Panelist: Jonathan Gruss
Case No.: ELRC278-24/25EC
Date of Award: 12 November 2024

In the DISCIPLINARY ENQUIRY between:

DANIEL DARYL LEANDRE FRANCOIS DE JAGER
(Employee)

and

DEPARTMENT OF EDUCATION : EASTERN CAPE
(Employer)

Employee’s representative:  Mr Adams (NAPTOSA)      





Employer’s representative:  Mr Xhalisile    

DETAILS OF HEARING AND REPRESENTATION

1. This matter was set down for an enquiry by arbitrator as provided for in terms of Clause 32 of the ELRC Dispute Resolution Procedures, read with clause 3 of ELRC Collective Agreement 3 of 2018. The enquiry takes the form of a Section 188A of the Labour Relations Act, Act 66 of 1995 enquiry by arbitrator. The enquiry was scheduled on 16 September 2024, 17 September 2024 and 23 October 2024 at various venues consisting of the District Office in Gqeberha, and at Cape Recife Special School also in Gqeberha. The employee, Daniel Daryl Leandre Francois de Jager appeared in person and was represented by Mr Adams, an official from NAPTOSA. The employer, the Department of Education: Eastern Cape was represented by Mr Xhalisile, a Labour Relations Officer. Both parties by agreement submitted written closing arguments on 1 November 2024.

