In the ARBITRATION between:

SADTU OBO MASISI & 3 OTHERS

(Union / Applicant)

and

DEPARTMENT OF EDUCATION FREE STATE

(Respondent)

Union/Applicant’s representative: Mr M Tsimile _________________________________________

Telephone: 051 430 1405_________________________________________

Telefax: 051 430 1257_________________________________________

Respondent’s representative: Mr T. Tsunke ________________________________________

Telephone: 051 404 4387_________________________________________

Telefax: 051 404 4388________________________________________

DETAILS OF HEARING AND REPRESENTATION:

[1]. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the

“ELRC”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on the 6th of December 2010 and continued on the 9th and was finalized on the 10th of December 2010. The matter was heard at the Education Resource Centre, in Welkom.

[2]. Mr DM Masisi, Modisaphudi, Mofokeng and Ntebele, the Applicants (hereinafter referred to as “Masisi”, “Modisaphudi”, “Mofokeng”, and “Ntebele”), were present and was represented by Mr M Tsimile, from SADTU, whilst Mr T Tsunke, from the Labour Relations Division, represented the Respondent, the Department of Education in the Free State.

[3]. On the 6th of December 2010, Mr Modisaphudi was not in attendance, Mr Tsimile tendered an apology and informed me that he fell ill but that he would be present on the next day of the hearing, being the 9th of December 2010. On this 6th day of December 2010 the Applicant made a request to visit the school premises where the incident allegedly occurred and an inspection in loco was accordingly conducted. The matter was thereafter adjourned to the 9th and 10th of December 2010.

[4]. In accordance with Section 28(2) of the Constitution, every child’s bests interests are of paramount importance in every matter concerning the child. Section 28(3) refers to a child as a person under the age of 18 years. In this regard reference in this award to a minor will be made by initials only. During the arbitration the provisions of the Criminal Procedures Act, where adhered to and the attention of the parties, as well as that of the parents or guardian of the minor, was drawn to these provisions. Although no application was made in terms of these provisions, the parties agreed that the Applicants would observe the testimony of all minors who testified during these proceedings, from a room next to where the arbitration took place. From this room the Applicants could observe and hear the testimonies of these minors. The minors could nevertheless not see nor hear the Applicants. Sufficient time was afforded to the Applicants to consult with their representative prior to commencement of cross-examination and just before cross-examination was concluded.

ISSUE TO BE DECIDED:

[5]. Whether the dismissal of the Applicants was substantively fair. In the event that I find in the negative, I must decide upon an appropriate remedy.

BACKGROUND:

[6]. Mr Masisi commenced his employment with the Respondent on the 1st April 1999 and at the time of dismissal, was employed as an Educator Post Level 1, earning a basic salary of R130 000-00 per annum.

[7]. Mr Modisaphudi commenced his employ with the Respondent during 2003, and at the time of dismissal was employed as an Educator Post Level 1, earning a basic salary of R114 000-00 per annum.

[8]. Mr Mofokeng commenced his employ with the Respondent on the 26th of August 2006 and was

employed as an Educator Post Level 1 at the time of dismissal, earning a package of R109 000-00 per annum.

[9]. Mr Nthebele commenced his employ with the Respondent during January 1993 and was employed as

an educator Post Level 1 at the time of dismissal, earning a package of R157 000-00 per annum.

[10]. On the 2nd of December 2009 the Respondent issued a notice to each of the Applicants inviting them to a attend a disciplinary hearing. The charge/s were (for purposes of this award I will only record the main charge, which was also the charge that the Applicants were found guilty of, further as already alluded to in par. 4 of this award, supra, all names of minors, whether contained in the notice or not, will be replaced with the initials of that learner):

Mr Ntebele:

“You have contravened Section 17(1)(d) of the Employment of Educators Act, Act 76 of 1998, seriously assaulting, with the intention to cause grievous bodily harm, to a learner, student or other employee in that on 1 September 2009 you tripped and kicked a learner named “Learner ST” several times on the head.

