IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN BLOEMFONTEIN (FREESTATE PROVINCE)

In the matter between

FREE STATE DEPT OF EDUCATION EMPLOYER

and

MOTLATSI MOGWERA EMPLOYEE

ARBITRATOR: Monde Boyce

HEARD: 24 October 2023, 01 December 2023 and 27 February 2024

CLOSING ARGUMENTS: 08 March 2024

DATE OF AWARD: 19 March 2024

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] The ELRC scheduled the inquiry in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and the inquiry was held on 24 October 2023, 01 December 2023 and 27 February 2024 at the Free State Provincial Offices in Bloemfontein. The employee was represented by Mr DM Serape, a trade union official from the trade union SADTU. Miss L Cweba, the Labour Relations Practitioner in the employ of the department, represented the employer.

[2] The ELRC arranged for an interpreter and an intermediary who were present to assist with interpretation as well as assisting the learner witnesses during the arbitration process. No bundles of documents were submitted by both parties. On conclusion of the arbitration process, both parties requested to submit written closing arguments, a request I duly granted. The agreement was that parties would file their written closing arguments with the Council by no later than 06 March 2024, but while the employer filed its written closing arguments on 06 March 2024, the employee sent his written closing arguments at 23h49 on 07 March 2024, and the Council forwarded the closing arguments to me on the morning of 08 March 2024.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the employee is guilty of the charge preferred against him by the employer, and I am called upon to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[4] The employee is employed as an educator at Atlehang Secondary School in the Freestate Province. He is currently on suspension pending finalization of the inquiry. The employee was charged for the following:
Allegation 1:

“You have contravened Section 18(1)(q) of the Employment of Educators Act No 76 of 1998 in that during the 1st term in 2023, you conducted yourself in an improper, disgraceful, or unacceptable manner when you asked a Grade 12 learner (learner A) if she was a virgin and told her that her grandmother will be happy if you can be the one to break her virginity.”

[5] The employee pleaded NOT GUILTY to the charge.

SURVEY OF EVIDENCE AND ARGUMENT:

Employer’s Evidence

[6] The first witness called by the employer was leaner A, A 17-year-old learner. She is currently a learner at Atlehang Senior Secondary School. She testified that during term 1, she had stood up in class when the employee, addressing her, said “F….sek sit down”. The employee would often swear at them in class. She could not remember the specific date, but around February or March 2023 the employee asked her to assist him carry some documents. When walking along with the employee, the employee asked her (learner A) who her grandmother was. The employee asked this because she had told him earlier on that she was going to report him to her grandmother for swearing at her in class. She told the employee that her grandmother was Maseane. The employee had, after she told him the name of her grandmother, asked which Maseane was, and her response was that it was the Maseane who was attending the church with him (employee). She had previously seen the employee when attending church with her grandmother. The employee asked again if it was the same Maseane he attended church with, and she responded in the positive by nodding her head. The employee then told her that her grandmother would be happy if he was the one who broke her virginity. She started panicking and proceeded to her class that was on the higher floor. On arrival in class, the employee continued giving lessons. After school, she told her friend about what the employee said to her.

[7] She only interacted with the employee in class and did not have any close relationship except when she met the employee taught the class she was at. She was angry after the employee said what she said to her, and she, from then on saw the employee in a different light, and she started recalling stories that were related by matriculants about the employee’s behaviour. She had then approached her friend, Relebohile who told her that she also had things that she knew about the employee. After the incident, she did not speak to the employee in class, and the employee at one stage had asked her why she was giving him an attitude, and she did not respond. There was a time later on when the employee asked her to assist him carry Sesotho books to his office.

[8] On arrival at the office, the employee asked her if she was seriously a virgin, and asked again about her age which she told him. The employee then said to her there were children who are 14 to 16 years old who are not virgins. She then told the employee that that was what they preferred, but that she preferred to preserve herself. The employee had then told her that if she did not get her, he would get her during the camps. She then left the office.

[9] On the very same week and on a Friday which was the casual day in school, the employee called her to come down as she was on the top floor, and the employee was standing at the parking lot. When she got closer to him, the employee told her to turn around so that she could see her buttocks. There was no one else when the employee said this, it was only the two of them. She was, on the day, wearing a school trouser and a t-shirt she usually wears at home. It was not the first time that the employee saw her wearing the same trouser. She refused to turn around and instead sat down, and the employee asked her why she was wearing a trouser. She did not respond and remained sitting. When the employee insisted that she stand up and turn around, she refused and instead stood up and walked back to class. She then told her friend, learner B about the incident another of her friends.

