24 March 2025 – PSES777-24/25GP

Case Number: PSES 777-24/25 GP
Commissioner: M.A. HAWYES
Date of Award: 24th of March 2025

In the ARBITRATION between

Department of Education: Gauteng

(Employer)

and

Mr. H.H.S Dlamini

(Employee)

DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was scheduled for an inquiry by arbitrator on the 7th and 10th of February 2025. The matter was adjourned to the 5th of March 2025 and finalized on this day.
1.2 Mr. Lungile Ndzondo, a SADTU union official, represented the employee.
1.3 Mr. Diketso Jafta, a labour relations officer, represented the employer.
1.4 After the completion of evidence, the parties requested an opportunity to submit written closing arguments by the 12th of March 2025.
1.5 I requested and was granted a 7-day extension by the ELRC to submit my award. The award is thus due on the 29th of March 2025.
1.6 At the time of the writing of this award only the closing arguments of the employer had been received.
1.7 Only the employer submitted a bundle of documents. The Respondent’s bundle was marked bundle ‘R’ and consisted of 15 pages. Detailed notes and a digital recording was kept of the entire arbitration process.
1.8 An interpreter assisted the minor witnesses in presenting their case at the hearing as did an intermediary.
ISSUE IN DISPUTE
Whether the employee is guilty of improper, disgraceful and unacceptable conduct as alleged by the employer.
BACKGROUND TO THE ISSUE
3.1 The employer employs the employee as a PL 1 educator at Phiri Special School.
3.2 The employer charged the employer with two allegations in terms of section 18 (1) (q) of the Employment of Educators Act, no 76 of 1998 (as amended)(EEA).
3.3 The first allegation reads as follows: It is alleged that during the year 2024, at or near Phiri Special School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed NM, ZJ and PC, the girl learners at the same school by instructing them to wear shorter skirts so that you could see and touch their thighs.
3.4 The second allegation read as follows: It is alleged that during the year 2024, at or near Phiri Special School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed PC, a girl learner by asking if you could touch her bums.
3.5 The employee was placed on precautionary transfer on or about the 29th of August 2024.
3.6 The employee pleaded not guilty to both allegations at the inquiry by arbitrator.
3.7 The employee raised a point in limine that a disciplinary enquiry had commenced with a specific presiding officer who had later recused himself and the employer had still later referred the matter, in terms of the provisions of Collective Agreement, no 3 of 2018 (CA) and section 188A of the Labour Relations Act, no 66 of 1995 (as amended)(LRA) to an inquiry by arbitrator.
3.8 The employee argued that the matter should be referred back to the employer to conduct the disciplinary enquiry internally.
3.9 The employer opposed the point in limine.
3.10 After consideration I dismissed the point in limine because the provisions of the CA are peremptory and the employer does not have a discretion to decide how to conduct matters involving sexual allegations against minors.
SURVEY OF EMPLOYER’S EVIDENCE AND ARGUMENT
4.1 The employer led the evidence of the three learners, namely NM, ZJ and PC during the course of the inquiry by arbitrator. In addition, the employer led the evidence of three educator witnesses, Ms. Maseko (Principal at Phiri Special School) and educators Ms. Motloung and Ms. Phakathi.
4.2 The review of the testimony given will not necessarily be in the order in which the evidence was given at the inquiry. Maseko testified, inter alia, that the school catered for learners with severe intellectual disabilities. Although many learners at the school required high levels of support, the three minor witnesses are low support learners and can-do basic reading and writing. The witnesses are deemed to be high functioning learners.
4.3 When I questioned the learners prior to them providing their testimony I found them to be highly communicative and quite capable of distinguishing between right and wrong.
4.4 The three minor learners testified about the events that had befallen them.
4.5 NM, a 16-year-old learner, testified that on a certain day at school they were in a class being taught about bullying by one Ms. Hlatshwayo. Later Ms. Nkosi took over the teaching of bullying. Still later during the day, PC and ZJ reported to Ms. Nkosi what the employee had done to them. NM testified that she included her story with that of PC and ZJ.
4.6 NM testified further that when she had visited the employee in his class during break to greet him, he had encouraged her to wear short skirts so that he could see her thighs. PC also told her that the employee had touched her (PC’s) buttocks.
4.7 NM testified that she felt bad about what the employee had said to her and she later reported the incident to her aunt who encouraged her to report the matter to the police station. They later reported the matter to the principal of the school. NM confirmed that the employee was not her class teacher and had never taught her.
4.8 During cross examination it was put to NM that the employee had mentioned to her that it was now summer and that she should wear skirts and not tracksuit pants in summer. NM denied this.
4.9 NM testified that skirts and particularly short skirts had been banned at the school after the 2024 academic year.
4.10 NM testified that no one had encouraged her to give false testimony against the employee. What the employee had said to her was the truth.
4.11 The employer than led the testimony of ZJ, a 16-year-old learner, at Phiri Special School.
