are being frustrated to leave the school.

33. I shall now proceed to determine the remaining charge levelled against Mr Makoloane, in light of the evidence led by the parties:

34. The learner gave a proper account of what happened, and I could not pick up anything in the evidence which could suggest that the learner fabricated her version. Mr Makoloane himself could also not explain why the learner would make such allegations against him, and why the learner would pick him from all the male teachers as the one who sexually assaulted her.

35. In dealing with the evidence before me, the child learner, who was 13 years old on 23 September 2021, testified on how Mr Makoloane pressed her breast and apologised after that, in the name of it having been an accident. This evidence was only blatantly denied by Mr Makoloane without explaining what transpired at the stairs. A mere denial of everything that the learner said cannot suffice as not truthful, mainly when Mr Makoloane blamed his colleagues and racism at the school for what happened.

36. In his defence and during the cross-examinations of the employer’s witnesses, Mr Makoloane did not create a link between what he believes are the racial motives of his colleagues and the ‘perceived conduct of the learner.’ He had all good things to tell about the learner (the learner’s characteristics), even though he also accused the learner of having made similar accusations against another learner, Francois Rooi. Not only did Mr Makoloane fail to put his version about Francois Rooi to the learner, but respectfully, the mere fact that the learner made those allegations against Francois Rooi does not permit him to sexually assault the learner.

37. I am of the view that an act of sexual assault has taken place at the stairs described by the learner, in that the breasts of any female are part of her sexual organs and that the unauthorised touching thereof amounts to a sexual assault. The learner, a child at the time of the incident, could not consent to such an act. Based on the fact that the learner was consistent in both her statement and her testimony about the pressing of her breasts, I am persuaded that the learner’s version thereof is credible, which makes the learner a reliable witness.

38. The rest of the employer’s witnesses (the teachers) mainly testified about the incident’s aftermath and how it was reported to them. The learner’s persistent submissions during her cross-examination on how the incident of the breast pressing by Mr Makoloane took place sways me to accept her version as truthful. As testified by the teachers, the drop in the learner’s academic performance and absence from school confirms that the learner was disturbed in one way or another. The teachers confirmed that the learner was in a state of emotion when she finally dared to disclose the abuse to them.

39. It is my finding that the employer has proven, on a balance of probabilities, that Mr Makoloane sexually assaulted the learner on 23 September 2021.

VERDICT

40. Charge 1: The employee is found guilty of having contravened paragraph 17(1)(b) of the
Employment of Educators Act 76 of 1998 as amended, in relation to having sexually assaulted the learner.

SANCTION

41. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the Employment of Educators Act (the EEA), provides for the dealing with incapacity, misconduct and appeals, and provides the following:

Substitution of section 17 of Act 76 of 1998
10. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 17 of the
following section:
“Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of—
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner. student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or
other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e). (2) If it is alleged that an educator committed a serious misconduct contemplated in subsection
(1), the employer must institute disciplinary proceedings in accordance with the disciplinary code
and procedures 35 provided for in Schedule 2.” [my emphasis added]

42. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having sexually assaulted a learner in accordance with section 10 of the ELAA. A dismissal therefore automatically follows a guilty finding. If put differently, one may also say that the employee is dismissed by operation of law, after being found guilty of having sexually assaulted a learner of the school where he was employed at.

43. It follows that based on the provisions of the law (the ELAA), the sanction of dismissal is mandatory, and must be handed down on the employee. No further mitigating or aggravating circumstances can overrule this provision of the ELAA. Mr Makoloane in my view abused his authority as a teacher and betrayed the trust placed in him whilst standing in loco parentis towards the learner.

44. I do not rule out the possibility that some racial tensions may be in existence at the school, and that Mr Makoloane might not get along with colleagues like Mr Willemse on the basis of race. However, the case and evidence before me relates to the conduct of Mr Makoloane who stood in loco parentis towards the learner, and the breach of trust which he has committed. The racial allegations at the school is something which the employer must seriously look at.

45. Having found Mr Makoloane guilty of the main charge which is based on paragraph 17(1)(b) of the EEA and section 10 of the ELAA, which provides for a mandatory sanction of dismissal, upon a guilty finding, it is my conclusion that by operation of law, the employee must be dismissed.

CHILD PROTECTION REGISTER

46. The parties did not address me on whether the employee’s name must be recorded in the Child Protection Register if found guilty. Of cardinal importance is whether the Children’s Act 38 of 2005 (hereinafter ‘the CA’) is of relevance to the instance of the learner. Section 1 of the CA provides the following:

1 Interpretation
(1) In this Act, unless the context indicates otherwise-
‘child’ means a person under the age of 18 years;

47. It is common cause that the learner was 13 years old at the time when Mr Makoloane committed the misconduct against her, which by its very nature, is serious.

48. Section 122(1) of the CA provides the following:

122 Finding to be reported to the Director-General
(1) The registrar of the relevant court, or the relevant administrative forum, or if the finding was made on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing-
(a) of any findings in terms of section 120 that a person is unsuitable to work with children; and
(b) of any appeal or review lodged by the affected person.

(2) The Director-General must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.

49. It follows that the finding which I have made in paragraph 39 supra necessitates that it be forwarded in writing to the Director-General of the Department of Social Development. This is for purposes of entering Mr Makoloane’s name in Part B of the Register.

50. Based on this evidence, I shall make an order that Mr Makoloane’s name be reported to the Director-General of the Department of Social Development, for listing in the Child Protection Register.

51. In the premise, I make the following award:

AWARD

52. Mr Cyprian Tsoenelo Makoloane, is found guilty of the charge of sexual assault levelled against him, by the Superintendent-General: Northern Cape Department of Education.

53. The mandatory sanction of dismissal is imposed with immediate effect on Mr Cyprian Tsoenelo Makoloane.

54. The General Secretary of the Education Labour Relations Council is directed to serve this award on the South African Council of Educators.

55. The General Secretary of the Education Labour Relations Council must also, in terms of section 122(1) of the Children’s Act 38 of 2005, notify the Director General of the 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 Cyprian Tsoenelo Makoloane 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.

This is done and dated on, 09 September 2024, at Kimberley.

David Pietersen
ELRC COMMISSIONER

Inquiry-By-Arbitrator