LB MAKGOTA “the Applicant”

and

DEPARTSMENT OF EDUCATION – GAUTENG PROVINCE “the Respondent”

ARBITRATION AWARD

Case Number: PSES777 – 16/17GP

Last date of arbitration: 2 November 2018

Final closing arguments submitted in writing on: 13 November 2018

Date of award: 10 December 2018 (extension granted)

COEN HAVENGA
ELRC Arbitrator

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 The last day of the hearing of the arbitration took place on 2 November 2018 at the offices of the Respondent in Johannesburg. The last of the written closing arguments were received on 13 November 2018 and will form part of the record. The finalization of the matter was delayed by the unforeseen and lengthy hospitalization of the commissioner, and the subsequent recovery process. The Applicant is Mr. LB Makgota. Initially he had been represented by Mr. W Vittee, an attorney. Halfway through the arbitration he appointed another attorney, Ms. V Miya, to replace Mr. Vittee. The Respondent is the Gauteng Department of Education, represented by Mr. M Hlapolosa.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

2 The arbitration takes place in terms of the referral of the dispute by the Applicant. The parties conducted a pre-arbitration meeting, and the minutes had been submitted as part of the record. Although, it was indicated in the minutes of the pre-arbitration meeting that procedural fairness is in dispute, the Applicant’s attorney confirmed in his opening statement that procedural fairness is no longer in dispute.

3. The parties agreed that the following facts are common cause, and are accepted as proven:
3.1 The Applicant was employed by the Respondent as a PL1 educator at Drake Koka primary School (“the school”).
3.2 The Applicant earned R21 000-00 per month at the time of his dismissal.
3.3 The Applicant had been employed since 2008.
3.4 The Applicant was charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act, no. 76 of 1998, in that he sexually assaulted a grade 7 learner on several occasions.
3.5 He was dismissed on 02 March 2017, following a disciplinary hearing and unsuccessful appeal.
3.6 The Applicant does not dispute the procedural fairness of his dismissal.

4. The following issues were placed in dispute:

SUBSTANTIVE FAIRNESS:

4.1 The Applicant disputes that he committed the misconduct that he had been found guilty of.

PROCEDURAL FAIRNESS:

4.2 The Applicant does not dispute the procedural fairness of his dismissal.

5 The relief the Applicant seeks from this arbitration hearing is to be reinstated retrospectively without loss of income or benefits.

6 The Respondent tabled documents contained in Bundle A. The Applicant abled documents contained in bundle C.

PRELIMINARY ISSUES

7. The matter relates to allegations of sexual assault of a learner who was a minor at the time of the alleged incident, and still is. 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 minor as the Complainant in this award. The Complainant, being 15 years of age at the time she gave her testimony, testified by making use of an intermediary and the Palmridge High Court’s CCTV system.

SUMMARY OF EVIDENCE

8. The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration hearing 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.
Respondent’s case

9. THE COMPLAINANT testified under affirmation that she is 15 years of age and currently in grade 9. In 2015 she was in grade 7 in Drake Koka Primary School. The Applicant was her class teacher. She had a good relationship with him until the day that his cup was broken by the boys. It was the 19th of October or November 2015. He asked who broke his cup, and they told him that they did not know who broke it. He then said he knew it was the girls who broke it. He gave them a beating in the morning.

10. During the day a lady teacher, Ms. Makgopa, came to class with the Applicant. The Applicant said the boys and girls must stay behind after school. He then again asked about the cup, and then released the boys and told the girls to stay behind. He pretended to beat them, and they retreated, and told him he could not beat them. He chose six girls to stay behind, while the rest left. It was the Complainant, Skanyezile, Wendy, Zanele, Tebogo and Tobile. The Applicant told them to clean the classroom, but it was not their turn to clean. He then released three of the girls, and the Complainant, Tobile and Wendy stayed behind. He told them to mark question papers and books for him. He gave them red pens to use. Tobile left with her transport, and the Complainant and Wendy stayed behind. Wendy said she had to leave as well as she stayed far away, and the Complainant remained behind alone with the Applicant.

