23 June 2025 2025 – ELRC1235-24/25 GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CENTURION
CASE NO.: ELRC1235-24/25 GP
In the matter between:-

DEPARTMENT OF EDUCATION- GP EMPLOYER

AND

MOTHIBE ABRAM HLABATAU EMPLOYEE
__________________________________________
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
Heard: 24 March;24 April and 8;9;19 May 2025
Closing Arguments: 26 May 2025
Mitigating / Aggravating Factors: 26 May 2025
Date of Award : 13 June 2025

SUMMARY: Labour Relations Act 66 of 1995 –Section 188A: Enquiry by Arbitrator.

                                                           AWARD

DETAILS OF HEARING AND REPRESENTATION

The enquiry was held physically at the Council’s Centurion offices on 24 March, 24 April and 8,9,19 May 2025.
Ms A. Ngwenya, its labour relations official, represented the employer. Mr Sathekge, SADTU union official, represented the employee, Mr M.A. Hlabatau. The proceedings were recorded digitally. The Employer’s bundle of documents is marked “R”, the applicant’s is “E”. The parties were allowed to submit closing arguments, mitigating and aggravating factors by 26 May 2025.

ISSUE TO BE DECIDED

I am required to determine if the Employee had sexually harassed a learner as proffered by the Employer. If I find the Employee guilty of the offences, I will determine the appropriate sanction. ALLEGATIONS PROFFERED AGAINST THE EMPLOYEE
Mr Hlabatau pleaded not guilty to four counts of misconduct levelled against him
in terms of Section 18 (1) (q) of the Employment of Educators Act, Act 76 of 1998
(“Act”) :- Allegation 1 That during the period 2023 or anytime incidental thereto, as an educator at Emfundisweni Primary school, he sexually harassed a grade 6 learner AM by touching her buttocks and pressing her against the wall with his tummy and tried to kiss her, whilst he knew or ought to know that it was wrong. Allegation 2 That during March 2023 or anytime incidental thereto, as an educator at Emfundisweni Primary school, he sexually harassed a grade 6 learner LM, when driving from the Natural Science and Technology workshop, he gave her a lift, he gave her a candy and requested a kiss whilst he knew or ought to know that it was wrong.Allegation 3 That during the period 2023 or anytime incidental thereto, as an educator at Emfundisweni Primary school, he sexually harassed a grade 6 learner JR by telling her of his sexual dream to have sex with her and make a baby, whilst he knew or ought to know that it was wrong.Allegation 4 That during the period 2023 or anytime incidental thereto, as an educator at Emfundisweni Primary school, he sexually harassed a grade 6 learner SB by touching her breasts, whilst he knew or ought to know that it was wrong.

EVALUATION AND SUMMARY OF EVIDENCE

The following issues are common cause between the parties:

5.1 Mr Hlabatau was employed as an educator at Emfundisweni Primary School. He taught the learners Natural Science and Sesotho in Grade 6.
5.2 He gave LM a lift from the science Expo.

The following issues are in dispute:

6.1 The employee denies sexually harassing the learners.
6.2 The employer contends that the employee sexually harassed the learners.
6.3 LM was with the other learners in his lift from the science Expo.

Allegation 1

ATM testified that she is 12 years old. She was born on 13 April 2012. She is currently in grade 8. She attended grades 6 and 7 at the school. Mr Hlabatau ‘Sir’ taught her in grade 6 in 2023.
He would push her with his belly to the corner, touch her breast and buttocks. He would ask to make a baby with her. She was bullied when she reported to the Sir, he diverted her concerns to touching his breasts and buttocks, and informed her to make a baby with him.
She related Sir’s actions to her sister, who did not believe her. She called her friend LM to confirm Sir’s actions to her sister. Her mother overheard her conversation with her sister. She went to school and reported to the principal, and opened a case with SAPS. She went with her mother to open the case.
She and her friends reported the incidents to her grade 7 class teacher, Mr Manqele, in 2024. They informed him that Sir likes to push them to the corner to touch their private parts and tell them naughty things. He used to tell them that he would impregnate them and abandon them, as he did not care. The incidents took place in 2023 and 2024.
She did not report the incidents in 2023 because she initially did not take it seriously, as he was playful with them and bought them lollipops. She took it seriously when JR told them that Sir wanted to kiss her. He did not teach them in grade 7, but he would visit their class and tell them that he would impregnate them and touch her breasts.
He would ask for hugs. After school, he would give them a lift and sweets. On the way, he would ask for a kiss. They did not initiate hugs. He initiated hugs and brushed their breast and buttocks.
During cross-examination, she reiterated that Sir used to tell them that he would impregnate them and did not care. He would hug them inappropriately. One day, he gave her a lift and asked for a kiss when she got off.
One day, when she reported the bullying, he told her that she was beautiful and would make a beautiful baby together. He would push her to the corner with her belly, hug her, and whisper naughty stuff in her ear. He would touch her breast, buttocks, and private parts.
He used to tell them that he would impregnate them in the presence of the boys. He did not give the boys sweets, only the girls. Sometimes he would hug her after school while sweeping the classroom.
He took his actions seriously when he joined them in the house play and covered himself with JR under the blanket. JR jumped out of the blanket and said, “Ha, Sir!”. She told them that she jumped because he wanted to kiss her.
They reported to Sir Manqele on a Friday. He promised to report to the principal. She did not inform her sister about the incidents in 2023, because she was not staying with them. She moved in with them in 2024. Instead of attending to her bullying, he told her she was beautiful and could make a beautiful baby with him.
He used to push the girls to the corner with his belly and brush their breasts and buttocks. She denied that she fabricated the story and that she was influenced by someone.

