19 March 2026 -ELRC429-24/25NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT SANDTON

Case No: ELRC429-24/25NW

In the matter between

DEPARTMENT OF EDUCATION – NORTH WEST Applicant – Employer

and

OUPA MODISANE Respondent – Employee

ARBITRATOR: Adv. S Fourie
HEARD: 10 & 11 April 2025, 23 June 2025; 22 July 2025; 17 & 18 September 2025; 4 November 2026; 5 & 6 February 2026.
FINALISED: (Closing statements 16 February 2026)
DELIVERED: 17 March 2026

INQUIRY BY ARBITRATOR – ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

The Inquiry by Arbitrator, was heard at different venues which varied between Rustenburg District, Soshanguwe Education Centre and Koster Intermediate School. The Employee, Mr. Oupa Modisane (“Modisane”), was present and represented by Mr. T Monkwe from SADTU. The Employer represented by its ELRS practitioner but later by Advocate O D Tshitlho (“Tshitlho”). It was compulsory for an intermediary service due to minor witnesses although the witness’s identity is known to the parties. Ms. M Padi served as intermediary and Mr. S Khuzwayo as interpreter. The proceedings were conducted in English and Setswana. I kept handwritten notes and was also digitally recorded.

THE ISSUES TO BE DETERMINED

This is an arbitration award in terms of Section 188A of the Labour Relations Act 66 of 1995, as amended (“LRA”) read with Clause 3.2 of the ELRC Dispute Resolution Procedure with section 3.2.1 of Collective Agreement 3 of 2018. This award is issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. The employee Mr. Modisane, pleaded not guilty to the allegation listed hereunder. I am required to determine whether the employee is guilty of the charge levelled against him and if so, to determine the appropriate sanction.

BACKGROUND TO THE DISPUTE

The Employee, Mr Modisane is employed by North West Department of Education at Koster Intermediate School as a PL3 Deputy Principle. The charge against the Employee reads: During 2022 and 2nd terms whilst on duty you indulged in an Act of misconduct that is unlawful and prohibited in that you had sexually harassed a female learner born in 2010 ages 13 years at the time by the name of Learner A by touching her breast and bums. As a result, your alleged conduct you contravened the provisions of Section 17 (1) (b) of the Employment of Educators Act,76 of 1998.which reads as follows “committing an act of sexual assault on a learner”

SUMMARY OF THE EVIDENCE

This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and referred to as the LRA read with the changes as required by the context read with Section 188A (9) of the LRA. This award is not intended to be a verbatim transcript of the evidence led at the inquiry by arbitrator hearing but rather a determination with brief reasons for such determination. The Employer submitted a bundle of documents (Bundle ‘ER’ 1 – 12 pages). The Employee submitted bundle of documents (Bundle ‘EE’ 1 – 13 pages) and also relied on the Respondent’s bundle.