11. She continued marking. It was between 14h45 and 15h30 when the Applicant said it was getting late. The Applicant asked her to check whether Mr. Thami, the cleaner, has left. He also asked her to check on Ms. Kekayi. She did not find either. The Applicant then said it was late, and they left in his car. He used to take them home from the beginning of the year. When they left the school yard, he turned left instead of right towards her house. The Complainant reminded the Applicant that she stayed in the other direction. He told her that the principal sent him to collect some documents. He did not say where, but he went towards Shoprite, which was not in the direction of her house. When they got to the highway, she told him that he could drop her there, she will find her way home from there. The Applicant did not drop her off. He said that they must go and collect the documents, and then they would return. He did not drive there but went to a house which the Complainant told herself was his house. She did not know his house. On the way there she noticed a road sign which said Clayville. When she asked where they were going, he said that they were going to pick up the documents, and that she should not worry.

12. When they arrived at the house in Clayville, he pulled the vehicle into the yard. There was no gate. The Applicant pulled out a key from under the doormat at the door. She wanted to remain in the car, but he suggested that she go into the house with him. She remained in the dining room, while he went into another room. After about five minutes he called her into the bedroom. She went in. He asked her whether she remembered the documents which Ms. Baloyi sent her to collect. She confirmed that she remembered. The Complainant does not know whether it was the same documents which the principal wanted the Applicant to collect. There was a cupboard next to the bed. The Applicant asked her to look in the cupboard for the documents.

13. While the Complainant was bending over to look in the cupboard, the Applicant touched her with his hands on her sides. He turned her around to face him. He told her not to tell anyone about what he was going to do to her, otherwise he would make her fail or make her name bad at school. The Complainant was scared and tried to cry out, but there was no one to hear her. The Applicant undressed her school uniform, he took off her jersey, shirt, skirt and panty. She only had her socks and shoes on then. He pushed her on to the bed. He took off his trousers. He pulled her thighs apart and took off his boxer shorts underwear. He put his penis inside her and raped her. It lasted about ten minutes, but she is not sure of the exact time. He did not kiss her. It was painful, and she was bleeding. He finished, got off from her and went to the bathroom. The Complainant remained behind and wiped off the blood with her skirt. She then got dressed. They then left, he locked the door and put the key back where he found it. On the way the Applicant made a telephone call. The Complainant does not know who he talked to, but he said, “my brother, I am done, you will find the key under the mat”. The Applicant then left her at the ZCC church where he was supposed to leave her. It was about 17h30 to 17h50.

14. They did not go to where the principal sent him to fetch the documents. She does not know where that was. They also did not collect the documents of Ms. Baloyi. After the Applicant dropped her off at the ZCC, she hid herself from the people so that would not see her skirt was dirty. It had blood and some white stuff on it. She hid the skirt away when she got home, because she was scared her mother would shout at her. She hid it behind the washing machine. Her body ached, and she could not walk properly. The Applicant did not use a condom. She was upset and went to bed quickly. She did not want to go to school the next day, but her mother told her to go. She did not tell her mother as her mother had a short temper and she was afraid that her mother would give her a hiding.

15. When the Complainant went to school the next day, on the 20th, she saw the Applicant’s car. She went to the class but did not go inside, because she was afraid of the Applicant. She started to cry, and her class mates called the Applicant, who told her to go inside. She went inside and sat with Tobile and the others. The class continued as always, and she went home at the end of the day. The Applicant did not say anything.

16. There were five incidents of sexual assault by the Applicant on her. The second time was on the 21st after school when the Applicant told her to stay behind, so that he could give her instructions on drama. Her friend came to fetch her, but the Applicant told her to leave because the Complainant was busy. The other learners have left. The Applicant told her to fetch his lunch box and told her that she would go with him. She went with because he threatened her not to tell anyone. They got into his car and he took her to the same house as on the 19th. He took her school clothes off, undressed himself and put his penis inside her, without a condom. After he finished, they left, and he dropped her off at home. The lady that stays opposite them saw him dropping her off. She asked the Complainant whether she was now being dropped off by teachers. The Complainant did not respond to her comment.

17. On 23 October the Applicant raped her again for the 3rd time. Her statement is reflected on A17 to 21. The 4th time he raped her was on 29 October. After school he took her in his car to an unknown place in the bushes in the Clayville area. He parked the car in the bush. He took off her skirt and put down the back seats of the car. He raped her again without a condom. The car is a red Sandero, with slightly tinted windows. After he raped her, he wiped himself with a white towel. The Complainant wiped herself off with her skirt. The Applicant dropped her off at the ZCC church.