Allegation 2

LM testified that she is 14 years old. She was born on 23 November 2010. In March 2023, when she was in grade 6, Sir offered her a lift from the science expo to her home. The school transport was not going to reach her home at Riverpark.
On the way, he gave her a candy and asked for a kiss. She kept quiet and looked at him. He said he was joking. It was only the two of them in the car. ATM’s mother overheard their conversation with her sister about what Sir was doing to the girls. Sir used to touch them inappropriately and tell them naughty stuff, like he would give them babies. He would say all these in the presence of the boys in the classroom. She informed her mother about the kiss Sir requested from the science expo after ATM had reported to the principal. She is not fabricating her story.
During cross-examination, she said she did not report the incidents immediately because they did not trust that educators would believe them. She discussed Sir’s actions with ATM, JR, and SB. Sir used to push other girls to the corner and touch them inappropriately, but not her. He would do this naughty stuff at the corner after pushing them in front of the class.
They informed their grade 7 class teacher of Sir’s actions. She denied having ulterior motives. ATM asked her on the phone to explain to her sister Sir’s actions regarding the girls at school. She shared her experience with Mr. Manqele when the other girls were sharing theirs about Sir. She denied ganging up against Sir.

Allegation 3

JR testified that she is 14 years old. She was born on 12 October 2010. One day, she was playing with her friends in the classroom. ATM was playing as their mother, and they played children. Sir joined in the play and tugged inside the blanket with her. He went in half-body. As he was about to cover himself fully, SB called her to get water. When she returned, Sir was sitting. After school, she hugged him as usual. He invited her to visit her. She refused.
In grade 7, 2024, he told her that he dreamed about her making a baby with him. He told her that if she fails to progress in school, she must approach him as he would give her babies and that he would give her love portion to love him only.
She had a close relationship with Sir. She would spend lunch breaks with him in the classroom during grade 6. They informed Mr Manqele in 2024 about Sir’s actions after sharing their experiences. One day, they saw Sir touching SB’s breasts and bum when hugging her.
She last saw Sir in January 2025 at the shops. He called her and asked how high school was. He gave her R10. She refused and took it following his persistence.
During cross-examination, she said she and Sir would offer each other lunch boxes. Sometimes they would eat together. She had a good relationship with Sir in grade 6. At the time, ATM had told her that Sir was not naughty. She thought they were jealous because she was close to Sir. She discussed Sir’s actions with others on the day they reported him to Sir Manqele. ATM did not influence her.
As Sir was about to touch her inside the blanket, SB called her to fetch water. He told her he also wanted to play. They had combined the desks to create a bed. MLM was playing mother. They played siblings. She was sleeping in the bedroom when Sir got into her bed. This was before schools closed in June 2023. She denied having been influenced to talk ill about Sir.
Allegation 4
SB testified that she is 13 years old. She was born on 06 October 2011. In grade 6, Sir was buying them candies and cold drinks. In grade 7, she fought with another learner. She was called to the office. Sir called her aside and told her that he had heard she fought in class, and if she did not want school, she should come to him; he would give her babies and money to live comfortably. Further, she must stop running after boys who did not have money.
Two days later, she was standing by the chalkboard when Sir came and hugged her. As he proceeded to touch her breast, she brushed his hand away. she did not like what he was doing in the presence of other learners. She did not have issues with Sir until he touched her inappropriately. She denied that she planned to put Sir in trouble by lying.
During cross-examination, Sir touched her in grade 7 around June 2024. He touched her in class when she was standing next to the chalkboard. It was during lunch. She was with JR and other friends; others were at the back playing. It was the first time he touched her.
She was not comfortable that he wanted to make babies with her. She denied rehearsing the story to put Sir in trouble. She is telling the truth. She reported the touching the following day. They did not influence each other. She was absent when they reported.
Thembakazi Iris Giyama testified that she is the Principal of the school. She became aware of the incident on 22 July 2024, when ATM’s mother approached her in her office. She informed her that she was taking ATM to open a case at SAPS against Mr Hlabatau. SAPS came to school to arrest Hlabatau. She wrote a report to the District office the same day.
The District officials came to school in October 2024. The ISS lady came to school in July 2024, issued forms and asked learners to write statements. They emailed the statements to the District office as the school has no right to interview learners about the incidents.
Mr Hlabatau was informed not to contact the learners. She does not know if the learners discussed Mr Hlabatau with Manqele, the Grade 7 teacher.
During cross-examination, she said she did not engage Mr Hlabatau about ATM’s mother reporting the incident. She did not discuss the incident with the teachers. She has a normal working relationship with Mr Hlabatau. She never discussed this incident with Manqele.
Khethane Chumlani Manqele testified that he is a Grade 7 educator. He started at the school in February 2023. He knows all the learners as he was their Grade 7 class teacher in 2024. The learners were having a conversation by the door, and he was sitting at his desk. He heard them saying that male teachers are naughty.
He asked them why they were saying that. They came to his desk and told him that they were referring to Mr Hlabatau as he was touching them inappropriately. They demonstrated that when he hugs them, he pushes them against the wall. Another learner mentioned that he would walk with them by the side and drop his hand to touch their breasts.
The discussion with the learners about Mr Hlabatau occurred on Thursday or Friday. He promised the learners that he would speak with Mr Hlabatau before reporting. On Monday, before engaging Hlabatau, the situation was out of hand and volatile. He did not do anything about it. The Principal was not happy that he did not report the learner’s complaints.
During cross-examination, he said he spoke with the Principal about the incidents when she summoned him to her office on Monday, 22 July 2024. She asked him why he did not report the allegations the learners shared with him. It was about 7 or 9 learners who approached him about Hlabatau.