[10] During term 2, she and fellow leaners in her class had a Sesotho textbook that they had to use, and she did not have the textbook. The employee had called out the learners who did not have the textbook. The employee then asked another learner, learner C to go and fetch the stick so he could punish them. Before learner C exited the class, she asked learner C to borrow the textbook for her from another learner, Learner D. Learner C came back with the stick and the textbook which he handed to her. She then sat down. The employee asked her to come forward so that she could receive punishment. But she refused and instead told the employee that corporal punishment was not permitted. The employee then chased her out of the class. She was not the only leaner who did not have the textbook, but there were three other learners who did not have. She went home during the interval since her home is not far from the school. When she got home, she found out that her mother was not at home, but a lady who was a neighbour saw her and asked why she was home. She told the lady that she and other learners had been chased out by the employee and asked to bring their parents. The lady then advised her to report the employee to the principal if the employee repeated what he did.

[11] When she returned back to school after the short break, the employee chased her away again and told that he was going to have her stay away for six months.

[12] She reported to her mother what the employee had said to her about her being a virgin later on the day she was chased away. She also reported the incident to the principal, and her mother also went to the school to meet with the principal. But the employee ensured that her mother did not get to meet the principal. She was at the school earlier on the day her mother went to the school to see the principal, and the employee had first instructed a Grade 12F learner to fetch her from class, and she refused. The employee then came himself to the class to fetch her and told her that her mother was in the office. She walked ahead of the employee to the office, and while walking to the office, the employee said to her: “Ran…ie, don’t do this to me, why would you report the things I was saying to you.?” She did not answer the employee but continued walking to the office. On arrival at the office, she did not find her mother in the office. She waited for a while and then walked out. When walking out, the employee gave her his office keys and told her to go back to the office. She refused and went back to her class.

[13] Her mother arrived only fifteen minutes after she had been to the employee’s office. She was again called by another leaner who said she needed to go to the office. When she got to the employee’s office, she found her mother waiting there, and the employee had already given her mother his version, and she also gave her version. The employee then said he did not recall saying what he was alleged to have said, but he nonetheless apologized. But she refused to accept his apology. Her mother had then asked him why he was apologizing when he had said he did not recall what he was said to have said. The employee asked her to leave the office for a short while he remained with her mother. The principal only got to hear about the full story when her sister and a union official from SADTU went to the school.

[14] After she reported the incidents and when her mother was at the school, the employee had requested her mother’s number and would frequently call her mother even late at night. She heard what was being said because her mother’s house is not big, and her bedroom is close to her mother’s. Her mother would also tell her what the employee said everytime the employee called. The employee only started teaching her in 2023 and had not taught her before.

[15] Learner B, was called as the respondent’s second witness. She testified that is 17 years old and is a learner at Atlehang Senior Secondary School. Learner A approached her and told her that the employee had told her that her (Leaner A) grandmother would be happy if the employee were to be the one to break her (leaner A) virginity. The incident occurred during term 1 but she does not remember the date. She had advised learner A to report the incident to her mother. Learner A further told her that the employee had asked her how old she was and whether she was still a virgin. Leaner A was crying and sad when she reported the first incident to her. Leaner A also told her about an incident that occurred on another day that she (Learner A) was wearing pants and where the employee asked her to turn around so he could see her buttocks. Learner A told her that the incident happened outside CAT class. Except for the two incidents, learner A did not relate any other incidents.

[16] She attends the same class as learner A, and there was a time when the employee asked whether they all had textbooks. And some learners had responded that they do not. The employee had then asked them to leave the class. One of the learners, Learner C, was asked by the employee to fetch a stick. Learner C also brought a textbook for learner A. She was asked to leave the class because she did not have a textbook, but she refused. Learner A was among the learners who left the class. She does not believe learner A made up the allegations or made them because she had been chased out of the class.

[17] Miss Nontsokolo Ivy Thiya was called as the third witness. She is the mother to learner A. Leaner A called her while she was at work and informed her that the Sesotho teacher had chased her out of the classroom because she did not have a Sesotho textbook. She further told her that she had borrowed the book from another learner, but that the teacher wanted to beat her, and that she refused, and the teacher chased her out of the class. She told her to go back to school and that if the teacher chased her again, she needed to report the teacher to the principal. Leaner A then went back to the school but was chased away by the teacher again. Learner A reported the incident to the principal, but the principal was busy and told her that he would attend to the textbook issue later.

