In the Arbitration between
Mr Konanani O Employee And
Department Of Education – Limpopo Employer

ARBITRATION AWARD

THE DETAILS OF THE HEARING AND REPRESENTATION
1. This is an award in the arbitration between Konanani O, the employee and the Department of Education – Limpopo, the employer.

2. The arbitration was held under the auspices of the Education Labour Relations Council in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (LRA) and the award is issued in terms of Section 138(7) of the LRA.
3. The arbitration process commenced on 09 June 2021 and was finalized on 29 September 2021.

4. The employee was present and represented by Maphaha T.R, a union official from SADTU.

5. The employer was represented by Denga Nozukho, its Assistant Director, Labour Relations.

ISSUES TO BE DECIDED
6. I have to determine whether or not the employee is guilty of the charges or allegations levelled against him.

7. To order appropriate relief.

BACKGROUND TO THE ISSUE IN DISPUTE
8. The ELRC received a request to hold an enquiry by arbitration from the employer.

9. The matter was initially scheduled to proceed on 09 June 2021. On this date, the matter could not proceed due to connection challenges as the matter was set to proceed via zoom.

10. The matter was rescheduled and proceeded on 29 September 2021. Both parties submitted bundles of documents and were marked Bundle D, for the employer and E, E1, E2 and E3 for the employee.

11. The proceedings were electronically recorded and interpreted in Venda

SURVEY OF EVIDENCE AND ARGUMENTS
Employer’s case
12. The employer called two witnesses, learner A and Ms Tshilande Mthateni Mavies.

13. Learner A testified under oath and stated Mr Konani A, her teacher has been proposing love to her from June 2020. He would call her to the class during school breaks and declare his love for her.

14. On Friday, 2 October 2020, Mr Konanani gave her R200.00 and told her to come to a place called Tshilampa. After school, she went home and showed her mother the money. She told her mother that she picked up the money on the road. She been said she wanted to plot her hair at Tshilampa, the following day, 3 October 2020. Tshilampa was the place where Mr Komanani asked to meet with her.

15. On 3 October 2020, she left home around 7H30 AM to Tshilampa as agreed. Before she could catch the taxi, Mr Komanani called her to find out about her whereabouts. She told him that she has not gotten into the taxi and he asked her to call him after arriving at Tshilampa. He gave her the spot where she was to get off the taxi.

16. She eventually arrived at the spot and she found Mr Konanani there. Mr Konanani then stopped and they both got into the taxi. She never asked him about where they were heading to. He told her they were going to Sibasa. She did not ask what they were going to do there. On arrival at Sibasa, he paid the taxi fare for both of them and they alighted from the taxi. He then led her to a lodge where he paid R100.00. They then went into a room. Inside the room, he asked her to take off her clothes and he had sex with her. He gave her another R200.00 and asked her not to tell anyone. They left the lodge and she went to Tshilampa while he went away with the taxi.

17. While they were in the lodge, her mother kept calling her and she did not take her calls. The school principal called her and she told him that she was at a salon. Her mother thereafter called and she told her that she was still at the salon. Her mother enquired as to what caused her not to answer her calls earlier, she said her cellphone had frozen.

18. Around November 2020, her mother who sells Avon products, gave her an Avon booklet together with her cellphone to go show the local pastor new stick of bags. When she came back, she saw Mr Konanani’s number on her cellphone. She asked who the number belonged to and she refused to tell her. Her mother persisted and threatened to beat her. She ran away and later came back. She then told her about the whole incident.

19. Her mother called Mr Konanani with another number which he did not answer. The mother took her to the local pastor who advised them to report the matter to the school. On the following Monday, her mother, uncle and sister went to the School Principle. After a while, somebody came to fetch her at school and they went to open a criminal case. At the police station, they referred them to Bofulwi Hospital. She was interviewed as to why she did tell her mother about what happened and she said Mr Konanani told her she must not tell anyone. A doctor was called who examined her and confirmed that she lost her virginity. She confirmed that Mr Konanani used a condom when he slept with her.

20. The second witness, Ms Mavies Tshilande stated under oath that on 02 October 2020, her daughter came back from school and showed her R200.00. when she asked her where she got it, she said she picked it up on the road and she saw that a car had parked where she got the money. She told her she wanted to plot her hair. On 3 October 2020, her daughter left to go plot her hair. She kept on calling and checking up on her since she was still a minor. At some stage, her daughter stopped answering her calls. She remembered that she once saw a strange number on her daughter’s cellphone and wrote it on a piece of paper. She called the number and the person who answered the call was Mr Konanani. He asked him to call her daughter as he was her teacher. He came back to her and told her that her daughter was at a salon. She also asked the Principal to check on her daughter. He asked Mr Konanani why his number was on her daughter’s cellphone. Mr Konanani said he kept the number because he would send her daughter to the staff room to give books to other educators.

21. On 8 November 2020, she sent her daughter to the pastor to show the bags on her cellphone and booklet. When she returned, she saw Mr Konanani’s number on her cellphone. She asked her daughter about the number and she refused to give her the identity of the owner. She beat her and that was when her daughter told her that Mr Konanani had been proposing to her and he gave her R200.00. She told her that Mr Konanani put on a condom and slept with her. They then reported the matter to the school and police station. The police referred them to a trauma center at the hospital. At the hospital, a doctor examined her daughter and confirmed that she lost her virginity.
Employee’s case
22. Mr Ofhani Andrew Konanani testified under oath and stated that on 3 October 2020, he worked the whole day loading sand with Mr R Chauke and Mr M Netshitshivhe. He normally calls these people to assist load sand at the end of each month or the beginning of the month. On this day, they loaded about five loads of san to his house. He paid them R300.00 each for the day. He bought lunch for them which was delivered by an Uber.