He is not aware of a learner who informed him before 18 June 2024. M was the loudest. She said male teachers were asking them out. LM did not provide details but said Sir was naughty. He did not remember if it was JR who said Sir would put his hand around her shoulder and touch her breast as he walked around the school.
Learners usually hug him. Sometimes they hug him randomly out of joy at passing tests. They respond to learners’ hugs. They did not tell him that he told them that he wanted to make babies with them. The kind of hugs he received from learners did not end with him touching their breasts.
Lehlogonolo Shacks Mokhethi testified that he is the Head of Department for Humanities. He knows nothing about the allegations. After Sir was arrested, the Principal overheard him saying that had Mr Hlabatau listened to them when they cautioned him about hugging the learners, he could not have been in trouble. In 2023, one of the street vendors asked him to speak to Mr Hlabatau that some of the parents were unhappy with how he hugs the learners.
He informed the Deputy Principal, and together they informed Mr Hlabatau about the parents’ concerns. He responded that there was nothing he could do because the learners initiate the hugs. During cross-examination, he said that if he did not return the hug, they would feel rejected.
Abram Mothibe Hlabatau, testified that the security would ask him to transport learners home when their transport could not deliver them to their destinations. He is friendly with learners and makes them comfortable.
Allegation 2:
He gave LR a lift home from the science expo. The transport was not going to deliver her home. He drove her home. He might have given her a sweet on the way, as he always keeps them for learners. He dropped her home. He did not ask her for a kiss.
Allegation 1:
He denies touching ATM and providing her transport.
Allegation 3:
He denies telling JR a dream. He denies telling learners that he wanted to make babies with them. He reprimanded the girls to stay away from boys to avoid falling pregnant.
Allegation 4:
He approached SB when the other learners informed him that she was not responding to another teacher in the class when the teacher was talking to her. He went to the class, intervened, and persuaded her to speak. Learners offered him their snacks and food. He would accept and offer some to other learners and eat some. He is strict with learners.
He denies playing with the learners and getting into the blanket. He further denies seeing them playing and entering the classroom where they were playing. He never tampered with or threatened the witnesses. He denies pushing the learner with her belly to the corner. He used to push them with his big belly when they are on his way, as he used to have a big belly. He never touched their breast.
During cross-examination of Allegation 1, he conceded that he did not challenge ATM that instead of attending to her bullying as she reported the issue, he deviated and focused on her breasts. He did not know he was required to challenge her. ATM is known for fabricating stories. She once told him that her parents were dead and was being raised by a lady from next door.
Allegation 2: he admitted that he transported LM alone from the science expo. He challenged her testimony. It was not a bare denial. In the pre/arb minutes, he said LM was alone in the car. He denied asking a kiss from LM.
Allegation 3: He denied telling JR sexual dreams. He was giving boys and girls sweets. He denies that he was giving only girls sweets. Mokhethi might have spoken to him about him hugging learners. Tshidi is the one who told him that he was only hugging girls not boys. He told her that learners were initiating hugs not him. He accepted hugs since the learners would feel rejected. He does not know why the learners lied about him despite testifying that they had no grudges against but good relationship with him.
Allegation 4, he denied that he put a version to witnesses that the touching was not intentional. B lied about him because he reprimanded her when she refused to speak to the other teacher. He denied hugging and touching SB’s private parts.
BG testified that she is 13 years. She was born on 13 July 2011. She was in Grade 6 in 2023. Sir was her class teacher. She attended school regularly but never saw Sir touching the girl learners. He used to tell them that they must not get involved with boys because they would give them babies that will hinder their study progress. The class had a good relationship with Sir. She never saw Sir kissing or asking girls a kiss. She never saw him touching a girl’s breasts. Sir used to give boys and girls sweets and ask for hugs by saying ‘free hugs’.
During cross-examination, she said that when she said she attended school regularly, she meant she might have been absent once when she had a stomach bug. She was not there when ATM reported the bullying to Sir. She was part of the “playing house”. She played kid. JR also played kid and was inside the blanket.
They put up chairs together to make a bed. JR was sleeping on the bed. Sir came and slept on the other bed (chairs) but did not cover himself with the blanket. When a version was put to her that Sir said he did not initiate hugs, she said Sir would say free hugs. They would all run to him, competing to be hugged. He hugged them individually.
Even the boys were running for hugs. She could not see Sir touching SB’s breasts because they would return to their desks after hugging him and would not see how he hugs other learners. She was not there when Sir told JR about the dream. They chased Sir out when he was sleeping on the other bed and he left. He did slept for about 5 minutes before they chased him. JR had covered her body and face with the blanket.
MC testified that she is 14 years old. She was born in 2023. She was always in class in Grade 6 in 2023. She never saw Sir touching girl’s breasts. She never heard Sir saying he would impregnant girls. ATM, JR,SB and LM used to say they were scared of sir because he was touching them inappropriately. However, he never saw him touching them.
During cross-examination she conceded being BG’s friend. She was not there when ATM reported the bullying incident to Sir. She was not there when Sir called SB outside to discuss the fight and making beautiful baby. She was there when they played house. However, she did not see Sir getting in JR’s blanket. Sir never initiated hugs. They were hugging him as a group at once not individually.
When a version was put to him that BG testified that they were hugging him one by one, she said they were hugging in a group of two or more not one at a time. When a version was put to her that Sir testified that he would hug leaners individually as they initiated hugs and not in groups, she said they would hug him in two or three at once.
She said it is possible that when they approached him individually, he hugged them. However, it does not mean that if she did not see him hugging learners one by one it did not happen. She did not see him touching SB‘s breasts. JR told her that Sir told her that she dreamed her making babies with him. JR told her Sir’s dream before he was arrested.