[18] Learner A later reported to her and a neighbour, Miss Seane, about the inappropriate behaviour that the employee displayed, and that the employee swore at learners in class. She had gone to the school to see the principal about the allegations, and when she got to the school, she met the employee who sought to assist her. She did not know the employee at the time. She told the employee that she was there to see the principal, to which the employee responded that the principal was not available, but that he, as the principal’s right-hand man, would assist her. She agreed to go inside the office with him. Inside the office, the employee asked if she knew the person against whom the complaint was made, and she responded that she did not. She suspected that the employee got to know that she was going to lodge a complaint at the school because the employee had spoken to Maseane who was her neighbour. She was surprised when the employee told her that he was the one against whom the complaint was made. She had then asked the employee why he would say such things, old as he was. The employee apologized. She had then called her daughter, learner A, to come and say all that she had told her about the employee, and leaner A did. The employee denied having said what he was alleged to have said and proceeded to state that he did not recall making any such inappropriate remarks. She asked why he would apologise for something he did not say. The employee asked that the issue remain between the three of them. She left the school, and when the employee was walking her out of the school, he requested her contact numbers.

[19] When the employee requested learner A to leave the office, the employee had told her that there were teachers at school who did not like him and that it was possible that there was a teacher who had influenced learner A because, two years before, a learner was influenced by another teacher to falsely implicate another teacher. Her response was that she did not believe that learner A’s version was manufactured because it appeared to her that learner A related incidents that indeed happened.

[20] When she got back to work, she called her niece, Morotlo, and told her about all that happened at school. Morotlo was furious when she heard what she was told and said she (Thiya) should not have left the school before meeting with the principal. She however told Morotlo that the employee had apologized. She, after coming back from work, saw two missed calls from the employee. She sent the employee a call back. The employee called her back and told her that learner A had been to see the principal and that the principal wanted to know if the textbook issue had been resolved. Late in the evening, the employee called her again, and she told him that she was busy assisting her children with homework and was bathing them. She then asked the employee not to call her again. Her daughter had then told her that her niece, Morotlo, had gone to the school with her husband who is a SADTU official.

[21] Maseane’s daughter is her neighbour, and she is thus very close to Maseane, and that is why her daughter, learner A, regards Maseane as her grandmother. Maseane had advised her to go and report the matter to the principal since she believed that learner A would not falsely state what she told her if it was not true.

[22] The employer’s last witness, Mr Lesedi Willima Rakaku, testified that he is currently employed as the principal of Atlehang Secondary School. During 2023 and on a date he could not recall, he found two individuals wearing trade union SADTU regalia waiting at the foyer. He called the two individuals to his office and asked them about their reason for being at the school. One of the individuals responded that although they were trade union officials, they were not there in their official capacity but were there to report an incident of sexual harassment against the employee, Mr Mogwera. He then advised them that the school policy required that the complaint be lodged by the child or parents. He later received the complaints in the form of affidavits given by the learner and her mother. He referred the complaint to the Labour Relations Department. He had had a brief interview with learner A, and the learner A had told her that the employee had told her that her grandmother would love it if he were to be the one to break the learner A’s virginity.

[23] The trade union officials who visited the school told him they were uncles to learner A and one of the officials was the trade union SADTU’s regional secretary. The employee never told him that learner A’s mother had visited the school. After hearing of the allegations, he did not talk to the employee because he believed Mr Mukhua, had already spoken to the learner and taken up investigation of the complaint.

Employee’s Evidence

[24] Mr Motlatsi Mogwera, the employee, testified that he is currently employed as the Deputy Principal at Atlehang Secondary School. Learner A is a learner at his school, and he is teaching her Sesotho in Grade 12. He, at no stage, asked learner A during the 1st term in 2023 if she was still a virgin. There was nothing that happened between him and learner A during the 1st term in 2023 and there was nothing untoward that he said to her except their interaction when he was teaching her during classes. He disputes the version by learner A to the effect that he asked her (learner A) if she was a virgin and that her grandmother would be happy if he was the one who broke her (learner A) virginity. Learner A did not tell the truth because he did not even know learner A’s grandmother. He also never requested leaner A to bring textbooks to his class.

