THE DISCIPLINARY HEARING BETWEEN

NORTHERN CAPE DEPARTMENT OF EDUCATION EMPLOYER

and

MR THEMBA MTSHAWU EMPLOYEE

Case No: ELRC179-19/20NC
Dates: 05 September & 20 November 2020, 28 & 29 June 2021
Venue: Colesberg Magistrates Court

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is the award in the disciplinary matter (Inquiry-By-Arbitrator) Northern Cape Department of Education (the employer) and Mr Themba Mtshawu the employee.

2. The Inquiry-By-Arbitrator (the Inquiry) took place on 05 September & 20 November 2020, 28 and 29 June 2021 at the Colesberg Magistrates Court. Both parties attended the Inquiry. The employer was represented by Mr Ferdinand Bitterbosch, its Labour Relations Assistant Director. The employee, Mr Themba Mtshawu was represented by a fellow colleague, Mr Mzimasi Ngcuka.

3. The Inquiry was held under the auspices of the Education Labour Relations Council (the Council) in accordance with section 188A of the Labour Relations Act (the LRA), read together with Clause 32 of the Council’s Dispute Resolution Procedure as well as the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued in terms of section 138(7) of the LRA.

4. The proceedings were digitally recorded. Mr Brian Banga was the interpreter and Ms Vuyokazi Tyebela the intermediary. Both were appointed by the Council. The parties requested at the end of the Inquiry to submit their closing arguments in writing by 07 July 2021, where after the award shall then follow. I have also requested the parties to address me on whether the employee “is unsuitable to work with children” in their closing arguments.

PRELIMINARY ISSUES

5. At the commencement of the Inquiry on 20 November 2020, the parties raised a few issues which we did resolve. Of importance was the issue pertaining to an amendment of the charge sheet by the respondent, to include the word ‘statutory’ before the word ‘rape’ in the charge sheet. The employee did not object to the request and I granted it.

6. The other important issue which was raised on 20 November 2020 related to the absence of the employer’s key witness (the learner, whose name I shall not reveal in this award due to the fact that she is the alleged victim in this case and was 14 years old at the time of the alleged incident in March 2018). The employer submitted that the learner is no longer interested to testify in this Inquiry and that I should issue a subpoenae in accordance with section 142 of the LRA to force the learner to avail herself to this Inquiry.

7. The employee submitted that it would be unfair to proceed with the Inquiry in the absence of the learner and requested that the Inquiry be postponed to in order to have a fair process in the presence of the learner. The employer opposed the request for a postponement and submitted that the Inquiry may still proceed in the absence of the learner based on the presence of the employee as well as the presence of the social worker who will testify in its case.

8. I made an ex tempore ruling in which I held that the matter be adjourned until 08 and 09 February 2021 through a virtual hearing. The matter could unfortunately not proceed on those days and the parties agreed to have it postponed to 28 and 29 June 2021 at the Magistrates Court again.

9. On 28 June 2021, the employer indicated again that the learner is not available and nowhere to be found. It submitted that a subpoenae was issued and served on the learner to appear on 08 and 09 February only and that no new subpoenaes were arranged afterwards. The employer indicated that it is ready to proceed with the matter.

10. The employee objected to the proposal of the employer and stated that it wants to exercise its right to cross-examine the learner. It submitted that it will not accept the affidavit of the learner. I made an ex tempore ruling in which I ordered that the Inquiry shall proceed and that we shall deal with the issue of the learner’s affidavit as a trial-within-a-trial.

ISSUE TO BE DECIDED

11. I am called upon to decide whether the employee committed misconduct as per the allegations levelled against him. If I find that he did commit the misconduct, I must decide on an appropriate sanction.

BACKGROUND TO THE DISPUTE

12. It is common cause that the employee is employed by the employer as an Educator in Mathematics and Science since 2018 at Monwabisi High School in De Aar to date. The employee was notified of the allegations on 23 May 2019, and he was placed on suspension since the notification of the allegations. He is on suspension with full pay.

13. The allegations levelled against the employee are as follows:

Count 1
On or about 16 March 2018 at or near De Aar you committed an act of misconduct in terms of section 18(1)(dd) of the Employment of Educators Act 76 of 1998 in that you, inter alia, committed a statutory offence in that you allegedly statutory raped (the learner) while she was a learner at St Johns Primary School and in grade 7 at the time of the alleged incident, while you knew or ought to have known that you were not allowed to do so.