4.12 ZJ testified, inter alia, that she had sent the employee a Facebook request which he had accepted. During conversations with her the employee had encouraged her to wear short skirts to school so that he could touch her buttocks when she came to collect her report. ZJ testified further that the employee had encouraged her many times to wear short skirts when she went to greet him in class but this was the first time that it had happened on Facebook. ZJ confirmed that the employee did not teach her class but she went to greet him from time to time.
4.13 ZJ admitted to telling educator Ms. Nkosi, during the bullying class, together with NM and PC about what the employee had said to them. She also reported the incident to her mother and brother. Her mother told her to delete the message because it would cause the employee to be fired and she had done so.
4.14 PC testified, inter alia, that during the class on bullying with Ms. Nkosi, ZJ encouraged her and NM to mention to Ms. Nkosi what the employee had said to them and they all did so.
4.15 PC testified that the employee does not teach her currently in 2024 but she went to greet him during break time on occasion during this year. The employee was her class teacher in 2023. To her surprise the employee had asked if he could touch her buttocks and she had refused and shortly thereafter left the employee’s class. No one saw what happened. PC testified that the employees class assistant was not in class at the time. PC testified that she did not like the employee making such an invasive request.
4.16 Maseko, Motloung and Phakathi testified, inter alia, how the three learners, with their guardians had reported the respective incidents involving the employer, to the school.
SURVEY OF EMPLOYEE’S EVIDENCE AND ARGUMENT
5.1 The employee testified under oath and led the evidence of two minor witnesses in support of his case. The employee also led the evidence of another educator witness, namely Mr. Thulani Shandu.
5.2 The employee denied that he had met the three learners in his class because they had different break times to his and learners were not permitted to walk around the school unchaperoned.
5.3 The employee denied encouraging the said learners to wear short skirts and specifically asking PC if he could touch her buttocks.
5.4 He indicated that the learners were vey suggestive and grasped things in a different way. He had never suggested to the three learners that they must wear shorter skirts so that he could see their thighs.
5.5 The employee stated that he had taught NM and ZJ in 2021 when he was a rotating teacher. He had taught PC a subject in 2023.
5.6 The employee described himself as a part time pastor and he ministered to a congregation on Sundays.
5.7 The employee described his relationship with Maseko (the principal) as being up and down. He described the atmosphere at the school as being toxic and made insinuations that the principal was trying to get him into trouble.
5.8 The employee flatly denied that he had met PC alone in his class and asked her if he could touch her thighs.
5.9 The employee did not deny accepting ZJ’s Facebook friend request and chatting to her on messenger. He denied though encouraging ZJ to wear short skirts so that he could touch her buttocks when she came to fetch her report. The employee admitted that learners were taught not to communicate with educators on Facebook.
5.10 The employee did not deny meeting and visiting the home of a certain poor learner whilst he was on precautionary transfer and taking her to the hairdresser. The employee emphasized that he was a pastor and it was his responsibility to help the community where he could. The employee admitted that he had breached the terms of his precautionary transfer by visiting the learner and her family.
5.11 Thulani Shandu testified that he is a PL 1 educator at Phiri Special School and teaches Grade 5 learners in 2025.
5.12 Shandu testified that the children at the school were all intellectually challenged and had a tendency to tell lies.
5.13 Shandu also testified that the different classes (foundation phase and intermediate phase) had different breaks. While the one phase was on break the other was having classes. Furthermore, the children are not allowed to walk around on their own. The children were also not allowed to visit educators on their own as the learners were not friends with the educators.
5.14 Shandu denied that he had come to testify to protect his friend but conceded that both the employee and he were pastors of churches.
5.15 The employee later conceded that he had to lock his classroom door to prevent PC from visiting his classroom when he was teaching. This after PC’s class teacher had kicked her out of his classroom.
5.16 The employee led the evidence of two minor witnesses who gave mostly character evidence for the Applicant.
5.17 KM, a 16-year-old learner at Phiri Special School testified and denied the allegation that the employee had asked the other girls to wear short skirts. Her justification for saying this was that she stayed with them.
5.18 KM supported the employee’s testimony that the different classes had different breaks and that learners were not allowed to walk around unsupervised.
5.19 KM also testified that NM, ZJ and PC were friends and always spent time together.
5.20 KM testified that she was aware of educator Hlatshwayo removing PC from class resulting in her wandering the passages. When asked if she had seen this personally KM testified that it was commonly known at campus that wayward kids would be subjected to such treatment.
5.21 KM conceded that she had not been present when these alleged sexual harassment incidents had occurred. KM stated that she did not believe that the employee could do these things and, in any event, when he taught, he closed his classroom door and windows.(opinion and coached) On another instance during cross examination KM asserted that NM, ZJ and PC were lying.
5.22 It was put to the witness that she was testifying about what she had heard whispered in the passages and had not witnessed anything involving NM, ZJ and PC of her own. The witness did not reply to this assertion.