18. The 5th time that the Applicant raped her, was during break on 4 November, between 12h00 and 12h30. She was with her friends when the Applicant sent a boy, Ndikezela, to call her. He told the Complainant to go and stock up on the sweets she was selling at school on his behalf. They left with his car between 12h15 and 12h30. The Applicant gave the security guard at the gate R20-00. He took her to the same bushes as before, put the car seats down again, took off her skirt, raped her where after they went back to the school. The classes had already started when they got back.

19. That evening at home her mother noticed that her stripes on her legs were no longer zig-zag, but straight. It might have been the following day, she is not sure. She told her mother that she has never slept with anyone. She could not tell her about the Applicant because she was afraid. Her mother examined her and found that she was no longer a virgin. Her mother phoned her sister, Slindile, to come and examine her. Slindile asked her in a furious manner whether she slept with someone, and the Complainant denied it, because she was scared. They called Doli, the lady who saw her when the Applicant dropped her off. Doli asked her nicely, and she told her. She went to the doctor on 5 November. His report is reflected on A11. He told them to go to the police. They went to Ivory Park Police Station to open a case. They went to Tembisa hospital where she was again examined.

20. There is a scratch on the Applicant’s abdomen that doesn’t come off. That is evidence that she saw him without his clothes on. She could only have seen it when he raped her. She was traumatized after the incidents and tried to commit suicide. Her mother’s hearts was broken, it affected her health, and she passed away in 2017.

21. During cross-examination the Complainant testified that she was 13 years old in 2015. The Applicant taught her creative Arts in grade 7. It was a compulsory subject. The incident with the broken cup happened on 19 October. She knows a boy named Nico, he lives in the same street. She denies that he was her boyfriend. She did not have an affair with him. Charles was her boyfriend. The Applicant beat them in the morning and wanted to beat them again in the afternoon. He beat them with a pipe, the boys on the back and the girls on the hands. They marked grade 6 Sepedi papers. It was already marked in pencil, and they marked it in red. She knows Qinisile but did not walk home with her on 19 October. The Applicant was not coaching every day. The Applicant liked to give school girls a lift, the whole school knew it. The Applicant gave the security guard R20-00 to bribe him when they left the school premises in his car.

22. The Complainant does not know where exactly the Applicant stays, she only knows it is in Clayville. She could not point out the house because she could not remember where it was. She denies that she was sexually active and that she had multiple consensual sexual partners. She did not have sex with Charles. She denies that she fabricated all the incidents against the Applicant to cover up that she had consensual sexual relations because she was afraid of her mother. She wasn’t the class captain, she was a class monitor, responsible for the keys. She denies that she had a score to settle with the Applicant because she felt embarrassed by breaking the cup. The boys broke the cup.

23. The Complainant did sell sweets for the Applicant. The arrangement was that the class would have a party at the end of the year for only R30-00 each. She did not tell on the Applicant because he threatened her. He had a love relationship with Ms. Kekayi, so he could have told her to fail the Complainant, and he could have told others to fail her. She had one school skirt and two trousers. She hid the skirt and went to school with her tunic the next day. She herself washed the skirt after she told her mother about the incidents. She meant tunic when she said she wiped herself with her skirt after the first rape. She did not give her skirt as evidence because the police did not ask for it. She did not write her own statement. She did not fabricate the incidents. The Applicant did rape her. The white substance that came out of her vagina came from the Applicant. She did not fall pregnant. She did not use contraceptives before he raped her.

24. During re-examination the Complainant testified that she never had sex before 19 October 2015 when the Applicant raped her. She never slept with her boyfriend Charles. She was not in the class when the cup broke. She had drama practice outside. She will recognize the house where the Applicant took her but cannot find it.