[25] He does not recall summoning leaner A from the upper floor classrooms while standing at the parking lot as alleged by learner A. He also never asked learner A to turn around so that he could see her buttocks. There usually are many people at the educators’ parking lot who would have been walking around during the time the incident is said to have happened. During the 2nd term in 2023, there was nothing untoward that happened between him and learner A except the lessons he conducted. He only interacted with her when they were reading “lejwe la gopiso” drama book. His leaners did not have the textbook. He would give the textbook to learners, but leaners would leave the textbook at home. Learner A was not the only learner that he chased away for not bringing the “lejwe la gopiso” textbook, but he chased other learners from his class for the same reason.

[26] Leaner A is also not telling the truth when she says she borrowed the textbook from another learner. It is also not true that he wanted to punish leaner A with a stick and would not have done so since corporal punishment is not permitted. It is true that learner A’s mother did visit the school, but the principal was not available on the day. He had asked learner A’s mother to go to his office in order to explain what her challenge was, to which she agreed. He had explained to learner A’s mother that he chased learners away for not having the textbook. Leaner A’s mother had responded that she understood, and that is where his interaction with her ended. It is not true that he had tendered any apology to learner A’s mother. He would not have apologised for disciplining leaners. He further did not request learner A mother’s contact details.

[27] He believed that learner A, leaner B’s version was manufactured and that they planned to falsely implicate him. Learner B could not remember the exact dates of when the incidents happened and was also not at school during the casual day where the incident is alleged to have occurred. Miss Thiya was not telling the truth because she gave contradictory versions as to where learner A was standing when the alleged parking lot incident occurred. Miss Thiya is also not telling the truth regarding the version of events around the textbook where he chased learners for failing to bring the textbook to the class. Had he not chased learner A for not having the textbook, the allegations against him would not have arisen. He does not know Miss Maseane that Miss Thiya referred to in her testimony. That he had told Miss Thiya that there is a teacher at the school who did not like him and who might use learner A to fight him is not true. He has a good relationship with all the teachers at the school.

[28] It is also not true that he would not have given the principal, Mr Rakaku an update on what was reported to him. He has a responsibility of helping parents who visit the school. He did invite Miss Thiya, who he commonly refers to as Nontsokolo, to his office where they discussed learner A’s challenge about being chased from the school. He had asked Miss Thiya if she knew the teacher who is said to have chased learners away, to which Miss Thiya responded she did not. He proceeded to tell her that he was the teacher who chased leaners out of his class and explained why. Miss Thiya is not telling the truth when she testified that he had apologised to her. Mr Rakaku was not telling the truth when he testified that he did not get a report from him.

[29] The allegations against him have destabilised his life, and these allegations are not even true. His health has been negatively affected as he now suffers from high blood pressure, gout and diabetes and he constantly visits doctors including a psychiatrist. He is battling to explain the allegations to his wife and 32-year-old daughter. He has been an educator for 29 years and it is the first time that he had faced the kind of allegations levelled against him.

[30] The employee’s first witness, Miss Relebohile Shai, testified that she was a Grade 12 learner at Atlehang Secondary School and that she attended the same class as leaner A. She came to know learner A when the classes were combined, and they had to attend one class. Leaner A was aggressive and not friendly and looked like someone who was depressed. Learner A had once related to her an incident about a teacher that taught Grade 11 and 12. The teacher was playing with her, and learner A had asked her to accompany her to the principal to report the teacher because he acted inappropriately towards her. The principal had then asked if he (principal) should call the teacher to reprimand him, but learner A said he should not be called. That showed her that learner A was not telling the truth.

[31] She thought that learner A made the habit of falsely implicating teachers. The Afrikaans and the Maths teachers had reprimanded her (learner A) about her attitude. She is not the Relebohile that learner A reported the alleged conduct by the employee to.

[32] The employee called a second witness, Mr Bokang Maliehe. He testified that he is employed as an educator at Atlehang Secondary School and knows the employee who is the deputy principal at the school. He has known the employee for more than ten (10) years. In the years he had worked with the employee, he had many projects that he and the employee worked closely on including Matric camps where they prepared learners for exams. His observation was that the employee is strict and wants things done in the manner that they should. The employee is a hard worker and loves his work and puts the welfare of the learners first. The employee is someone who can be trusted. He does not know much about the allegations but is surprised that the allegations were made.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[33] I hasten to mention that where charges are preferred against an employee, it is the employer that must prove the allegations. The employer, in the present case, thus bore the onus to prove the allegations. It is sufficiency of evidence presented that determines whether allegations have been proved. Trite to also mention is that alleged sexual misconduct or alleged inappropriate conduct against educators rarely happens in the presence of witnesses. It is, most times, the complainant learner and the educator alleged to be the perpetrator who would be involved. It is thus easier for implicated educators to merely advance bare denials without showing why the allegations or complaints by leaners should not be believed. It then becomes the credibility of witnesses that helps in pointing out whether their versions should be accepted as more probably and should be believed or not.

