IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the INQUIRY BY ARBITRATOR between

DEPARTMENT OF EDUCTION – GAUTENG PROVINCE EMPLOYER

AND

FD MODIBA, as represented by SADTU EMPLOYEE

SECTION 188A IBA RULING

CASE NUMBER: PSES720-19/20GP
DATE OF INQUIRY: 24 February 2020
CLOSING ARGUMENTS RECEIVED ON: 3 March 2020
DATE AWARD SUBMITTED: 19 March 2020 (extension granted)
NAME OF COMMISSIONER: Coen Havenga

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

Details of hearing and representation

1. This process was set down in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (hereafter “the LRA”). Both parties agreed and signed to have this dispute dealt with in terms of section 188A of the LRA. The inquiry took place on 24 February 2020 at the ELRC offices in Centurion.

2. The employer is the Gauteng Department of Education, represented by Mr Moloto, T. The accused employee is Mr Modiba, FD (“Modiba”), represented by Mr Mashishi, D, a SADTU official. Ms Seoketse, B acted as interpreter, and the intermediary was Ms Boikanyo, G .

3. The employer submitted the documents in Exhibit A, as well as Bundles B and C.

Issue to be decided

4. I am required to determine whether Modiba is guilty of the charge levelled against him. Should I find him guilty of the charge, then I need to determine the appropriate sanction.

Background and charges

5. The parties concluded a pre-hearing meeting and the minutes are contained in Bundle C.

6. Modiba is charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998 (“EEA”), in that he on 3 October 2019, while on duty at Pelotona Secondary School (“the School”), committed an act of sexual assault by kissing a grade 11 learner on her mouth and cheek.

Plea

7. Modiba pleaded not guilty to the charge.

Summary of evidence

8. The proceedings have been recorded digitally, and a summary of the Employer’s and Employee’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the inquiry and does not purport to be a verbatim transcription of all the testimony given. The record of the proceedings will reflect the complete testimony of the witnesses.

9. The matter relates to allegations of sexual assault on a learner who was a minor at the time of the alleged incident. In accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, the identity of the learner will not be disclosed. I will refer to the complainant minor as the Complainant in this award. The Complainant and other minor witnesses testified by making use of an intermediary and the CCTV system at the ELTC’s offices in Centurion.

Employer’s case

10. Phelane Ephraim Sehole (“Sehole”) testified under oath that he is the principal of the School. B12 reflects the report he sent to the Dispute Resolution Office of the Tshwane West District in respect of the allegation of learner harassment. Modiba teaches English and Life Orientation. On 3 October 2019 the Complainant came to his office. He met her outside, and she said she came to report that Modiba kissed her and gave her R10,00. She said it happened in the Consumer Centre, which is used for consumer studies.

11. When Sehole arrived at the School in 2017 the library was used as the staff room. They then received mobile units for the deputy principal office, one for the HOD’s office and one for the educators’ staff room. Sehole instructed the staff to vacate the other rooms, including the Consumer Centre. At the time of the alleged incident Modiba also used the Consumer Centre. The misconduct code was circulated to all staff members on 13 June 2019.

12. The Complainant had R10,00 with her. Sehole took it, put her name on it and put it in the safe. B13 reflects the entry Sehole made in the logbook of the School. Sehole confronted Modiba and explained the allegation against him. Sehole told Modiba that he had to report the allegations to the District, which he did on 4 October 2019. Modiba complained of unfair treatment and said something similar happened to another educator and it was solved at school level.

13. The mother and grandmother of the Complainant came to the School on 7 October 2019 and reported that the Complainant reported to them that Modiba kissed her and gave her R10,00. On 7 October 2019 there was issues with the bus transport for the leaners to Sun City, and Sehole was busy sorting that out for most of the day.

14. Under cross-examination Sehole testified that he did not witness the alleged kissing. It was reported to him. The Complainant came to him after school at about 14:40. She was with Naledi Katse when she reported the incident to him. She looked unhappy with what happened. He did encourage the Complainant to report the allegations to her mother. Her encourages learners to communicate with their parents, whether it is good or bad.

15. The Complainant, being 17 years of age, testified under affirmation that she was in the School in grade 11 in 2019. She read her statement that appears on page B14 into the record. On 3 October 2019 she went to the Consumer Centre to look for a book called Tsa se Gompieno. She found Modiba there. He told her that the book is in the staff room. Modiba then kissed her on the right cheek. He gave her R10,00 and then kissed her on the mouth. He said he would like to go on a trip to Sun City with her. The Complainant was very shocked, and she was shaking. Modiba then said they should go to Boitumelo to look for the book. Boitumelo said the book was in the staff room, but she could not find it there.