25. SLINDILE SINENHLANHA MBATHA (“Mbatha”) testified under oath that the Complainant is her younger sister. She is 26 years of age. Her mother called her to come and confirm that the Complainant had been sexually assaulted. C1 to 3 reflect her statement. It was written by a police officer. She was taught to do a traditional virginity test. The silver stripes on a girl indicate whether she had sex, and whether it was with a man of her age, or an older man. She examined the Complainant and saw that she had been penetrated. There was a white substance coming out of her vagina which indicated that she had a sexual encounter the day before. The Complainant would not say who did it. Her mother called Doli to come and talk to the Complainant, and she then told Doli in the presence of Mbatha that her class teacher, Mr. Makgota, had sex with her. Doli made the same observation that the Complainant was no longer a virgin, and that she had sex the previous day. The Complainant told Doli it started the week before, and the last time was 12h00 on 4 November 2015. They then went to the police and made statements, and to the hospital. Their mother passed away since. She was aware that the Complainant was on contraceptives.

26. During cross-examination Mbatha testified that she was 9 years older than the Complainant. They had a close relationship. Mbatha stayed with her child’s father, while the Complainant lived with their mother and Mbatha’s younger child. The Complainant now lives with their uncle and his wife in Everton. The Complainant was frightened because their mother found out she was no longer a virgin. Her mother did not beat the Complainant, as far as she knows. She would not know if she was beaten. The silver stripes indicate whether a girl is a virgin or not. A vaginal examination is also done by inserting a finger into the vagina to feel whether the piece of flesh is still intact. Mbatha did insert her finger into the Complainant. Doli only checked the stripes. Their mother inserted her finger the previous day. She heard the Complainant tell Doli about what the Applicant did.

27. Mbatha heard rumours from the Complainant’s friends that she had a boyfriend, but she does not think that it was serious. The Complainant wasn’t a naughty girl who would drink or stay out late. It looked to her like the Complainant had been sexually assaulted, she was scared and was crying. Their grandmother taught them the virginity test. From the age of 10 years it is done yearly. She would say it was the Applicant, because she saw him drop off the Complainant with his car at about 17h00 once. The Complainant once came with a food parcel which the Applicant bought her, because she stayed at school with him to help him mark. Although she did not stay there, she was there from Wednesdays as she did not work at the time. They once were looking for the Complainant and found her at the school gate with the Applicant. She asked the Applicant why he was dropping her off, and he said he requested her to assist him with marking scripts. The Complainant had a prefect nametag. She did receive some awards in 2014.

28. EMILY MAGADA (“Magada”) testified under oath that she presided in the disciplinary hearing of the Applicant. The Applicant testified, stated his case and also called witnesses. His rights were explained. He was represented by SADTU. All the witnesses were cross-examined by him. She based her findings on a balance of probabilities on the evidence, not on assumptions. The sanction of dismissal is mandatory for contravention of section 17(1)(b) of the Employment of Educators Act.

29. During cross-examination Magada testified that the outcome of the criminal case was not relevant to her process, as a different onus of proof applies. It wasn’t all hearsay evidence. The Complainant’s evidence was not hearsay. The Applicant just said he could not have done it. He just gave a general denial as his defense. The coach could not corroborate his version.

Applicant’s case

30. LESETJA BETHUEL MAKGOTA, the Applicant testified under oath that he started as an educator at the school on 1 January 2008. In 2015 he taught grade 6 Sepedi, and grade 7 Creative Arts and Social Science. In January 2015 he was assigned as class teacher of grade 7C. He taught them Creative Arts once a week. There were 54 learners in the class, 34 girls and 20 boys. He had a good relationship with the class.

31. On 19 October 2015 the learners had to go on a trip. He only saw the grade 7 class after 12h00. During break a cup was broken in his class room. He went to the class and told them they should not eat in the class. He called all the learners to find out who broke the cup. They said the Complainant and a grade 6 were responsible. He reminded them not to eat in the class, and that he did not want learners from other grades in their class. The Complainant cried and denied that she broke the cup. The learners leave at 14h00. Some were assigned to clean the class room. He had to remain present until the cleaning group left at 14h30. He divided the learners into 4 groups to clean the class room. On Fridays all cleaned together.

32. On 19 October 2015 they finished cleaning by 14h30. The Applicant was in the class room monitoring them. After they cleaned, they all left. From 14h45 he was on the soccer field with learners playing soccer, with coach Donald and another teacher. He was the sport coordinator and coach. The Complainant had already left. He finished coaching at about 16h00. He then left for home with Donald and Ronnie at 16h05. He dropped off Ronnie, and then Donald, and then picked up his wife at Olifantsfontein train station at 16h30. They went home. His daughter and 2-month old grandson were at home. She was at home with the baby the whole day.