Closing Arguments

The employer’s representative argued that:
Allegation 1
ATM provided a background regarding how the matter came to be known. The department investigated and proved that her incident was not isolated; other learners have had similar experiences with Mr Hlabatau.
Mr Hlabatau did not test her version regarding him attending to the issue of bullying. He did not rebut the version that, instead of addressing the issue, he discussed what he sexually wanted to do with her. Therefore, her version should be accepted.

Allegation 2

It is a common cause that he gave LM a home lift. She was alone in the car with Mr Hlabatau. He neither denied nor agreed that he gave LM a sweet, except that he might have offered her a sweet.
Mr Hlabatau stated during the narrowing down of issues that LM was not alone in the car. He abandoned this defence when he could not challenge LM’s version. An inference should be drawn that Mr Hlabatau was hoping to successfully deny asking LM a kiss because another learner was with them. He failed to provide a plausible reason why LM would falsely accuse him. Mr Hlabatu should be found guilty on the balance of probabilities.

Allegation 3

JR’s version is that Mr Hlabatau told her his sexual dreams while he was in grade 7. She never had issues with Mr Hlabatau. When other learners warned her that he was sexually harassing girls, she thought they were jealous of her. She only took issue when Mr Hlabatau told her about her sexual dream.
Mr Hlabatau did not give a plausible reason why JR would connive with the other learners when she believed they were jealous of her. Her testimony should be considered plausible based on Mr Hlabatau’s failure to submit his version of events.