[34] The complaints by learner A allegedly happened between her and the employee and, except for her telling a fellow leaner, learner B, and her mother about the allegations, no evidence to the effect that anyone else witnessed the incidents was led. The question that then begs an answer is that of whether the employee, Mr Mogwera, who is implicated should escape being held accountable on account of there having been no witnesses.

[35] Learner A gave a version to the effect that the employee told her that her grandmother would be happy if he (employee) were to be the one to break her virginity, and that the employee had later asked her about her age and whether she was indeed a virgin and that children between 14-16 years were no longer virgins. These utterances were, as I earlier stated, made in the absence of witnesses. Having heard evidence, it is my finding that the possibility that learner A was not telling the truth as to the version of events is remote and that likelihood exists that the employee did say what he is alleged to have said for the reasons I will be explaining below. Learner A, on more than one occasion during cross-examination, stood her ground and asserted that she did not like what the employee said to her and did not take kindly to his continuing saying the things he said to her.

[36] Learner A only started interacting with the employee when the employee started teaching her in 2023. Before that, both learner A and the employee did not know each other, as far as evidence goes. Except for the textbook incident there was no evidence of any prior history of animosity that would cause learner A to single out the employee as the perpetrator. While the employee testified that had it not been for the textbook incident, the allegations against him would not have arisen, it is my finding that the textbook incident could not have caused learner A to bring about the complaint against the employee. Learner A was not the only learner affected and was not the only one that the employee chased away from the class. There were other learners who did not have the textbook and who were chased away by the employee, including learner B who had refused to leave when the employee tried to chase her away. The incident was thus not isolated and did not only involve learner A but other learners as well.

[37] Learner A told a fellow leaner, learner B, about what the employee did, and learner B’s testimony was that she advised learner A to report the employee to her (learner A) mother. Learner B then proceeded to state that except for the two incidents, learner A did not tell of any other incidents. Learner A and learner B’s versions were corroborated by learner A’s mother who repeated what learner A told her. The employee sought to rubbish the allegations and suggested that the version of the witnesses called by the employer could be manufactured. This, he did by, during cross examination, putting it to the witnesses, in particular learners A and B, that their versions could not be true because they were unable to remember the exact dates that the incidents occurred.

[38] While both learners could not give the exact dates and could not recall the exact month/s that the incidents occurred, I could not find same to be damaging to the credibility of their versions. While they both could not remember the exact dates; they were consistent in relating what had happened. It is also not uncommon for witnesses not to recall the exact dates that an incident would have occurred, and same is usually not an indication that a witness could be lying. And having carefully considered the two learners’ versions, I could not find that their versions were manufactured. To arrive at a conclusion that their versions were manufactured, there would have been features that would strongly point to their having colluded to falsely implicate the employee. But their narrating the events that led to the complaints being brought about does not point to any possible collusion, and theirs appear to be versions informed by what they experienced.

 [39] Learner A’s version during her evidence-in-chief and during cross examination was that the employee told her that her grandmother would be happy if he was the one who broke her virginity when she was assisting the employee in carrying books to the class and after she had told the employee that she would report him to her grandmother after he had earlier shouted at her in class. She did not immediately report to anyone or lodge a complaint about what the employee said but only did so after the employee, at a later stage, persisted with the alleged inappropriate conduct by asking her how old she was and whether she was indeed a virgin and further proceeding to tell her that most children between the ages of 14-16 were not virgins, and also when the employee to her he would get her during school camps. If learner A’s version was manufactured as the employee sought to suggest, the narration of the events leading to his being reported would have appeared more practiced than how learner A narrated them during her evidence-in-chief and during answering of the questions posed to her during cross examination.

[40] During cross examination, the employee put to learrner A that she was not telling truth when she referred to Miss Seane as her grandmother. This suggestion came about when learner A could not remember the surname of Maseane who learner A referred to as her grandmother. But it transpired, as learner A stated during cross examination and also during her mother’s testimony, that Miss Seane or Maseane as she was referred to by both witnesses, was actually a neighbour and a friend that learner A considered a grandmother and had developed a close relationship with since she was young. Learner A further did clarify during cross questioning that Maseane was not her biological grandmother. This version was corroborated by her learner A’s mother, Miss Thiya. To the extent this was the case, I cannot find that learner A was untruthful in her referring to Maseane as her grandmother or that same was damaging to her credibility as a witness.