33. The Applicant would never embarrass the Complainant. In 2015 there were no awards that could be withheld by him, as the Complainant said he threatened to do. He would never threaten her with failing the grade. He did not have the ability to fail her. He was only responsible for one subject. The Complainant loved the drama part of Creative Arts. She was excellent in acting. She wasn’t his personal assistant, or a class monitor or a prefect. Bheki was the class prefect.

34. On 21 October 2015 they were called by the principal after the break at 12h35 to report about learners who paid. At about 13h20 he went to the grade 6 class. At 14h35 he went to the sport field. He left at 16h00 to pick up his wife at the station. He did not drive the Complainant to Clayville and he did not rape her. He never had a romantic relationship with her or any other learner. On 23 October 2015, a Friday, he gave the principal a report before class. Nothing unusual happened. On Fridays they leave at 13h00. He never took the Complainant to Clayville and he never raped her. She was never in his car. On that day he went straight home. He remembers Mr. Mnsana was assessing. When he got home his grandson was already taken to Arwyp Hospital by his father.

35. On 4 November 2015 the principal asked them to go to the district office in Sandton to fetch cheques. It was in the break between 12h00 and 12h30. He and Eunice signed a pass-out and went there. They got the cheques and went to the bank at 15h00. They went to pay the busses. They got back to the school at 17h00. There were no learners and he never took the Complainant anywhere to rape her. He could not just drive out the school yard with a learner in his car. You must get a pass-out.

36. The Applicant was arrested at school on 16 November 2015. He was charged on 17 November 2015 and spent 31 days in custody. The criminal case was withdrawn on 10 June 2016. He was then subjected to a disciplinary hearing. He does not know why the Complainant would falsely accuse him. He never shouted at her. He is still unemployed.

37. During cross – examination the Applicant testified that he always had colleagues in his car. He does not know why he did not dispute the evidence that he was seen dropping off the Complainant. In April 2015 he once dropped off the Complainant’s mother. He never used learners to mark his books. He denies all the allegations made by the Complainant. He did not groom the Complainant. It would send a wrong message to his daughter and wife. He does not have a mark on his stomach. He does not know why that evidence by the Complainant was not disputed.

38. THATO MAHLANGU (“Mahlangu”) testified under oath that he is 17 years of age. The Applicant was his teacher in grade 7 in 2015. On 19 October 2015 he chased the Complainant in the class room, and a cup fell off the table and broke. The Applicant called them into the class room and wanted to know who broke the cup. Bheki said it was the Complainant. They continued with the class. After school the Monday group remained behind to clean. It was him, the Complainant, Thabisile, Wendy and others he cannot remember. After they cleaned the class room, they left at 14h30. He went home with friends, and the Complainant was walking in front of them. They went to the same creche to fetch their siblings. After they fetched their siblings, they went home. He cannot say whether she went home as they do not stay in the same street. It was the last time he saw her on that day. He does not remember what time it was.

39. The Complainant wasn’t the Applicant assistant, or a class monitor or a prefect. She never won any awards. The Applicant taught them Creative Arts every day after break. He never gave Mahlangu books to mark with a red pen. They only marked each other’s class work with pencils. The cleaning groups were divided into four rows. The Applicant stuck to the roster. The Applicant never beat them. They were disciplined by being reprimanded. The Applicant did not choose six girls to stay behind. Only the scheduled cleaning team stayed behind. While they were cleaning, the Applicant wasn’t there, he was on the sport field. He only came to release them after they finished cleaning. He never got a lift from the Applicant. He only gave lifts to teachers. On 21 and 23 October 2015 they also went together to fetch their siblings at the creche.

40. During cross – examination he testified that he speaks the truth about the Applicant being on the sport field while they were cleaning the class room on 19 October 2015. He taught them Creative Arts every day. That is also the truth. They cleaned according to the roster. The Applicant never chose only girls to clean. The Applicant only came in to check their cleaning on 19 October 2015 after they had left.