Allegation 4

SB testified that Mr Hlabatau touched her breasts; he did not do it obviously, he would hug and let his hand rest on the breast and fondle. Mr Hlabatau’s defence is that it was the learners who initiated the hugs. This version was not put to witnesses for test. Learners do not invite to be touched inappropriately when they hug teachers
He never gave his version of what happened when he touched SB’s breast, except that he would bump into leaners and, accidentally, his hand would drop to touch them inappropriately. His defence is bare denial. He did not provide plausible reasons why learners would conspire to report to their class teacher, Mr Manqele, who overheard the girl’s conversation that teachers at school were naughty.
Mr Manqele’s attention was drawn, and then he asked the learner who each had a story to tell about Mr Hlabatau’s experience. This version was never rebutted nor challenged.
Mr Makhetha ‘s testimony that he spoke to Mr Hlabatau about a parent complaining that they were unhappy with how he was hugging girl learners was not rebutted and must be accepted.
The parents could not have triggered if the hugs were ordinary. The plausible explanation is that he had a habit of touching learners inappropriately, pretending to be hugging them.
His witnesses’ testimony should be disregarded because they did not witness the incidents of sexual harassment. His denial that he did not play with learners as he was busy contradicts his witnesses’ testimony that he participated for a short period when he lay next to JR.
The court have addressed the issue to resolve disputes of fact in Sasol Mining (Pty) Ltd v Commissioner Ngeleni& others13 and SFW Group Ltd & Another v Martell Et Cie& Others14 2003 (1) SA 11 (SCA): Page 13 which was stated that “The technique generally employed by Courts in resolving factual disputes of this nature may conveniently be summarized as follows. To conclude the disputed issues, a Court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability, and (c) the probabilities.
The employer’s learner witnesses who experienced separate sexual harassment were consistent, while Mr Hlabatau’s excuse and defence for not testing his version or challenging evidence was that he was not aware that he ought to have tested his version with witnesses and rebuttal.
His submission is disingenuous, as he was represented. His representative was constantly getting instructions from him. Therefore, he should be found guilty of the offences on the balance of probabilities.
Mr Hlabatau argued that:-

Allegation 1

He was arrested on 22 July 2024 whilst at school for allegedly touching ATM’s breasts in 2023. The parent, the child or anyone at school did not attend the court case. This is an indication that the alleged incident never occurred.
ATM demonstrated how he allegedly handled her in full view of the class. No witness corroborated her testimony. They all denied seeing him committing such. Her version is improbable, considering her age, that she was only 12 years old; her height and stature, and it occurred in class. The whole class could have screamed and reported immediately. Even asking for a kiss, as she alleged.
The four learners had discussed him, despite all testifying that he was good to them. Their plan proved to be a hogwash and lies. ATM is known to be a liar.

Allegation 2

He transported LM from the science expo to her home at River Park. The alleged incident would have scared him from visiting the area, let alone the family, as he still does. From the testimony given and the answers LM gave, it became clear that she was influenced to lie.
She alleged that she had told her mother about the alleged incident after ATM’s allegation. When her mother wanted to report the allegation, she stopped her. She confirmed that she arrived home safe without anything disturbing her. She also confirmed that he would pass by checking on the family on his way to visit his friend. She was assisted without demanding any favour.
BG’s version is that she had never heard him talking about dreams of having a baby with girl learners. He advised the girls to refrain from chasing after boys, as they would give them children and dump them. The boys would continue with their studies. The other learners are distorting this.

Allegation 3

JR alleged that the incident occurred in 2023 whilst in grade 6. However, she testified that she was in grade 7. In their statements, they alleged that all these incidents occurred in class and changed to grade 7. The incidents did not occur. The learners could not witness any of the allegations.
Allegations about him being half naked, getting into a blanket with JR while others were watching, had been negated. The fact that the grade 6 learners report every little thing, they could have reported immediately.