Count 2
On or about 16 March 2018 at or near De Aar you committed an act of misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998 in that you, inter alia, committed misconduct in that you contravened this Act or any other statute, regulation (more specifically the South African Council for Educators (SACE) – Code of Professional Ethics as amended (Clause 3 (3.10)) in that you didn’t refrain from having a sexual relationship with (the learner) who was a learner at St Johns Primary School and in grade 7 at the time of the alleged incident, while you knew or ought to have known that you were not allowed to do so. [sic]

Alternative Count 2 (Count 2)
On or about 16 March 2018 at or near De Aar you committed an act of misconduct in terms of section 18(1)(g) of the Employment of Educators Act 76 of 1998 in that you, inter alia, committed misconduct in that you misused your position in the Department of Basic Education in that you prejudiced the interest of (the learner) by having a sexual relationship with her while she was a learner at St Johns Primary School and in grade 7 at the time of the alleged incident, while you knew or ought to have known that you were not allowed to do so.

14. The employee pleaded not guilty to all the charges. The employee was properly served with a notice to appear at the Inquiry and was provided with sufficient time to prepare for the case. His rights and obligations were also properly explained to him on 28 June 2021.

15. For purposes of this award, the name of the learner shall be kept confidential. The learner was 14 years at the time when the alleged incident took place. The alleged incident took place at the private residence of the employee. He denied having had any sexual intercourse with the learner and even having been with the learner on 16 March 2018. The learner apparently reported the incident to her late mother who in turn reported it to the police.

SURVEY OF EVIDENCE AND ARGUMENT

16. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.

Documentary Evidence

17. The parties handed-in the following bundles of evidence:
Employer : Bundles A & B
Employee : Bundles R & R1

Employer’s Case

18. Mrs Lucy Boks “Mrs Boks”, a Social Worker of the employer based at the Pixley-Ka-Seme District Office of the employer in De Aar, was sworn in and she testified as the first witness in the employer’s case. Her evidence revolved around her engagements with the learner in preparation for this Inquiry. Mrs Boks testified that she met the learner for the first time in early November 2020, when she took over the matter from her colleague.

19. Mrs Boks testified that the learner was always willing to testify at this Inquiry and had no problem in doing so. She stated that she also had contact with the learner in February 2021. Mrs Boks testified that the learner became a mother in-between February and June 2021 which caused the learner to retract her cooperation from this matter. She stated that she served the subpoenae on the learner’s sister and the learner is nowhere to be found. Mrs Boks stated that she communicated with the learner through whatsapp who told her that she no longer wishes to continue with the case and only wants to focus on her schoolwork and new-born child.

20. No questions were asked in cross-examination. Mrs Boks stated under re-examination that the learner is no longer attending school and was 17 years old at the time of this arbitration hearing.

21. Mr Bennie Pietersen, the Principal of St Johns Primary School, was sworn in and he testified as the second witness in the employer’s case. He referred to a letter of his dated 15 July 2019 to the employer in which he confirmed that the learner was a learner at his school in 2018 and that the learner was at school on the day of the alleged incident (16 March 2018).

22. The principal of the learner testified that he remembers a day when the learner and her late mother together with another lady came to his office and requested permission that the learner should be excused for a few days from the school. He stated that the mother told him that they will provide an explanation to him after a couple of days. The principal stated that he consented to this request even though the parents never came back to him.

23. The principal stated that he regrets for not having made a follow-up with the parents. He stated that the learner did return to school after a few days but never told him what happened. The principal stated that he never knew about the alleged statutory rape until he was served with a subpoenae.

24. In cross-examination, the principal stood by his testimony and added that the employer’s representative visited him shortly thereafter and informed him about the case. He stated that neither the learner’s parents nor her class teacher gave him any details about the allegations.

25. Mr Lebogang Serathi, a Detective Sergeant (the Detective) at the South African Police Service (SAPS) who is based at the Family Violence, Child Protection and Sexual Offences (FCS) Unit, was sworn in and he testified as the third witness in the employer’s case. He referred to a photo album of the crime scene and stated that he was present when the pictures in the album were taken.

26. The Detective testified that the learner was with them (he and the photographer) when the pictures were taken inside the private residence of the employee and that the learner pointed out the bed in the employee’s bedroom where the alleged sexual intercourse between herself and the employee took place.

27. The Detective testified that there is a reasonable ground that a crime of statutory rape was committed by the employee when he had sexual intercourse with the learner.