Mr Masisi:

“You have contravened Section 17(1)(d) of the Employment of Educators Act, Act 76 of 1998, seriously assaulting, with the intention to cause grievous bodily harm, to a learner, student or other employee in that on 1 September 2009 you hit with open hands and kicked a learner named “Learner ST” on the body.

Mr Modisapodi:

“You have contravened Section 17(1)(d) of the Employment of Educators Act, Act 76 of 1998, seriously assaulting, with the intention to cause grievous bodily harm, to a learner, student or other employee in that on 1 September 2009 you beat “Learner ST” with open hands and fists on his head and body.

Mr Mofokeng:

“You have contravened Section 17(1)(d) of the Employment of Educators Act, Act 76 of 1998, seriously assaulting, with the intention to cause grievous bodily harm, to a learner, student or other employee in that on 1 September 2009 you restrained a learner named “Learner ST” so that Mr Modisapodi could hit him with fists at the chest and body.

[11]. A disciplinary hearing was convened and as a result, the Applicants were found guilty on the main charge (as per the respective notices) and the sanction of dismissal was recommended. The dismissal came into effect on the 27th of August 2010. The parties agreed that procedure was not in dispute.

SURVEY OF EVIDENCE AND ARGUMENT:

[12]. I do not intend to deal with every aspect of the evidence and or argument of each party but will only

record the part of the evidence and argument that I deem necessary for purposes of this determination.

[13]. With the indulgence from all the parties, Ms Betty Morgan was asked to take an affirmation and to assist with linguistic services as and when required during the process.

Respondent’s version:

[14]. The Respondent’s evidence was presented via the oral evidence of 6 (six) witnesses:-

[15]. Mr Mokhaleli Zachaie Marumo (Co-Educator at Ithabeleng Secondary School) testified that:-

[16]. The Applicants are known to him as they were colleagues of his. On the 1st of September 2009, whilst in the presence of three of the Applicants, they learned that two school boys had stolen the legs of some of the tables. He witnesses as both boys were interrogated by his colleagues.

[17]. At this time they treated the incident as a joke, and they asked the boys whether they want the Police to be called in order to deal with their actions, which could probably lead to their arrested. They were clearly afraid of such suggestion, and when they put them before the choice of either calling the Police or taking a hiding, the boys chose the latter.

[18]. The four of them, Modisaphudi, Mofokeng, Ntebele and Marumo took a stick and took turns beating the two boys. He thereafter left and went back to his office.

[19]. One of the boys was “Learner ST” and the other was a learner known only as “Learner T” (the full name and surname could not be recorded).

[20]. Under cross-examination he explained that Mr Masisi was not there, although he changed his version in this regard, explaining that it happened some time back.

[21]. “Learner ST” (The complainant) testified that :-

[22]. On the 1st of September 2009, whilst at school, they were called by some teachers and accused of having stolen some iron. They went to the staff room, and received a beating from Mr Masisi, Mr Maromu, Mr Mofokeng and one other Educator who he could not recall the identity of.

[23]. These Educators were using a stick to beat them. The other learner was “Learner PT”. They then went back to the classroom. The Educator in that class asked him where he was, and when he told her that he had received a hiding from the some other Educators, the whole class was laughing at him. This led him to be embarrassed and he reacted by swearing at one of the Educators, by the nickname Fish (Mr Ntebele). Some of the learners reported his uttering to the said Educators.

[24]. Some of the Educators who had given him a hiding earlier on then came to fetch him from the class room and took him back to the staff room. Modisaphudi instructed him to sit on the chair and thereafter ordered him to stand up, he lifted him up and started beating him with his fist.

[25]. Ntebele, also known as Fish, asked him why he was swearing at him, and he explained that his scolding was directed at another Fish. He started hitting him with his fist and clapped him. As he fell down, Ntebele kicked him in the stomach, on his private parts, and on his head.