The Employer’s case

Matapelo Modise (Modise) testified under oath. She is the mother to Learner A. Prior to the 2nd term of 2023, Learner A complained daily in general that she did not like Modisane who taught her. As the year progressed she was not taught by Modisane anymore. In 2023, Learner A had several complaints and her behavior changed being short tempered and quiet. Learner A was easily irritated in her sister’s boy child pushing him away. In the second term of 2023 Learner A was very reserved remaining in her bedroom not assisting with household chores like washing the dishes.
Around June an incident took place saying she did not like Modisane because when they were in the class of Mr. Montshosi. Modisane entered the class and scolded at them that they not allowed to wear beanies without the school logo. Modisane noticed Learner A with such beanie and removed it throwing it on the ground to wipe his shoes. Learner A responded to Montshosi that it was not appropriate to wipe his shoes with her beanie who told her not to take it personally. Modisane told Learner A that she had a cheap beanie and he could by her an expensive one. The day she opened up about the reason she dislikes Modisane and that he harassed her but did not explain the details. The following day they accompanied her to school meeting the Principal explain the harassment to the Principal. The Principal did not pay attention and referred them to Mr. Kloppers who took them to his office requesting them to write a letter (ER page 5) using the name Nandi instead of Learner A’s name. Learner A wrote the letter with Kloppers referring them back to the Principal.
After this letter (ER5), the school failed to assist them and said it was escalated to the Department. Modisane approached her grandmother, their aunt and another relative called Tebogo about the contents of the letter but she had no knowledge of it because they did not discuss it with family members because they did not know what exactly Modisane did with Learner A. Modisane told Tebogo that Learner A has put his name in disrepute. After the letter was escalated to the Department, Learner A’s life was miserable and harassed by the school when she was called by the HOD and the Principal when she was supposed to write EMS exam and told that the school is connected with them not having money to go on with the case. They reported it to the Mr. Masisi at the Department who told them to meet him at the school the next morning. At the school they met with the HOD, Bamjee and the Principal with Masisi asking them the reason to have interrogated Learner A in the absence of her parents. She referred to the letter from Masisi (ER). Masisi instructed the Principal for Learner A to write EMS at the office and even for that they would call Learner A over the intercom just to show they are not scared of the case.
She stated that Modisane was never called to the office and only communicated with Kloppers but had no further communication after the submission of the letter. Modisane also accused her of making his name bad to the people in the community. In the area, Modisane would drive slowly next to them where they walk and she got someone to accompany her and after a while it no longer threatened them. Fredericks who is married to the niece of Modisane would visit them and talk about the case. Another lady made her aware that Modisane passed through their street at 05:45 which she was not aware of and stood at the gate the next day and saw a black Golf driving slowly next to Learner A. They would wait then at the stop and accompanied Learner A home and even with them waiting at the stop, Modisane would come up the street. During the night she would get panic attacks with them also complaining to other Departmental Officials, Tshitlo and Sechele. They moved Learner A from the school and placed her at another school in Phokeng.
During cross examination, she agreed that the things all talked about was told to them by Learner A and agreed it to be hearsay. She agreed that children are able to lie. She agreed that Learner A did not tell her what Modisane did to her in 2022 but only that she did not like Modisane which worried her. She did ask her what it was but Learner A did not explain. She stated that she visited the school on several occasions and talked to the SGB chairperson Orica and Mr. Kloppers but decided to stop after the SGB chairperson who is the cousin of Modisane said they are a family of bullies complaining at school. She agreed that the matter of 2022 was never addresses with the Principal or Modisane.
Modise had no comment to the notion that she lied about Learner A telling her she did not like Modisane and that she did not informed the school about it in 2022. Modise also did not know what to answer to the notion that she failed to state it in her statement that she went to the school to complain about her child disliking Modisane.
In 2023 Modise never took Learner A to a social worker or a psychologist but sought help on a chat group. She also did not inform the school of the changes Learner A had. Modise did not know whether Learner A changed or made it up. Modise had no comment when she was referred to EE8, a report from Dr Kloppers in 2023 that Learner A had no behavioral problems which negates her version of Learner A who had changed. Modise also had no comment she failed to mention it in her statement that Learner A’s behavior has changed.
Modise had no comment on Modisane’s version that he did not take Learner A’s beanie and wiped his shoes. She agreed that she was not in the class and it to be hearsay. Referring to her statement in ER2 she agreed her version to be different where she stated that Modisane’s jacket had chalk on it taking Learner’s A beanie to wipe his jacket. She agreed that she did not mention it in her statement on ER7 and also not that Modisane wiped his shoes with the beanie. She is not aware that Modisane was the chairperson of the uniform committee and was conducting an informal inspection and did not target Learner A.
Referring to the Principal’s report on ER8, Modise agreed that there was a meeting with the Principal where they could inform the Principal what Modisane did at the class when doing the inspection. Modise agreed that they met with the Principal on 6 September 2023 with her boyfriend being very angry. Modise denied the accusation that her boyfriend called the Principal a “white bitch” that she was defending her deputy.
Referring to the statement of Learner A (ER5) (at the end of the page) what Nandi’s (being Learner A) mother (being Modisane) told Nandi about what the teacher (Modisane) did at his former schools with Nandi’s mother about to take action to which Modise responded that Learner A was not the only victim because of her cousin when in grade 9 when she (Modise) was in grade 8, Modise made advances to her cousin which encouraged Learner A to open up. She agreed that they were young and not report Modisane. Modise had no response to Modisane denial of such allegations. Modise was referred to ER10 where the Principal of the previous school, Mr. Motlhampe was phoned by the Principal (Naude) who had no knowledge of such accusations. Back to ER5 to Nandi father came home late home telling Nandi that the teacher (Modisane) has been a pedophile ever since he came to South Africa, Modise responded that they would made sure not to let the matter rest.
Modise agreed that the letter using the name Nandi which was instructed by Kloppers, was written at home but as parents they did not read it but read it when they met with Kloppers. At the time she did not see the part where he boyfriend referred to Modisane as a pedophile. She agreed that there was no proof of Modisane to be a pedophile but was fair for what Modisane did to her daughter.
Modise did not understand the notion that the reason the Principal called Learner A was because her biological visited the school because she told the school that her boyfriend is the father to Learner A. She denied that when they visited the school that she refused to engage with Modisane when the Principal called him referring to ER8.
To the notion that Modise created a picture that the school protected Modisane she responded that because the school did not communicate with them she concluded that the school protected Modisane. She agreed that the school attended to it after their visit on the 6th of September and Modisane’s statement dated 11 September 2023.whereafter the Principal submitted her report to the Department whoever this was not communicate to them.
Modise agreed that Koster is small and that when Modisane drove slowly he did not speak to Learner A but when he saw them he would slow down behind them up to their gate then passing. VERSION She felt Modisane was stalking them but they never reported it the SAPS because the case was with the Department being the reason she informed Sechele. She agreed that Modisane was suspended but not informed about hearing it from the street. She agreed that Modisane then had time to drive around. She agreed that Learner A at the time attended school in Phokeng having no reason to go to Phokeng to stalk her to which she responded that Modisane was not aware of Learner A attending school at Phokeng.
She agreed that Modisane was never violent knowing him for a long time. She agreed not to have mentioned sexual harassment in 2022 and could not recall how many times it happened. She could also not recall how many times it happened in 2023 but was told by Learner A who would remember. Learner A told her the sexual harassment took place at school thinking it was inside the classroom. Modise could not recall whose classroom. Modise had no comment that she could not recall fundamental information of the sexual harassment allegations made by Learner A but could recall Modisane driving a black Golf.
Referring to ER2, line 8 where Modise wrote inside and outside the classroom comparing it with the time table on EE9 period 8/9, Modisane’s version is that the classroom belongs to Miss Pito and could not have harassed Learner A. For period 3/4 on Tuesdays in respect of Modisane teaching EMS, the classroom belongs to Kloppers. Modise agreed that for period 5 between 09:15 – 09:45 Kloppers is in his class meaning Modisane used the class from 08:20 to 09:15 when Klopper returned. Modise agreed that the owners of the classroom would be back with no time for Modisane to be alone in the classroom when a period ends.
Modise agreed that Learner A mentioned no witness. Modise agreed that Learner A told her the harassment happened several times during school hours inside and outside the classrooms. Modise agreed the school had approximately 500 learners. She noted the notion that it was unlikely to have happened with so many learners who could have seen it to be a witness to it either inside or outside the classroom. She agreed Modisane had an office of his own but did not know if it would have been easier to use the office rather a classroom to harass a learner. Modise agreed that if it happened between classes, Learner A would have arrived late for her next class and agreed that she never received any call from the school that her child arrived late for classes. She noted that it is unlikely for Modisane to have touched Learner A’s breast and bum not having his own class using the classrooms of other teachers.
Referring to ER2 – line 9 where Modise stated the reason Learner A confessed was because the SGB chairperson, Orica Metswamere supported Modisane’s actions and mistreated Learner A telling Learner A harsh thing, Modise responded that it was when Modisane took Learner A beanie and the way she wrote the stamen is an error. She is surprised to see the mistake and noted her contradiction in relation to what she wrote that Learner A kept quiet for her mother sake however Learner A does not mention Orica in her statement. Modise agreed that their statements differ.
Modise noted that Learner A told the other learners not to go on the Gold Reef City trip because Modisane is going to rape the girls. She also noted that she was the one who told Learner A that Modisane was a pedophile.
Learner A testified under a solemn affirmation and able to distinguish between right and wrong. She stated that she is 15. The incidents took place in the third term of 2022 and in 2023. She stated that Modisane taught her LO when she was in grade 7 when he touched her breast, buttocks and her waist. When he did so the first time she told him to leave him but he refused. The bell rang and the other learners entered the class with her running out. The second time was in the classroom of Kloppers when Modisane touched her breast and bums. She tried to wipe his hands away but he was too strong for her. Modisane told her if she ever tells anyone, he will kill her mother. This behavior continued in the classroom of Kloppers, Sithole and Sita. Every time she tried to remove his hands but he was too strong for her.
Learner A referred to an incident at Kloppers classroom when Modisane stood outside hitting all her former classmates telling them to go back. Inside the classroom he told all to take out their books giving them papers to paste into their books. The ones who did not do it, Modisane called them hitting them on their hands. They were surprised in the way Modisane hit them. When Modisane came to her, he held her hand which she tightened wanting to remove her hand but Modisane hit her two times. He then started to touch her breast and bums and her waist. This continued until she went to grade 8. During the first term she did not really see Modisane but the second term during an exam Modisane entered the classroom after a random search and came to the row she was seated in at the back. She then walked to the front when a classmate told Modisane he had chalk on his jacket . Modisane then took her beanie from her table and wiped his jacket with her beanie where after he thrown it on the floor kicking it to the front. She stood up to fetch her beanie but Modisane stepped on the beanie where after he left the classroom. When he was outside the classroom she told Modisane he could not have done what he did with her beanie and Modisane told her she must come to him he would buy her a new one because her beanie was a cheap one. Mr Montusi told Modisane to leave he disturbed them.