28. In cross-examination, the employee’s representative questioned the Detective on the affidavit of the learner and referred to the affidavit which he did not want to be admitted as evidence. The Detective responded to the questions and stated that although the learner stated in her affidavit that the incident took place in the employee’s black VW Polo (the car), the employee manipulated the learner to tell a lie in her affidavit for fear that the landlord of his residence might evict him when he (the landlord) can hear that a crime was committed in his house.

29. The Detective testified that the car of the employee was seized as an exhibit because of the fact that it was a movable crime scene. He testified that upon his return to the learner, the learner told him that the employee said to her that she must not divulge anything about their relationship and sexual intercourses because he (the employee) might end up losing his job.

30. The Detective testified that it was the employee who gave him his residential address and had reasonable grounds to arrest the employee (which he did) because the DNA result of their laboratory confirmed that the employee had intercourse with the learner. He stated that he did not oppose the employee’s bail application after the arrest because the sex was consensual. The Detective stated that the learner’s mother reported the incident to him.

31. Mrs Rebecca Kimberley Francis-Pope, a Warrant Officer and Forensic Analyst at SAPS’ Forensic Laboratory in Cape Town, was sworn in and she testified as the fourth witness in the employer’s case. I will refer to her as the Forensic Analyst. She gave a brief overview of her credentials and that her duties involve doing comparisons between crime scene samples and reference samples.

32. The Forensic Analyst testified that she compared the swab taken from the employee during the time of the investigation with semen found on the panty and vulca (some other biological word for a vagina) of the learner and the result is that the two are a match.

33. In cross-examination, the employee’s representative questioned the Forensic Analyst on how it is possible that the medical doctor who investigated the learner reported in his J88 report that there were no signs of force or sexual assault. She answered that she is not a doctor but a forensic analyst and cannot comment on the J88 which was completed by a doctor.

34. In closing arguments, the employer’s representative submitted that the witnesses of the employer, especially the Detective and the Forensic Analyst corroborated each other that the employee did commit an act of statutory rape. He stated that the employee argued that he (the employee) did not sexually assault the learner as per the doctor’s J88. The representative submitted that the employee misconstrued the Inquiry in that he is not charged for sexual assault but statutory rape.

35. The representative submitted that the employee did not call the doctor or his girlfriend to corroborate his version. He submitted that the employee is guilty as charged and that he be found guilty on all the charges.

Employee’s Case

36. Mr Themba Mtshawu, the employee, was sworn in and he testified as the only witness in his case. He testified that he knows that sexual intercourse with learners is prohibited. The employee stated that he did not have a good relationship with his employer (especially the circuit manager) and that some of his peers even wanted him out of the school because they believe that he (the employee) took someone else’s position at the school.

37. The employee testified that efforts to get rid of him from the school were always seen and that another learner once made a false allegation of pregnancy against him. He stated that he was acquitted of the charge at a previous disciplinary hearing because the learner involved wrote a letter to the respondent and stated that the allegations were untrue.

38. The employee confirmed that the learner in this case is known to him and is befriended to his cousin. He confirmed that the pictures in the photo album were taken at his residence and that he was at work on 18 May 2018 when the criminal investigation was done. The employee submitted that he knocked-off at 14:30 on the day of the investigation and that the pictures were taken in his absence, followed by his arrest the following day.

39. The employee stated that the police and the learner’s mother were rude towards him. He stated that he was stopped in his vehicle the following day at 11:00 am and asked to follow them to the police station where they arrested him. The employee stated that his car was confiscated by the police. He stated that he was suspended by the employer, one year after the alleged incident took place. The employee stated that he also finds it strange that the employer decided to suspend him for this case, two days after he was acquitted at the previous disciplinary hearing.

40. In cross-examination, the employee conceded his knowledge of the rules and that the respondent is consistent in its application of discipline at the workplace. He denied having a relationship with the learner and stated that the Detective is wrong in not wanting to withdraw the criminal matter at the court. The employee submitted that the criminal matter is still sub judicae.

41. The employee confirmed that his swab was taken by the police at the time of his arrest for DNA tests. He confirmed that the SACE’s Professional Ethics Code binds him but denied having had intercourse with the learner as alleged in the charge sheet. He agreed that the respondent appointed him as a permanent educator shortly after the incident but still believes that there was a witch hunt against him.

42. The employee submitted that the learner in his previous disciplinary case did not testify in that case and that he was with his girlfriend the night before the alleged incident of this case. He stated that his girlfriend will not testify in this case and wants to know why the affidavit of the late mother of the learner is not presented in this hearing.

