27 September 2022 – ELRC901-21/22 KZN

IN THE ELRC: INQUIRY BY ARBITRATOR BETWEEN:

THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer
and
S K Kweyama The Employee

Inquiry by arbitrator-finding

Case Number: ELRC901-21/22 KZN

Dates of arbitration: 12, July 2022 & 5 September 2022

Date for closing arguments: 12 September 2022

Date of award: 23 September 2022

J KIRBY
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion

DETAILS OF HEARING AND REPRESENTATION

1. The inquiry by arbitrator commenced on 12 July 2022 and the hearing of evidence was finalized on 5 September 2022. The hearings were held at the Durban Teachers’ Centre. The parties requested and were granted permission to submit written closing arguments by 12 September 2022.
2. The Employee, S K Kweyama (Kweyama,) was represented by Mr Mthimkhulu, a SADTU official. A bundle of documents marked exhibit A was submitted on behalf of the Employee.
3. The Employer, the Head of the KwaZulu-Nata l Department of Education was represented by its employee, Ms Mtetwa. A bundle of documents, marked exhibit B, was submitted on behalf of the Employer.
4. Although the learner referred to in these proceedings has turned 18 years of age, given the nature of the charges and in order to protect her privacy I shall refer to her throughout this award as “the Learner.” Her mother also testified and I shall refer to her as “the mother.” A child gave evidence with the assistance of an intermediary and I shall refer to this witness as “the child.”
5. The proceedings were interpreted and digitally recorded.

EXPLANATION OF THE EMPLOYEES’ RIGHTS

6. At the commencement of the hearing, I explained the following rights to Kweyama, who confirmed that he was aware of and understood these rights:
6.1. The rights to question witnesses of the Employer and to dispute any documentary evidence. In particular, I stressed the need to ensure that any evidence with which he did not agree was disputed by his representative and the need to ensure that his version was put to each witness; and
6.2. The right to give evidence and to call witnesses.
7. Kweyama confirmed that he had been given written notice of the alleged misconduct and that he had appointed his trade union to represent him. He had had sufficient time to prepare for this Inquiry.
8. It was explained to both parties, who indicated that they understood that:
8.1. A separate hearing in respect of sanction in event of a finding of guilty, would not be held. Evidence in mitigation and aggravation of sentence would be presented prior to a finding on the merits of the case having been given;
8.2. They could make closing arguments after all evidence had been heard; and
8.3. In terms of section 120 of the children’s Act I, as the arbitrator, acting on my own or on application of the Employer may make a finding that Kweyama is unsuitable to work with children. It was further explained that as with the question of sanction, that a separate hearing would not be held.

THE CHARGE, PLEAS AND PLEA EXPLANATIONS

9. The charges are at pages 10-11 of exhibit B and read as follows:
“Charge 1
It is alleged that on or about 12 November 2021 you allegedly committed an act of sexual assault on the Learner the then grade 10 C learner at Parkhill High School, in that you summoned her to follow you to your classroom and while she was in the classroom you tightly grabbed her arm and you kissed her all over the face. You thus committed an offence in terms of section 17(1)(b) of the Act.
Alternatively
On or about 12 November 2021 you allegedly whilst you were on duty at Parkhill High School conducted yourself in an improper, disgraceful or unacceptable manner towards the Learner, the then grade 10 C learner at the school, in that you summoned her to follow you to your classroom and while she was in the classroom you tightly grabbed her arm and you kissed her all over the face. You thus committed an offence in terms of section 18(1)(q) of the Act.
10. Kweyama pleaded not guilty to both the main and alternative counts. In explanation of his pleas he stated that he denied all elements of the charges as the charges were a fabrication.

