In the matter between

GAUTENG DEPT OF EDUCATION EMPLOYER

and

LUCKY BALOYI EMPLOYEE

ARBITRATOR: Monde Boyce

HEARD: 29 September 2021

CLOSING ARGUMENTS: 04 October 2021

DATE OF AWARD: 27 October 2021

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] The ELRC scheduled the matter in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and the inquiry was held on 29 September 2021 at the Soshanguve Teachers Centre in Soshanguve. The arbitration was concluded on the same date. Both parties attended the arbitration and Mr Riba, a trade union official from SADTU, appeared for the employee while Mr Makola, appeared for the employer.

[2] The employer did submit a bundle of documents which was used as a common bundle. The proceedings were digitally recorded, and typed notes taken. Because the video link could not be used on the date of the process due to non-availability of a technician, arrangements were made for the child witnesses to give their evidence from an adjacent room where they sat with the intermediary. All the learner witnesses were comfortable giving evidence on their own with the intermediary providing little assistance. There was an issue of non-availability of an interpreter. However, while in the process of making arrangement for availability of an interpreter, the learners indicated that they were comfortable testifying in English. As such, the need for an interpreter was dispensed with. The intermediary sat with each of the child witnesses and provided the necessary support where needed throughout their testimony. I should further mention that because the learners are all under the age of 18 years, I deemed it necessary to, in order to protect their identity, refer to them as leaners A, B and C respectively.

THE ISSUE TO BE DECIDED:

[3] Whether the employee is guilty of the charge preferred against him by the department, and I am required to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[4] The employee is currently employed as an educator at Kgomotso Comprehensive High School. In the present enquiry, the employee is facing the following charge:

“It is alleged that on 06 April 2021 while on duty at Kgomotso Comprehensive High School, you sexually assaulted a Grade 10 learner, leaner A, in that you spanked her on the buttocks.”

The employee registered a plea of “Not Guilty” to the charge. The employer called four witnesses, three of whom were learners while the employee did not call a witness. Evidence was recorded digitally, and typed notes were taken.

SURVEY OF EVIDENCE AND ARGUMENT:

Employer’s Evidence

[5] Miss A, testified that she is a learner at Kgomotso Comprehensive High School. She is currently doing Grade 10. During the month of April 2021, she arrived at the school to attend Physical Science lessons. She had told Mr Baloyi that her Compact Disc (CD) was broken, and she asked if he could assist her in uploading the work on her CD. Mr Baloyi posted a message on the WhatsApp group chat that she could come and collect the CD. Also, while still in her Physical Science class, another learner, leaner B, came and told her that Mr Baloyi wanted to see her. She went to Mr Baloyi’s who was at the laboratory and found him alone. Mr Baloyi asked her to write her name on the CD. As she was writing her name, Mr Baloyi spanked her on her buttocks. She told Mr Baloyi that she was going to report him, and his response was to ask her who she was going to report him to. She is not sure if she left her CD behind, but she left and went home.

[6] She reported the incident to another teacher, Miss Makena and other teachers. Miss Makena advised her to write a letter where she would explain to Mr Baloyi that she did not like what he did. She however did not write the letter because she felt that she was not being taken seriously. She decided to report the incident to her parents. She was angered by what Mr Baloyi did because she did not expect that he would do such a thing to her as a learner. She had also told a fellow learner, learner C, who had advised her to report the incident to Miss Makena.

[7] The second witness, leaner B, testified that she is seventeen years old and a learner at Kgomotso Comprehensive High School and is doing Grade 10. She knows A and also does know Mr Baloyi. A told her and Miss C that Mr Baloyi had touched her buttocks. The incident happened in the morning between the 8th of April 2021. She only told her to report the incident and did not say anything else. C did not tell her who she went to report to. The relationship between her and Mr Baloyi is just that of a learner/teacher.