[26]. Mr Masisi then entered the room and also started beating him with his fist in his face. He fell down again and Masisi continued by kicking him on the right thigh and again on his private parts. Mr Mofokeng took his hands and put them behind his back whilst Modisaphudi asked him whether he had rights. He replied that he does have the right not to be beaten with hands but rather with a stick. He then said chest out and started beating him with his fists on his chest.

[27]. As he fell down again they all surrounded him and kicked him. When the kicking stopped, Masisi tried to pick him up and he managed to get up and ran out of the door. Before this incident occurred, he had no specific relationship with these teachers, and there is no specific relationship between them currently.

[28]. Subsequently he reported the matter to the South African Police Service. He was asked to return with his parent or guardian since he was a minor. He then also told his grandmother what had happened.

[29]. It was for the first time that he was assaulted like that. The next day he approached the clinic for medical attention, and the sister who attended to him was one, Nompumelelo Ramatwele.

[30]. Under cross-examination he explained that since he experienced the consequences of a lie, he had stopped telling lies. He conceded that he might have forgotten certain parts of his earlier statement but argued that his memory might be failing him since he had to focus on his school work.

[31]. With reference to the door of the staff room he explained that the door was closed but not locked, and since he did not know what the educators’ intentions were, he did not think of trying to escape. Once he realized what was happening, he was very confused and did not think of running away.

[32]. He contended that he sustained serious injuries, to his head, leg, private parts, his eyes were blue, and he was passing blood when urinating. When he was being beaten there were 4 (four) educators but then two others joined in and they all kicked him. His eyes were however swollen at this stage and he could not see their faces clearly.

[33]. He explained that when he was beaten with a stick that Mofokeng was not present. The two learners that went to report him was “Learner MM” and “Learner MB”.

[34]. After the beating he had difficulty walking. He also explained that his grandmother reported the matter to the Principal, and he did not report to any teacher as he did not know who to talk to.

[35]. Ms NT Ramatsoele (professional nurse who examined the learner) testified that:-

[36]. On the 2nd of September 2009 at approximately 15:00, and whilst working at the Albert Ntuli Clinic in Wesselsbron, the learner came to see her and he was in the company of his grandmother. According to him he was assaulted by Educators whilst in school the previous day.

[37]. From her observations when examining the learner in question, she is of the view that the injuries he complaint of was incurred as a result of a physical assault on him. The injuries may have been caused by either fists, shoes or an iron rod.

[38]. The examination revealed that he had a swollen inner right thigh, swollen testicles, and she was told by the learner that he was unable to pass urine and that his head and his eyes were itchy and complaint of being unable to bear down.

[39]. From what she was told and what she observed, she is of the view that he received several blows from blunt objects which was used to inflict the injuries.

[40]. As for her qualifications and experience, she explained that she had been a nurse since 2006, she is also qualified as a midwife, primary health care nurse and forensic nursing. She underwent her studies in forensic nursing with the University of the Free State.

[41]. Based on her observations she is of the opinion that these injuries could not have been self inflicted. Something must have happened, hence her conclusion that a blunt object was used to inflict these injuries. After approximately the learner returned and was still complaining that he could not urinate, she then referred him to Tsunang Hospital in Odendaalsrus for specialist treatment.

[42]. Under cross-examination she explained that she gave him panado’s for the pain and eye drops for his eyes. She explained that her examination of the learner, entailed a thorough observation and that is when she noticed the bruisers and injuries. When she touched on these parts of his body, the learner would complain of pain.

[43]. Sello James Mokhobane (The Principal) testified that:-

[44]. He was not at school on the 1st of September 2009 when the incident allegedly occurred. When the meeting was adjourned that he attended to, he was confronted by the grandmother to the learner, who reported to him that some teachers had assaulted her grandson.

[45]. On the 3rd of September 2009 when he was back at school he raised this issue in a meeting and asked whether anyone had any information on what allegedly happened. No one came forward and no one seemed to know anything. He thereafter reported the matter to the SMGD (School Managmenet and Government Developer).

[46]. On the 4th of September 2009 the SMGD reported to him that the matter had been taken up with the District Office, and the South African Police Service.