After a week Modisane came to their Afrikaans class with a SGB member (Metswamere) calling her outside telling her that if she tells her mother what happened to her Modisane would kill her mother to which she agreed and went back into the class. After a few days Modisane came to Klopper’s class where he touched her breast, buttocks and waist to which she told him if he continues she is going to tell somebody. Modisane laughed saying he had muscles and would kill her mother. She kept quiet with him to continue what he was doing. She told her mother of all the incident that occurred where after her name was called on the school intercom.by Modisane and Metswamere called her to the venue where hearings are normally conducted telling her they were aware she told her mother of all the incidents and that they will not stop to kill her mother and after they killed her mother they will destroy her life. She never responded nut stood up and left without saying anything to them.
During the fourth term they were writing a EMS first paper when she was called to the Principal’s office on the intercom. She found the Principal, Miss Bamjee telling her not to close the door. They told her that Modisane had money and what she was trying to do would not be successful. She left the Principal’s office without saying anything. She then went to Kloppers office to whom she told everything who advised her to write a letter but not to use her real name which she did and decided to use the name Nandi and she wrote a letter (ER5). This letter she submitted to Kloppers the following day and Kloppers said he would escalate the letter. The following week when they wrote EMS second paper, she was called on the intercom again by the Principal and Bamjee telling her that if she would continue to tell the stories apart from Klopper, they would blacklist her not to be allowed at any school and that Modisane has money. She kept quiet and cried.
At the meeting she was alone but Bamjee fetched another girl learner unknown to her, who said that Learner A said Modisane was making a trip arrangement where he was going to rape the girl learners which she did not say.
Learner A stated that when she exited the school transport, Modisane came from behind in his vehicle and followed her until she reaches her home which happened for a week. This happened after she was transferred to another school. She informed her parents and it stopped when her parents fetched her from the bus stop.
During cross-examination, she agreed that no one noticed when Modisane touched her. UNLIKLY She agreed that all the incidents was during school hours. She did not share what happened to her parents with no one knowing. Learner A had no comment to the Applicant denial of touching her. She stated that before she testified on 26 June 2025, she did not share her version with anyone. She agreed that she spoke to her mother of what Modisane did to her. She stated that after she spoke to Kloppers, she kept quiet. She agreed that she spoke to Kloppers after she spoke to the Principal and her parents. She agreed that she shared her version with her mother referring to ER2. She agreed that she shared her version with the Principal who lied in her report ER8-10 where she stated Modisane touched her four times.
Learner A agreed that there are three different versions, that of the Principal, her mother (Modise) and her own of which her version is the correct version. She agreed that the other two version is what she told them. She agreed that since 2022 she complained to her mother that she did not like Modisane which was after he touched her but her mother did nothing. Learner A did not respond to the question why she did not share the touching with her mother but stated that she understood why her mother did nothing. She is however sure that she told her mother (Modise) everything about the case. Referring to her mother’s version (in relation to 2022) Modise stated that she went to school after Learner A told her where after she spoke to Kloppers and Metswamere which contradicts her version that she did nothing, to which Learner A responded that her mother spoke to Kloppers and not Metswamere.
Learner A agreed that she testified that Modisane touched her breast bum and waist but in referring to the Principal’s report on ER8 paragraph 3 she only mentioned breast and bum. After this on ER9 paragraph 5 when she was interviewed later she agreed that she also did not mention the waist to her mother. To the question why the waist was not included when the interviewed with the Principal with the waist included at the arbitration, Learner A responded that every time it is discussed it brings emotions, and why should she have discussed it with the mother because she lost her dignity. Learner A continued that she was advised not to talk about things which is intense because she would not get healed and if she does not talk other people will be punished for another person’s deeds. She continued that for the majority of girls not having the confidence to talk about what she went through, if she does not talk who will force her to talk. She spoke being confident and about the waist issue, she did self-introspection and thought to speak about everything to gain self-confidence to be the person she used to be. To the notion that breast and buttocks are more private than the waist, she responded that she was insecure.
Referring to her statement (ER 2 and ER5),she wrote (Nandi) when at home and mentioned where she was touched. She agreed her mother did not mention the waist. To the notion that the inclusion of the waist has nothing to do with confidence and a lie after she had the chance to speak out to her mother being close to her, Learner A responded that the reason for not saying the waist was she did not trust herself and had no one she could confide to. She had to battle when she wrote the letter. She agreed that she wrote referring to the letter (ER6): ‘she told her mother everything’ stating that Kloppers said she must not mention what Modisane did but what happened. To the notion that her parents did not mention the waist when they had a meeting at school in 2023 although he wrote Nandi told her mother everything, Learner A merely responded that she was not aware of the meeting because she wrote exams.
Learner A agreed that she did not mention the waist and whether it be either a reconstruction or a lie, that it is the truth. She agreed that she stated that there were four incidents with the second harassment incident in Kloppers classroom. Learner A agreed referring to ER9 – paragraph 5, of the Principal’s report where Learner A said it happened in the storeroom of either Mr. Sithole or Mr. Sita classes after the period but responding that she did tell the Principal about Kloppers classroom. To the notion that her version is inconsistent with her testimony, she responded that the Principal wrote is different to what she told the Principal. She agreed that in her evidence she stated that all the incidents happened in the classroom in relation to what she told the Principal about a storeroom responding that a classroom and a storeroom is the same thing. She agreed to her mother’s statement (ER2 – line 8) that she stated classroom inside and outside contradicting what Learner A’s statement to the Principal to which Learner A responded the Principal wrote incorrect. Learner A denied her statement that all happened inside the classroom and not outside, responding she said inside the class on the corridors. She agreed that she did not mention in her statement (ER5-6) inside or outside the classroom and not inside a storeroom.
Learner A agreed that the school bell is in the classroom of Kloppers but denied that it is only Kloppers who ring the bell. To the likelihood that harassment would not take place in Kloppers classroom merely to the discipline of ringing the bell, Learner A responded that it was not only Klopper who rang the bell and also Bamjee.
Learner A agreed that beanie incident occurred during the second term in 2023, Referring to ER8 paragraph 4 her statement to the Principal that Modisane removed the beanie from her head in relation to her version that she did not wear a beanie, she responded that she said Modisane took the beanie from the table and not from her head. She stated that she could not allow Modisane to touch her head. She stated that she wrote the letter when she was in grade 7 and not grade 8 and agreed to have been in grade 8 in 2023. Referring to her letter she wrote using the name of Nandi (ER5-6), that it was when she was in grade 8 in 2023 after instructed by Kloppers, she responded that she did not made it in 2023 and took it from her secret book of which she took out a page which she gave to Kloppers. ER5 was transfered from her secret book.
Referring to ER5 line 8 from the bottom that ‘Nandi went to another grade in 2023’ Learner A explained that it is the statement Kloppers said she must write when she spoke to Kloppers in 2023 who told her that she must write everything she told him. It does not state where Modisane took her beanie. She stated that she did not tell all as advised by Kloppers (referring to ER5 line 16) because it is private information and in the letter she sugar coated the evidence. Referring to the Principal’s report (ER9 paragraph 2) that she was requested a statement in 2023 Learner A agreed that the letter was requested by Kloppers with issues of 2023 in the letter. To the notion that Learner A lied for the letter to have been done in 2022 she responded that she wrote it in 2022 but told Kloppers in 2023.
Learner A confirmed what she stated that Metswamere said that if she would tell what happened to her, Modisane would kill Learner A and her mother. She agreed that her mother (Modise) did not mention it in her statement (ER2) but she wrote that something bad would happen to her mother. She stated that she told her mother that Modisane would do something bad and not that he would kill her because she was afraid her mother would be scared for her life. She denied to have fabricated the version of Modisane to kill her mother. Referring to her letter (ER5 line 13) where she wrote: “he would do something to Nandi’s mother”, not mentioning the killing, she resends that she sugar coated the evidence not being specific. Monkwe notion was that he asked the question with respect, Learner A responded that he does deserve her respect.
Learner A agreed her version to be that Modisane and Metswamere called her on the intercom and then told her Modisane was going to kill her mother if she talks. Modisane’s version that a admin person makes the calls on the intercom and not Modisane, Learner A responded that she said she was called to the office.
Learner A agreed her version to be that the Principal and Bamjee called her telling her she would not succeed because Modisane has money. This she did not tell Kloppers because it happened after she wrote the letter. As to the blacklisting the Principal and Bamjee said she would not be excepted at another school she agreed that she told Kloppers. To her mother’s version that she told Miss Sandra, she responded that she came across Miss Sandra and told Sandra what the Principal and Bamjee told her about Modisane having money and the blacklisting. To the notion that she did not testify about Miss Sandra only stating it now, Learner A that she came across Sandra on her way to the Geography class being emotional with Sandra asking her why she was crying to which she told her what the Principal and Bamjee told her.
Learner A’s version that Bamjee brought another learner to say that Learner A discouraged the Gold Reef City trip, Learner A responded that Bamjee brought another two learners whom she did not know who said that Learner A said that Modisane would rape the girls and be sold. Learner A stated that she did not know about the Gold Reef City trip and heard about it on the day Bamjee brought the other learners. She agreed to know Umpile Metswamere whom is not her friend. She knows Remonilwe and Tsiamo with Remonilwe being her friend. Learner A denied the notion that she was with them when she said they must not go on the trip. To the notion that Metswamere will testify that when Learner A saw Modisane coming, Learner A said she dislikes Modisane and will write a letter lying about sexual harassment to which Learner A responded that she never talked to Metswamere urging Monkwe to call Metswamere.
Learner A responded to her contradiction about Modisane to drove after her for 5 days from the Monday to the Friday and not 3 days because her mother saw him for 3 days from the Wednesday to the Friday. She agreed that Modisane’s relatives resides in the same street they reside but he did nor visit the relatives. Learner A stated that that when she got out of the taxi Modisane followed her even on the pavement for her to think if he was out of his mind.
Referring to the letter (ER5-6) using the name of Nandi that the sexual harassment took place in 2022 and 2023 multiple times, she could not recall that she stated four times but that the Principal lied it to have been four times. Learner A remained silent about her secret book which would show more specific dates. She then did respond that the dates are irrelevant because if she remembers a date it will take her to the state she was in. She has no reason to submit the secret diary because it is private and must be respected. To the notion that there are no dates because it did not happen, she responded that she gets annoyed when she hears Modisane’s voice and get emotional. Learner A agreed to the notion that there is no evidence of sexual harassment and only Modisane when he took the beanie in Montusi’s class to which she responded it was the last time they met.
In relation to her testimony that Modisane administered corporal punishment to learner and Modisane denying such allegation, she responded that she has a lot of witnesses to corroborate same. Learner A agreed that the threat from Modisane and Metswamere about killing her mother came before she told her mother. To the notion that it is not in her statement, Learner A responded that they threatened her, her friends and her cousins She stated that Modisane hit the first one outside the classroom, the second one in Kloppers class, he wanted to fight with her friend who refused to be assaulted and the third one from the robotics class, Modisane kicked a ball in her face who stood up and left.
Learner A noted that Metswamere called Learner A long before Learner A told her parents and became aware when the Principal informed her.