41. QINISILE MNYANDU (“Mnyandu”) testified under oath that she is 15 years of age. She testified that the Applicant was her Creative Arts teacher in 2015 in grade 7. She does not remember how many times a week they had class. He was their class teacher. She saw him every day during register period and during his period. He did not have a personal assistant. The Complainant wasn’t a class monitor. They had prize giving until grade 6. In grade 7 there was prize giving, but she was not there. On 19 October 2015, during break, the Complainant chased Nico in the class room and a cup fell and broke. Bheki told the Applicant the Complainant broke it. Nico was the Complainant’s boyfriend. The Applicant continued to teach them. After school they cleaned the class room and went home. She walked home with the Complainant. They parted ways after the Complainant fetched her sibling at the creche. She cannot remember whether the Complainant picked up her sibling on 10 October 2015.

42. They finished cleaning on 19 October 2015 at 15h00. The Applicant wasn’t in the class room. The Applicant did not beat learners. They were disciplined by having to clean after school. The Applicant did not beat the girls. He did not give them books to mark. She never saw him giving lifts to the Complainant or other learners. She did not know much about the Complainant’s home life. She hasn’t seen her since grade 7. Nico was the Complainant’s boyfriend. The Complainant was not at school on 20 October 2015. Her sister brought her to school later.

43. During cross – examination she testified that her friendship with the Complainant was school based, and on the walk home, not afterwards.

44. AMANDA DHLADHLA (“Dhladhla”) testified under oath that she is 16 years of age. She testified that the Applicant was her Creative Arts teacher in grade 7. He was also her class teacher. She cannot remember when they had Creative Arts, it was different periods. The Complainant wasn’t a class monitor or personal assistant. She cannot remember who the prefects were. The Complainant was playing with Nico in the class room when they bumped a cup off the table. The Applicant only told them not to play in the class room. She was not part of the cleaning team on that day. She left after school. The Applicant never beat them. They only had prizes or awards in grade 4 to 6. She cannot remember how the cleaning groups were selected.

45. During cross – examination she testified that they had Creative Arts the whole week, on different periods.

46. ANNA TSHABA MAKGOTA (“Anna”) testified under oath that she is the wife of the Applicant. They have been married for 11 years and have one child and one grandson. The Applicant fetched her from the station at 16h20. She does not remember any time that he was late. On 19, 21 and 23 October 2015 he picked her up at the usual time. There is nothing on their house that would make it easy to identify. There is no emblem of Kaizer Chiefs. Their daughter lived with them then, with her son.

47. The Applicant does have a mark on his stomach, as the Complainant testified. He had an operation to remove his appendix. He informed her on 16 November 2015 that he had been arrested. They took his car home after the police investigated it. The criminal case against him was withdrawn. She does not know whether the Applicant has friends in Clayville. His brother previously stayed in Clayville.

48. During cross – examination she testified that on 19, 21, 23 and 29 October 2015 she found the Applicant at the station after work. On 4 November 2015 he was not available, and he told her that he had to go to the district office. When she checked the car, she saw a handbag with money in.

49. NOKUTHULA MNYANDU (“Nokuthula”) testified under oath that she knew the Applicant from school. He taught all her children. She wasn’t friends with the Complainant’s mother. The mother used to come looking for the Complainant at her place. She told her that the Complainant never slept at her place.

SUMMARY OF ARGUMENT

50. Both parties submitted extensive written closing arguments which form parts of the record and will not be repeated here. 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 arbitration hearing, as reflected in the recording of the arbitration.

ANALYSIS OF EVIDENCE AND ARGUMENT

SUBSTANTIVE FAIRNESS OF THE DISMISSAL

51. In considering the substantive fairness of the dismissal of Mr. Makgota for misconduct, 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, as well as the Code of Good Practice for Dismissals in Schedule 8 of the Labour Relations Act, no. 66 of 1995, provide the following guidelines:
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 was an appropriate sanction for the contravention of the rule or standard.

52. The dismissal of Mr. Makgota is not in dispute, and the Respondent is therefore required to prove that the dismissal was substantively fair. The Applicant does not dispute the procedural fairness of his dismissal. The standard of proof that is applicable in hearings 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.

WAS A RULE OR STANDARD REGULATING CONDUCT IN, OR OF RELEVANCE TO, THE WORKPLACE CONTRAVENED?