[47]. He evaluated the complaint and found that it was a section 17 transgression and therefore did not investigate the matter any further.

[48]. Learner PB (Learner at Ithabeleng Secondary School) testified that:-

[49]. On the 1st of September 2009, Mr Mofokeng instructed them to fetch Learner ST from his class room. Mofokeng however ended up fetching “Learner ST” himself and took him to the staff room. They waited outside for Learner ST but when he was not coming out for some time they went around the class and peeped through the back windows. They had to stand back a little bit or on the steps before they could peep inside.

[50]. They tried to look what was happening indie and he witnessed as Learner ST was being beaten by Mr Masisi. He was using both his hands to clap Learner ST against his head. Learner ST fell down. He then put another learner on his neck in order to see better.

[51]. “Learner LM” (a learner at Ithabeleng Secondary School) testified that:-

[52]. On the 1st of September 2009 they witnessed at Mr Fish (Ntebele) went to fetch Learner “ST” from his class before taking him to the staff room. They waited for him outside and later decided to peek through the window to see what was happening inside. Learner PB put him on his shoulders and he then saw at Mr Fish was standing by the door and Mr Masisi taking of his jacket. Mr Mosidapudi was holding Learner ST and he then continued to clap Learner ST. Learner ST was crying and was trying to run away but Masisi stopped him and continued to kick him in his private parts.

Applicant’s version:

[53]. Mahlomola Elias Ntebele (The Applicant) testified that:-

[54]. On the 1st of September 2009 between 1:30 to 2:00 he was in the staff room, and with him was Mr Mofokeng, Mosidaphudi and Modimola. Some of the Grade 8 learners came to report that Learner ST was swearing at him and he threatened to stab them. He requested these learners to go and fetch Learner ST from his class.

[55]. Upon his arrival he asked him why he was swearing at him. Learner ST confirmed that he was swearing at him in the presence of his class mates. He then asked the boys to go back to their class before asking Learner ST why he wanted to stab them.

[56]. Learner ST denied having a knife and when he tried to search him he ran away. Mr Mosidaphudi, who

was sitting near the door tried to stop him as he was running passed him. Learner ST slipped and fell

with his head against the cupboard.

[57]. He denied under cross-examination that he was angry with Learner ST, but conceded that they were meting out corporal punishment when they hit the learners with a stick earlier that day. With reference to the testimony of the nurse, he explained that Learner ST may have sustained those injuries after school, but he did not have them during school times. He was evasive when the question was put to him whether it was his evidence that Learner ST sustained the injuries he had when he fell against the cupboard.

[58]. Moroa Samual Mofokeng (The Applicant) testified that:-

[59]. On 1st of September 2009 some boys came to them in the staff room said informed them that Learner ST was passing some very vulgar words towards Mr Ntebele. They asked the boys to fetch learner ST. Upon his arrival they asked Learner ST why was he swearing at Ntebele, and why he said that he was going to stab the teachers. Fish (Ntebele) tried to search him but he turned around and tried to ran away. As he was passing Modisaphudi he tried to catch him and he fell and hit the cupboard. He got up and continued running.

[60]. In the staff room at that stage was he (Mofokeng), Ntebele Modimola and Modisaphudi. Mr Masisi arrived when boy was on way out of the door.

[61]. When asked the question why “Learner ST” would implicate all of them but not Mr Modimola who was also in the staff room when this alleged incident occurred, he explained that he might have formed his opinion as he reported the matter to the South African Police Service.

[62]. When the question was asked whether he informed his superiors of the incident when the rumors started to do the rounds, that he did not hear that he was involved. In another question he was asked the question what he did when the Principal addressed them all and asked what had happened on the 1st of September 2009. He replied that the Principal did not pose the question like that he was speaking to everybody in general and was saying that they should stop beating the children. He did not know who he was referring to.

[63]. With reference to the injuries sustained by Learner ST he testified that it was not his version that he could have sustained the injuries when he fell against the cupboard, and he could not explain what could have happened to “Learner ST”.