43. In closing arguments, the employee’s representative submitted that the employer has never on its own investigated the matter and that the employee is charged based on the criminal investigation which has taken place. He submitted that the suspension of the employee was also strange and unwarranted based on the delays involved.

44. The representative submitted that the employee would have liked to cross-examine the learner and that the employer did not put in much effort, if any, to secure the presence of the learner at the Inquiry. He submitted that the J88 is a legal document and that the doctor did not detect any penetration on the side of the learner a few hours after the alleged incident took place.

45. The representative submitted that it is also strange that the crime scene according to the Detective has changed from the car to the employee’s residence without an affidavit accompanying same. He stated that the police might have concocted the evidence against the employee by using used condoms of the employee found in his car to fabricate the DNA evidence. The representative submitted that the charges against the employee remain unsubstantiated and that the employee must be vindicated.

ANALYSIS OF EVIDENCE AND ARGUMENT

46. As stated previously, the employee pleaded not guilty to the charges levelled against him. The employer called four witnesses whose testimonies did not contradict one another. The testimonies of the Detective and the Forensic Analyst all pointed to one notion which is that the employee could have probably had intercourse with the learner on 16 March 2018. Their evidence is substantiated by DNA evidence and circumstantial evidence. I find the witnesses of the employer credible and reliable.

47. The employee was the only witness in his case and did not call or subpoenae the doctor and/or his ex-girlfriend to corroborate his version. He denied having had intercourse with the learner despite the presence of his semen which was found inside the vulca of the learner and on her panty as well. The evidence of the employee can therefore not be regarded as reliable on this basis.

48. I need to stress at this point that during the course of the arbitration, it appeared from time to time that the parties wanted to cause an overlap of this labour procedure with the procedure currently pending at the criminal court on the same merits. It is important to note that these are two separate processes with two different standards of proof. Whereas the criminal procedure requires that the state as complainant must prove its case beyond a reasonable doubt, the employer in this labour dispute is expected to prove its case on a preponderance of probabilities.

49. As a result of these differences in the standards of the two separate processes, it is important for the parties to note that the outcomes of the two processes might not be the same, based on the different standards of proof applicable to each of the separate processes. As for this labour process (the Inquiry), the standard of proof is lower than that of the criminal court. I might find myself in trouble with our labour jurisprudence should I arbitrate this Inquiry using a standard not applicable to it.

50. The Court in Combined Transport Services (Pty) Ltd v Buhle Zamokwakhe Miya and others reaffirmed the applicability of the “balance of probabilities” test in employment law disputes, when it held that a proper assessment of evidence requires the attachment of more weight on the evidence that is consistent and / or more credible. Further that the test herein is “balance probability”, dictating that a more probable version should be accepted, as opposed to a “beyond reasonable doubt” test, which is the test applicable to criminal cases.

51. In dealing with the issues of this case, the employer alleges that the employee has had sexual intercourse on or about 16 March 2018 with the learner, an act which is strictly prohibited by law and the professional code of the employee. The employee did not deny his knowledge of the rules applicable to the allegations levelled against him. In fact, he confirmed knowing it during his examination-in-chief. I am therefore satisfied that the employee knew and was aware of the rules of the employer at the time when the alleged misconduct took place.

52. Then there is the issue of the learner who did not testify at the Inquiry. The employee at first opposed the admissibility of the learner’s affidavit into evidence, stating that it will amount to hearsay evidence if the learner is not testifying herself at the Inquiry. However, the employee introduced the very same affidavit of the learner during the cross-examination of the Detective. His representative drew the Detective’s attention to certain parts of the learner’s affidavit, which in essence opened the door for the affidavit to be admitted as evidence in this Inquiry.

53. In Swiss South Africa (Pty) Ltd v Louw NO and others the Court held that depending on the circumstances of each particular case hearsay evidence may accordingly be admitted to the proceedings before the CCMA. Commissioners are nonetheless required to deal with the disputes with the minimum of legal formalities and with some flexibility as provided for in section 138 of the LRA.

54. The Detective in my view gave direct evidence about his engagements with the learner during his investigation, as questioned by the employee. This is sufficient acceptance to admit the affidavit of the learner as evidence in this Inquiry.