CHARGES

2. The Employee was charged with two (2) incidents of misconduct – contravening section 17(1) (b) of the Employment of Educators Act 76 of 1998 as amended by committing an act of sexual assault on a learner.
   (a) On or about the 26th of April 2024 during a lesson at Cape Recife Special School, you inappropriately touched and squeezed a learner, NP, on her right side, slid a cane up her right leg and hit her on the buttocks with it.
   (b) Also, on or about the 25th of April at Cape Recife Special School you touched a grade 11 learner, CW in an uncomfortable manner in that you stood behind her and put your arms around her. You have further caressed her neck and kissed her head.
3. A not guilty plea was entered by the Employee as relates to the charges with no explanation provided.
4. The employer called 5 witnesses, and Ms Erica Maritz testified under oath to the following effect.
   4.1 She is the Principal of Cape Recife Special School. On 26 April 2024 just before in-service training started, Ms Neuper, a consumer studies teacher, requested to speak to her. Ms Neuper reported to her that one of the learners came to her and shared something with her. Ms Neuper felt that the Principal should be informed. Ms Neuper explained that one of the matric learners, NP, confided in her that one of the teachers had touched her in an inappropriate way. Ms Neuper further explained to her that NP did not want her as the Principal to know about the incident as yet, she first wanted to speak to her parents. Ms Neuper indicated that she gave NP her (the witness’) cellphone number in case her parents wanted to contact the witness. The witness instructed Ms Neuper to write a report as to everything that had happened.
   4.2 NP apparently phoned Ms Neuper before 16h00 that afternoon and indicated to her that they would be going to the police to report the matter, and that she would see them at school on Monday. The witness was not going to be at school that following Monday, therefore she handed the matter over to the school psychologist Ms Janeke, as well as to one of her deputies.
   4.3 On the Saturday whilst driving to Cape Town, the employee, Mr de Jager, phoned her, to which she indicated to the employee that due to her driving she could not speak to him then. She had also not spoken to NP and everything would happen on Monday. The employee informed her that someone from Humewood police station had come to him. Mr de Jager indicated that he was told that he may not view the video footage. Due to the fact that Mr de Jager had an application on his cellphone which allowed him to view the video footage, she requested the computer service providers to disable Mr de Jager’s access to the system and footage. She did not want the video to be tampered with. When she returned to school on the Tuesday, NP’s parents had kept her home – she did not attend school. On the Monday, NP and her parents had spoken to Ms Janeke and indicated to her that NP would not be returning to school until the matter had been properly investigated.
   4.3 In 2016 the previous Principal had converted from textbooks to tablets, and due to the fact that they had quite a lot of theft at school, they installed security cameras in the passages as well as in both the computer labs, because matrics’ CAP examinations would be convened in the computer labs. During 2023 they increased the number of mounted cameras in the passages and outside. Parents were aware of the cameras in the passages. The video footage from the CAP lab does not show the incident involving NP and the employee. This was because the place where NP sat is not clearly visible on the camera – a blind spot with no clear view of them. What you could see was that the employee, Mr de Jager, had a stick in his hand and you can see him walking in the class and tapping the head of NP. The video footage of Mr de Jager tapping NP on the head shows no reaction from NP.
   4.4 On 1 May 2024, Ms Maasdorp, the Head of Education of the Province, mentioned to the witness that one of the mothers had contacted her. This involved CW, and CW at this stage was not at school. Her grandfather had passed away, and CW came to her on 7 May 2024. CW was very traumatised and crying, and CW said to her that it started in grade 8 when Mr de Jager called girls during the break and told them that they will amount to a lot and he would be monitoring their progress. In grade 8 and 9 Mr de Jager did not teach them, however in grade 10 he taught CW and others in grade 11, and this year according to CW all the focus was on her. Mr de Jager according to CW would put his hands around her neck and would play with her neck. CW mentioned further that Mr de Jager would constantly caress her arm when he walked past her in the classroom, and he would ask her if she had missed him. It was further reported to her by CW that Mr de Jager would kiss her on her forehead and on her head. One of the boys, allegedly told CW that she must report this to her mother. This learner had sat next to CW. Subsequently, Mr de Jager allegedly moved the learner away from CW in the class. When she (the witness) spoke to CW concerning what was happening, she had asked her whether this had been the last time that this happened, to which CW responded that it had been on 25 April 2024, on a Thursday. She then asked CW write a report, and CW asked her to look at the video footage. The video footage shows Mr de Jager kissing CW twice, and he was feeling her neck. The video footage also shows Mr de Jager rubbing his hands through CW’s hair. After the witness viewed the video footage she phoned CW’s mother and had her come to the school. Ms Jennecker allegedly spoke to CW’s mother, and CW’s mother allegedly spoke to the police about Mr de Jager allegedly grooming CW. At that stage Mr de Jager had already been suspended from duties at the school.
   4.5 On 30 April 2024 Mr Nogaga, their Chief Education Specialist, had a conversation with Mr de Jager. This conversation had been recorded with the permission of Mr de Jager.