[64]. Mompati Simon Modisaphudi (The Applicant) testified that:-

[65]. On the 1st of September 2009 they were seated in the staff room, busy marking when “Learner ST” got into the staff room. He was summoned to the staff room since information reached their knowledge that he was swearing at Ntebele. He denied the allegation and when asked whether he could be searched for any sharp objects on him, he tried to escape Ntebele’s search. He tried to stop him as he was running for the door, and he slipped and fell against the cupboard. He nevertheless managed to got away.

[66]. In the staff room at that time, was he (Modisaphudi), Ntebele, Mofokeng, Dikana, and Modimola. Masisi entered and went to his cupboard when this interrogation was underway.

[67]. Daniel Mosola Masisi

[68]. On the 1st of September 2009 when he was about to enter the staff room, he met a group of boys on their way out. He approached his cupboard, when he heard a noise. He then saw as Mr Ntebele asked Learner ST if he had a knife with him and he got up to search him. The learner tried to ran away and Modisaphudi tried to stop him. He nevertheless managed to get out.

[69]. The teachers that were sitting in the staff room at that stage was Ntebele, Modisaphudi, Mofokeng Modimola and Dikana.

[70]. When asked the question why his name would feature in the complaint of the learner if he had just entered the room as he alleged, and he replied that maybe because the learner just saw him as he got in the room. He could not explain why Modimola’s name was not mentioned.

[71]. He could not explain why these 14 year old boys would go to the extent of opening criminal cases and pursue the matter to the level they have, if there was no reason or logical explanation for them to do so.

Dikana Thwane Willaim (Educator at Ithabeleng Secondary School) testified that:-

[73]. On the 1st of September 2009, he was at school but he did not witness any assault on that day. Two or three or more learners came to report that one learner swore at Mr Ntebele. The learners were requested to go and fetch the learner. As they left the room, Ntebele asked the learner why he had insulted him and he wanted to search him. The learner did not want to be searched and tried to run away. Mr Modisaphudi was trying to stop him and he fell where after he ran out.

[74]. Mr Masisi was at his cupboard, when this incident took place.

ANALYSIS OF EVIDENCE AND ARGUMENT:

[75]. I have to determine, on a balance of probabilities, whether the Respondent dismissed the Applicants fairly.

[76]. The Applicants’ defense against the allegations amounts to nothing more than a bare denial. According to them the version of the Respondent was riddled with inconsistencies, but could offer no explanation why all these witnesses, three of whom were minors and learners at the same school where they had thought school, had implicated them specifically.

[77]. The Respondent on the other hand submitted that the Educators had no hesitation in instituting corporal punishment on learners and in this instance let the situation went too far. In support of their argument they led the evidence of a professional nurse who confirmed that she examined the learner on the 2nd of September 2009. She conformed in her personal opinion that the learner was physically assaulted and that she observed injuries to his head, inner right thigh and tested. In her opinion these injuries are consistent with a blow from a blunt object such as a fist or a foot or any other such object.

[78]. “Learner ST” testified that he was called to the staff room where he was assaulted by the four educators. Subsequently two more teachers joined in the assault but he could not provide any information on the identity of these educators. He testified that his injuries were serious and that he had difficulty walking and passing urine.

[79]. His evidence was corroborated by both the nurse, “Learner PB” and “Learner LM”. Ms Ramatsoele testified that the injuries could not have been self inflicted, but must have been caused by a blunt object. She continued by arguing that the injuries were of such serious nature that swelling was still visible a week after the assault and she then referred the learner for more specialized medical help. “Learner PB” confirmed that he saw “Learner ST” after school and that he informed him that he was badly beaten. Under cross-examination he spontaneously answered that “Learner ST” could walk but added that he was limping.

[80]. Both Learners PB and Learner LM confirmed that they observed an assault on Learner ST. Both Learner’s LM and PB’s uncontested evidence was that they witnessed as Mr Masisi assaulted “Learner ST”. “Learner LM” testified, which evidence was never attacked under cross examination, that Mr Masisi was using both his hands to clap “Learner ST” on both sides of his face, and thereafter kicked him.