Allegation 4

SB claimed that he had isolated her from the office and told her to refrain from running after small boys but concentrate on him. A narrative that was clarified contrary to her assertion is that he was constantly reminding learners, including SB, that boys are dangerous if they put them first and abandon books. He was genuine in his advice to learners. She distorted the advice.
The principal denied having spoken to ATM’s mother a week and weekend before his arrest and the day of the arrest. This was proven incorrect as a letter delivered to SACE indicates that both the Principal and the mother are the complainants and had a telephonic conversation. The Principal‘s denial conceals something.
Mr Manqele indicated that he overheard the learners having a conversation and were not reporting to him, which is contrary to what the four learners claimed. He indicated that they were about 7 or 9 and later almost the whole class got interested. Remember, there is one who claimed to have reported in June 2024, whilst others claimed to have reported in October 2024.
In their testimony, they approached Mr Manqele, but in his testimony, he went to them, interested in their conversation about MALE TEACHERS, whom they claimed were touchy. He listened and became part of the conversation, which he later on promised to investigate.
Manqele spoke to the principal about this on the day he was arrested, which the Principal had denied. Again, why is the principal denying the obvious? The principal denied having spoken to any other educator, which leaves many questions.
If parents had issues in him hugging the learners, they should have reported to the principal outright. These parents corroborate the learners ‘statements that long before ATM’s allegations, the Principal and some parents were targeting him. They lacked the guts to confront him as they had nothing to complain about. Maybe he threatened someone’s position when he helped the kids and teachers, considering the timing of the allegations.
All learners accusing him, portrayed him as a good educator who is easy to talk to and associate with. Though he was always advising them not to chase after boys, ATM and SB did not like his advice and distorted same.
Government Gazette No. 34818 is a guiding document. DEFINITION AND RELATIONSHIP OF THE EVIDENCE PROVIDED AS CATEGORIZED
Definition of Sexual Harassment in the prescripts of the law:
“physical, verbal, or non-verbal behaviour that creates hostile or offensive environment. It can also involve unwelcome pressure for sexual favours, which can be in the form of requests for sexual favours, or the unwelcome display of sexually explicit images or objects.”
The learners gathered to collaborate and push a narrative, which was proven untrue as their version were inconsistent with each other. Such is referred in legal terms as ‘Lack of Credibility”.
His reasonable and did tamper with the witnesses. According to the Law, tampering with witnesses is threatening, questioning a witness about a case, bribing a witness by telling him or her your intentions or the favours you need from him/her, and not limited to, putting conditions not to be undermined. He had never done all these. MITIGATION
He is a breadwinner with five kids, aged between 35 and 22, respectively, three of whom are Girls (now mothers to His grandchildren). The youngest is studying IT at TUT. He is dedicated to his work as a teacher and focused on instilling discipline while helping children to reach their potential. They plead with the Commissioner to encourage teachers to teach without fear of victimization as they impart knowledge. ANALYSIS OF EVIDENCE AND ARGUMENTS
Mr Hlabatau’s representative has persistently drawn me to determine his arrest by SAPS at the school and the Magistrate court outcome for the criminal charges he was charged with. The affirmation of attendance of court on E1 dated 16 October 2024, states that ‘matter removed from the courtroom’. This was despite indicating and ruling that such determination is outside my jurisdiction. These issues are for the court. The outcome of the court has no bearing on my determination.
The Council has robbed me, in terms of Section 188A of the Labour RelationAct 66 of 1995 as amended (LRA) in conjunction with the Collective Agreement 3 of 2018 to determine, on the balance of probabilities, if Mr Hlabatau had committed alleged sexual misconduct towards the learners. His employer proffered these allegations against him. Therefore, I have and will confine myself within the powers vested in me.
The employer bears the onus to prove on the balance of probabilities that Mr Hlabatau committed the offences it proffered against him. In doing so, it must prove the existence of the following elements are present:-
• if his conduct was sexual;
• if his actions resulted in the victim’s sexual integrity being impaired or inspiring the belief that it will be impaired.
• If his actions were intentional
• If there are no justifiable grounds for the actions. Allegation 1
ATM`s testimony is that Mr Hlabatau would push her to the corner with his belly, touch her breast and buttocks. This occurred in 2023 and 2024. He would threaten to impregnate the girls and abandon them as he did not care. She began to consider his actions seriously when JR informed them that he wanted to kiss her.
Another day, she reported to Mr Hlabatau that she was being bullied. Instead of attending to her concern, he told her that she was beautiful and could make a beautiful baby together.
Mr Hlabatau conceded during cross-examination that he did not challenge ATMs testimony that instead of attending to her bullying concern, she deviated and focused on her breast and informed her that they could make a beautiful baby together. According to him, he was not aware that he was required to challenge ATMs testimony.
In ABSA brokers (Pty) Ltd v Moshoana NO and Others [2005] 10 BLLR 939 (LCA), the court held that it was an essential part of the administration of justice that a cross-examiner must put as much of his case to a witness as concerns that witness. He has a responsibility to cross-examine a witness if it is intended to argue later that the evidence of a witness should be rejected
I agree with the respondent`s argument that he was afforded the opportunity from time to time and short adjournments to instruct his representative during cross-examination of all witnesses. Therefore, his failure to challenge them does not stand as a defence.