[41] I now turn to the evidence of Miss Thiya. Miss Thiya is a mother to learner A. It is my finding that Miss Thiya was a credible witness, and I had no reason not to believe her version. She did not know the employee and had had no previous dealings with the employee before learner A reported the employee’s inappropriate conduct to her. Her version was that she only got to know the employee when the employee, after inquiring about whether she knew who the person being complained about was, to which she responded in the negative, told her that he was the one that the compliant was lodged against. The employee did not dispute this version. Miss Thiya also testified that it occurred to her or rather that she suspected that the employee knew of her reason for visiting the school because he (employee) had earlier spoken to her neighbour, Maseane. The employee did not dispute this version. What the employee did dispute was that he apologised when Miss Thiya asked him how he could, old as he was, say the things he said to her daughter. But his bare denial falls to be rejected on the basis that both learner A and her mother, Miss Thiya, were emphatic that the employee apologised, and which apology learner A testified that she rejected.

[42] It is my finding that likelihood exists that the employee did tender the apology. Miss Thiya and learner A’s narration of how the employee came to tender the apology could not have been manufactured. According to Miss Thiya, the employee apologised before learner A was called to the office where she met the employee. The second time the employee apologised was when learner A was called to the employee’s office again after her mother had arrived. According to learner A, when she arrived at the office and found the employee with her mother, the employee stated that he could not recall having said what he was alleged to have said but nonetheless apologised. Except for denying that he apologised, the employer did not dispute the sequence of events leading to his being said to have apologised.

[43] The overall conduct of the employee when Miss Thiya arrived at the school and after she left did, in my considered, point to his being guilty of the offence he was charged for. In the first place, it does appear, as Miss Thiya testified, that the employee knew that she was to visit the school to report his conduct. The employee then made an effort to ensure that the allegations went no further than between him, learner A’s mother and learner A herself. This conclusion is based on the employee having intercepted Miss Thiya on her arrival at the school and his having ensured that she did not get to meet the principal by telling her (Miss Thiya) that the principal was not available, and did not explain to her that the principal was actually at the school but engaged in a meeting with departmental officials, in which case Miss Thiya would perhaps have elected to either wait for the principal to finish his meeting or secure an appointment for a different date.

[44] The employee also did not call anyone else to witness the engagement he had with Miss Thiya. To the extent the allegations are serious, one would reasonably expect the employee to call a witness to ensure that what was said between him, Miss Thiya and learner A is at least corroborated by an independent observer who would attest to his claim as to his having not tendered an apology. The employee also did not explain why he, where he was the subject of the complaint, did not immediately stop the meeting and rather escalate the complaint to the principal. The employee confirmed during cross examination that he was not the only deputy principal at the school, and that the school had two deputy principals. He did not explain why he could not have the other deputy principal present or rather have the other deputy principal handle the complaint. The only inference that I draw from his conduct or omission is that he wanted to ensure that the complaint was not escalated and did not lend on the principal’s desk because he had made the inappropriate remarks to learner A as alleged. I find his conduct to be typical of a guilty person.

[45] It is also my finding that the versions of Miss Thiya and learner A could not have been manufactured if one has regard to the employee’s own conduct or behaviour after the meeting held between him, Miss Thiya and leaner A. The employee did not tell the principal about Miss Thiya’s visit to the school and also did not bring the complaint against him to the principal’s attention. The only time the principal became aware of the allegations was when the complaints were brought to his attention by the two SADTU officials who visited the school and who happened to be Miss Thiya’s niece, Morotlo, and her husband. The employee did not proffer any good explanation on why he failed to promptly bring such serious allegations to the attention of the principal immediately he (principal) was done with his meeting. He instead, during his evidence-in-chief, stated that he had given a report to the principal who he found with the finance clerk, a version he failed to put to the principal who was emphatic that the employee never reported the complaint to him and that he (employee) never brought Miss Thiya’s visit to the school to his attention. The employee probably omitted to inform the principal because he was guilty of having engaged in the inappropriate and disgraceful conduct that he is alleged to have engaged in.