   4.6 Under cross examination, concerning whether Mr de Jager had the intention to touch – or inappropriately touched – learners in front of a class of between 30 and 40 learners, the witness responded that she would never touch a learner. She further emphasized that, in their profession, you do not comfort a child or kiss a child on the forehead. Both Ms Maasdorp and Mr Gadi have children attending the school.
5. NP testified under oath to the following effect.
   5.1 On 26 April 2024, a Friday, when opening a mathematics test, Mr de Jager approached her from behind and squeezed her ribs. He was holding a cane and rubbed her leg with the cane upwards from below, and then tapped her on her bum. This occurred 10 minutes before the bell rang, and she had given her papers to friend because she could not face Mr de Jager – instead she ran out to the bathroom. Five minutes into the period, her mentor Ms Neuper enquired from her as to what was wrong. She indicated to Ms Neuper that she would speak to her later. She was thinking as to how she was going to report the incident to her mother and father. On a question as to the witness’ relationship with Mr de Jager before the incident, the witness responded that he was her class mentor and she did not expect such behaviour from him.
   5.2 Under cross examination NP confirmed that she was 18 years old and she has no recollection of boys pushing her. She cannot recall such an incident. It was also put to the witness that in January 2024 there was an incident where an older male, a neighbor, touched her in her private parts without her consent. The witness confirmed this neighbour touched her vagina. On a question whether Mr de Jager was sexually harassing her, the witness indicated touching her body without her consent makes her feel uncomfortable. It was further put to the witness that the video evidence does not show Mr de Jager touching her on her head. The witness responded that she is not stupid to make something like this up. The witness further demonstrated how Mr de Jager touched her with a cane and how he tapped her bottom with the cane
6. CW testified under oath to the following effect.
   6.1 She was sitting in a cubicle when Mr de Jager hugged her from behind and kissed her on the back of her head and on her forehead. This made her feel uncomfortable. She did not report the incident immediately, neither did she speak about what occurred, at the time. She did report the incident to another learner who reported the incident to Ms Bell, an educator. The incident was witnessed by another learner. This was not the first time that this happened to her in that Mr de Jager would come to her desk, touch and hug her from behind. Each time this happened she felt uncomfortable and she did not know how to act – she froze. This occurred multiple times with Mr de Jager constantly coming to her, hugging her, touching her head and kissing her. She became emotional each time that Mr de Jager came to her from behind and playing with her neck, and he would also pinch her neck. This occurred regularly, almost daily. She had nothing against Mr de Jager.
   6.2 Under cross examination – as to whether the witness was scared, the witness indicated that Mr de Jager had a good side and a bad side. If he is unhappy he would speak to one in a harsh manner and would then target her. He would force other learners who did not want to take his class to leave the class. It was suggested to the witness that evidence would be led that there was a group of learners who had been teasing her. The witness laughed about this suggestion, and confirmed that there were occasions when she was teased – this came from her friends and she was not offended by that. It was suggested to the witness that on the date of the incident she (the witness) was upset in that she had been teased. The witness responded that, because those teasing her were her friends, she had no reason to be upset. The witness reiterated that the only teasing that occurred during class was what Mr de Jager was doing to her.
7. SAV testified under oath to the following effect.
   7.1 He is a matric learner. On 3 May 2024 he went to the Principal’s office with Ms Scott because there was something that he had witnessed. On 26 April 2024 he was sent to deliver some papers to Mr de Jager. As he stood outside the door of the CAT class he notice that Mr de Jager was standing next to NP. Mr de Jager was rubbing her right rib with his left hand. Mr de Jager was also holding a stick in his right hand. The witness then entered the classroom and put the papers on Mr de Jager’s desk. He reported what he witnessed to Ms Maritz.
   7.2 Under cross-examination the witness confirmed that he told Ms Scott that he had witnessed sexual harassment. This was the only matter that he spoke to them about regarding the two girls.
8. Ms Lisa Neuper testified under oath to the following effect.
   8.1 On 26 April 2024 she was informed, during first break on the Friday, of an incident. NP reported the incident to her. NP was clearly upset, and she had to allow her to calm down in her classroom. Only after NP calmed down she had NP tell her what happened. She reported the incident to the Principal. As relates to the state of NP, she appeared to be distraught and was crying. She gave NP support by encouraging her to tell her parents, and she handed NP over to the school’s child psychologist. As educators they are not allowed to touch learners unless it is to assist them and they must not make them feel uncomfortable.
   8.2 As per her statement, after NP came down, NP told her that Mr de Jager touched her inappropriately. NP showed her where Mr de Jager had touched her on the side of her body – indicating towards her ribs. She also claimed that Mr de Jager smacked her on her bum. She indicated to NP that men are not allowed to touch without your consent, and that if this made her feel uncomfortable it was unacceptable. NP further kept on telling her not to tell anyone. NP thereafter sent her a text message requesting her to accompany her on Monday, 29 April 2024 to report the matter. NP also indicated that she first wanted to inform the parents of the incident before formally reporting the incident.
   8.3 Under cross examination the witness confirmed that when NP came to her she was in her class. The witness further confirmed that NP showed her that Mr de Jager touched her high up on her rib cage next to her breast. NP told her that Mr de Jager smacked her on her bum.