53. As stated above, the standard of proof that is applicable 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”.

54. Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). An arbitration hearing constitutes a full rehearing on the merits plus an investigation of the fairness of the procedure followed by the employer. (See Gibb v Nedcor Ltd 1998 19 ILJ 364 (LC)). Arbitration amounts to a hearing de novo. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC), where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)). The arbitrator must hear all the evidence relating to the issue and decide afresh on the facts found proved whether the employee committed the misconduct for which he was dismissed or not. If not, the arbitrator is bound to find that the dismissal was substantively unfair, even though the employer acted reasonably based on information available to it at the time of the dismissal (John Grogan Dismissal 93 (2002)).

55. Mr. Makgota disputed the substantive fairness of the dismissal, and the Respondent has the duty to prove the fairness thereof.

56. It is not disputed by the Applicant that the actions he had been charged with constitute misconduct. The Applicant merely denied committing such misconduct.

57. It is a natural response in matters relating to the sexual 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 not to be prejudicial but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.

58. In respect of the allegations of sexual assault there are only direct evidence of two witnesses, i.e. the Complainant and Mr. Makgota. The Applicant disputes the version of the Complainant, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept.

59. The Applicant’s defense is a blanket denial of any wrongdoing. He denies raping the Complainant, as she testified, he did. He submits that it is a fabrication of lies to implicate him, and to “finally get her revenge for being reprimanded by the Applicant for breaking his cup”.

60. I find his version improbable considering the Applicant’s own testimony, and that of his witnesses, that nobody was reprimanded for breaking the cup in the class room. The evidence of the Applicant and his witnesses is that he merely reminded the learners not to eat or play in the class room. If there then was no reprimand, the supposed motive for fabricating the rape, i.e. to get her revenge for being reprimanded by the Applicant for breaking his cup, does not exist.

61. I also find it improbable that the Complainant would fabricate such an elaborate version, as she testified to. One would expect a fabricated version to be much simpler, restricted to one incident of rape, which would be much easier to remember. The Complainant described the various incidents of rape at the various locations in detail. She never testified that she was taken to the Applicant’s house, but that she was taken to a house in Clayville. The fact that she could not point out the house, cannot justify a finding that it tainted her credibility as a witness. For the same reason, the Applicant’s argument that he would not have taken her to his house where his daughter and grandson were, does not hold water. It in fact makes the Complainant’s version more probable, that he took her to a house where nobody would see them. This would also lend credibility to the Complainant’s testimony about the Applicant having a discussion with someone on the phone regarding the key of the house being kept under the mat.

62. The Applicant testified that he did not have the ability to fail her, and that it could not be true that he made such threats. The issue is however not whether he could have failed her, but whether the Complainant in her mind believed he could. I accept her evidence on a balance of probabilities that he did say he would fail her, and that she believed it to be possible, and that was why she gave in to his demands, and why she kept quiet about it. Her testimony that she feared her mother, is probable considering the age of the Complainant at the time. I find the Complainant to be a credible witness. The fact that certain dates could be vague, does not materially impact on her evidence. The incidents took place more than two years ago. She testified without wavering. I accept her evidence on a balance of probabilities that the Applicant raped her on five occasions. She was only thirteen at the time. I reject the Applicant’s version that the Complainant was sexually active with several persons, as improbable and devoid of any substance.

63. One of the most material aspects in considering the credibility of the Complainant’s evidence against that of the Applicant, is the aspect of the mark or scar on the body of the Applicant. The Applicant disputed the evidence of the Complainant that she saw a mark on his stomach and testified that he had no such mark. However, the Applicant’s wife contradicted his evidence in this regard, and testified that he indeed has a scar where his appendix was removed. I accept on a balance of probabilities that the Applicant does have a scar on his stomach. The only way that the Complainant could have known about the scar, is if she indeed saw him without his clothes on, which confirms that he was naked in her presence. I find on a balance of probabilities that he was naked because he raped her as she testified, which conduct constituted sexual assault.

64. The evidence of the Applicant’s witnesses is also full of contradictions, i.e. whether he monitored them while cleaning, or whether he was on the sport field, whether they left at 14h30 or 15h00, whether they had Creative Arts once a week or daily, and whether the cleaning of the class room was used as a means of disciplining learners. The evidence of the Applicant’s witnesses that cleaning the class room was used as a means of disciplining learners, makes the testimony of the Complainant that the girls were selected to clean after the incident with the broken cup, more probable.