The Employee’s case

Sonnyboy Abram Frederick (Fredericki), testified under oath. He stated that he knows Modisane whom is married to his niece. He knows Modise the mother of Learner A but just by greeting. Referring to the statement of Modise on ER2 line 19 where she stated that: @on 17 September he sent his niece’s husband (Mr Frederick) to our house to ask about the case, he even went the Learner A grandparent to ask them if they knew about the case” Frederick deny Modise’s statement that he went to Modise’s house to enquire about the case and he never spoke to Modisane about it as well but knows about the allegation of sexual harassment against Modisane, because his wife works at the school.
During cross-examination, he knows Modise staying in the same street and he sued to work with a relative. He is not close with them not visiting them and he does not know Learner A’s grandmother.
Oupa Simon Phillip Modisane (Modisane) testified under oath. He has been an educator for around 30 years. Prior to the current position he was a PL1 educator at the Koster Mphebane Secondary School. He is also the regional secretary for SADTU in the region serving on different forums and part of the Reformed Church in Koster.
He deny the allegation against him being baseless and frivolous. The charge contains no dates and no specifics considering Leaner A kept a dairy of what happened not able to be specific even after she consulted with the Principal, Bamjee and Tshilto, she never recalls to state what happened. The allegations has been fabricated. In relation to Learner A statement she mentioned breasts and bum but added her waist in the arbitration being coached. Both Modise and Learner A stated breast and bum when they had a discussion with the Principal’s which is in the report (ER8-9). The addition of the waist is inconsistent with their statements and the charge levelled against him. With no dates or months indicated Modisane stated he is unable to defend himself.
According to Learner A in the Principal’s report ER9 the harassment took place in the class – storeroom of Mr Sithole or Sita but according to Modise (ER2) it was inside and outside the classroom being inconsistent with each other. Modise’s statement to the Principal (on ER8) was that it happened in the storeroom. A storeroom is adjacent to the classroom where a teacher store items each having its own door. Learner A’s evidence in chief is that it happened in the classrooms of Sithole, Sita and Kloppers.
Modisane stated that the Employer has presented no witness to sexual harassment. Referring to the Principal’s report on ER10 under the findings, the Principal wrote “At this point it’s a case of the learner’s word against Mr. Modisane’s as she has not witness or confide in anyone at that time.” Learner A also did not mention any witness during her evidence.
In relation to the school structure, grade 4 to 9 learners (more than 10 classes) move between periods and at the time in question, the grade 3- foundation phase learners would not move to different classes staying with teachers. When the bell rings, learners would move between the classes being noisy and also moving around to drink water and visiting toilets ext. Modisane stated that it is not possible to commit an act of sexual harassment because of the busyness of learners moving around with some moving slow with no teacher able to have a private moment between classes. At the time the school had approximately 561 learners with round 40 staff members including assistant workers. Which makes it unlikely to have sexually harassed a learner with no witness to have seen it. Modisane stated that the Administrative block is approximately 30 meters from the classrooms with the administrative personnel able to see the classes having windows.
Modisane stated that he is not allocated to a class because being the Deputy Principal he has an office in the admin-building where is usually alone which is not a place mentioned by Learner A. In 2022 he had periods 8 and 9 allocated to teach LO for grade 7 learners using the class of Kloppers on Mondays. In 2023 on Wednesdays he used Ms Sithole’s classroom during period 6 and 7, then would be in the playing field for period 8 and 9 offering Physical Education (PE). On Thursdays he used Ms Du Preez’s classroom. On Fridays he had no classes being in his office. The bell in situated in Klopper’s class and would be back at his class a minute before the bell must signal the change for the next class. These classrooms were not his and it was impossible to sexually assault a learner by touching her bums, waist and breasts because the owner could arrive anytime.
Modisane denied Learner A’s version that he and Metswamere before she told her mother (Modise) that Modisane would kill her if she tells her mother. He never spoke to Learner A up to today.
In relation to the beanie issue, Modisane stated that the school has dress code rules. In his report to Naude (the Principal) (ER7) he stated that “…the only incident I remember well is where I grabbed from her head, a beanie she was wearing inside the classroom”. Learner A had a beanie on her head when he opened the door and was not on the table as she has stated. Modise’s version to the Principal (ER8) was that Modisane removed the beanie from her head. Modisane stated that the specific morning during the second term around June/July 2023, he made an announcement to learners that he was going to make rounds and confiscate items not part of the school uniform being the chairman of the uniform committee. He started at the nearest class (of Sithole) with the next class being that of Kloppers where after he went to Montshosi class not knowing which learners would be in the class being a random check. It was a grade-8 class with Learner A seated in a row close to the door wearing a beanie which was not allowed unless it is a school beanie. He then removed the beanie from her head and dropped it on the table. Learner A did not resist that much but was angry that he removed it from her head where after he left. He denied to have kicked the beanie or to have said he would buy her a better one.
Referring to the Principal’s report on ER10 paragraph 2, where the Principal discussed issues raised with him which Learner A raised towards the Principal, Modisane denied Learner A’s version during her evidence that he hit them with no reason when asked to paste papers on their books. He stated that Learner A makes additions to amplify her lies. He stated that corporal punishment has been abolished long ago and he does not hit learners. He has never been charged for corporal punishment.
Modisane denied to have visited family members of Learner A. Modise’s version was that they never reported the matter to the SAPS for a restraining order however when he attended a SADTU meeting in Rustenburg, he was arrested and interrogated and took for fingerprints at the Rustenburg Police station by the SAPS of Koster saying they took instruction for above. He never heard anything from the SAPS there after.
In terms of the disciplinary process, he stated that there was a lot of rumours going around and that he was accused of being a paedophile. Having three daughters, with one raised from his sister who was killed by her boyfriend with these accusations caused him to have depression but was assisted by the Church. The Employer failed to investigate the matter properly and tarnished his reputation as a leader in the community. He was suspended for 17 months since the 3rd of April 2024. Modisane stated that he has relatives in the community and friends (church members) like Frederick who is married to his niece residing 3 houses from where Learner A resides and would visit people from time to time. During this time, he never met Learner A and never spoke to anyone of them. He has no answer to the accusations against him not able to respond to Modise’s version that Learner A hates him. He could also not think about anything he could have done onto Modise.
During cross-examination, he denied multiple times but four times mention by Learner A in the Principal’s report. Modisane agreed that he could not be compared to a 13 years old learner. For Modisane not to have dates during 2022 and 2023 for incidents cannot be in relation to a diary kept and cell phones used.
The difference between breast and bum’s version of Learner A and her mother is that a person must recall what exactly happened. He does not know why Kloppers did not inform him about the accusations but he heard it from the Principal on 11 September 2023 after it was reported on the 6th of September. He agreed that the Principal would testify for him being one of his witnesses. Modisane denied the notion of Learner A that the Principal wrote what she wanted deliberately.
Modisane denied the notion that the classroom and the storeroom to be immaterial because people enter a classroom with a storeroom inside the classroom which is locked and opened by the owners of the classroom keeping things inside. Modisane agreed that the teacher of a specific class is not always present having the keys being the reason vacant classes are used for such periods.
Modisane stated that the only random search done where the SAPS was present, was during 2023 with the SGB and the SAPS and Klopper but with the beanie incident no SAPS was present.
Referring to the bad things and to kill the mother of Learner A, Modise denied it to be the same because killing has its own meaning not the same as hurting or something bad. Modisane denied to have ever talked to Learner A or to have threatened her. He only spoke to her during class periods and was never alone with her.
He believes there is a link with Modise and the SAPS arrest in Rustenburg because the SAPS asked who was Oupa Modisane saying there came from Koster.
Modisane denied the notion that on a balance of probabilities that somewhere a teacher is alone in a class with a learner stating that teachers remain in their classes with learner coming to them.
In respect of the beanie, Modisane stated that he took it from Learner A head and dropped it on the table not agreeing with Learner A’s version but agrees with Modise’s version but denied to have wiped anything with it. Modisane stated that the trip to Gold Reef City was discouraged by Learner A after he arranged it for the learners.
Isabella Naude (Naude) testified under oath. She is the Principal at the Koster Intermediate School for a period of 13 years and acted 2 years prior to her appointment. She knows the Applicant who was appointed in 2019 as Deputy Principal. She knows Learner A who was a learner at the school and in grade 8 in 2023. As the Principal, she usually would investigate before she talks to people about accusations. She would also involve the SMT, the Circuit Manager and the SGB where after she will compile a report to the relevant people such as the Circuit Manage. For her this incident was the first time she had to investigate and report.