Mr Hlabatau conceded that he would sometimes push the learners with his big belly to remove them on his way around school. He said that he used to have a big belly. According to him, the pushing was not intended to touch the learners inappropriately. I find this concession to be revealing and short of the truth. Strangely, a teacher would push the learners with his belly. The belly is a private part for contact with another person. Such physical contact between a teacher and a learner is gross.
Surprisingly, he does not see anything wrong with this conduct. His two witnesses contradicted each other about the hugs. BG`s version is that he initiated the hugs by saying ‘free hugs’. The learners would run to him, competing to be hugged. He would hug them one by one and return to their desks. She could not see how he hugged the other learners, as she would have returned to her desk. She corroborated ATM, JR, SB, and LM’s version that he initiated the hugs.
MC contradicted BG`s testimony. Her version is that he hugged them in groups. When she was challenged, she changed to that; he hugged them in twos and threes.
Hugging learners innocently is not an offence. It becomes an offence when it is inappropriate. Mr Hlabatu`s insistence that he never initiated hugs despite the overwhelming evidence that he initiated the hugs proves that he is concealing something untoward. One can only conceal what is shameful and unacceptable. Probably, he might not have initiated all the hugs but most. However, his vehement denial proves on the balance of probabilities that the hugs were not innocent, but sexual towards the learners.
I am persuaded that his hugs were inappropriate and extended to touch ATMs breast and bum. His defence is that he would not hug ATM inappropriately in full view of the class. ATMs version is that this occurs more than once during 2023 and 2024, when pushed to the corner. Allegation 2
It is a common cause that he gave LM a lift home from the science expo. In the pre-arb minutes, Mr Hlabatau disputed that he was with only LM in the car. He contended that there were other learners in the car and that he would call them to corroborate his version.
LM testified that Mr Hlabatau gave her a lift in a bakkie which carries 1 passenger and a driver in front. It was open at the back with no canopy. It was not a double cap. It was only the two of them in the vehicle. Mr Hlabatau did not challenge this version. He conceded that it was the two of them in the car.
He could not provide a plausible explanation of the change of heart. The inference I could draw from his contradictions is that he aimed to conceal what occurred inside the vehicle. He could not support his initial contention that there were other learners in the vehicle because he could not challenge that the car accommodated only two people.
It is not an offence to offer a lift and take LM home under the circumstances. The offence is taking advantage of the situation. If he were credible, he would have conceded from the outset that they were only two in the car. He was compelled to make concessions. His contradictions persuaded me to agree with the employer that it is probable that he requested a kiss from LM. His defence is bare denial. Allegation 3
It is a common cause that JR had a close relationship with Mr Hlabatau. They used to exchange lunch boxes and eat together. It is not in dispute that JR would often hug him and vice versa. She was so close to Mr Hlabatau that she shrugged off her friends’ conversations that he was sexually harassing them.
He denied ever joining the leaners in the playhouse. JR`s version that he joined them in the playhouse is corroborated by SB and LM, and his witness, BG. An inference I could draw from his persistent denial of joining the learners is that he is concealing something shameful.
The version is that he joined and slept on the shift-made bed. BGs version is that he slept on a separatebedfrom JR. SB, LM and JR's version is that he tugged inside JRs blanket. His half body was inside the blanket; he was not half naked as he stated in his arguments. His representative distorted this version.
JR’s version was that he was about to kiss her when SB ordered her to fetch water. I find it probable that BG is not telling the whole truth that he slept separately. The fact that he denied joining persuades me of the probability that he tugged on JR`s blanket. He joined the play for about five minutes, which is a significant time to escape one’s mind. He cannot claim otherwise. Similarly, MC’s contention that she did not notice his presence is a fallacy.
The dream about making babies with JR is her word against his. His denial despite the overwhelming evidence, some of which is corroborated by his witnesses and the close relationship he had with JR, persuaded me to believe on the balance of probabilities that he shared the sexual dream with her. He did not dispute his proximity to JR. Allegation 4
SB`s testimony is that he hugged her when she was standing at the chalkboard. It was during lunch break. She brushed his hand away as he was moving his hand to touch her breasts. She was with JR and friends, and other learners were playing at the back.
Mr Hlabatau did not dispute that when SB was called to the office for a fight, he called her aside. SB`s version is that he told him that she should go to him, and he would give her babies if she did not want school. She should stop running after boys; they do not have money. He would provide her money and a comfortable lifestyle.
It is not in dispute that Mr Hlabatau was made aware that the parents were unhappy about how he hugged the learners. Mr Mokhethi and the Deputy Principal addressed the concerns with him. He responded that there was nothing that he could do because the learners were initiating the hugs.
The warning failed to deter him from perpetuating the inappropriate hugs. I have found supra that he initiated most hugs. He could not explain why the parents and the learners with whom he had a good relationship picked him from all other teachers and complained about his hugs.
Messers Manqele and Mokhethi testified that they also hug learners and that the learners would feel rejected if they do not accept their hugs. If Mr Hlabatau`s hugs were innocent, why would they differentiate from Mokhethi Maqele’s and probably other teachers?
Mr Hlabatau s defence that the principal connived with the ATMs mother to fabricate the allegations is not persuasive. I agree with him, Mr Manqele contradicted the principal’s evidence that they discussed Mr Hlabatau on the day of the arrest. He further argued that the contradiction that the Principal asked Manqele why he did not inform her that the learners reported sexual harassment incidents proves that the Principal had a hand in the allegations.