9. Ms Gaynor Janeke testified under oath to the following effect.
   9.1 NP reported the incident to her, with her parents. She explained to them that she had to report the incident to the Principal, and because the Principal was not at school on that day, she would have to put what was told to her in writing. She explained to NP and her parents that there would be an investigation by the Department. The second learner, CW did not report the incident to her, CW came for psychological and social support later on. The focus was to keep the learners functional within the school environment. One of the learners needed a safety plan, and for NP she had to develop a safety plan, and referred her for external support. NP is a grade 12 learner who struggles to cope academically.
   9.2 Under cross examination she was asked whether there were previous incidents involving the neighbour and Mr de Jager and NP. The witness responded that there is a trigger that happens when one feels threatened. As relates to NP’s account of the incident, she was clear as to her recollection of the incident, and she got no indication that NP was lying. What NP perceived is what happened.
10. Mr de Jager, the charged employee, testified under oath to the following effect.
    10.1 He has been an educator for 30 years and has never been charged for such misconduct. As to the allegation that he touched CW on 25 April 2024 in an uncomfortable manner, the employee explained that he was busy with lessons in the front of the class. He picked up some uneasiness with emotions at the back of the class – one of the learners in the front of the class brought to his attention that CW was about to cry. He also noticed something while he was on his way to the back of the class. He picked up from CW’s voice that she was very emotional. It came to his attention that two other boys at the back of the class were teasing her about her forehead, and this started during the break already. Because of the size of the class, he did not want to draw attention to CW. He then put his hands on her shoulder so that she could relax. He told her not to worry, commenting “Sir also has a big forehead”. While standing, he reprimanded two of the boys at the back and told them that before they say something to another person they must first ask themselves a question, would you like it if someone said something nasty to you? When CW became more comfortable, he moved back to the front of the class. It was put to the witness that CW testified that he came from behind and caressed CW’s neck and kissed her on her head, and not only on her forehead. The witness was asked why he did this, and he responded that this was part of his way to calm CW down. As to CW testifying that most of the time the witness starts to teach at the back of the class, this the employee disputed, retorting that in that specific class they have 33 learners and the learners in the front three rows need to see him because one learner has a problem with movement and also is a wheelchair learner. It would be unfair for him to be at the back while he is teaching. He teaches from front of the class and the projector screen he uses is also in the front of the class. As to CW testifying that almost daily the employee would touch her, he would never call a learner to come into the class alone – he would call them in together. He was never alone in the class with CW.
    10.2 Regarding the alleged incident involving NP, he is her teacher for the class and he does not teach any specific subjects. Every morning they would come to class, and he would attend to the attendance register and give out information for the day. On the day in question, he was not teaching NP, and he did not touch NP in an inappropriate way. He cannot understand why she would say that he did, as on the day before the incident she was in his class asking him for advice seeing as she is the Head Girl. She asked him how she should approach Ms Scott and Mr van Rensburg regarding certain Prefects not doing their work, as she wanted Ms Scott and Mr van Rensburg to like her. He told her to leave it in his hands – that he would have a chat to Mr van Rensburg. He did have a chat with Mr van Rensburg, who undertook then to have a chat with NP. It is impossible for him to have stood where he should, and slide the stick up NP’s leg, and then hit her on her bum.
    10.3 As relating to the testimony of SAV – the learner he recalls coming into his class on that specific day – all SAV did was to drop off notices for the class. SAV entered, and exited the class immediately. When SAV entered the class he told him to put the notes on his desk, and at that stage he was standing in front of the class preparing for the next class. He was not standing near to where NP was sitting. The Principal only called him in on Tuesday, together with Ms Janeke, and asked him to explain what had happened in the classroom on the Friday. He denied touching NP in an inappropriate manner. The cameras in the CAP lab always picks up anything immediately. He did get a telephone call from the police on the Sunday, and he went to the police station and had a chat with the detective, who asked him to write a report. The prosecutor declined to charge him. On a question as to his relationship with the other educators at the school, the employee indicated that it was good, but the relationship with management was strained. He is the kind of teacher who, if something is not fair, he would speak out. On a few occasions with promotions he had a fallout with the Principal and the Deputy Principal on issues relating to equality of school management. Male staff were under represented in management. The other fallout he had was with the SGB election of its members. His relationship with both NP and CW was good – he has a good teacher learner relationship with both learners.
    10.4 Under cross examination the employee was asked as to what his understanding is on what was appropriate learner teacher interaction. The employee responded that there is a huge black line against inappropriate contact with learners. The learners who are now accusing him never had a problem with him before the alleged incidents.