[81]. The Principal’s uncontested evidence was that he enquired from the staff some few days after the alleged incident whether anyone had knowledge of the assault, and no-one came forth. A belated denial only came about during the cross-examination of Mr Mofokeng.

[82]. I will be the first to acknowledge that there were several inconsistencies in the version of the Respondent between the evidence of the different witnesses. However these inconsistencies did not alter the version that “Learner ST” was assaulted, in any manner. These inconsistencies relate to peripheral issues such as who fetched “Learner ST” from the class room. I am also mindful of the fact that this issue occurred some months ago and that memory of witnesses, might have eroded or faded in some instances.

[83]. Despite some inconsistencies in the version of the Respondent I am nevertheless convinced that on a balance of probabilities this version is the most probable of the two.

[84]. I could also not help but notice the obvious well rehearsed version of the Applicants. All of the Applicants and the witnesses called on their behalf delivered a well rehearsed rhyme of what occurred on the day in question, however despite the proper preparation I have noticed several inconsistencies between the witnesses who testified in support of the Applicants’ case. For one, only Mr Masisi and Mr Dikana noticed the presence of Mr Dikana in the staff room when this alleged incident occurred. Another inconsistency was the placing of where Mr Masisi was when this incident occurred, some witnesses testified that he was at the door whilst others testified that he was at his cupboard. On Masisi’s own version he explained that he was at his cupboard when he heard a noise, and when he turned around he saw as “Learner ST” was trying to run away and Mr Masiphudi trying to stop him. He could however give a detailed account of what transpired immediately before that when Mr Ntebele interrogated the learner and even explained that he wanted to search the learner.

[85]. The most noticeable inconsistency in the version of the Applicants was the absence of placing their version to the witnesses of the Respondent. According to the Applicants “Learner ST” swore at Ntebele and threatened to stab them. This version was however never put to either of the witnesses of the Respondent. Another version that was never put to the witness of the Respondent was what was said by the Principal in a meeting a few days after the incident. The version that “Learner ST” was trying to ran away and fell against the cupboard, to name but a view.

[86]. In ABSA Brokers (Pty) Ltd v Moshoana NO & others (2005) 10 BLLR 939 (LAC) the Labour Appeal Court noted that “A failure to cross-examine may, in general, imply an acceptance of the witness’s testimony.” By failing to cross-examine the witness on this specific aspect implies that the Applicants cannot rely on this point.

[87]. Having regard to the evidence of “Learner ST”, it must be noted that he impressed me as a witness. He did not shy away from some incriminating facts regarding his own conduct on that day, and admitted that he was guilty of theft and even admitted that he was swearing at Ntebele. As a result I could find no reason to reject his evidence.

[88]. In considering the appropriateness of the sanction, I had regard to the decision of the Constitutional

Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC), wherein the decision of

whether or not dismissal was an appropriate sanction for the contravention of the rule or standard, is conceptualized in an evaluation on the basis of whether or not the Employer’s decision to dismiss the Employee was fair. In reaching this conclusion, consideration aught to be given to the position and interests of both the Employer and Employee in order to make a balanced and equitable assessment.

[89]. In an earlier dictum of Conradie JA in De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and others (2000) 21 ILJ 1051 (LAC) at par. 22 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.”

[90]. Having considered all the fact before me, including but not limited to, the gravity of the offence, the position of trust the Applicants were employed in, and the years of service of the Applicants I am of the

opinion that the sanction of dismissal was fair in the circumstance.

AWARD:

[91]. In the light of the above, I find that the dismissal of the Applicant, to have be substantively fair.

[92]. The Respondent, The Department of Education is not ordered to pay in compensation to the

Applicant, or to reinstate them;

[93]. No order as to costs is made

[94]. This award must be served on SACE and the South African Police Service.

ELRC Commissioner: R de Wet

Date: 23 December 2010