65. The testimony of the Complainant and the Applicant in respect of the alleged misconduct are totally different in respect of whether a rule was contravened. The Applicant denies the incidents. 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 preceded the dismissal of the Applicant.

66. 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.”.

67. The Complainant’s version has been materially the same throughout the disciplinary and arbitration process. I find it improbable that she would make up such a detailed version of events without any reason. The Applicant’s version that is a fabrication is not plausible.

68. 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 arbitration hearing. The Applicant could not provide any probable evidence that would support such notion. I therefore find the evidence of the complainant given at the arbitration hearing to be credible and probable. I find that it was proven on balance of probabilities that the Applicant committed acts of sexual assault on the complainant as defined in the Criminal Law (Sexual Offences and related matters) Amendment Act, no. 32 of 2007.

69. With consideration of all the relevant cautionary rules I find that the Respondent provided evidence that proves on a balance of probabilities that Mr. Makgota committed the alleged misconduct he was charged with. There is therefore evidence before me that proves that Mr. Makgota contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

WAS THE RULE A VALID OR REASONABLE RULE?

70. Considering the nature of the employer’s business, the circumstances in which it operates, the type of work performed by the employee and the environment in which the work is performed, it is accepted that the rules are valid, i.e. lawful and reasonable. It is reasonable to expect educators to refrain from sexual assault on learners. It has also been specifically prohibited by legislation. There is no evidence that the rules had been abrogated by disuse because the employer had not relied on it for some time. The Applicant did in any event not place this issue in dispute.

WAS THE ACCUSED EMPLOYEE AWARE, OR COULD HE REASONABLY BE EXPECTED TO HAVE BEEN AWARE, OF THE RULE?

71. What is required by the provisions of paragraph 7 of Schedule 8 for a dismissal for misconduct to be fair is that “the employee was aware or could be reasonably expected to have been aware of the rule or standard”. The offence the employee has been charged with appears in the Disciplinary Code of the employer as well as the Employment of Educators Act, no. 76 of 1998. The Applicant did not place knowledge of the rule in dispute.

HAS THE RULE BEEN CONSISTENTLY APPLIED BY THE EMPLOYER?

72. There is no evidence of inconsistent and arbitrary action on the part of the employer in this matter. There is no evidence that the employer has habitually or frequently condoned similar offences in the past. There is also no evidence that the employer’s standards differ materially from those applied by other employers. The Applicant did not place this issue in dispute.

WAS DISMISSAL AN APPROPRIATE SANCTION FOR THE CONTRAVENTION OF THE RULE?

73. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.

74. The Respondent 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. The case of Sidumo v Rustenburg Platinum Mines Ltd [2007] 28 ILJ 2405 (CC) dealt with the scope of commissioners’ powers when deciding whether the sanction of dismissal for proven misconduct is fair. The final decision whether the sanction of dismissal for proven misconduct is appropriate rests with the commissioner. I must therefore as impArtsial adjudicator consider all relevant circumstances in deciding whether the dismissal of the Applicant was the appropriate sanction initially.

75. The Code of Good Conduct: Dismissal, states 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.

76. In an earlier dictum of Conradie JA a similar approach was also followed when the court pronounced that -:
“A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”.

77. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC)).

78. 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.)

79. The Applicant 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, no. 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 of 13 years old to be sexually assaulted by an educator.

80. Section 17(1) of the Employment of Educators Act in any event states that dismissal is the mandatory sanction for the offence the Applicant has been found guilty of. Having considered all the facts before me, including but not limited to, the gravity of the offence, the position of trust the Applicant was employed in, and the years of service of the Applicant I find that the sanction of dismissal is fair and appropriate in the circumstances.

PR0CEDURAL FAIRNESS OF THE DISMISSAL

81. The Applicant does not dispute the procedural fairness of his dismissal, and I find that the dismissal was procedurally fair.

AWARD

82. I find that the dismissal of Mr. Makgota was for a fair reason related to his conduct, and that the dismissal was effected in accordance with a fair procedure. He is not entitled to any relief.

COEN HAVENGA
ARBITRATOR
10 December 2018