SUMMARY OF EVIDENCE AND ARGUMENTS

The Employer’s case

11. The Learner turned 18 on 18 April 2022. She is currently in grade 11 at Parkhill High School (the School.) During 2021 she was in grade 10 at the School and Kweyama was her mathematics educator.
12. She wrote a statement in respect of the incident giving rise to the charges of misconduct and the statement is at page 4 of exhibit B.
13. On 12 November 2021and whilst standing with her friend, the child, Kweyama approached her and told her to accompany him to his classroom to collect certain papers.
14. He had followed her to the classroom and on reaching the classroom Kweyama had closed the door behind them and instructed her to look for the papers in the cupboard. She had found them on a table in the classroom. He had then held her hand, said that she must not say anything and pulled her towards him. He had then started kissing her on the neck. He was seated when he had kissed her. They were facing one another and he had his arms around her waist. He had held her softly. She had screamed “what are you doing?” He had responded by saying that she was not to say anything. On the other hand, she had written in her statement for the School principal at page 5 of exhibit B that she immediately started to cry when he had kissed her. She initially testified that just then the child had knocked on the classroom door. She subsequently testified that the child had called out her name. Kweyama had let the Learner go and she had left with the child. The incident had occurred at approximately 12:45 pm. It was the first time that such an incident had occurred with her.
15. The Learner did not report immediately to the child what had transpired as she was still in shock. She had, however, told her after school when they were at the bus stop. She had also not initially told her mother about the incident.
16. She had only told her mother about 10 days after the incident. She was lying in her bed after having consumed rat poison. Her mother had woken her and assaulted her. She had then told her mother that Kweyama had tried to rape her. They had then reported the incident to the School principal the following morning on 22 November 2021.
17. The statement that she had written in her own handwriting for the School is at pages 4-5 of exhibit B. In the statement the Learner states that she cried when Kweyama started to kiss her. Her mother had been present when she had written the statement on 3 December 2021.
18. She had also reported the incident to the police on 22 November 2021 and her statement to the police is marked A5 at page 1 of exhibit A. The statement had been written by the police officer and read out to her. In the statement she is recorded as having stated that she “screamed out loud” when Kweyama had started to kiss her. It was put to her that this contradicted her statement given to the School in which she had stated that she had cried when Kweyama had kissed her. She did not know that she could correct what the officer had recorded. It was the first time that she had deposed to an affidavit.
19. Under cross-examination the content of the report by the School principal was put to the Learner:
19.1. The Learner denied having told the School principal that Kweyama had blocked the doorway preventing her form leaving the classroom after he had told her that he wanted to kiss her, as recorded in the second paragraph of the report at page 1 of exhibit B; and
19.2. She confirmed having told the School principal that Kweyama had kissed her cheek as reported in the second paragraph of the report at page 1 of exhibit B.
20. With regards to her statement at pages 4-5 of exhibit B:
20.1. It was put to the Learner that in her statement at page 5 she had stated that Kweyama had held her arms so tightly that she couldn’t move whereas she had testified that he had held her softly. She stated that he had not held her “so tight.” He had held her around the waist and then on the upper arms (as indicated by her) when he had kissed her;
20.2. At page 5 of exhibit B she had said that Kweyama had kissed her face. When she was asked where on her face he had kissed her, she indicated with her hands that it had been on her cheek and neck area;
20.3. She had stated in statement to the police at page 1 of exhibit A that she had noticed the child by the door. When it was put to her that she couldn’t have done so as on her version the door had been closed, she had stated that she did not mean that she had seen the child. She had meant that she had recognized the child by her voice when she had called out to her from outside the door;
20.4. As recorded in the statement in the last paragraph on page 5 of exhibit B, immediately after she had left the classroom the child had asked her “why you?” She had eventually told the child what had happened after school as they had approached the tunnel leading to the bus stop. It was put to her that this contradicted her evidence in chief that she had told the child when they were at the bus stop. The Learner denied that she had contradicted herself.
21. The child is 16 years old and is currently a learner in grade 11 at the School. She is a friend of the Learner and knows Kweyama as an educator at the School. Her statement that she provided to the School principal is at page 7 of exhibit B.
22. On 12 November 2021 whilst she was waiting outside the computer laboratory for a report, she was joined by the Learner. After Kweyama had walked past them and reached the stairway, he had summoned the Learner to collect papers from his classroom.
23. When she had received the report for which she had been waiting, she went to Kweyama’s classroom. As the door was closed she had peeped through the keyhole. She had seen Kweyama sitting on a chair facing the door with the Learner standing between his legs. Kweyama had his hands at her waist. He was not wearing his mask and was licking his lips. She was shocked by what she had seen as she thought that it meant that the Learner was a learner who slept with educators.
24. She had asked the Learner why she had done it whilst they walked towards the tunnel after school. The Learner had said that she did not understand the circumstances in which she had found herself. She had then asked the Learner whether Kweyama had forced himself on to her. She had cried and said yes. She said that he had kissed her on her cheeks. She advised the Learner to inform her parents.
25. Under cross-examination the child had testified that it is her custom to look through the keyholes of closed doors before knocking. She could not remember whether she could see Kweyama’s legs when she peeped through the keyhole but in any event from the position in which the Learner was standing, she could conclude that she was standing between his legs with his hands around her waist. It was put to her that she would not have been able to see Kweyama’s upper body as her view would have been blocked by the Learner’s body. She maintained that she could see him facing her at the door.
26. After she had peeped through the keyhole a second time, she had knocked and called out the Learner’s name. (This contradicts her statement given to the School principal at page 7 of exhibit B in which she states that after she had knocked on the door, it was the Learner who had called out her name.) The Learner had acknowledged her and then opened the door. She had shown no emotions and was silent. The Learner had started to cry later outside the School premises when she had started to narrate the events to her. This had been before the tunnel. The bus stop is before the tunnel.
27. The Child had told her mother about the incident.
28. She had also given a statement to the police.
29. The mother of the Learner testified that on a Sunday evening (the date of which she cannot recall) she had gone to the Learner’s bedroom where she found her sleeping. Next to the bed were a glass containing a red liquid and a pack of Ratex poison. She had shaken the Learner until she had woken. When asked why she had taken Ratex the Learner had stated that her life was a mess and she had then gone on to state that Kweyama had kissed her in his classroom. On the following Monday morning she had reported the incident to the School principal.
30. While the report of the principal at page 1 of exhibit B records that the mother had said that the Learner had told her that Kweyama had told her to remove her underwear, she stated that she had not said this to the principal.
31. Under cross-examination the mother testified that she had noticed a change in the Learner’s behaviour. She would not eat and would come home and go straight to her bedroom. Her behaviour had changed since the Friday on which she had written examinations.
32. The case was then adjourned for the School principal to testify but on resumption on 5 September 2022 the Employer closed its case without calling any further witnesses.