[8] The third witness, leaner C, testified that she is a learner at Kgomotso Comprehensive High School, and she knows Mr Baloyi as the teacher at her school, but had never had any interaction with him. Her friend, A was sexually harassed by Mr Baloyi. On the 6th of April 2021, she was not at school. On the 7th of April 2021, she heard that A was in the class and was crying and not talking to anyone. She went to the class and asked A what was wrong. A told her that she was sexually harassed by Mr Baloyi by touching her buttocks. She had then accompanied A to go report the incident to Miss Makena. She did not go inside the office when Miss Makena interviewed A. Miss Makena had told A to write a letter expressing her dissatisfaction with Mr Baloyi’s conduct. She had then told A that writing a letter was not a good idea and that it appeared the teachers were not taking her seriously. She had then advised her to report the incident to her teacher. Her parents had signed a consent form where she agreed to be A’s witness. She was not forced to testify on A’s behalf.

[9] The fourth witness called by the employer was Mr Abram Modiba. Mr Modiba testified that she is the biological father of learner A. Her daughter reported to him that there was a teacher who sexually harassed her at school, and the teacher’s name is Mr Baloyi. On 10 April 2021, A told her that a teacher sent one of the learners to call her to the classroom and that the teacher had then spanked her buttocks and that when she asked the teacher what he was doing and when she told the teacher that she was going to report him, the teacher asked who she was going to report him to because no one can do anything to him. He went to school the following day and reported the matter to the principal. He was asked to write a statement and was told that the matter would be dealt with internally. A looked sad and was crying when she reported the incident. She stays with her aunt because her mother passed away. The school did not communicate with him until he got informed that he should come and testify at the hearing. He has never had issues with Mr Baloyi and according to her daughter, Mr Baloyi was a very good teacher.

Employee’s Evidence

[10] The employee, Mr Lucky Baloyi, testified that he has been employed at the Kgomotso Comprehensive High School since 07 January 2013. In the years that he has taught at the school, he has never been charged for any alleged sexual misconduct. He has known the learner, leaner A since February 2021. On 06 April 2021 during lunch time which he took around 11h00, A approached her at the assembly point and asked him to assist her with uploading her CD. He told her to buy a new one and she told him that she had a new CD. He had later sent a message via WhatsApp group messaging where he was asking A about where the CD was. A brought the CD to the laboratory, and he was busy on his laptop when A entered the laboratory. He had asked her to put the CD on the table and had asked her to collect the CD later. He however later got a letter of cautionary transfer. Between the 6th and the 12th of April 2021, he was never called and told that there was a complaint against him. He only became aware when he received a letter on 27 May 2021 advising him that he was being transferred.

[11] According to him, Circular 1 of 2016 on the procedure on how cases should be handled was not followed. After receiving the cautionary transfer letter, he did not resist. There was no communication given to him that since the 90 days had lapsed, there would be an extension. He never engaged in the conduct as alleged by the witnesses.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[12] Section 28 of the Constitution provides, among other things, that:

“Every child has a right –

“to be protected from maltreatment, neglect, abuse or degradation ”

Furthermore, the above Section also provides that:

“A child’s best interests are of paramount importance in every matter concerning the child”

The above provisions are therefore important consideration in deciding the issue before me.

[13] The charge against the employee was that he allegedly sexually assaulted a learner by spanking her on her buttocks. In this regard, the department alleged that the employee is guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act 76 of 1998 as amended (the Act). Evidence led by the employer was to the effect that the employee sexually assaulted the learner, learner A by spanking her on her buttocks. The employee denied the allegation.

[14] Having heard evidence, it is my finding that the employee is, on a balance of probabilities, guilty of the offence as alleged for the reasons I will be advancing later in this award. The employee is placed at the scene from the onset, and his and leaner A’s version of events leading up to the alleged incident of assault are not dissimilar. For an example, the version to the effect that the learner, A had approached the employee regarding a CD she wanted assistance with for uploading, was similar. That leaner A subsequently received a WhatsApp message sent by the employee via the WhatsApp Group was similar. That the employee also sent for A to go to his office at the laboratory is also similar and, lastly, that it was only learner A and the employee in the laboratory where the spanking incident allegedly occurred is also similar. What then appears to be in dispute is whether the incident occurred as alleged.