16. She went with Boitumelo to report it to the principal. The principal was busy and could not see him. Later she went with Naledi to report the incident to Sehole after the bell rang, at about 14:30. She also informed her parents and they went to the School. The Complainant thinks that Modiba gave her R10,00 because he wanted to sleep with her. They were alone in the Consumer Centre when it happened. She gave the R10,00 to Sehole who put it in the safe. He said it would be used as evidence. It is not right for an educator to kiss learners. Educators should act as parents at school. Modiba sexually assaulted her by kissing her.

17. Under cross-examination the Complainant testified that Modiba did not teach her classes. She knew him from the School. The incident took place after the break. Her teacher wasn’t in class that is why she went to look for the book she needed. She trusted Modiba to assist her. Modiba kissed her on the right cheek, gave her R10,00 and then kissed her on the mouth. She cannot explain why she did not run away after he kissed her the first time. Modiba used to give her money before but did not kiss her then. He did it since June 2019. He also gave her food before. She did not report it to the principal before. This time he kissed her and that is why she reported it. The principal did tell her to inform her parents of what happened. She went to Modiba for assistance because she trusted him.

18. Boitumelo Matjila, (“Boitumelo”) 16 years of age, testified under affirmation that on 3 October 2019 the Complainant and Modiba came to her to look for a book. He told the Complainant to wait in the Consumer Centre while Boitumelo went with him to the staff room to look for the book. Later the Complainant told her that Modiba kissed her on the cheek and mouth and gave her R10,00. The Complainant was shocked, and she was shaking. Boitumelo told her to report it to the principal. The Complainant said she was scared and Boitumelo went with her. The principal was busy so they could not see him. Boitumelo could not go with her later because she had to take the bus home.

19. Under cross-examination Boitumelo testified that Modiba used to buy food for them. They saw him as a father figure and trusted him. She did not trust him anymore after the incident. The Complainant and Modiba came to her together. When the Complainant told her what Modiba did, she was shaking and looked close to tears. She told the Complainant that she must report it to the principal. When she could not go back with the Complainant later, she told her to get someone else to go with her. She thinks that Modiba bought them food so that he could target one of them later.

20. Naledi Keetse (“Naledi”), 18 years of age, testified under affirmation that on 3 October 2019 she went with the Complainant to the principal’s office to tell him what Modiba did. The principal told the Complainant to inform her parents as well.

21. Under cross-examination Naledi testified that she did not witness the incident. The Complainant requested her to go with her to the principal’s office. She told her that Modiba kissed her. She saw the R10,00 when they were with the principal. Modiba sometimes gave her cookies.

Employee’s case

22. Frederick Dibaheni Modiba, the employee, testified under oath that he did not kiss the Complainant. On 3 October 2019 he was in his class after break, teaching English. He met the Complainant at 14:35, she said she was looking for a book. He was outside the Consumer Centre. He told her to go with him to look for the book. They did not find it. The Complainant told him there was a trip the next day. He gave her R10,00 for the trip. He agrees that he gave her the R10,00. On 4 October 2019 the principal told him about the allegations, and that he informed the IDSO. Modiba wanted to know why he was not told about it the day before. He had been giving food to the learners since 2014. They asked for food.

23. Under cross-examination Modiba testified that he cannot explain why his representative did not put his version to the witnesses. It is not possible that he was in the Consumer Centre on that day at that time. He did keep his things in the Consumer Centre. The witnesses are lying. He had a good relationship with the Complainant. He cannot explain why she would fabricate the allegations against him. He denies that he gave her money to groom her for sexual favours. He did not kiss her. He does not know why she would say he did. Everybody liked him.

Summary of arguments

Both parties submitted extensive written closing arguments which form part of the record. A summary of the respective arguments follows below.

Employer

24. The employer’s representative argued that Modiba’s mere denial of the allegations cannot be accepted as a valid defence. He failed, through his representative, to put his version to all the witnesses when they were on the witness stand. In Mkhize v State (390/18)[2019] ZASCA 56 (1 April 2019) para 15 the court stated: “It is the duty of the cross examiner to put all contested points the witness in cross-examination. A cross-examiner who fails to do so runs the risk of having his witness criticize of recent fabrication when that witness later testifies”. The court further said: “Failure to so (cross-examine) would in appropriate cases lead to an adverse inference being drawn from the failure to cross-examine on the contested issues”.