In relation this incident, the parents came to the school with the mother worried asking how to obtain a restraining order against Modisane for four sexual harassment incidents the previous year. She asked the mother what happened and the reason for reporting it now to which she responded that she was unaware because Learner A did not speak about it. The mother then referred to an incident in 2023 where Modisane took a beanie from Leaner A’s head in Montshosi’s class. The rule is not to wear a beanie in the classes. Naude told the mother that she would investigate the matter. She asked the parents if they wanted to see Modisane but they did not want to see him with the farther saying he did not want to speak to a paedophile. On the day (6 September 2023) the School was very busy and she asked Kloppers to assist who asked Learner A to write a letter using the name of Nandi instead of her own name.
The Monday morning, she spoke to Learner A, in the presence of Bamjee (part of the SMT). She also spoke to Modisane requesting him to compile a report. She also spoke to other learners attending the same class. The parents came back to the school who already reported it to the Department. The mother visited the school with the Steph farther on 6 and 11 and 26 September 2023. She referred to her report on ER8-10 which she sent to the Circuit Manager on 11 September 2023.
The mother (Modise) was very upset referring to ER8 paragraph 2 and all the information contained in the report was provided by the mother and Learner A. They both said that Modisane sexually harassed Learner A four times. Naude denied the statement of Learner A that she has lied in her report. The mother said that Modisane touched Learner A’s breast and bum where after the father told Naude that she did nothing to which she replied that she would investigate. Neither the mother or Learner Ae mentioned that Modisane touched her waist.
On the 11th of September 2023 when the parents visited again the father was very angry with her and said very ugly things like she is a white bitch and that she does not like black girl’s learners, being a racist. He also told her that she did not investigate the matter protecting a paedophile and that they reported it to the Department. Naude was very upset and reported it to the Circuit Manager.
Referring to ER9 paragraph 3, Naude stated that she wrote what Learner A told her when she interviewed her. Learner A said that it was her own thought and that she told only her parents and no one else and that there are no witnesses.
Referring to ER9 paragraph 5, Naude stated that in the presence of Bamjee, Bamjee asked Learner A to explain the extent of the sexual harassment, where and when and how often it happened to which Learner A responded that it happened in one of the class storerooms of Mrs Sithole or Mr. Sita after a period. Naude denied Learner A’s version that she never said so. Naude stated that every class has a storeroom which has its own door from inside the classroom. During the interview, Learner A never said that it happened in Kloppers classroom. The mother’s statement on ER2 – line 6, she stated that it happened inside and outside classrooms which differ from Learner A who said in one of the class storerooms.
The reason she asked Kloppers to assist was because he has a good relationship with leaners and being a Departmental Head, he asked him to assist. She is not aware that Learner came to the school in 2022 when she spoke to Kloppers and Metswamere.
Referring to ER9 paragraph 4, she stated that when she interviewed Modisane, he stated that Learner A was wearing a beanie which was not allowed in classrooms during exams being a rule. She assumed the beanie must have been on her head because that was the rule she contravened. During her interview with the mother, she also said that Modisane removed the beanie from her head. During her investigation, she did not come across evidence that there was an encounter between Modisane and Learner A other than the beanie incident.
Referring to the version of Learner A that Modisane hit her two times and other for school work not done, Naude responded that nothing was reported to her during the investigation She is not aware of corporal punishment incidents involving Modisane.
Naude stated that the trip to Gold Reef City was called off because only 4 learners paid. She enquired from the grade 7’s what the reason was and informed that Learner A said not to go because Modisane will rape them. Naude cancelled the trip and called Learner A and Bamjee and interviewed other learners as well. Learner A said that she told the others the truth not wanting the grade 7’s to follow the same path she did. Naude also stated that Learner A had self confidence that she did it but she was never like that. In relation the Learner A’s denial that she did not say that Modisane would rape learners when going on the trip, Naude replied that she had no reason not to believe six learners who was together under a tree confirming what Learner A said.
She denied to have protected Modisane and supports all her colleagues and learners to ensure a safe school environment
Naude stated that one is able to see the learners from the admin-offices. It is very busy between periods when learners change classes having around 400 learners in 2022. Modisane had no class of his own and used other teacher’s classrooms. She stated that there is always movement not possible to sexually harass learners. She also enquired from Modisane previous school Principal who had no knowledge of sexual harassment.
During cross examination, she agreed that Learner A was 13 years old at the time who needed protection. She did her own investigation and also requested Kloppers to assist which asked for the letter written by Learner A using the name of Nandi.. She denied to have harassed Learner A when she talked to Learner A in the absence of her parents on the 11th of September 2023. She did so because she investigated the matter as she informed the parents that she would do so.
She agreed to have been disappointed when the Gold Reef City trip had to be cancelled because there was a lot of arrangement and work put into it being a fund raising project. She denied that she called Learner A and Bamjee because of her disappointment Naude denied what Modise wrote on ER2 which is not true about Modisane having money, Learner A to be blacklisted and the two girls called who said Learner A said not to go on a trip Modisane would rape them which was not true according to Modise on ER2. Naude responded that Learner A told six other female learners that Modisane would rape them if they go on the trip. Naude stated that at the time Learner A was in grade 8 but she went to tell this to the grade 7’s.
In relation to the beanie, Naude stated that learners confirmed Learner A worn the beanie on her head and was not on the table as Modise has told her. In her investigation she spoke to other learners who confirmed that Modisane took the beanie from her head.
The reason she called Bamjee was because she was available and wanting to discuss the letter Learner A wrote. Other SMT member were engaged in classes being the reason she called Bamjee. She was not aware that Learner A needed a psychologist and did ask the parents if she could arrange counselling assistance which they refused to accept not wanting help.
Referring to the class storeroom in Sithole class to be possible to harass a learner, Naude responded that it would not be possible because there was another class after that period. She does her rounds monitoring the classes. She also stated that after the class Modisane was on the rugbyveld looking at the time table. They have 14 classes with all in their classes and if not she and Modisane uses the open classroom.
Referring to her findings on ER10, Naude responded that no one believed the accusations against Modisane and even Learner A had a good record asking herself if she was influenced when she was saying it was her thoughts.
Orica Metswamere (Metswamere) testified under oath. She was the SGB chairperson in 2022/2023 and aware of the allegations against Modisane. She knows Modise who was a parent at the school and Learner A to be her daughter. She was not aware of any complaints at the school during 2022. She denied Modise’s version that she complained to her in 2022 about bullies. Metswamere denied the notion when referring to ER2 the 10th line, where Modise wrote that the SGB chairperson supported Modisane’s actions. Metswamere also stated that she never had an engagement with Learner A on this issue and only became aware when the Principal informed her. She denied Learner A’s version that she and Modisane told Learner A that they would kill her mother if she would tell.
During cross-examination, she agreed that she runs a tuck shop for the school but after the incident occurred. She has a good relationship with the Principal but not to have gained the opportunity to run the tuck shop. The Principal called a SGB meeting with only her present because other SGB member could not attend. From there the Department took over.
Learner B testified under a solemn affirmation. She attended the school in 2023 but currently at Waterkloof in grade 10. She knows Learner A because they were always together when they waited for the taxi however they were not attending the same class because of different grades. Learner A was in grade 8 and she was in grade 7 in 2023. The Gold Reef City trip was planned in 2023 by Sir Modisane but did not succeed. The reason was because Learner A told them that if they would go Modisane would rape them. This Learner A said whilst they were waiting for the taxi. There were other learners also present of which one were Learner A friend. Learner B also stated that Learner B said that Modisane discuss her and she is going to write a letter with fake accusations which she was going to give to Klopper.
During cross-examination, she stated that she is attending because of the thing Learner A said about Modisane. She confirmed that it was not about gossips but about the allegation against Modisane. She stated that she was not friends with Learner A and would not know the suffering Learner A experienced. Learner B stated that when Learner A said all of this the others said nothing. She confirmed that the trip was unsuccessful because Learner A said Modisane was going to rape them.