Even if the Principal had a conversation with Manqele that morning, as stated, such a discussion is not material to prove that the Principal was behind influencing the learners and fabrication of the allegations. I do not find anything untoward about the conversation. It was reasonable for her to ask.
I find the denial and contradiction to be insignificant, as it has no bearing on the narrative that the learners informed Manqele. Similarly, I do not find a benefit that the principal derived from denying the conversation. Her agreement to the existence of the conversation would not have taken Mr Hlabatau’s case anywhere.
All the victims had no issues with Mr Hlabatau. They initially liked him because he was friendly and gave them sweets. They became concerned with his inappropriate hugs and touches. He could not explain their motive for allegedly fabricating lies about him. He also failed to prove the motive of the Principal and the parents.
Manqele explained how the learners reported the incidents. He overheard them saying male teachers are naughty. They shared the details with him when he probed. This is not challenged. There is no evidence that it was fabricated and planned.
The timing of reporting the 2023 incident in 2024 does not vindicate him. The explanation that they initially took the actions lightly, and some did not trust that they would be believed, is plausible. Additionally, there is no right time to report or share sexual harassment incidents. It depends on the readiness and strength of the individual victim.
I agree with Mr Hlabatau that all the witnesses, including his, did not see him touching the breasts and private parts of the others. In other words, there is no direct evidence on this aspect. This is because the perpetrators of sexual harassment offences execute the act deviously unless the witnesses notice it accidentally. It would be unfair to conclude that because their evidence is not corroborated, therefore it did not happen. I drew inferences from the prevailing circumstances to arrive at my conclusion.
The court in Rustenburg Platinum Mines v UASA obo Petersen (JR 641/2016)[2018] ZALCJHB 72;39 ILJ 1330 (LC) held that the standard of proof in labour disputes is that of a balance of probabilities and require direct evidence in sexual harassment cases, as the Commissioner sought to do was to set the standard of proof too high and is insurmountable, which constituted a reviewable irregularity on the part of the Commissioner.
Delayed reporting of a sexual offence is not a good defence to infer that it did not occur. Mr Hlabatau `s defence is bare denial. He failed to provide a plausible explanation for the discrepancies against him and his side relating to the incidents. I am satisfied that the employer has proved on the balance of probabilities that his conduct towards the learners was sexual, his actions were intentional, and he attempted to conceal them. The actions impaired the learner’s sexual integrity. There were no justifiable grounds for his actions.
I find the employer`s witness credible and reliable. Their testimony was consistent. They corroborated each other in all aspects save the touching of private parts. The contradiction between Manqele and the Principal is immaterial. Though the learners did not share everything with Mr Manqele, all was centred around sexual harassment, which they stood their ground in their testimony. Mr Hlabatau failed to challenge them successfully.
Mr Hlabatau and his witness, MC, were not credible and reliable witnesses. MC’s testimony had material contradictions. She was economical with the truth. She appeared to have been coached to deny everything. Her denial of seeing Mr Hlabatau joining them in the playhouse despite all the learners, including Mr Hlabatau’s witness testifying that he played, is glaring.
The employer has proved on the balance of probabilities that the employee has committed the sexual harassment offences. FINDING
I find The Employee, Abram Mothibe Hlabatau, guilty of four counts of sexual misconduct involving four minor learners in terms of Section 18 (q) of the Act. AGGRAVATING AND MITIGATING FACTORS:
The employer failed to submit aggravating factors. I have considered MR Hlabatau’s mitigating factors. In my view, they are not his favour. He is a parent to his children and grandchildren. He cares about their education and welfare; however, he failed to have the same regard for the victims. His conduct was intended to destroy the future of the young adolescent learners for selfish, lustful gain. The incidents were perpetrated over time against four learners. It was becoming habitual.
In Le Roux v S (A & R 25/2018) [2021] ZAECGHC 57 (13 May 2021), the court held that “The interests of the community cannot be ignored in determining an appropriate sentence. Some of the components of the offences occurred on the premises of a primary school. It is also necessary to continue to impress upon people in positions of responsibility that they cannot leverage their power and the esteem with which they may be regarded to satisfy their sexual lust.
Misconduct in terms of Section 18(1)(q) of the Act is not mandatory dismissal. However, sexual misconduct against school children and adolescents is a serious offence warranting a harsh sanction to serve as a deterrent. Educators who commit this horrible offence must be shamed.
The Community had entrusted him as the educator to care for and protect learners. The learners expected care and protection from him, but instead, he became their predator. He destroyed the trust relationship with victims and other learners, his employer and the community at large. He abused his position as educator and loco parentis. I find that dismissal is an appropriate sanction. SANCTION
Abram Mothibe Hlabatau is dismissed for sexual harassment offences.
I find Abram Mothibe Hlabatau unsuitable to work with children. I invoke Section 120(4) of the Children’s Act No 38 of 2005 to declare him on my own accord, unsuitable to work with children.
The General Secretary of the ELRC must, in terms of Section 122(1) of
The Children’s Act No 38 of 2005, notify the Director General: Department
of Social Development in the writing of the findings of this forum, made in
terms of Section 120 (4) of the Children’s Act No 38 of 2005, that Mr
Abram Mothibe Hlabatau is unsuitable for working with children, for the Director General to enter his name in Part B of the National Child Protection Register.
The attention of SACE is drawn to the fact that Mr Abram Mothibe Hlabatau had sexually abused the adolescent learners.
The ELRC is directed to forward a copy of this award to SACE.