The Employee’s case

33. Kweyama testified that he had been an educator at the School since January 2017. He is one of approximately 8 male educators.
34. On the day in question he had been preparing material for upcoming examinations. At approximately 11 am he had taken his laptop to the computer room to print and then make copies of the material that he had prepared.
35. Whilst he was busy at the computer room the bell rang for the end of the session. As such, Kweyama had to leave the computer room to go to the room where the examination answer papers would be delivered after the examination. He was carrying his laptop in its carry bag and he asked the child to load the copies that he had made at the computer room into his arms. The Learner then approached and he asked her to assist him in taking the documents to his classroom. She had done so and followed him.
36. On reaching the classroom he had unlocked the door and entered. The door was not well fitted and it scraped against the floor when opened so when they had entered, it was only partially open. He did not close the door behind them. He had told the Learner to place the documents on the table that was up against the wall, which she did. There was then a knock at the classroom door and when he had asked who was there, he did not get a reply. From where he was sitting he could not see who was at the door and so he had asked the Learner to check for him. She had gone to the door and said that it was the child and the two of them had then left.
37. On 27 January 2022 he was summoned to the office of the School principal. He was accompanied by his site steward and at the office were the principal and the Learner’s mother. He was then informed by the principal that the Learner had accused him of sexual assault in that he had kissed her all over her face. He had relayed to those present the same version that he had given to this hearing.
38. Under cross-examination he stated that following his arrest arising from the Learner’s complaint to the police he had asked the School for video footage of the areas at and around his classroom. This footage would have established that his version was correct; namely, that the Learner had followed him to the classroom and that the child had not peeped through the keyhole. He was informed that the video cameras were not working and that no footage was available.
39. Kweyama conceded that his versions that the child had not peeped through the keyhole as the door had not been closed and that the Learner had followed him to his classroom assisting him in taking documents to the classroom and not as testified to by the Learner and the child that the Learner had been sent by Kweyama to collect documents from his office and that he had followed her to the classroom, had not been put to the Employer’s witnesses. He had misunderstood the instruction given at the beginning of the arbitration to mean that he must take notes of any evidence with which he did not agree and deal with these discrepancies when he testified.

SUMMARY OF ARGUMENTS
40. No closing arguments were submitted on behalf of the Employer by the stipulated date of 12 September 2022. They were subsequently received on 14 September 2022 but in fairness to the Employee, I did not consider them as they were late.
41. Closing arguments were submitted on behalf of the Employee. The essence of the arguments was that the Employee ought to be found not guilty as the witnesses called by the Employer were unreliable and not credible witnesses. In short, it was submitted that they had contradicted themselves and/or one another in that:
41.1. The Learner had testified that Kweyama had held her by the arms whereas the child had testified that he had his arms around her waist;
41.2. The Learner had testified that Kweyama had held her by the arms softly whereas she had stated in her at page 5 of exhibit B that he held her so tight that she could not move;
41.3. The Learner had testified that she had noticed the child at the door whereas it was both of their evidence that the door was closed and the Learner had had her back to the door;
41.4. At page 1 of exhibit B the School principal reported that the Learner had told her that Kweyama had blocked the doorway preventing her from leaving the classroom whereas the Learner and the child had both testified that Kweyama had been seated with the Learner between him and the door; and
41.5. It was further recorded at page 1 of exhibit B that the mother had reported to the School principal that Kweyama had instructed the Learner to remove her underwear whereas this had been denied when the mother and Learner had testified.
42. It was further submitted that I should be cautious in accepting the evidence of the Learner as the alleged revelations had only been made by the Learner after she had been disciplined by her mother for having taken rat poison.