SUBMISSIONS IN ARGUMENT

Both parties agreed to submit arguments (inclusive of mitigating and aggravating circumstances) within agreed dates. The submissions were received and carefully considered It will however not be repeated here, as the contents basically mirror what was put during the leading of evidence and cross-examination in the arbitration hearing itself.

ANALYSIS OF EVIDENCE AND ARGUMENT

In order for a dismissal to be fair, Section 188A of the Labour Relations Act requires and Inquiry by arbitrator. The onus is on the Employer to prove the allegations levelled against the Employee is in accordance with substantive fairness. The parties in this matter agreed that I am required to determine under substantive fairness, whether Modisane is guilty of the allegation levelled against him. The charge reads: During 2022 and 2nd terms whilst on duty you indulged in an Act of misconduct that is unlawful and prohibited in that you had sexually harassed a female learner born in 2010 ages 13 years at the time by the name of Learner A by touching her breast and bums. As a result, your alleged conduct you contravened the provisions of Section 17 (1) (b) of the Employment of Educators Act,76 of 1998.which reads as follows “committing an act of sexual assault on a learner”
It is common cause that there is no witness who has observed sexual harassment. On 6 September 2023, Learner A’s parents reported this sexual assault allegation to the Koster Intermediate School to the Principal, Mrs. Isabel Naude who investigated the allegation and submitted a report to the Circuit Manager on 11 September 2023. It is common cause that Learner A alleges that this harassment happened in the school premises and during working hours. At the time the school had 561 learners, 14 educators, 3 support staff, cleaners. It is also common cause that between periods or after each period high-traffic occurred with learners changing classes and that Modisane used borrowed classrooms.
Learner A’s testimony contains material inconsistencies eroding core reliability. Learner A demeanor was at time aggressive and disrespectful towards the representative of the Modisane during cross-examination. Her evidence lacked corroboration despite many other learners in the vicinity. Modise’s hearsay evidence was not corroborated leaving it without probative weight. Naude’s evidence carried impeccable consistency and accurately captured having no reason to doubt her investigation report being neutral and without bias. Naude had no motive to fabricate and was duty-bound fulfilling her position as Principal. Modisane’s testimony coheres with uncontested facts. He was resolute and his evidence remained unchallenged. Metswamere had no bias motive and was independent just stating what she knew from when the Principal reported the allegations. Learner B corroborated Naude and her version of what Learner A said the taxi waiting place, remained unchallenged.