55. In NUM and others v CCMA and others the Court held that by admitting the hearsay evidence of one of the Respondent’s witnesses concerning what he had been told by another individual, the Commissioner had properly applied the provisions of the Law of Evidence Amendment Act 45 of 1998. There was, accordingly, no basis on which the Commissioner’s assessment of the evidence could be faulted.

56. The employee questioned the Detective on why the Detective indicates in his testimony that the crime scene is the employee’s house and not the car as indicated by the learner in her affidavit. The Detective answered that the employee is having a reputation of manipulating learners to change their versions in order to suit his circumstances as an employee. The learner indicated in her affidavit that the employee cautioned her not to disclose the details of the relationship as well as the venue (the house) where the sexual intercourse took place because he (the employee) might be in trouble with his landlord should the landlord find out that his house was an instrument in the commission of a crime.

57. The employee did not challenge the accuracy of what the learner stated in her affidavit but was more concerned about the shift of the crime scene from the car to the house. In his closing arguments, the employee’s representative stated that a sexual intercourse did take place in the employee’s car, but between the employee and his ex-girlfriend and not with the learner and that the police used the condoms found in the car to fabricate a case against the employee. The question is, why then is the employee’s semen found on the vulca and panty of the learner if the employee had intercourse with his ex-girlfriend in the car and not with the learner.

58. What is key here is not necessarily the venue or exact crime scene of the incident (the car or the house) but the mere fact that the prohibited act (statutory rape) has actually taken place. It is common cause that the employee’s swab was taken, and it matched the samples taken from the learner as testified by the Forensic Analyst and it was found to be a match. The employee has not given any justification on why his semen was found in the vulca and panty of the learner. A mere denial of the sexual intercourse can never serve as a justification for the act, especially where the accuracy of the DNA tests was not disproved by the employee or any other person.

59. The employee placed much reliance on the J88 report of the medical doctor, which was in any event not corroborated by a testimony of the doctor himself, to show his ‘innocence’ in this case. Be that as it may, the J88 report, in any event, makes a finding on whether sexual assault has indeed taken place or not. This case, as correctly elucidated by the employer, is not about rape or sexual assault, but about statutory rape, which the employee in any event claimed to understand. The J88 report does not assist the case of the employee in this regard.

60. This also goes for the manner in how the employee’s mother treated the employee at the time of the arrest and the prolonged suspension, and the timing thereof as raised by the employee. The employee was at liberty to challenge the conduct of the mother and the employer at other platforms and those ancillary incidents does not mean that the incident of statutory rape by the employee to the learner has not taken place.

61. Having considered the substantive testimonies of the Detective and the Forensic Analyst, coupled with the DNA report and the affidavit of the learner, I am of the view that on a balance of probabilities, the employee has committed an act of statutory rape, whether it was in the car or in the house.

62. Section 18(1)(dd) of the Employment of Educators Act (the EEA) provides the following:

Misconduct
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits
misconduct if he or she –
……………
(dd) commits a common law or statutory offence

63. It is trite law that statutory rape is a statutory offence, which is also known to the employee. The employee is on record that his relationship with the employer has broken down following a difference he had with the employer’s circuit manager and his colleagues at the school. In coming back to Charge 1, it is my finding that the employee is guilty of having contravened section 18(1)(dd) of the EEA and has misconducted himself in this regard.

64. Section 18(1)(a) of the EEA provides the following:
Misconduct
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits
misconduct if he or she –
(a) fails to comply with or contravenes this Act or any other statute, regulation or legal obligation
relating to education and the employment relationship;
65. It goes without saying that the employee stands in loco parentis with the learners of the employer, irrespective of the school at which the learner is based. The employee clearly had a legal obligation to safeguard the interest of the learner, and not to exploit her. The statutory rape which he has committed makes him guilty of Charge 2 and as he failed to comply with section 18(1)(a) of the EEA, which amounts to a misconduct.
66. Clause 3.10 of the SACE Code of Professional Ethics provides the following:

CONDUCT: The educator and the learner
3. An educator:
3.10 uses appropriate language and behaviour in his or her interaction with learners, and acts in such a
way as to elicit respect from the learners

67. It is clear from this provision of the employee’s Professional Ethics Code that a peremptory duty is placed upon him to ‘use appropriate behaviour in his interaction with the learner’. The statutory rape which he committed simply did not show adherence to this professional duty which he has. It is my finding that the employee is also guilty of the Alternative to Charge 2 as well which amounts to a misconduct on his part.
Verdict

68. In the final analysis, the employee is guilty as charged by the employer for statutory rape committed against the learner who was 14 years on or about 16 March 2018 at De Aar.