    FINDING
11. I must comment in passing that both NP and CW impressed me as consistent and reliable witnesses. CW’s only challenge is her hearing, as she is partially hearing impaired. This learner, throughout her testimony, before and after, was extremely emotional and tearful. I had to make use of the school’s child psychologist to calm her down from time to time, and she testified through an intermediary utilising a virtual platform. During her testimony I found myself running between the two venues in an attempt to calm her down. As testified by Ms Janeke, the emotional state of CW was genuine and not embellished. The video evidence, as it relates to the incident involving CW, is damning and disturbing. Mr de Jager is seen caressing CW’s neck by rubbing it with his hands and he kisses her on her forehead and on her hair. This in my view is conduct that is most inappropriate. I was satisfied that in considering the physical interaction between Mr de Jager and CW, Mr de Jager made himself guilty of the charge of sexual assault. His conduct similarly amounts to grooming and sexual harassment.
    12 As relating to the charge involving NP, the video evidence is inconclusive – all one is able to see at one point is Mr de Jager touching NP on her head. This appears to have been done in a playful manner, however the Head Boy SAV testified as a witness to the alleged incident – what happened outside of the vantage of the CCTV camera. He witnessed Mr de Jager caressing NP with a cane starting at the bottom of her leg and moving upwards to her rib cage near or next to her breast. The evidence was lead that Mr de Jager before this with his hand touched NP’s rib cage, on her side. SAV reported this incident to Ms Scott. Whilst NP and the learner SAV were waiting to testify, they were holding hands and it was clear that they were in a relationship. This clearly is the reason why SAV reported the incident to Ms Scott in that SAV did not like what Mr de Jager was doing to his girlfriend. I am satisfied, based on the balance of probabilities, that the employee Mr de Jager is guilty of sexual assault that also amounts to sexual harassment in respect of his interactions with NP.
12. Having found Mr de Jager guilty of the two charges, I am mindful that the employee is guilty of section 17(1)(b), section which prescribes that an educator must be dismissed if he or she is found guilty of such a transgression, as this type of transgression amounts to extremely serious misconduct.
    14 In the matter of Algoa Bus Company (Pty) Ltd v TASWU obo Mzawi and Others (PA05/23) [2024] ZALAC 42 (10 September 2024) the Labour Appeal Court held at [ 14] as follows:
    “Secondly, and more fundamentally, the Labour Court erred to the extent that it considered that the arbitrator had committed a reviewable irregularity by deciding to uphold the employee’s dismissal, in the absence of specific and discrete evidence concerning a breakdown of trust or deterioration in the employment relationship. The determination of the fairness or otherwise of a dismissal involves a moral or value judgment, to be made by the presiding arbitrator, after considering all of the relevant factors and circumstances. Sidumo & another v Rustenburg Platinum Mines & others [2007] 12 BLLR 1097 (CC) (Sidumo) specifically enjoins arbitrators to “consider all relevant circumstances” (own emphasis added). The absence of any specific evidence adduced in an arbitration hearing regarding a breakdown or deterioration in the employment relationship is thus not a basis to set aside an arbitrator’s decision to uphold a decision to dismiss. As this Court has observed, the existence of serious misconduct can in itself lead to a finding that a dismissal should be upheld, without evidence of any breakdown in trust. Indeed, the CCMA Guidelines on Misconduct Arbitration (Guidelines) repeat the injunction to make a value judgment as to the fairness of the employer’s decision to dismiss, taking into account all of the relevant circumstances. To the extent that the Labour Court held that it was necessary for the appellant to lead such evidence as a necessary condition for a finding of unfair dismissal that is not the law. In National Union of Metal Workers of South Africa v Commission for Conciliation, Mediation and Arbitration and others (2023) 44 ILJ 1575 (LC), the Labour Court provides a useful summary of developments post-Edcon Ltd v Pillemer NO and others. (2009) 30 ILJ 2642 (SCA). Both this Court and the Labour Court have consistently held that there is no general obligation on an employer to lead evidence as to the appropriateness of dismissal as a sanction or any breakdown in the trust relationship, nor is there some limited category, as the Labour Court appears to suggest, in which an employer may be relieved of such an obligation (the Labour Court gave the examples of assault and dishonesty). Any deterioration in the trust relationship between employer and employee may be a relevant or even significant factor in the determination of the fairness or otherwise of a dismissal, but it is not a determinative factor. More often than not, the evidence of the nature and extent of the employee’s misconduct will be sufficient for an arbitrator to exercise the required value judgment on the fairness of dismissal as a sanction. The Labour Court’s finding that absent any evidence as to the suitability of dismissal as a sanction for the employee’s misconduct, her dismissal was axiomatically unfair, constitutes a misconception of the applicable legal principles. The arbitrator did precisely what he was required to do – he made a moral or value judgment based on the totality of the evidence before him. It is difficult in these circumstances to appreciate how it can be said, as the Labour Court found, that he committed any gross irregularity. Specifically, there is no basis for the Labour Court’s conclusion that the arbitrator’s conclusion was based on ‘speculation’. All of the evidence that served before the arbitrator spoke to the magnitude of the employee’s misconduct – she breached a workplace rule, and the rules of the road, with calamitous consequences.”

