Arbitrator: SHIRAZ MAHOMED OSMAN Case Reference No: ELRC 785-20/21 FS
Date of award: 20 MAY 2021

In the arbitration between:

Mr. A M Mokoena Employee party

and

Department of Education – Free State Employer party

DETAILS OF HEARING AND REPRESENTATION
1. The present dispute between Mr. A M Mokoena (hereinafter referred to as the employee) and The Department of Education-Free State (hereinafter referred to as the employer) was referred to, Inquiry by Arbitrator in terms of Section 188A of the Labour Relations Act no.66 of 1995, as amended (the Act); read with Collective Agreement 3 of 2018. At the Inquiry by Arbitrator hearing, which was held at the Boardroom of the respondent, in Bloemfontein on, 26 April 2021, the employee failed to attend and the employer was represented by Mr. B J Lekitlane.
2. I was satisfied that the employee was aware of the date; time and venue of the said hearing, however failed to attend. The notice of set down was sent to the school at which the employee is an educator. The Principal of the school confirmed that he had issued the notice to the employee.
3. Indeed, the employee requested on, 22 April 2021, that the matter be postponed. He phoned the employer to make the request. Therefore, it is confirmed that the employee, is indeed aware of the hearing.

THE CHARGES TO BE DECIDED:
4. I am to decide whether the employee, is guilty of the following charge:

Charge 1

You have contravened section 17 (1) (c) of the Employment of Educators Act, Act 76 of 1998, in that on the 02nd March 2020, while on duty at Sediba Thuto School, you committed an act of sexual assault on a learner , Ms. X when you forcefully kissed her and told her you love her.

BACKGROUND
5. The employee is an educator and was charged, as per the above allegation.
6. He was charged in terms of Sections 17 of the Employment of Educators Act no. 78, of 1998 (the EEA). He was charged for sexual assault on a learner.
7. For the purposes of this award the learner, being under aged, shall be referred to as Ms. X. Her mother shall is referred to as Ms. X’s mother, as using the mother’s name, might identify the applicant.
8. The employee is still employed as an educator, at the Sediba Thuto Secondary School.
9. The matter was referred to Council by the employer, in terms of Collective Agreement 3 of 2018; read with Section 188A, of the Act, an Inquiry by Arbitrator.

SURVEY OF EVIDENCE AND ARGUMENT
10. As per paragraphs 2 & 3 above, I proceeded in the employee’s absence.
11. The employer was given the opportunity to submit an opening statement; call witnesses and submit an oral closing argument.
12. The employer called three witnesses, Ms. X (the learner) and Ms. X’s mother (learner’s mother) & Mr. Elias Mashesha Mokoena (Principal).
13. The employer submitted the charge sheet, into the record.
14. Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Act. Should any of the evidence or argument not be reflected hereunder, then it does not mean that it was not considered.