[46] What further lays credence to the conclusion in [45] above is that the employee walked Miss Thiya out of the school and then asked for Miss Thiya’s contact numbers and later called her. He did not dispute having called Miss Thiya but stated that he called her (Miss Thiya) in response to a ‘please call’ text message that Miss Thiya sent him. Miss Thiya had however testified that she sent the ‘please call’ text message after she saw two missed calls from the employee. The employee did not put a version to Miss Thiya to the effect that she was in fact the one who sent him a ‘please call’ text and that he was responding to that text when he called her. What lays further credence to the possibility that Miss Thiya’s version could not have been manufactured are the steps that she took after her meeting with the employee. She testified that she called her niece, Morotlo and told her about the allegations and further told her that the employee had apologised and that Morotlo got very infuriated when she heard about the allegations and told her that she (Miss Thiya) should not have left the school without seeing the principal. Morotlo, subsequently went to the school with her husband who is a trade union official of SADTU to report the employee’s conduct, a version confirmed by the principal when he testified later during the arbitration process. In my considered view, Miss Thiya and her niece would not have gone to such lengths if the allegations were not true. The principal did not know Morotlo and her husband, and I find it highly unlikely that he would state that they visited the school and told him about the complaint against the employee if the allegations were not true.

[47] I cannot find the employee to be a credible witness. His version was largely uncorroborated and the two witnesses he called did not take his case far. The first witness the employee called, Miss Shai, did not assist the employee’s case to the extent that her assertions to the effect that learner A was aggressive and looked like someone who was depressed, and allegedly having a habit of falsely implicate male educators was not tested to the extent that the version in this regard was never put to learner A when she testified. Learner A was never asked about Miss Shai and whether she knew her or had any interactions with her. To that end, any conclusion to the effect that Miss Shai’s claims had any basis would be highly subjective and perhaps in correct.

[48] The second witness the employee called was Mr Maliehe who is an educator at the school. Mr Maliehe’s evidence again did not take the employee’s case far. His characterisation of the employee as being strict and trustworthy was never put to the witnesses called by the employer, especially learner A and her mother, Miss Thiya, who, through their testimony, expressed displeasure and serious reservations about the employee’s conduct. Also, the principal who would have been best positioned to respond to the employee’s character traits set out by Mr Maliehe was never cross examined, or rather Mr Maliehe’s version was never put to him (principal). It may well be that Mr Maliehe does know the employee as being strict and trustworthy, but to the extent I would be required to take same into account and perhaps make a finding, same should have been put to the witnesses called by the employer so I could have the benefit of understanding what their own experience would have been compared to what Mr Maliehe asserted.

[49] Turning back to the evidence of the last witness called by the employer, Mr Rakaku, the school principal, I have no reason not to accept his version as true. His version to the effect that he only became aware of the allegations against the employee after meeting two individuals in trade union SADTU regalia was not gainsaid. I also could not find any reason why he would deny having received any report on the allegations from the employee, if the employee did furnish him or give him the report. Mr Rakaku did not strike me as naïve. He is, in any event, the leader of the school by virtue of his position as the principal. As such, I do not believe he would deny having received any report related to the allegations from the employee. The employee in any event did not present any evidence that would cause Mr Rakaku to deny having received such a report. By his own version, the employee had a good relationship with all the educators at the school. I do not have evidence to the effect that Mr Rakaku, as the principal of the school, had strained relationship with any of his deputies, in particular the employee, and neither was I pointed to any history of animosity that existed between the employee and the principal.

[50] The employee testified, and stated during cross examination that he gave the principal the report about the allegations when he found him in the office with the finance clerk. When it was put to him during cross examination by the employer representative that he did not put that version to the principal, the employee simply responded that he did not know about that but that what he knew was that he did give a report to the principal. The only logical conclusion I reach is that the employee omitted or failed to put the version to the principal about having given a report about the allegations in the presence of a finance clerk because he knew he had engaged in inappropriate conduct alleged by learner A.

[51] Having heard the evidence, it is my finding that the employee did behave disgracefully and inappropriately towards learner A as alleged and is thus guilty as charged. Compared to witnesses called by the employer, I find that, as I earlier allude to in the preceding paragraphs, that the employee was not a credible witness. Most of what the employee stated in his evidence-in-chief and during cross examination was not put to witnesses. For the versions of the employer witnesses to have been manufactured as the employee suggested, one feature that would have been present for such a conclusion to be arrived at is the versions appearing to have been tailored in such a manner that it seen to implicate the employee at all costs. I could not find them to have tailored their version to suit any narrative that sought to falsely implicate the employee.