5.23 LS, a 15-year-old learner at Phiri Special School, testified that the learners did not all get lunch at the same time,
5.24 LS denied that NM, ZJ and PC had been sexually harassed. When asked how she could be so sure he testified that the girls were lying LS testified that the school did not permit female learners to wear miniskirts at school.
5.25 LS testified further that he had been friends with NM, ZJ and PC but they were no longer friends because the girls talked a lot of negative things.
5.26 LS described NM, ZJ and PC as being lying witnesses and consistently argued that the girls would not have time to meet up with educators during the course of the school day.
5.27 During cross examination it came out that LS was a member of the employees church. The witness refused to believe that the employee had chatted to ZJ on Facebook because the interaction of educators and learners on Facebook was not permitted.
5.28 LS insisted that the employee always preached the truth and so he could not be lying in this situation with NM, ZJ and PC.
5.29 LS conceded that he had not witnessed any of the incidents involving NM, ZJ and PC and the employee but continued to insist that the employee had done nothing wrong.
5.30 The employee asked to be found not guilty of the allegations levelled against him.
ANALYSIS OF EVIDENCE AND ARGUMENT
6.1 The Respondent bears the onus of proving that the allegations of sexual misconduct levelled against the employee are true on a balance of probabilities.
6.2 When dealing with intellectually challenged children it is important to examine their credibility in terms of speaking the truth and the content of their evidence.
6.3 I agree with Maseko (principal) that NM, ZJ and PC although intellectually challenged are high functioning learners.
6.4 I find that all the children called by the employer gave good quality testimony and did not contradict each other as to how events unfolded.
6.5 NM, ZJ and PC did not have much interaction with the employee outside of the school with the exception of ZJ who had sent the employee a Facebook request which the employer had accepted and he had chatted to her about the wearing of short skirts.
6.6 The employee admitted accepting ZJ’s Facebook request and chatting to her thereafter. ZJ’s mother was responsible for tampering with important documentary and real evidence by insisting that ZJ delete the messages that the employee had sent her.
6.7 The employee did not teach NM, ZJ and PC any classes and for the most part they only met when they went to greet the employee in his classroom. The same cannot be said of the employee witnesses, KM and LS who I find knew the employee outside the school premises. It was specifically clear that LS attended the employee’s church on Sundays and regarded him as a mentor.
6.8 Without good reason and despite not having any knowledge of the incidents which NM, ZJ and PC had related, these witnesses were convinced that the employee was telling the truth and that the girls were lying.
6.9 LS specifically could not believe that the employee was chatting to ZJ on Facebook because this was against school rules. The employee had nonetheless admitted to accepting ZJ’s Facebook request and speaking to her online.
6.10 The evidence given by KM and LS described the employee as a person with good character based upon their knowledge of him. As such their evidence is inadmissible because character evidence is opinion based without any grounds for the opinion other than their implacable belief in the employee’s moral character. In fact, only the opinion of an expert is admissible at legal proceedings which these are.
6.11 The evidence of NM,ZJ and PC is factually based and consistent despite their intellectual challenges. The girls have no reason to lie and seemed content to limit their evidence to the evidence of the employee insisting that they wear short skirts and him wanting to touch their thighs. It was apparent from their testimony that they were upset by the employee’s continual attempts to put them in compromising situations and had reported the incidents to their caregivers.
6.12 I find that It took the trigger of the bullying lecture for them to realize that they had been at the receiving end of acts of coercion for them to wear short skirts for the employee’s pleasure which they did not want to indulge in and felt they needed to report.
6.13 I find that the employee took advantage of the girls vulnerabilities as intellectually challenged persons whilst hoping that these intellectual challenges would somehow lessen their inhibitions to his sexual advances.
6.14 The employee and his witnesses tried to demonstrate that it was not possible for the employee to have contact with NM, ZJ and PC because of different scheduling with classes and lunch and the assertion that learners were not permitted to walk around the school unchaperoned.
6.15 I find that there were rules concerning these matters but the rules were frequently flouted and learners often walked around unsupervised and at times were kicked out of classes with nowhere to go.
6.16 I find that the learners had the opportunity to meet up with the employee alone where he was able to express his fantasies of seeing them in short skirts and touching their thighs.
6.17 I find that the employee took advantage of receiving a Facebook request from ZJ to further engage in his fantasy play by messaging her.
AWARD
7.1 The employee is found guilty on both counts of improper, disgraceful and unacceptable conduct.as an educator The parties now have five working days from the date of receipt of this award to make written submissions in mitigation and aggravation of sanction.
7.2 The parties are specifically requested to include submissions on whether the employee should be declared unfit to work with children in accordance with a determination that is required i.t.o section 120 (1) (c) of the Children’s Act, no 38 of 2005 (as amended).
7.3 No late submissions will be accepted.