25. Modiba did not present any witness to corroborate his version but only presented a bare denial, which is not sufficient to stand as a defence. The employer has proven its case on a balance of probabilities.

26. Section 17 of the EEA makes dismissal mandatory if found guilty. The employer takes a dim view of educators taking advantage of learners and a zero – tolerance approach has been adopted. Modiba has been grooming these learners so as to pounce on one unsuspecting one, and this was alluded to by the victim that she thought by kissing her he wanted to sleep with him. As the Department they owe it to the vulnerable learners to provide them a safe environment at school. The trust relationship with between the Department as employer Modiba has irretrievably broken down. This dictates that section 17 of the EEA should be followed to the letter.

Employee

27. The employee’s representative argued that the principal’s verbal reporting version should not be considered because his role at school is not supposed to cross-examine Modiba. It was not relevant or necessary for the principal to instruct the Complainant when she arrived home to tell her mother about. This brings a suspicion of conspiracy in this case, and implies the principal is not a reliable witness in this case.

28. There was no consistency by all the witnesses in this case in defining the specific time of the allegation. The allegation sounds not true because after the first kiss the Complainant had an opportunity to run for assistance from the school principal. Both Boitumelo and Naledi were told by the Complainant about the incident which makes them not reliable witnesses in this case.

29. All the witnesses described Modiba as a very good, approachable, kind, honest, patient, trusted and ubuntu practice teacher which surprised them about what happened on the day. This implies the Complainant took advantage of Modiba’s characteristics by making an allegation about him without thinking this will be treated as a serious offence for no reasons.

30. Should Modiba be found guilty, it is true that the Complainant does not deserve to be sexually abused. Modiba begs for forgiveness since she has already retained her dignity and reputation back because she looked very strong and brave as she was testifying. Modiba never touched her on her sensitive sexual organs. Fortunately, there was no sexual violence and penetration.

31. Modiba has shown remorse in this case by not interfering with any investigations and employer’s witnesses from the day he was notified about the allegation against him. Modiba has a clean record of twenty-five years. .

Analysis of evidence and argument

I have considered all the arguments, legal principles and case law referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the inquiry, as reflected in the recording of the inquiry.

32. This inquiry was conducted in terms of the provisions of Collective Agreement 3 of 2018, the principles contained in section 188A and Schedule 8 of the LRA, as well as the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998 in respect of the fairness of disciplinary action. In applying those principles, the following factors were considered:
a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) If the rule or standard was contravened, whether or not –
i. The rule was a valid or reasonable rule or standard;
ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
iii. The employer has consistently applied the rule or standard.
iv. Dismissal would be an appropriate sanction for the contravention of the rule or standard.

33. The LRA does not prescribe the standard of proof to be used in labour matters. It is however universally accepted that the standard of proof that is applicable in disciplinary hearings, and therefore inquiries by arbitrators of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.

34. All the allegations in the charge against the employee, as well as the evidence, documentary and otherwise, deduced in support thereof by the employer, and the evidence deduced by the employee in defense, were considered and weighed against the abovementioned standard of proof.

35. It is not disputed by the employee that the actions he had been charged with constitute misconduct. The employee merely denies committing such misconduct, i.e. that he on 3 October 2019, while on duty at Pelotona Secondary School committed an act of sexual assault by kissing a grade 11 learner on her mouth and cheek.

36. It is a natural response in matters relating to the sexual harassment, assault or abuse of children that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.

37. In respect of the allegations of kissing the Complainant, there is only direct evidence of two witnesses, i.e. the Complainant and the employee. The employee disputes the version of the Complainant, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept.

38. Modiba’s defense in respect of the alleged kissing is a blanket denial of any wrongdoing. He submits that it is a fabrication of lies, although he cannot provide a possible reason for the alleged fabrication. This version was also never put to the witnesses by the employee’s very experienced union representative, and that failure warrants an adverse inference being drawn. I find his version improbable. If he was such a loveable teacher, why would the Complainant for no apparent reason accuse him falsely. There is no probable evidence that she could have gained some sort of benefit from doing that. The Complainant had absolutely nothing to gain by falsely implicating Modiba. I also find it improbable that the Complainant would fabricate the version she testified to. One would expect a fabricated version to be much more dramatic in respect of where the employee touched her, for maximum effect.