Substantive Fairness – whether the alleged incident(s) took place –

I am guided by the Code of Practice on Dismissals as amended to the LRA (hereinafter referred to as “the Code”) which requires me to consider whether or not the employee contravened a rule regulating conduct in or of relevance to the workplace referring to misconduct in terms of section 17(1)(c) of the Employment of Educators, Act 76 of 1998 as amended
;
Modisane pleaded not guilty to the allegation levelled against him. In Moahlodi v East Rand Gold & Uranium Co Ltd (1998) 19 ILJ (IC) the court formulated the test as follows: an employer need not to be satisfied beyond reasonable doubt that an employee has committed the offence. We must remind ourselves that this is not a criminal trial and that the employer is therefore not required to prove the guilt of the employee beyond a reasonable doubt. The standard of proof in civil proceedings and arbitrations, is a balance of probabilities – see Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC). The test for deciding whether something has been proved on a balance of probabilities, is whether the version of the party bearing the onus, is more probable than not, – see Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A) at 157D.
In other words, the evidence must show that the existence of the fact in dispute is more probable than its non-existence. The difference between a possibility and a probability is that when something is possible, it can or could have happened. When something is probable, it most likely will or did happen. In determining probabilities, evidence is assessed against human experience, logic and common sense see Hoffmann en Zeffertt the South African Law of Evidence 4th ed 102. In order to resolve factual disputes, a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie 2003 (1) SA 11 (SCA) at 14I par 5. The Court further remarked as follows: “As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanor in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it…But when all factors are equipoised probabilities prevail ” (at 14I – 15E par 5 per Nienaber JA)
The charge against the Modisane involve some form of sexual misconduct in relation to Learner A being between the ages of 12 to 13 at the time during 2022/2023. The Constitutional Court in Bothma v Els and Others 2010 (2) SA 622 (CC) par 47, has recognized that: sexual molestation of children generally takes place behind closed doors and is committed by a person in a position of authority over the child and that it is difficult to obtain eye-witness corroboration. It is an established principle that the evidence of children should be treated with caution and that a tribunal must fully appreciate the dangers inherent in the acceptance of such evidence – see Woji v Santam Insurance Co Limited (A) at 1028B – D. I have indeed approached both learners’ s evidence with caution especially considering the time it took to finalize this Inquiry.
In the absence of any eye-witness who have observed sexual assault, the following questions would be prudent to evaluate the allegation levelled against Modisane.
86.1 When did this alleged sexual harassment took place?
86.2 Where did this alleged sexual harassment take place?
86.3 Which parts of Learner A’s body did Modisane allegedly touch?
86.4 Is there any circumstantial evidence proving that the assault happened?

When did this alleged sexual harassment took place?

The timeline gaps herein are concerning. 2022 is vague and referred to as the “previous year” in the Principal’s report ER8-10 indicating no school complaints despite Learner A not liking Modisane which she told her mother (Modise). Modise also agreed that no sexual harassment was shared with her by Learner A in 2022.
In the 2023 the second term the beanie incident occurred during June/July in Montshosi class which most likely was a trigger or escalation point where after the Parents’ visited the school on 6 Sep 2023 followed by the letter ER5 (“Nandi”) Kloppers requested. Learner A’s unspecified incidents in 2022 term 3 when she was in grade 7 extending into 2023 at multiple classrooms of Kloppers, Sithole, Sita and coupled with the beanie-incident in the second term of 2023, has no exact dates, months, or periods despite Learner A’s secret diary which she was not prepared to share or at least consult with her representative not her mother for more clarity being a weakness in relation to the more precise timetable defence of Modisane in testing the veracity of Learner A’s allegation.
The timetable (EE9) shows Modisane’s limited LO slots in borrowed rooms over the alleged period in an attempt to defend a period covering 2022/2023. Learner A claimed to have diary but refused to present it to establish a more specific time line even for the alleged four times she stated. TO establish when would remain speculative despite “multiple” repeats or four specific incidents. Learner A contested Naude’s report ER8-10 of what she told Naude that it was four times” as lies which remains with “multiple times” which is self-destructing key evidence in my view.

Where did this alleged sexual harassment take place?

The alleged sexual harassment locations are inconsistently described across the testimony in the Respondent’s case. The charge vaguely states “at school” (Koster Intermediate School, North West Dept. of Education) with no specific rooms or dates. It is common cause that Learner A alleges that this act happened in the school premises and during working hours.
Learner A’s version during her evidence in main is that the sexual harassment occurred in the classroom and then she stated that it happened Klopper’s class and also in the classrooms of Sithole and Sita. Critical to her oral evidence is that the assaults happened in the said classrooms. Learner A’s mother Modise, told Naude on 6 September 2023 that Modisane touched her breasts and bum in the storeroom of the class (ER 8) which was confirmed by Naude in her evidence that Modise said the harassment occurred in the storerooms and not the classroom as testified Learner A. Learner A corroborated her mother’s version when interviewed by Naude that “she said it happened in one of the class store rooms of Mrs Sithole or Mr Sita after a period” (ER 9).
The conclusion is that Learner A version during her evidence at the arbitration contradicts what she narrated to her mother and Naude that this harassment occurred in the storeroom and not the classroom. This contradicts Learner A’s version that it happened inside the classrooms of Kloppers, Sita or Sithole. Evidence directs, considering this contradiction no clarity where this harassment actually occurred. Modise’s version that “…and all the incidents happened in classrooms and outside the classroom where no one was around nor nearby” (ER 2) which she confirmed during cross-examination what she wrote in her statement pertaining to where the harassment occurred strengthened the contradiction. Learner A’s non-conformation with both Modise and Naude’s evidence weakens the likelihood of the employer’s case of where the alleged harassment took place. Naude confirmed that she wrote in her report what was narrated to her by both Modise and Learner A that “…the mom indicated that Mr Modisane touched her breasts and bum in the store room of the class” (ER 8).
Considering the likelihood of Learner A’s version that the harassment occurred exclusively inside classrooms specifically Kloppers’ a second incident when Modisane allegedly: “he touched and overpowered me” and then also in the classrooms Sithole and Sita. Uncontested evidence directed that this open, high-traffic setting during school hours contradicts the school’s reality of approximately 561 learners moving around between periods, the admin-block’s visibility of being 30 meters away from the classrooms, the timetable EE9 showing Modisane’s brief LO slots in borrowed rooms with imminent owners returning at the end of a period to continue with a next class.
Learner A failed to adduce an excuse in an attempt to mitigate the contradictions, but sought to be aggressive and disrespectful towards Modisane’s representative Monkwe. It is accepted that minor witnesses are to be treated with caution but the discrepancies in where this harassment occurred other that Learner A blatantly refuted what she told Naude and her mother’s version as contained in ER 2, coupled with the schools setting as considered above (in 93), directs to Learner A version to be improbable.

Which parts of Learner A’s body did Modisane allegedly touch? –

The charge alleges breast and bums (buttocks) during 2022 the second or third term at Koster Intermediate School. Learner A testified under examination-in-chief that Modisane touched her breast, bum, and waist during multiple incidents. The charge specifies only “touching her breast and bums” assuming this version derives from Learner A’s initial disclosure to her arbitration addition of the waist which constitutes a departure.
The Employer confirms breast and bum only in the version of Naude and Modise on ER 8 during the interview on 6 September 2023: “Mmathapelo indicated Mr Modisane touched her breasts and bum in the storeroom. On ER 9 during the interview with Naude and Learner A on 11 September 2023: Learner A stated that Modisane “touched her breasts and bums” Naude testified these reports accurately captured Learner A’s words yet, Learner A denounced them to be a lie which cast doubt over the Employer’s case.
At 13 years of age (Grade 7 and 8), Learner A could distinguish body parts (breast, bum and waist) and even being at a young age, Learner A withheld detail. The Employer knowing the charge, tendered contradictory documents (ER8-10) that discredited their own case. Learner A personally provided the breast and bum version to Naude, Modise, and Tshitlo (the representative for the Employer) but then added her waist during her evidence with an emotional explanation that she lost her dignity.