ANALYSIS OF EVIDENCE AND ARGUMENT
15. The applicant was charged in terms of Section 17 (1) (c) of the EEA which provides “having a sexual relationship with a learner of the school where he or she is employed in”. The evidence supports an allegation in terms of Section 17 (1) (b) which provides “committing an act of sexual assault on a learner, student or other employee”. Indeed, I am of the opinion that the applicant transgressed the provisions of Section 17 (1) (b). I am of the opinion that this is a typographical error on the part of the respondent. In any event, a charge against an employee need not read like a criminal charge. Setting the facts before an employee is sufficient, as long as the applicant understands and answers to the charge brought against her/him.
16. Ms. X, testified on her own behalf that at approximately 10h45, on 2 March 2021, when the educator, Mr. Mokoena’s subject had concluded, he requested that she join him at his office. She went along with the Mr. Mokoena, to his office. Mr. Mokoena, closed the door and grabbed the learner and “French” kissed her (putting his tongue into her mouth). He asked the learner for her cell phone number and expressed that he loved her. He also told Ms. X that she was beautiful. Again, he pulled Ms. X towards her and kissed her. Again, Ms. X pushed the perpetrator away. This time successfully, and pulled the handle of the closed door so hard, that it broke and Ms. X was able to flee.
17. Ms. X went home and reported the incident to her mother, who had then called her uncle and aunt for advice. They informed Ms. X’s mother to approach the local pastor, which she did. The pastor telephoned the Principal of the School, and met Ms. X and her mother at the school. Ms. X wrote a statement at the Principal’s request.
18. In the absence of any evidence to the contrary, I am obliged to accept the learner’s testimony. I don’t believe that the learner had any reason to be dishonest or to fabricate such an episode. The learner was clearly distraught and was in tears by the time she had concluded her testimony. Indeed, the learner expressed that she was uncomfortable at school since the incident and the thought of the assault made her emotional.
19. Ms. X’s mother, confirmed the incident exactly like she was told by her daughter. She phoned her husband initially who suggested that she phoned her uncle and aunt who advised her to approach the pastor. She confirmed Ms. X’s testimony that the pastor telephoned the school Principal and that he had me them at school.
20. I am satisfied that Ms.X’s mother corroborated her daughter’s testimony as she relayed the exact sequence of events. Ms. X’s mother confirmed her daughter’s testimony that the pastor telephoned the Principal who had met them at the school and requested a written statement from the learner.
21. There is nothing before me to suggest that Ms. X’s mother was dishonest or that she had indeed fabricated any portion of her testimony. Ms. X’s mother came across as being very upset about the incident, like any parent would be, if their child was sexually assaulted. Moreover, by an educator who is deemed to be the parent of the child, that attends the school. Again, in the absence of the educator the testimony was not challenged and therefore is accepted.
22. Mr. Mokoena, the Principal of the school, confirmed that he had received a telephone call from the pastor and that he had met the learner at school. He advised the learner to write a report. Interestingly, it emerged that the accused perpetrator was not at school on the next day. I wonder why? Had he probably known that he was in trouble? An inference can be drawn from the educator’s absence from school, on the day after the incident. But nonetheless, Mr. Mokoena, the Principal is thanked for attending to the learner after school hours. The Principal’s undisputed testimony must be accepted.
23. From the above, it is evident that the learner had been sexually assaulted by the educator, Mr. Mokoena. The sequence of events was corroborated by all the witnesses. There is nothing to suggest that any of these witnesses had indeed fabricated any of their testimonies.
24. I am persuaded that the educator, Mr. Mokoena is indeed guilty of sexual assault.
25. In the present instance, the educator is charged with a serious allegation of a sexual assault on a learner, a child still. Children have a Constitutional Right to be protected from maltreatment; neglect; abuse or degradation. See Section 28 (1) (d) of the Constitution of the Republic of South Africa. Moreover, Section 28 (2) provides that: a child’s best interests are of paramount importance in every matter concerning the child. I am bound by this Constitutional imperative, in view of the employer’s responsibility to provide education to children.
26. The conduct of the educator, Mr. Mokoena is gross and cannot and must not be tolerated.

SANCTION
27. In terms of Section 17 (1) of the EEA, an educator, must be dismissed if he or she is found guilty of –
(c) having a sexual relationship with a learner of a school where he or she is employed
28. There is no discretion for the Arbitrator to consider any other alternative sanction, short of dismissal.
29. Therefore, dismissal is the statutory sanction.

AWARD
30. The employee, Mr. A M Mokoena, is found guilty of Charge 1.
31. The employee, Mr. A M Mokoena is dismissed, with immediate effect.
32. The employer, The Department of Education must inform the employee, Mr. A M Mokoena of his dismissal immediately upon receipt, of this award.
33. The Education Labour Relations Council as the administrator of this Section 188A enquiry, is therefore entitled:
o In terms of section 122 of the Children’s Act, Act 38 of 2005, to notify the Director General: Department of Social Development, in writing of the findings of this Forum
o To send a copy of this arbitration award to the South African Council for Educators (SACE) for the revoking of Mr. A M Mokoena’s SACE certificate.

Signed at Kimberley on this 20 day of May 2021

ELRC PANELLIST
SHIRAZ MAHOMED OSMAN