[15] According to the learner, A, it was when she was writing her name on the CD as instructed by the employee that the employee spanked her buttocks. The employee on the other hand, stated that when the learner arrived at the laboratory, he was busy on his laptop and had told the learner to put the CD on the table and to come and collect it later. It was, of course, only the learner and the employee that were in the laboratory and nobody else. The question therefore becomes one of whose version should be believed. It is now generally accepted that incidents of sexual assault often happen just between the perpetrator and the victim and seldom happen in the glare or presence of witnesses, for obvious reasons. In that regard, probabilities become a consideration in deciding whether sexual assault did occur.

[16] In the present case, all of the learner witnesses, testified that the employee was a good teacher. Learner A also appears to have only good things to say about the employee as an educator, at least before the incident, because her father, who also was a witness in the enquiry, testified that while he had never met the employee before, his daughter had told him that the employee was a good teacher. Learner A has been only at the school since 2021 and had not had much time at the school before the alleged incident occurred, with the interaction and the relationship she had with the employee appearing to be that of learner/teacher. A, during cross-examination, spoke good about the employee and stated that “he was a good teacher and welcomed all of us.”

[17] The other two learners, B and C, while both appeared to have reservations about the punishment the employee allegedly meted out for no apparent reasons, at least according to them, and while learner B in particular, stated under cross examination that about three learners had said the employee was a pervert, both conceded that the employee was a good teacher. That being the case, the question that then begs an answer is: Why would the four witnesses called, who appeared to have no serious issues or history of animosity towards the employee, suddenly gang up against him without sufficient cause? Is it probable that their version is a mere fabrication? The answer, based on the evidence before me, is an emphatic “No”. It is highly unlikely that a learner, in the person of leaner A, who previously had no issues whatsoever with the employee and who, on the contrary, spoke glowingly about the employee to her father, would suddenly claim that the employee sexually assaulted her.

[18] Also, until the incident was reported to him, A’s father had only heard good things about the employee. He stated during cross examination that he had had no issues with the employee and that he believed he was a responsible teacher according to what he had been told by her daughter. In that regard, it is my finding that his version of the sexual assault reported to her by her daughter is not far-fetched and that it is probably true. Furthermore, the state the leaner was in after the incident occurred as described by the fellow learners and her father is such that her version of events could not have been manufactured or fabricated. The witness’s version was that the learner was upset and that she was crying. Her father, who had gone to see the learner after receiving the report at the place she is staying with her aunt since her mother passed away, stated during cross examination that when he arrived at the residence where her daughter was, he found her crying.

[19] I now deal with the question of the likelihood that learner A was used by leaner B as contented by the employee. After having heard evidence, it is my finding that this claim is far-fetched and could simply not be sustained. The employee, in supporting the claim that the learner was used, referred to an incident of a class change that happened a year before which supposedly caused the other two learners, in particular leaner C, to be upset with the employee. In that regard, the employee’s representative put to A that she was being used by learner C who had a score to settle with the employee. Learner A however did not have knowledge of same and stated that C never said anything about the incident. Strangely, this version was not put to learner C. It was to learner B that the incident of the class change was raised, and not learner C that the employee alleged had a score to settle with him. On a question I posed on whether the employee could think of any reason that would cause the learner to claim that he spanked her on her buttocks if he did not, he responded by claiming that he suspected that the learner was incited by other teachers at the school. He referred to numerous incidents that were of concern to him. But on my asking whether he had lodged a grievance about these incidents, his response was that he did not. But I was left unconvinced that these incidents had anything to do with the learner’s complaint.

[20] I find the employer to have proved the charge against the employee. While the onus rest on the employer to prove the allegation against the employee, courts have set out the principle on evidentiary burden on the part of the employee. In other words, while the employer bears the onus and where the employer has presented as such weighty evidence that it requires rebuttal, lest it be believed, the evidentiary burden shifts onto the accused employee to prove otherwise. In outlining this principle, the court in Emfuleni Local Municipality v SALGBC and others held as follows:

b) “While the overall onus never shifts from the Employer, the need to present or counter evidence may rest on different parties.

c) Once the Employer has proved its allegations with evidence to a degree that its version requires an answer or rebuttal lest it be believed, the evidentiary burden shifts onto the accused Employee to prove otherwise.”