ANALYSIS OF EVIDENCE AND ARGUMENT

43. The Employer is required to prove on a balance of probabilities that the Employee is guilty of the alleged misconduct with which he has been charged.
36. On the first day of the hearing the Employer called three witnesses; namely the Learner, the child, who is an alleged eye witness and the mother of the Learner to whom the Learner reported the alleged misconduct sometime after the alleged incident. The hearing had then been adjourned to enable the Employer to call the Principal of the School as a witness but on resumption of the hearing, she was not called and the Employer’s case was closed without any further witnesses having been called.
37. With regards to the evidence of both the Learner and the child, I am satisfied that they are both sufficiently mature to understand the purpose and seriousness of these proceedings. They both gave their evidence in a calm manner and in the following respects their respective evidence is consistent:
37.1. They had been outside the computer room when Kweyama had approached them and asked the Learner to collect certain documents from his classroom;
37.2. At the classroom the Learner was standing in front of Kweyama, who was seated;
37.3. The classroom door was closed;
37.4. Kweyama had kissed the Learner;
37.5. Afterwards the Learner had informed the child that Kweyama had kissed her against her will.
38. In weighing up the reliability and credibility of their evidence I need to consider the evidence in totality having regard to any internal contradictions and any contradictions with other evidence presented at the hearing. In this regard, a report by the School principal was included in the bundle of documents (exhibit B) submitted by the Employer. As already indicated the principal was not called as a witness and her report is clearly hearsay. It was, however, submitted on behalf of the Employer and I cannot ignore its content when deciding whether the Employer has established the guilt of Kweyama. Any confusion caused by the content of the principal’s report could have been cleared up if the Employer had called her as a witness. Once I have evaluated the evidence of the Employer’s witnesses and need to similarly evaluate the evidence of the Employee and then determine which version is the more probable.
39. Having regard to the evidence, the written statements of the Learner and child and the report of the principal, a number of contradictions, as summarized below, in the versions of the Employer’s witnesses emerge:
39.1. It was reported by the principal that it had been reported to her that Kweyama had blocked the doorway preventing the Learner from leaving whereas both the Learner and child had testified that Kweyama had been seated facing the door with the Learner facing him and with her back to the door when he had kissed her;
39.2. The principal reported that it had been reported to her that Kweyama had instructed the Learner to “take her panty off” whereas this was denied by the Learner and her mother;
39.3. The Learner testified that she had preceded Kweyama in walking to his classroom whereas the child testified that after Kweyama had passed them in the passage and had reached the stairway on his way to his classroom, he had summoned the Learner to accompany him;
39.4. The Learner had stated in her statement for the School principal that she had cried immediately after Kweyama had started to kiss her whereas the child testified that on seeing the Learner in the classroom with Kweyama she was quiet and showed no emotion and that the Learner had only cried later when relaying the events to her;
39.5. The Learner testified that her initial reaction had been to scream “what are you doing?” when Kweyama had started to kiss her whereas in her statement to the School principal she had stated that she had started to cry;
39.6. The Learner and child had testified that the child had called out the Learner’s name from behind the closed door at the classroom whereas the child had written in her statement at page 7 of exhibit B that after she had knocked on the door it was the Learner who had called out the child’s name;
39.7. The Learner had stated in her statement at page 5 of exhibit B that Kweyama had held her arms so tightly that she could not move whereas she testified that he had held her softly;
39.8. The child had testified that Kweyama’s hands had been at the Learner’s waist whereas the Learner had initially testified that he had held her arms;
39.9. The Learner had initially testified that she had confided in the child at the bus stop, which is reached by passing through a tunnel. She subsequently testified that she had confided in the child before they had reached the tunell;
39.10. The Learner had initially testified that she confided in the child at the bus stop, which is reached after having passed through a tunnel.
40. The evidence of Kweyama is also open to criticism. In particular, it is highly improbable that it was merely due to a misunderstanding on his part that his version that the classroom door was not closed at the time of the alleged incident was not put to either the Learner or child. The child, in particular had been cross-examined extensively on what she could see through the keyhole. If his instructions had always been that the door was ajar as described by him, it is inconceivable that this cross-examination would have taken place if his version was simply that the door had been ajar and there was no need to peep through the keyhole.
41. Kweyama, however, does not have to prove his innocence. The onus is on the Employer to prove its case on a balance of probabilities. While many of the contradictions listed above taken alone would not detract from the reliability or credibility of the Employer’s witnesses, cumulatively they begin to cast doubt on their evidence. The Learner had been 17 years old when the alleged incident had occurred and had turned 18 by the time she testified. The child was 16 years old when she testified. They are not young children yet their versions differ on what happened when Kweyama allegedly kissed the Learner; the Learner testified that she cried immediately whereas the Child testified that she showed no emotion.
42. When it is further considered that the Learner only complained after she had been assaulted by her mother for having allegedly drunk rat poison, I am not satisfied that the there is sufficient cogency in the version of the Employer for me to find that the Employer has established on a balance of probabilities that the Employee committed a sexual assault on the Learner.