39. I find no material contradictions in evidence of the Complainant and other witnesses that would impact on her credibility to the extent that her testimony in respect of the alleged kissing should be discarded. She was put under intense and extensive cross-examination by the representative of the employee and remained steadfast in respect of the events that occurred in the Consumer Centre. The version she gave to her friend and the principal shortly after the events also confirmed and corroborated her testimony during the inquiry.

40. What is most important in evaluating the testimony of a minor as the Complainant is, is consistency regarding the core details of the experience. The cautionary rule does not mean that the evidence of the Complainant must be above any criticism. It requires only that the evidence accepted should be substantially satisfactorily in relation to material issues or that it should be corroborated by other evidence. In making factual findings, the question is not whether a witness is wholly truthful in all she says, but whether the arbitrator is satisfied that the story which the witness tells is a true one in its essential features. I find it to be the case with the Complainant’s testimony. Where there are two conflicting versions of the facts the arbitrator should weigh up each version considering all relevant factors. I must consider the evidence of the witnesses to determine which version is more probable in the circumstances and should be accepted as a true reflection of the events that occurred in the Consumer Centre.

41. The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows: “Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The Complainants’ version has been materially the same throughout the investigation and disciplinary process. I find it improbable that she would make up such a detailed version of events without any reason. The employee’s version that is a fabrication is not plausible.

42. I can find no substance in the allegation that the Complainant’s version is a fabrication and a lie. I can find no probable motive for the Complainant to fabricate evidence and lie at the inquiry. The employee could not provide any probable evidence that would support such notion. I therefore find the evidence of the Complainant given at the inquiry in respect of the conduct of the employee in the Consumer Centre to be credible and probable.

43. Sexual assault does not necessarily involve contact with the genitalia. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. It includes forms of intentional conduct of a sexual or erotic nature such as kissing on the lips.

44. Grooming is the act of preparing a child with the intent of sexually abusing them. Grooming also involves the act of manipulating people and situations to gain and maintain access to the victim. An example of grooming is giving gifts or special attention to a child. I find on a balance of probabilities that the practice by the employee to give money to the Complainant over a long period, amounts to an attempt to groom her for further action, which culminated in the sexual assault. The Complainant in fact testified that she thought the employee did it in order to “sleep with her”.

45. I find that it was proven on balance of probabilities that Modiba committed an act of sexual assault as provided for in section 17(1)(b) of the EEA when he, while on duty on 3 October 2019 at Pelotona Secondary School, kissed the Complainant on her mouth and cheek.

46. The offence which Modiba has been charged with appears in the EEA. I am thus satisfied that the rules existed in the workplace. I am satisfied that the employee knew of the rules at the time of the misconduct and that the rules are valid and fair. The evidence by the principal that he provided the employee and other staff members with Code of Conduct for educators, went unchallenged. I am satisfied that the employer has proven on a balance of probabilities that Modiba breached the rules. There is no evidence of inconsistent application of the rule by the employer.

Finding

47. The accused employee, Mr Modiba, FD, is found guilty of the one charge of contravening section 17(1)(b) of the EEA.

Sanction

48. It is trite law that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case.

49. The employer has argued that dismissal is appropriate considering the nature of the transgression. I must consider whether dismissal would be an appropriate sanction, and whether a lesser sanction would serve the desired purpose. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.

50. It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement (See Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761 at 777–778.)

51. The employee as educator engaged in a sexual assault on a learner which is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behavior does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of sexual relationship with or assault on learners at a school, and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the Complainant being a child to be sexually assaulted by an educator.

52. Educators are entrusted with the care of children and therefore must act with the utmost good faith in their conduct towards learners, as society must be able to trust educators unconditionally with children. If an educator breaches this trust, as in casu, dismissal is generally the most appropriate sanction.

53. The employee’s years of service cannot outweigh the gravity and seriousness of his offence. The Labour Appeal Court has held that long service cannot in itself provide a basis for rendering a dismissal unfair. See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC).

54. Despite the above considerations for completeness sake, section 17(1) of the EEA in any event states that dismissal is the mandatory sanction for the offence the employee has been found guilty of. I therefore find that the sanction of summary dismissal is fair and appropriate in the circumstances.

Award

55. In terms of section 188A(9) of the LRA I direct that the employee, Mr Modiba, FD, be dismissed summarily.

COEN HAVENGA
Arbitrator