23. He denied that he gave Ms learner A R200.00 and that he proposed love to her in class. He denied that he gave her his number and he ever called her. He only called her mother and father. He however denied that he received any call from learner A ’s mother on 3 October 2020. The telephone conversation he had with learner A ’s mother was only when the wanted to check on him and how he continued to survive without a wife.

24. He then reported to one of his colleagues, Mr Machekhechekhe who promised to caution her about such conversation. On 10 November 2020, the Principal called him and said that he occupied a post which does not belong to him and that he raped a child. He advised him to complain to the Circuit Manager who placed him.

25. Mr Roanda Chauke stated under oath that he worked as a loader of sand at Thengine and does not own a tractor. On 3 October 2020, he worked the whole day with Mr Konanani. Mr Konanani needed 20 loads but they could only manage to load 5 loads per day.

26. Mr Konanani bought them bread and cold drinks from a nearby tuck shop and received R250.00 for the 5 loads of sands.
ANALYSIS OF EVIDENCE AND ARGUMENTS
27. The employer levelled two charges against the employee. The first charge detailed as follows:
“You contravened the provisions of Section 17 (i) (c) of the Employment of Educators Act 76 of 1998 I that between June 2020 and October 2020, or at any period incidental thereto, at or near Nwanedi Primary School, you had a sexual relationship with learner A, a 14 years old Grade 7 learner of the school where you are employed.”

The second charge had two counts. This charge was detailed as follows:
“You contravened the provisions of Section 18 (1) (a) of the Employment of Educators Act 31 of 2000 in that:
Count 1
“On or about 2 October 2020, or at any period incidental thereto, at or near Sebasa, you had asexual intercourse with learner A, a 14 years old Grade 7 learner of the school where you are employed and therefore, you contravened the Code of Professional Ethics, Item 3.6 by failing to refrain from improper physical contact with the learner.”
Count 2
“Between June 2020 and October 2020, at any period incidental thereto, at or near Nwanedi Primary School, you had a sexual relationship with learner A, a 14 years old Grade 7 learner of the school where you are employed and therefore you contravened the Code of Professional Ethics Item 3.9 by failing to refrain from any form of sexual relationship with a learner at a school.”
28. At the commencement of the proceedings, where asked to disclose the basis of his defence, the employee stated that he denies committing the misconducts levelled against him. There were no elements of the misconducts that were conceded to by the employee. The employee, being duly represented by a Union official, understood the allegations and I was satisfied that the allegations were properly drafted. Accordingly, a plea of not guilty was entered on behalf of the employee.

29. Learner A testified about the employee proposing love to her since June 2020. This would happen during breaks were the employee would call her to class and confess his love for her. This version was not countered during cross-examination. She stated further that on 02 October 2020, the employee gave her R200.00. During cross-examination, she was further asked whether the R200.00 was in the form of two R100-00 notes or one R200.00 note. She stated that it was two R100.00 notes. There was no version put to her which contradicted the version. The R200.00 was seen by her worker who asked her about where she got the money. Her worker, Ms Tshilande N.M confirmed seeing the R200.00. The employee in his defence simply stated that she never gave her money.

30. Learner A stated further on 03 October 2020, she caught a taxi around 07h30Am to go to Tshilapa As she agreed with the employee even called her to check on her before catching a taxi. She eventually got a taxi and met the employee. The employee stopped another taxi and went to a lodge at Sibasa. The employee paid for the taxi as well as the lodge. After being given a room, they both went to her room and the employee asked her to undress and he had sex with her. This version was again, not denied, during cross-examination. It was only during the employee’s testimony, that he denied seeing Learner A on 03 October 2020 and that he was loading sand the whole day.

31. The employee simply gave a bare denial without challenging Learner A’s version at all. My observation of Learner A was that she was very clear about the sequence of events. She appeared to be truthful because she even stated that she lied to worker about where she got the R200.00 because the employee had told her not to tell anybody. The employee abused their position of power, as a teacher by capitalising on the vulnerability of a minor child. He gave her money which she used to catch a taxi to meet him. Even when Learner A asked where they were going, he just said they were going to Sibasa. Leaner A was clear that the employee has sex with her. During cross-examination, she stated that she told him that he was hurting her.

32. I find therefore that the employee is guilty of the allegations levelled against him. Even the witnesses called by the employee contradicted him in relation to what transpired on 03 October 2021. The employee said he ordered food which was delivered by an Uber which the witness said they bought bread and cold drinks at a spaza shop across the road. The employee’s version is rejected and not plausible.

33. The employee has breached the duty to act appropriately as a teacher. Society expects teachers to be protectors of their children at school. Teachers have to lead by example as parents. The employee has broken this trust. People who behave in a manner that the employee acted cannot be trusted with children. While the employee submitted that he has a clean record and is a breadwinner with a wife and dependants, these factors cannot mitigate enough to avoid summary dismissal.
AWARD
34. The employee be summarily dismissed.
35. The employee Mr Konanani O.A is not suitable to work with children in terms of section 120 (4) of the Children’s Act 38 0f 2005.

36. The General Secretary of the ELRC must in terms of section 122 (1) of the Children’s Act 38 of 200, notify the Director General: Department of Social Development in writing of the finding that Mr Konanani O.A is unsuitable to work with children.

Panelist
M.N Masetla