The employee in the present enquiry has dismally failed in this regard.

[21] The court, in the same judgment, raises another important principle when it held as that:

d) “An employee is not entitled to the benefit of the doubt as to the convincing nature of his or her explanation. On raising a particular defense, an evidentiary burden falls on the Employee to establish that his or her version is likely. It is not necessary for the Employer to adduce evidence to disprove positively a defense, especially if the defense is within the unique knowledge of the Employee.”

If the employee’s defense, as it was, was that the learner who lodged a complaint against him was used or incited or influenced by the other learner, C, and the two teachers he belatedly referred to as having been the possibly cause of the learner reporting the allegation against him, he needed to present as such evidence as would place weight on his claim. The information about learner C having used A and the information about the two teachers he alleged incited learner A is within the employee’s unique knowledge. It is information that the employer is not aware of and was never brought to its attention. He thus needed to adduce evidence showing that the claim he made is likely. But he failed in this regard, and his explanation or defense amounted to no explanation and did little, if at all, to negate the weighty evidence by the employer.

[22] The teaching profession is a unique profession. It is unique in that a teacher or an educator is no ordinary employee. More than being a parent to learners because learners spend most of their time at school with teachers, a teacher or educator is one relied upon by parents to protect and look after the welfare of learners. Also, educators are relied upon to produce future leaders of the country. An educator thus should be mindful at all times that he gets looked upon by learners not only as a source of and one who imparts knowledge, but as someone who mirrors what a good citizen, a future parent and leader of society should conduct him or herself. To this end the South African Council of Educators (SACE) Code of Professional Ethics provides that educators: “respect the dignity, beliefs and constitutional rights of learners and in particular children” and that educator 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.”

[23] Accordingly, any untoward behaviour by an educator against a learner, especially conduct of a sexual nature, is frowned upon. Given the above background, it is not unreasonably to mete out the harshest of sanction where an educator is found to have engaged in such conduct.

[24] The employee had raised the issue, albeit belatedly, of the employer having not complied with the provisions of Circular 1 of 2016 insofar as the procedure that the employer needed to follow. The issue of the procedure in terms of the above circular was not raised by the employee and his representative during the pre-enquiry engagement. Parties had also held a pre-enquiry meeting and concluded minutes to that effect. The minutes do not reflect that the issue of any procedural defect arose. But even if it arose, I would still not be persuaded that the employee suffered any prejudice. He was served the charge timeously and as early as June 2021, he was served with a letter by the District Director alerting him of the allegation against him and giving him an opportunity to make representations on why he should not be charged for misconduct. The employee responded by way of a letter written by his trade union on 15 June 2021, after which date the employee was served by the Head of Department with a notice dated 22 July 2021 to appear for a disciplinary hearing. If one has regard to all of these facts, it becomes clear that the employee did not suffer prejudice and had an opportunity to be heard and was given an opportunity to make representations on why he should not be charged for misconduct before convening of the enquiry by the Council. I perhaps should mention that I took issue with the issue of procedural unfairness being introduced in an ambush-like fashion or as an afterthought. As the Court held in National Union of Mineworkers obo Botsane v Anglo Platinum (Rustenburg Section) engaging in conduct as stated above does not serve to produce a fair adjudication process. While the above case dealt with introduction of the issue inconsistency, I find the principle set in the above judgment on ambush-like introduction of issues to apply in the present case in so far as the procedural issue being brought in the manner that the employee did, which was at almost the end of the enquiry.

[25] In the circumstances, I make the following award:

AWARD

[26] I find the employee, Mr Lucky Baloyi, guilty of the charge that preferred against him and I, as a consequence, impose a sanction of summary dismissal effective from 14 October 2021.

[27] 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.

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

Monde Boyce
Panelist: ELRC