In the Arbitration between

THEMBA MTSHAWU
(Union/Applicant)

And

DEPARTMENT OF BASIC EDUCATION, NORTHERN CAPE
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. The present dispute between Themba Mtshawu (hereinafter referred to as the Applicant) and Department of Basic Education, Northern Cape (hereinafter referred to as the Respondent) was referred to Arbitration in terms of Council rules. At the Arbitration hearing which was held at the boardroom of De Aar Magistrate Court in De Aar on 11 March 2019, the Applicant was represented by Mr. M. Ngcuka whereas the Respondent was represented by Mr. F. Bitterbosch. Mr. B. Banga was appointed as an Interpreter during the proceedings. The inquiry was recorded.

ISSUE TO BE DECIDED

2. To determine whether the Applicant was guilty of the misconduct in terms of Section 17(1) (c) of the Employment Educators Act 76 of 1998 alternatively guilty of Section 18 (1) (g) of the Employment of Educators Act 76 of 1998.

PLEA OF GUILTY OR NOT GUILTY

3. The Applicant pleaded not guilty on the main count and alternative count.

4. The Applicant confirmed that he was duly advised of his rights in terms of representation and presentation of his case in respect of evidence.

5. The Applicant further confirmed that he understood the charges and was ready to proceed with the inquiry.

6. Both parties submitted bundle of documents in support of their respective cases.

SURVEY OF EVIDENCE SUBMISSIONS AND ARGUMENTS
THE RESPONDENT’S VERSION AND TESTIMONY WAS AS FOLLOWS
FOR PROTECTION OF THE LEARNER SHE WILL BE REFERRED TO AS MISS B.L.

7. Ms. Nokwayintombi Sophia Njeza testified under oath that she was a Principal of Monwabisi High School. She knew the Applicant, Mr. Mtshawu. The Applicant was one of the Educators at her School. The Applicant was a temporary Educator. She knew the Learner, Miss “B.L.”.

8. On 22 November 2018, she was informed by one of the Educators, Ms. Qequ that Miss B.L. was writing examination alone in one of the examination rooms. She called Miss B.L. to found out why she was seperated from other learners. She was informed by Miss. B.L. that she was sick and pregnant. Miss B.L. further informed her that she was impregnated by one of the Educators, Mr. Mtshawu, the Applicant.

9. The Learner also informed her that the Applicant was no longer taking care of her and was having other romantic relationships with other Learners in her class. She called Miss B.L.’s Mother to the School who informed her that the Learner was impregnated by someone from Britstown. The Learner Miss B.L. told her in front of her mother that she was impregnated by her Educator, Mr. Mtshawu, the Applicant.

10. Miss “B.L.’s” mother told her that she lied about who impregnated her daughter because she was scared about how will her husband react to her daughter’s pregnancy caused by the Educator.

11. She received a telephonic call from Ms. Lobi who worked at their District Office asking her
About the resignation of the Applicant. She was surprised to hear about the resignation of the Applicant, because the Applicant didn’t informed her as the Principal about his resignation. She was unable to locate the Applicant on 22 and 23 November 2018.

12. The Learner, Miss B.L. wrote a statement explaining her pregnancy and who impregnated her. The letter was submitted to her and same was forwarded to the District Office. The Learner was 15 years of age and was doing Grade Ten (10) when she heard about the relationship of the Learner with the Educator and the pregnancy.

13. The Applicant misused his position as an Educator to have a sexual relationship with the Learner and as a result of that the Learner was prejudiced. The Applicant was suspended on 29 January 2019. The Applicant resigned and applied for his pension on 23 November 2018. The Department declined the resignation of the Applicant on 26 November 2018.

NB – 14. During cross-examination the witness was asked about the second letter written by the Learner. An objection was raised by the Respondent that the letter was not part of the initial bundle of documents and was not signed by the Learner. An enquiry was conducted in respect of the second letter.

15. Miss. Njeza testified that she received the letter from the Learner, Miss B.L. on 29 November 2018. The letter stated that inter alia:-

“In the first letter, I lied when I said it was my teacher, who impregnated me. I was filled with anger and wanted revenge. The person who impregnated me it’s not my teacher (Mr. Mtshawu). I lied about him impregnating me because I was jealous and when he first came to the School, I wanted him. So I tried all means to want him and not that only but his attention and make him want me. He has his own girlfriend and that made me jealous. I went to him and asked him to be my boyfriend and I remember, I was already three (3) months pregnant that time and I broke up with my boyfriend. I told Aunt the truth about who impregnated me.”