SANCTION

69. The parties have submitted closing arguments in writing to this Council, which I have duly considered. I do not deem it necessary to allow further mitigating and aggravating circumstances based on the prescripts of the law. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the EEA’s provisions dealing with incapacity, misconduct and appeals, provides the following:

Substitution of section 17 of Act 76 of 1998
10. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 17 of the
following section:
“Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of—
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner. student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or
other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e). (2) If it is alleged that an educator committed a serious misconduct I contemplated in subsection
(1), the employer must institute disciplinary proceedings in accordance with the disciplinary code
and procedures 35 provided for in Schedule 2.”

70. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having a sexual relationship with the learner in accordance with section 10 of the ELAA. A dismissal therefore automatically follows a guilty finding. If put differently, one may also say that the employee is dismissed by operation of law after being found guilty of having had a sexual relationship with the learner, who in this case, was a learner in 2018 as testified by her principal.
71. It follows that based on the provisions of the law (the ELAA) a dismissal is mandatory and the appropriate sanction which can be handed down on the employee. No mitigating or aggravating circumstances can overrule this provision of the law.

72. The employee is therefore dismissed with immediate effect.

73. Further to that effect, I was also asked by the employer during the course of the arbitration to make a finding that the former employee (hereinafter Mr Mtshawu) is unfit to work with children. Mr Mtshawu addressed me on this factor in paragraph 8 of his closing arguments and stated that he is aware of the consequences which might flow from a guilty finding in any of the two forums (this Inquiry and the criminal case).

74. Be that as it may, this is what sections 120 and 121 of the Children’s Act (the CA) has to say:

120 Finding persons unsuitable to work with children
(1) A finding that a person is unsuitable to work with children may be made by-
(a) a children’s court
(b) any other court in any criminal or civil proceedings in which that person is involved; or
(c) any forum established or recognised by law in any disciplinary proceedings concerning
the conduct of that person relating to a child.
(2) A finding in terms of subsection (1) may be made by a court or a forum contemplated in
subsection (1) of its own volition or on application by-
(a) an organ of state involved in the implementation of this Act;
(b) a prosecutor, if the finding is sought in criminal proceedings; or
(c) a person having a sufficient interest in the protection of children.
(3) Evidence as to whether the person is unsuitable to work with children may be heard by the court
or forum either in the course of or at the end of its proceedings.

75. The employer has addressed me during the course of this Inquiry about Mr Mtshawu’s perceived unsuitability to work with children. Mr Mtshawu addressed me in paragraph 8 of his closing arguments in relation to this factor. I am satisfied that this Inquiry is in compliance with subsection 120(3) of the CA.

76. It goes without saying that this Inquiry is recognised by the law (section 188A of the LRA) and is therefore permitted to make a finding in accordance with section 120(1)(c) of the CA. Even if the employer which also happens to be an organ of state did not bring an application to make a finding on the unsuitability of Mr Msthawu, I am still empowered by section 120(2) of the CA to make such a finding on own volition.

77. Having considered the fact that this is the second disciplinary hearing where Mr Mtshawu had to give account to allegations that he had sexual relations with learners who happened to be children, I find it hard not to conclude that Mr Mtshawu seems to be having difficulties in behaving himself around children. This follows my guilty finding in this case.

78. Based on the evidence and findings that I have made in this case; I deem it to be in the best interest of children that Mr Mtshawu should not be allowed to work with children again. It is my finding that Mr Themba Msthawu is unsuitable to work with children. Mr Mtshawu’s right in accordance with subsection 121(b) of the CA is reserved. I shall also make an order in relation to section 122 of the CA.

79. In the premise, I make the following award:

AWARD

80. Mr Themba Mtshawu is found guilty of three charges levelled against him by the Northern Cape Department of Education.

81. The mandatory sanction of dismissal is imposed with immediate effect on Mr Themba Mtshawu.

82. Mr Themba Mtshawu is found unsuitable to work with children in accordance with section 120(4) of the Children’s Act 38 of 2005.

83. The General Secretary of the Education Labour Relations Council must, in terms of section 122(1) of the Children’s Act, notify the Director General of the Department of Social Development in writing of the findings of this forum made in terms of section 120 of the Children’s Act 38 of 2005, that Mr Themba Mtshawu is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.

This is done and dated on 20 July 2021 at Warrenton.

Adv. David Pietersen
ELRC ARBITRATOR