[52] The employee was not the only male educator at the time the complaint by learner A was made. The school had other male educators that learner A had interactions with, but I have no evidence of any complaints of a similar nature lodged against the male teachers. The employee proffered no good explanation on why learner A, who he had little interaction with, singled him out as having made the inappropriate remarks and conducted himself in the inappropriate and disgraceful manner that he did. None of the learners who were chased away along with learner A brought the kind of complaints reported by learner A against the employee if the employee’s assertion to the effect that had he not chased the leaners away, the allegations would not have been brought forth.

[53] Quite disheartening and unfortunate is that despite the safeguards and instruments in the form of the Constitution of the Republic of South Africa, in particular Section 28 , the Employment of Educators Act 76 of 1998 (EEA) and the South African Council of Educators’ (SACE) Code of Professional Ethics, which instruments are meant to protect children, improper, disgraceful behaviour or educators behaving in unacceptable manner towards learners as set out in Section 18(1)(q) of the EEA persists. Even more unfortunate is that a number of educators have been found guilty and dismissed for similar conduct, but same does not appear to dissuade them from engaging inappropriate, disgraceful and unacceptable conduct towards leaners. Until such time this behaviour is nipped in the bud, and until such time the behaviour stops, a very strong and clear message must be sent that such behaviour will not be tolerated and will continue to be harshly dealt with where an educator is found guilty of engaging in same. What is also unfortunate is that the employee would possibly have gotten away with murder, for lack of a better term, and the concerned learner would have not reported the incidents had he not made utterances to the effect that he would get the leaner during school camps, an utterance that appeared to have made the concerned leaner to finally report him.

[54] For purposes of completion, I should state that the EEA provides that: “An educator commits misconduct if he or she -while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner.” The employee is no ordinary educator at the school, but he holds a fairly senior position of deputy principal. As such, the expectation is that he would be the one to champion protection of learners against any untoward behaviour by educators towards learners at the school. Not that it would be any less serious if the act was committed by an ordinary educator, but that the employee is a deputy principal should invite harsher penalty where he is found guilty of having engaged in behaviour envisaged in Section 18(1)(q) as he is expected to lead by example. I find it quite shocking that the deputy principal of a school would make such inappropriate remarks that had sexual connotations against a leaner. Even worse, and even when learner A initially did not report his conduct, the employee persisted with his conduct by asking the leaner how old she was and proceeded to tell the learner that children from 14 to 16 years are no longer virgins. I find such remarks to be extremely inappropriate from an educator to a learner, and an educator who displays such conduct is simply unfit to work with learners, especially learners who are children as provided for by the Constitution. As correctly argued by the employer, the in loco parentis principle finds application in all cases of educators. The employee stands in the place of parents and becomes a parent himself to the learners at Atlehang Secondary School and has a responsibility of acting as such and protecting learners against harm and being subjected to any behaviour of sexual nature.

[55] The education profession is a noble profession and, as I often state, educators are expected to always display exemplary conduct, and this is especially so because their primary responsibility is that of moulding and preparing learners to be future leaders. They do so by not only imparting knowledge in the form of subjects the teach but by teaching learners values that would make them model citizens and exemplary leaders. This goal can never be achieved if the very individuals charged with changing the learners course of behaviour and making them better citizens, engage in conduct that contradicts or defeats that very objective. A country without exemplary and model youth is doomed, and it can never be that educators are counted amongst culprits who contribute to societal ills by perpetuating disgraceful behaviour against learners. By engaging in conduct as alluded to above, the employee breached the SACE Code of Professional Ethics which provides that educators must respect the dignity, beliefs and constitutional rights of learners and in particular children and that educators must refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school.

[56] It is my finding that the employee is guilty of the charge preferred against him, and I, in the premises, make the following award:

AWARD

[57] The sanction of dismissal is imposed effective from 25 March 2024.

[58] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE for its consideration of appropriate action to be taken.

[59] The employee, Mr Motlatsi Mogwera is found unsuitable to work with children in terms of Section 120(4) of the Children’s Act 38 of 2005.

[60] The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children’s Act 38 of 2005, that Mr Motlatsi Mogwera, is unsuitable to work with children, for the Director general to enter his name as contemplated in Section 120 in Part B of the register.

[61] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and must do so within the prescribed timeframe.

Monde Boyce
Panelist: ELRC