16. The Principal testified that she got the letter that implicated the Applicant from the Learner Miss B.L. The Principal further confirmed that she received the second letter from the Learner Miss B.L. about the same incident but exonerating the Applicant of any wrongdoing or contravention of misconduct.

17. The Applicant was charged as a result of what the Learner informed the Principal and also what she wrote on the first letter. The Learner Miss B.L. wrote another letter exonerating the Applicant. In the second letter the Learner stated that she lied about the Applicant and explained the motive behind the false allegations. It will be miscarriage of justice if I don’t accept the second letter of the Learner.

18. Section 138 of the Labour Relations Act states that:-

The Commissioner may conduct the Arbitration in a manner that the Commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.”

19. In terms of the above mentioned Section of the Labour Relations Act I am obliged to determine the matter fairly and with minimum legal formalities. Fairness dictates that the second letter should be accepted because it is relevant to this dispute.

RULING

20. The second letter written by the Learner, Miss B.L. is admissible and hereby accepted as part of evidence.

21. Miss Njeza testified further under cross-examination that she gave the second letter to the Department. In the second letter the Learner stated that she lied about the Applicant.
 NB – It was submitted that the Learner was not willing to testify. Respondent’s case was closed.

THE APPLICANT’S VERSION AND TESTIMONY WAS AS FOLLOWS:

22. The Applicant elected not to testify and confirmed that he was aware of the consequences not testifying or calling any witnesses.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS

23. It is common cause that the Applicant was charged with one (1) Count and alternative Count. The Respondent alleged in the main Count that:-

On or about December 2018 at or near De Aar (Monwabisi High School) you committed an act of misconduct in terms of Section 17 (1) (c) of the Employment of Educators Act 76 of 1998, in that you inter alia, committed misconduct in that you had a sexual relationship with a Learner, Miss B.L. at the School where you are employed, while you knew or ought to have known that you were not allowed to do so.
 Alternative Count was that:- On or about December 2018 at or near De Aar (Monwabisi High School), you committed an act of misconduct in terms of Section 18 (1) (g) of the Employment of Educators Act 76 of 1998, in that you, inter alia, committed misconduct in that you misused your position at the School where you are teaching, in that you prejudiced the interest of the Learner by having a sexual relationship with the Learner while you knew or ought to have known that you were not allowed to do so.

24. The Applicant pleaded not guilty on both Counts main and alternative. The Respondent in proving that the Applicant was guilty of the misconduct called a single witness whereas the Applicant elected not to call witnesses or testify in support of his case.

25. I am required to determine on a balance of probabilities whether the Applicant was guilty on the charges preferred against him.

26. The Learner made two (2) contradicting statements. In one letter she clearly stated that she was impregnated by her Educator, the Applicant and another letter which was written two (2) after the first one (1), she stated that she lied about the person who impregnated her. She explained in the second letter in details her motives.

27. The Principal also testified about the conflicting versions of the Learners’ mother about the person who impregnated the Learner. The evidence before me unfortunately is characterised with untruthfulness.

28. I am faced with two (2) conflicting statements of the Learner. The question to be decided will always be which of the statements in considering all allegations made is correct. Both the Learner and her mother changed their versions about who impregnated Miss B.L. They also both admitted to the Principal that they lied about the person who impregnated the Learner. In the absence of any other evidence before me, I am obliged to accept the contents of the last statement of the Learner, which stated that she was not impregnated by the Applicant.
29. It is trite Law that when witnesses are not telling the truth and concede that they are not telling the truth, their testimony should not be accepted. The Learner conceded in her second letter that she lied and also her mother confirmed that she lied about the Applicant impregnating her child. The version of the Respondent is filled with lots of lies and therefore cannot be accepted.

AWARD

30. The Applicant, Mr. Themba Mtshawu is found not guilty on the main Count and also the alternative Count.

31. The suspension of the Applicant is hereby uplifted and the Applicant is ordered to return to work on 02 April 2019.

Signature:
Panelist: LEKUKA MORE