The beanie incident –

The beanie incident during the second term in 2023, most likely triggered the harassment claims. The beanie incident in June or July most likely represents the trigger for Learner A’s harassment allegations, but reveals its own contradictions that expose it as retaliation rather than sexual misconduct considering that in 2022 she did not disclose any sexual harassment other than a mere dislike in Modisane.
Learner A’s version paints a humiliating incident in Montshosi’ class during her grade 8 exam, her version is that Modisane entered the class, targeted her row and took the beanie from her table (not head), wiped chalk from his jacket, kicked it, stepped on it, and said it to be a cheap beanie, and will buy her a better one. This was most likely the “final straw” which prompted her disclosure. However, Learner A’s version failed to stand against the version of her mother. Modise’s version ER2/ER8 which initially aligned with head removal to clean jacket chalk contradicting her later shoes claim, while Modisane (ER7) and Naude (ER8-10) consistently described a head removal after an announced random search as the uniform committee chair, starting at Sithole class, then Kloppers and Montshosi. Learner A’s version lacks corroborating witnesses, while Modisane’s routine enforcement fits school rules.

The Gold Reef City incident –

Evidence directs that the Gold Reef City trip was planned for 2023 and was after the beanie incident in the third or fourth term in 2023. Learner A denied that the trip was cancelled due to her doing to have warned multiple Grade 7 girls not to attend it because Modisane would “rape them.” This was opposed by Learner B who was at the taxi-stop with Learner A and other learners.
Naude testified that Modisane organized the Gold Reef City trip as a legitimate Grade 7 fundraiser in 2023 during the third or fourth terms, but it collapsed when only four learners paid. The trip most likely collapsed after Learner A warned Grade 7 girls under a tree at a taxi waiting area that Modisane planned to “rape them” on the trip. Naude’s version confirmed this via classmates she interviewed. In the absence of those one interview which prompted cancellation, Learner B corroborated the taxi-stop version where Learner A explicitly said “don’t go, Modisane will rape you” to multiple girls. Learner A’s denial claiming unawareness until Bamjee’ s confrontation her with two unknown girls, failed against Naude and Learner B’s consistency.
In my view, the post-incident patterns direct to a retaliation narrative. Learner B also stated that Learner A told them at the taxi waiting place that Modisane discuss her and she is going to write a letter with fake accusations which she was going to give to Klopper. I have no reason not to believe Learner B’s version standing her ground during cross-examination. The letter where Learner A used the name of “Nandi” (on ER 5), in my view, positions the beanie incident rather to be a grudge origin and not harassment as the trigger.
The timeline of a “dislike” in 2022 which Learner A told Modise with no sexual harassment claims to strengthen the “dislike” and later, in 2023 that Modisane discuss Learner A heard by Learner B at the taxi waiting place, to sudden sexual harassment in 2023 claiming four incidents, directs to be a motive of resentment weaponized into sexual assault but failed without corroboration. The beanie’s inconsistencies affirmed Learner A’s unreliability, tipping the probabilities towards fabrication.

The killing –

The “killing” refers to Learner A’s claims that Modisane and Metswamere threatened to kill her mother if she disclosed the sexual harassment but lack corroboration. Learner A testified that Modisane first threatened her in Kloppers’ classroom saying “if you tell anyone, I’ll kill your mother”; This was repeated with Metswamere, the SGB chairperson pre-disclosure “we’ll kill your mother then destroy your life” after they (Modisane and Metswamere) called her via the intercom which is unlikely to have happened. Learner A stated that she “sugar-coated” ER5 where she stated “do something bad” telling Modise (her mother) vaguely to avoid scaring her. Modise’s claim (on ER2) only “something bad would happen” not stating any killing. ER5 lacks specifics considering that the letter most likely was written the way Learner B narrated it to be fake accusations. Metswamere flatly denied joint threats with Modisane who never spoke to Learner A prior to Naude notifying her of the accusations against Modisane. Naude’s ER8-10 investigation found no threatening evidence.

The final analysis –

The question to be determined is not whether Learners A is wholly truthful in all she said, but whether the Arbitrator in this instance, can be satisfied that the story which the witness narrates, is a true one in its essential features (see Nicholas J in S v Oosthuizen 1982 (3) SA 571 (T) 576) Witnesses who reconstruct their observations frequently make mistakes (see Frank J in Johannes v South West Transport 1994 1 SA 200 (Nm HC) at 202C-D, quoting Lambrechts v African Guarantee & Indemnity Co 1955 3 SA 459 A). In this instance, Learners A could not have her testimony be corroborated not even with her mother, Modise. Taken together, the inconsistencies and contradictions impair the cogency and credibility of the Applicant’s (Employer’s) case. The Employer’s case centers on allegations of sexual harassment, with no suggestive communications other than failed allegations of killing Learner A’s mother.
The evidence fails to establish misconduct with the necessary certainty on a balance of probabilities. Substantive fairness under the Labour Relations Act requires the Employer to prove misconduct on a balance of probabilities with credible, consistent, and corroborated evidence. Here, the evidence falls short, especially given the serious nature of allegations and the need to protect the dignity and rights of all parties.
As discussed in 81 supra, I find Learner A not to have been credible in her evidence and avoided to answer critical question during cross-examination. Learner A also contradicted herself in instances to be unreliable and not trustworthy. Her testimony containd notable contradictions and inconsistencies regarding key details. During cross-examination, Learner A stated that: “she was advised not to talk about things which is intense because she would not get healed and if she does not talk other people will be punished for another person’s deeds…… She spoke being confident and about the waist issue, she did self-introspection and thought to speak about everything to gain self-confidence to be the person she used to be” Learner B’s brief testimony about the fake letter to Klopper, remained uncontested. Learner B and the Principal are found to be credible witnesses who just stated what they know in their evidence. The Principal’s report documented attempts to obtain truthful disclosures with no gaps, the fact that Learner A failed to confide with anyone not even her mother but testified with confidence at the arbitration, stands to be questionable.
Complainants of alleged abuse who are minors are treated with special care; however, contradictions and indications of pressured or fabricated testimony directs to weigh their evidence cautiously, distinguishing genuine disclosure from possible exaggeration or fabrication. Learner A admitted that she sugar coated her version indicating possible pre-arranged tactics affecting credibility. Other than Learner A’s exaggeration such as Modisane hitting her and her friends also accusing him of corporal punishment, following her on the pavement, visiting family members, such, evidence remained unsubstantiated and most likely fabricated. The evidence points to a strong possibility that Learner A and Modise, coordinated or influenced their testimony, raising a reasonable suspicion of collusion. The Employer failed to prove its case on a balance of probabilities that Modisane sexually harassed Learner A. It therefore flows that the Respondent’s case is less probable. I find Modisane not guilty to the charge levelled against him and that he did not contravene an offence in terms of Section 17(1)(b) of the Employment of Educators Act 76 of 1998.
The SACE Code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). I am satisfied that the Employer (the Applicant herein) failed to proof on a balance of probabilities that Modisane has irreparably destroyed the relationship of trust with the finding of not guilty to the allegation levelled against Modisane.

AWARD