15 Clause 5.1.2 and 5.16 of ELRC Collective Agreement 3 of 2018 provides that an arbitrator arbitrating a dispute in terms of the collective agreement must, in light of the evidence presented, and with reference to inter alia; the SACE Code of Professional Ethics for educators and the sanctions provided for in the Employment of Educators Act, including the mandatory sanctions of dismissal prescribed for certain forms of misconduct by the Employment of Educators Act, direct what action, if any shall be taken against the educator.

16. Section 120 of the Children’s Act, Act 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by a children’s court; any other court in any criminal or civil proceedings which that person is involved; or any forum established or recognised by law on any disciplinary proceedings concerning the conduct of that person relating to a child. A finding may be made by a forum of its own volition or on application. Evidence as to whether a person is unsuitable to work with children may be heard by the court or the forum either in the course of or at the end of the proceedings.
17. Section 122 of the Children’s Act further provides that the relevant administrative forum must notify the Director-General in writing of any finding in terms of section 120 that a person is unsuitable to work with children. The director-general must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.
18. The Code of Professional Ethics as prescribed by the South African Council of Educators Act 31 of 2000 prescribes that educators who are registered or provisionally registered with the South African Council for Educators:

18.1 Acknowledge the noble calling of their profession to educate and train the learners of our country;
18.2 Acknowledge that the attitude, dedication, self-discipline, ideals, training and conduct of the teaching profession determine the quality of education in this country;
18.3 Acknowledge, uphold and promote basic human rights, as embodied in the Constitution of South Africa.
18.4 Commit themselves therefore to do all within their power, in the exercising of their professional duties, to act in accordance with the ideals of their profession, as expressed in this Code and
18.5 Act in a proper and becoming way such that their behaviour does not bring the teaching profession into disrepute

19. Clause 3.6.; 3.9 and 3.10 of the Code of Professional Ethics under the heading, CONDUCT: The educator and the learner prescribes that an educator: refrains from improper physical contact with learners; refrains from any form of sexual harassment (physical or otherwise) of learners; and refrains from any form of sexual relationship with learners at a school.
20. In the circumstances and taking into account the above I make the following award.

AWARD

21. The Employee, Daniel Daryl Leandre Francois de Jager is found guilty of contravening Section 17 (1) (b) of the Employment of Educators Act, 76 of 1998 as amended that on or about the 26th of April 2024 during a lesson at Cape Recife Special School, he inappropriately touched and squeezed a learner, NP, on her right side, slid a cane up her right leg and hit her on the buttocks with it. Also, on or about the 25th of April at Cape Recife Special School he touched a grade 11 learner, CW in an uncomfortable manner in that he stood behind her and put his arms around her. He caressed her neck and kissed her head and her forehead.
22. The Employee, Daniel Daryl Leandre Francois de Jager is therefore dismissed on the charges as reflected in paragraph 21 with immediate effect from the Department of Education: Eastern Cape.
23. I find that the educator, Daniel Daryl Leandre Francois de Jager as provided for in terms of Section 120 of the Children’s Act, Act 38 of 2005 as amended, as a consequence of the transgressions referred to in paragraph 21 above, is unsuitable to work with children.
24. I further find that the educator, Daniel Daryl Leandre Francois de Jager, as a consequence of the transgressions referred to in paragraph 21 above, is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000.
25. In terms of Section 122 of the Children’s Act, Act 38 of 2005, as amended, the General Secretary of the ELRC shall send a copy of this award to the Director-General of the Department of Social Development.
26. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.

Name: Jonathan Gruss
(ELRC) Arbitrator
ELRC Panellist